Vaijinath S/O Yeshwanta Jadhav … vs Afsar Begum W/O Naidimuddin … on 30 January, 2020


Supreme Court of India

Vaijinath S/O Yeshwanta Jadhav … vs Afsar Begum W/O Naidimuddin … on 30 January, 2020

Author: Ashok Bhushan

Bench: Ashok Bhushan, Navin Sinha

                                                                     NON­REPORTABLE

                                     IN THE SUPREME COURT OF INDIA
                                      CIVIL APPELLATE JURISDICTION


                                    CIVIL APPEAL NO(s).652 OF 2020
                              (arising out of SLP (Civil) No(s). 17418 of 2018)

                VAIJINATH S/O YESHWANTA JADHAV
                DECEASED BY L.R. AND OTHERS                   ...APPELLANT(S)

                                                 VERSUS
                AFSAR BEGUM, WIFE OF
                NADIMUDDIN, DECEASED BY
                L.Rs. AND OTHERS                              ...RESPONDENT(S)


                                                  JUDGMENT

NAVIN SINHA, J.

The appellant assails the order dated 01.02.2010 dismissing

his writ application and the affirmation of the same by the Division

Bench dated 19.03.2018, in appeal.

2. The predecessor of the appellant was granted the status of a

statutory tenant under Section 38E(1) of the Hyderabad Tenancy

and Agricultural Lands Act, 1950 (hereinafter referred to as ‘the
Signature Not Verified

Digitally signed by
ARJUN BISHT
Date: 2020.01.30
16:09:36 IST

Act’) with regard to Survey No.189 and 202/AA in village Ghat
Reason:

Nandur on 01.02.1959. The original land owner Nadimuddin,
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predecessor of the respondents nos.1 and 2 (hereinafter referred to

as ‘respondents’), filed an application under Section 44 of the Act for

resuming the lands for personal cultivation. It was rejected on

22.04.1960. Nadimuddin did not challenge the rejection till his

death on 21.01.1962. The statutory certificate was then issued to

the appellant predecessor on 24.03.1970 after examination by the

Agricultural Land Tribunal Ambajagai under Section 38E(2) of the

Act. The respondents, sons of Nadimuddin, laid a fresh challenge to

the certificate dated 24.03.1970 after the latter’s death. It was

rejected by the Deputy Collector on 19.04.1971, affirmed by the

Maharashtra Revenue Tribunal (hereinafter referred to as “the

Tribunal”) on 09.11.1971. The respondents then filed Regular Civil

Suit No.73/1972 for declaration of title with regard to the suit lands

and that the certificate issued to the predecessor of the appellant by

the Land Tribunal was null and void. The suit having been decreed,

was reversed in appeal by the Extra Assistant Judge, Beed in

Regular Civil Appeal No.122/1976 inter alia rejecting the challenge

that the Land Tribunal did not follow the procedure before issuance

of the certificate. The dismissal of the suit attained finality as the

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respondents, legal heirs of Nadimuddin, did not challenge it before

any superior forum.

3. On 26.05.1981, Afsar Begum, wife of Nadimuddin and mother

of the respondents, filed a fresh appeal before the Deputy Collector

challenging the certificate dated 24.03.1970 only with respect to

Survey No.202/AA contending that she was unaware till January

1981 of the mutation entries in the name of the appellants. The

Deputy Collector by order dated 20.01.1983 remanded the matter to

the Additional Tehsildar. The Additional Tehsildar on 23.12.1987

held that in absence of proper entries in the tenants register, the

predecessor of the appellant could not be held to be a protected

tenant. The Deputy Collector in the appeal preferred by the

appellant, on 30.12.1988 set aside the order of the Additional

Tehsildar and ruled in favour of the appellant upholding the

declaration of ownership rights under Section 38E(1) of the Act.

Afsar Begum preferred a revision which was allowed by the Tribunal

on 21.09.1990, affirmed by the Single Judge and the Division

Bench, and which are impugned in the present proceedings.

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4. Shri Vinay Navare, learned senior counsel appearing on behalf

of the appellant, submitted that the status of the appellant as a

protected tenant having achieved finality by the order of the

Tribunal dated 09.11.1971 at the behest of the respondents read

along with the dismissal of Regular Civil Suit No. 73/1972, it was

not open for the wife of the deceased, who was none other than the

mother of the respondents, to challenge the very same certificate

24.03.1970 by subterfuge, eleven years after its grant and ten years

after the order of the Tribunal. Even if for the sake of argument,

though not conceding, the order of the Tribunal dated 09.11.1971

was erroneous, it having attained finality, the Tribunal could not

have virtually sat over its own earlier order as an appellate forum to

arrive at a contrary finding. The appellant could not be vexed twice

on the same issue, once by the sons of Nadimuddin and then

belatedly by his wife Afsar Begum. The latter has since been

deceased, and has been substituted by the respondents. The effect

of the impugned order is that what was denied to the respondents

directly will now be made available to them indirectly by virtue of

litigation which was not at all bonafide. Reliance was placed on

Cheeranthoodika Ahmmedkutty and another vs. Parambur

4
Mariakutty Umma and others
, (2000) 2 SCC 417, R.

Unnikrishnan and another vs. V.K. Mahanudevan and others,

(2014) 4 SCC 434.

5. It was next submitted that the dismissal of the appeal

preferred by respondents in their own status as legal heirs of

Nadimuddin by the Tribunal on 09.11.1971, albeit on the grounds

of limitation, nonetheless is a final order on merits relying on

Shyam Sunder Sarma vs. Pannalal Jaiswal and others, (2005)

1 SCC 436.

6. Shri Vivek C. Solshe, learned counsel appearing on behalf of

the respondents, submitted that the order of the Tribunal dated

21.09.1990 as affirmed by the High Court is well considered and

reasoned. Merely because a certificate may have been issued

erroneously to the appellant, nothing precluded the Tribunal from

correcting that wrong as obviously the certificate was not properly

obtained and procedures for issuance and enquiries were not

followed. The High Court has essentially exercised supervisory

jurisdiction in view of the perversity of findings upholding an
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erroneous certificate. The mere fact that the errors were discovered

on a fresh appeal preferred by the widow of the deceased does not

detract or lend validity to the earlier certificate as the name of the

appellant did not find place in the register of tenants.

7. We have considered the submissions on behalf of the parties

and have been taken through the various orders passed in the two

rounds of litigation preferred first by the respondents and then by

Afsar Begum. The respondents do not dispute the status of the

appellant as a tenant. The attempt at restoration of the lands by

Nadimuddin for personal cultivation was rejected on 22.04.1960

and was never questioned by Nadimuddin till his demise on

21.01.1962. What is sought to be disputed by the respondents, the

legal heirs of Nadimuddin, is the appellant’s status as a protected

statutory tenant. Originally the respondents questioned the same

with regard to the Survey Nos. 202/AA and 189. Subsequently Afsar

Begum confined the challenge to the former only acknowledging the

status of the appellant as a protected tenant on the latter. The

appellants’ predecessor was granted statutory status as far back as

01.02.1959 under Section 38E(1). Final certificate under Section

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38E(2) was then granted to the appellant on 24.3.1970 by the Land

Tribunal and deposit of the necessary amount was made before the

Land Tribunal. It is considered proper to set out Section 38E (2)

and (3) of the Act as follows:

“(2) A certificate in the prescribed form declaring
him to be owner shall be issued by the Tribunal to
every such protected tenant and notice of such
issue shall simultaneously be issued to the
landholder. Such certificate shall be conclusive
evidence of the protected tenant having become the
owner of the land with effect from the date of the
certificate as against the landholder and all other
persons having any interest therein:

xxxxx
(3) Within 90 days from the date specified in a
notification under sub­section (1) every landholder
of lands situated in the area specified in such
notification shall file an application before the
Tribunal for the determination of the reasonable
price of his interest in the land which has been
transferred to the ownership of a protected tenant
under sub­section (1) [and if an application is not
so filed within such period by a landholder but a
certificate under sub­section (2) has been issued,
the Tribunal may suo motu proceed to determine
such price and thereupon] all the provisions of
subsections (4) to [(9)] of section 38 shall mutatis
mutandis apply to such application:

xxxxx”

8. Subsequent to the issuance of the statutory certificate, the

respondents on 08.07.1970 preferred an appeal before the Deputy

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Collector with the plea that Nadimuddin was a sick man and was

therefore unable to challenge the declaration in due time. The

Deputy Collector by his order dated 09.11.1971 after consideration

of documentary evidence concluded that no such ailment of

Nadimuddin had been presented which may have prevented him

from pursuing his remedies evident from the application preferred

by him under Section 44 of the Act and which stood rejected with

finality on 22.04.1960. The dismissal of the appeal on grounds of

limitation was upheld by the Tribunal. The respondents did not

assail the orders. Two years later they filed Regular Civil Suit No.

73/1972 for declaration that they were the owners of the lands in

Survey No. 202/AA and that under Section 38E certificate granted

to the appellant was a nullity. The suit was decreed but the

Appellate Court reversing the decree held that the findings of the

Land Tribunal leading to the certificate dated 24.03.1970 could not

be examined by the Civil Court and that no case has been made out

by the respondents that the Land Tribunal had failed to follow the

procedure under the Act and the Rules in awarding the certificate.

The respondents did not prefer any challenge to the dismissal of

their suit.

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9. Ten years after the dismissal of the appeal filed by

respondents, by the Deputy Collector on 09.11.1971, Afsar Begum,

the widow of Nadimuddin and mother of the respondents, filed a

fresh appeal before the Deputy Collector to challenge the statutory

status order dated 01.02.1959 and the statutory certificate dated

24.03.1970. She did not assail the status of the appellant as a

protected tenant with regard to Survey No.189. It is necessary to

take note that the Land Tribunal had granted a composite certificate

as protected tenant to the appellant on 24.03.1970 for both Survey

Nos. 189 and 202/AA. The assertion that it was issued behind the

back of Nadimuddin is falsified by the application preferred by

Nadimuddin under Section 44 for resumption of the lands and

which was rejected on 22.01.1960, but which finds no mention in

her memo of appeal. The appeal asserted that she became aware

only in 1981 of the mutation entries in the name of the appellant.

We consider it proper to take notice of the fact that it was not the

case of Afsar Begum that she was living separately from her two

sons, and was therefore unaware of all facts to the knowledge of the

9
respondents not only with regard to Nadimuddin but also the

applications preferred by the respondents and rejection of the same.

10. The Additional Tehsildar, Land Reforms, by his order dated

23.12.1987 held that the declaration of the appellant as protected

tenant was procedurally defective because the name of the appellant

did not find place in the tenants register. In the appeal preferred by

the appellant, the Deputy Collector took notice of the original order

of the Additional Tehsildar dated 29.04.1972 on an application

preferred by the respondents admitting the status of the appellant

as a protected tenant but that they had failed to pay the rent only.

The Deputy Collector also held that the declaration of ownerships

rights of the appellant over Survey No. 202/AA was therefore

binding on the legal heirs of Nadimuddin and which included his

widow, which could not be reopened. The Tribunal upholding the

order of the Additional Tehsildar dated 23.12.1987 virtually sat over

its own earlier order dated 09.11.1971 as an appellate forum, to

arrive at a contrary finding that the grant of protected tenant status

to the appellant was erroneous in view of the errors in the tenancy

register, notwithstanding the findings in the civil suit also that there

10
appeared no irregularity in procedure by the Land Tribunal. The

Land Tribunal being a statutory body, there shall be a presumption

of correctness of the orders passed by it.

11. It was not the case of the respondents that the statutory

certificate had been obtained by any fraud or misrepresentation by

the appellant in which case undoubtedly it would have been open

for reconsideration. The conclusion of the High Court that the

issuance of the certificate was “fictitious, unfounded and useless” by

reasons of being null and void is therefore completely

unsustainable. The decisions on the earlier occasion had been

rendered by a proper competent forum, after hearing the parties and

on perusal of records. An erroneous decision by a proper forum,

unless assailed before a superior forum will attain finality inter

parties.

12. In the facts of the present case, we find it very difficult to allow

the appellant to be vexed twice, once by the sons of the land owner,

then by his widow. We also cannot loose sight of the facts in the

present case that the ultimate beneficiary of the fresh orders shall

11
be the respondents even though they have lost their own challenge.

Resultantly what was denied to the respondents directly shall now

be available to them indirectly as Afsar Begum has since been

deceased. The fresh round of litigation started by Afsar Begum was

a mere subterfuge and an abuse of the process of law and courts by

essentially what is a proxy litigation.

13. In R. Unnikrishnan and another (supra), it was observed as

follows:

“19. It is trite that law favours finality to binding
judicial decisions pronounced by courts that are
competent to deal with the subject­matter. Public
interest is against individuals being vexed twice over
with the same kind of litigation. The binding
character of the judgments pronounced by the courts
of competent jurisdiction has always been treated as
an essential part of the rule of law which is the basis
of the administration of justice in this country. We
may gainfully refer to the decision of the Constitution
Bench of this Court in Daryao v. State of U.P. where
the Court succinctly summed up the law in the
following words: (AIR p. 1462, paras 9 & 11)
“9. … It is in the interest of the public at large
that a finality should attach to the binding
decisions pronounced by courts of competent
jurisdiction, and it is also in the public interest
that individuals should not be vexed twice over
with the same kind of litigation.

* * *

11. … The binding character of judgments
pronounced by courts of competent jurisdiction
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is itself an essential part of the rule of law, and
the rule of law obviously is the basis of the
administration of justice on which the
Constitution lays so much emphasis.”

20. That even erroneous decisions can operate as res
judicata is also fairly well settled by a long line of
decisions rendered by this Court. In Mohanlal
Goenka v. Benoy Kishna Mukherjee
this Court
observed: (AIR p. 72, para 23)
“23. There is ample authority for the proposition
that even an erroneous decision on a question of
law operates as ‘res judicata’ between the parties
to it. The correctness or otherwise of a judicial
decision has no bearing upon the question
whether or not it operates as ‘res judicata’.”

21. Similarly, in State of W.B. v. Hemant Kumar
Bhattacharjee
this Court reiterated the above
principles in the following words: (AIR p. 1066, para

14)
“14. … A wrong decision by a court having
jurisdiction is as much binding between the
parties as a right one and may be superseded
only by appeals to higher tribunals or other
procedure like review which the law provides.”

14. At this juncture we also consider it appropriate to take note of

the submissions that the dismissal of the appeal by the respondent

on grounds of limitation on 09.11.1971 gave a quietus to the matter

on merits also as observed in Shyam Sunder Sarma (supra) as

follows :

“9.1. In Sheodan Singh v. Daryao Kunwar rendered
by four learned Judges of this Court, one of the
questions that arose was whether the dismissal of an

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appeal from a decree on the ground that the appeal
was barred by limitation was a decision in the
appeal. This Court held: (SCR pp. 308 H­309 B)
“We are therefore of opinion that where a
decision is given on the merits by the trial court
and the matter is taken in appeal and the appeal
is dismissed on some preliminary ground, like
limitation or default in printing, it must be held
that such dismissal when it confirms the
decision of the trial court on the merits itself
amounts to the appeal being heard and finally
decided on the merits whatever may be the
ground for dismissal of the appeal.”

15. The impugned orders are therefore held to be unsustainable

and are set aside. The appeal is allowed.

.……………………….J.

(Ashok Bhushan)

………………………..J.

(Navin Sinha)
New Delhi,
January 30, 2020.

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