GALABJI KHODAJI Vs. MOOSAMIYA IMAM HAIDERBUX

JUDGEMENT

(1.) The petitioners claim to be the tenants of land bearing S. Nos. 141 and 142 situated in village Vasna. The said land was acquired for the purposes of a Co-operative Housing Society under notification under sec. 4 of the Land Acquisition Act 1894 dated the 10th December 1952 Thereafter by a notification under sec. 17(1) of the Land Acquisition Act dated the 25th of May 1953 applying emergency clause the possession of the said land was taken over from the petitioners. Proceedings under the Land Acquisition Act 1894 were then taken before the Additional Special Land Acquisition Officer Ahmedabad who fixed Rs. 65826.12 P. as compensation of the land acquired. As there were disputes regarding the apportionment of the compensation amongst the claimants the amount was forwarded to the Court now the City Civil Court for apportionment between the parties under secs. 30 and 31 of the Land Acquisition Act. The opponents Nos. 1 to 7 and 10 to 13 claim as Inamdars of the property. Opponents Nos. 8 and 9 claim to have a share in the amount of compensation as tenants of the land and as stated above petitioners claim their share as permanent tenants. In the proceedings before the Civil Court the parties filed their respective claims. On the 13th of April 1960 all the parties put in a Purshis before the Civil Court stating that the status of the parties as regards they being tenants is a issue which should be decided by the proper authority under the Bombay Tenancy and Agricultural Lands Act (hereafter referred to as the Tenancy Act) 1948 and therefore proper issue should be raised and be referred to the competent authority for its decision. On the same day the learned Joint Judge then in charge of the proceeding after taking into consideration the joint statement put in by the parties and after examining the position of law and the facts concerned decided to refer to the Mamlatdar the following point for his decision:-

(2.) Mr. M. C. Shah the learned Advocate for the petitioners made the following broad submissions in support of the application:-

(3.) As against that Mr. S. B. Vakil the learned Advocate appearing for opponent No. 1 submitted that the decision of the City Civil Court that the matter was res judicata is correct. The matter was sent to the Mamlatdar for his decision and when he rightly or wrongly decided that he had no jurisdiction to decide the issue the parties were bound by that decision as the latter had the jurisdiction to decide that question also If any of the parties were dissatisfied by that decision he ought to have challenged that decision before the higher authority under the Tenancy Act by way of appeal or revision as the case may be and not having done so they were bound by that decision on general principle of res judicata and that sec. 11 of the Civil Procedure Code may not directly apply. It was further contended by him that in any case when this Court is trying to determine the question as to whether the decision of the City Civil Court is right or not and when the applicants have attacked that decision on the ground that the City Civil Court should have held that under sec. 85A when a matter is referred to the Mamlatdar the Mamlatdar has no jurisdiction at all to go behind the reference and held that he has no jurisdiction to decide the issue referred to him and that the decision made by the Civil Court to refer the matter to it is binding on it is open to the opponents to urge that this argument is not open to the petitioners as they are stopped from doing so on the principle of constructive res judicata. The present petitioner should have urged all those grounds before the Mamlatdar himself to show that he has no jurisdiction to decide the question that he was authorised or had no jurisdiction to decide the issue referred to him. But if they have not so done they must on the principle of constructive res judicata be taken to have urged and the Court having decided them against the appellants. All these grounds which were tried to be urged before this Court on behalf or the petitioners should has been taken before the Mamlatdar and if they have not done so they cannot be allowed to raise them now before this Court or could not have been allowed to raise before the City Civil Court and therefore the Court below was right In holding that the application Ex. 83 was barred on the principle of res judicata. For the latter argument on the principle of constructive res judicata applying to the present case Mr. Vakil heavily relied upon the decision of Ushadevi Balwant v. Devidas Shridhar LVII Bom. L R. 275 wherein it was held that the plea of want of jurisdiction of the Court passing the decree cannot be entertained at a later stage of execution proceedings if it was not raised in the earlier stage when an altogether different point was taken and decided.