K. Ramaswamy and; R.M. Sahai, JJ.
1. This is a second round of litigation at the behest of the appellants' father who had in the first instance ultimately suffered the decree against him in O.S. No. 314 of 1961. Initially a suit was filed against Respondents 4 and 5. That suit came to be decreed and confirmed in Second Appeal No. 1600 of 1970 by judgment dated December 22, 1970. It became final. Thereafter on the behest of the father, the appellants have filed O.S. No. 138 of 1971 for declaration that the decree in O.S. No. 314 of 1961 does not bind them and for perpetual injunction. The trial court granted the decree. On appeal, it was confirmed but in the Second Appeal No. 570 of 1977 by its judgment dated February 11, 1985, the High Court reversed the decree of the trial court and the appellate court dismissed the suit. Thus this appeal by special leave.
2. The main contention which was urged and accepted by the High Court was that the appellants' father was a party in the earlier suit and there was a finding in the earlier suit that the lands in question are abadi lands and therefore, the Consolidation Act has no application and the question of title to and entitlement for allotment of land cannot be gone into by the Consolidation Officer. It also held that Section 47 of the Civil Procedure Code operates as res judicata. On that basis the decrees of the trial and appellate courts were upset. It is contended by the learned counsel for the appellants that, since in the earlier suit, they are not parties it is not conclusive as against them. We find no force in the contention. A specific issue was raised in the earlier suit that the plaint schedule lands are abadi lands. It was found to be so in that suit. In this case also it was admitted by the appellants and the finding is one of fact recorded by the High Court culminated in the second appeal that the lands are abadi lands. The Consolidation Authorities are therefore, devoid of the jurisdiction to decide the title nor have power to consolidate and allot plots of the lands among the parties thereto. Under these circumstances, the question of title that has been gone into by the Consolidation Authorities was without jurisdiction and it is a nullity, therefore, the decree granted by the courts below are clearly illegal. The High Court is right in holding that the abadi lands are not subject to the consolidation proceedings. The decree of perpetual injunction is illegal. It does warrant interference by the High Court as the foundation on which the decree was granted is knocked off its bottom. Though the grant of injunction is discretionary, the same must be exercised on settled principles of law to advance the cause of justice. It is subject to correction by the appellate court. Equity does not lie in favour of the appellants. On the other hand it would border on abuse of process of court. The High Court did exercise sound discretion in setting aside the decree of perpetual injunction granted by the courts below. In that view it is not necessary to go into the second question of res judicata under Section 47 of the Civil Procedure Code in particular that the leave granted was confined only to the first question. Substitution application is allowed. The legal heirs are taken on record. The appeal is accordingly dismissed. No costs.