LAXMI GOUDA Vs. DANDASI GOURA

JUDGEMENT

(1.) This writ application arises out of a proceeding under the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 (Regulation 2 of 1956) (hereinafter referred to as the "Regulation"). The petitioners have been aggrieved by the order of the Officer on Special Duty (Annexure 4) directing restoration of possession in respect of Ac.3.750 decimals of land in favour of the present opp. parties of which the petitioners had been continuing in possession. The aforesaid order of the Officer on Special Duty has been confirmed by the Additional District Magistrate. Chhatrapur exercising appellate jurisdiction in Annexure-7. The prayer in the writ application is to quash Annexures 4 and 7.

(2.) The brief facts leading to the present case are as follows : The petitioners are the legal heirs of Raghunath Gouda who had purchased the disputed properties some in 1959 and the rest in 1961. The present opp. party No. 1 initiated a proceeding under Regulation 2 of 1956 before the Officer on Special Duty, Parlakhemundi for restoration of possession thereof on the self same allegations, but the same was dismissed by order dated 27-11-1972 in R.M.C. No. 84/72. The opp. party No. 1 again filed an application in 1979 praying for the very same relief out of which the present writ petition arises. It has been alleged that the application filed in 1979 was barred by the principle of res judicata as restoration of possession was sought for in respect of the very same land which was the subject matter in the earlier proceeding and relief was prayed for on identical grounds. The Officer on Special Duty after considering the evidence led by both parties dismissed the said application by order dated 31-10-1980, copy of which is Annexure-1 to the writ application. The present opp. party No. 1 carried up the Matter in appeal (Regulation Appeal No. 1/81) and the Additional District Magistrate after hearing both parties did not agree with the finding of the Officer on Special Duty that the proceeding is barred by res judicata and remanded the case for fresh enquiry and disposal by the Officer on Special Duty vide Annexure-2. On remand the Officer on Special Duty allowed the application of the present opp. party No. 1 with a finding that the transfer in favour of Raghunath Gouda was void and since the period of limitation necessary to acquire valid title is 30 years as per S. 7-D of the Regulation, neither the transferee nor his legal heirs could acquire title by adverse possession in respect of the properties covered by the sale deed. He, therefore, directed restoration of possession in respect of Ac.3.750 decimals of land and also imposed a penalty of Rs. 75/- which, if not paid within thirty days from the date of the order, would be realisable as arrears of land revenue, vide Annexure-4. Raghunath Gouda preferred an appeal before the Additional District Magistrate which was registered as Regulation Appeal No. 2/84 challenging the aforesaid order of the Officer on Special Duty. The appellate authority confirmed the same by his order dated 17-8-1988. Vide Annex.-7. The present petitioners being the legal hairs of late Raghunath Gouda have filed this writ application challenging the legality of the orders of the Officer on Special Duty and that of the appellate authority (Annexures 4 and 7 respectively) mainly on the following grounds :

(3.) So far as the first point relating to the question of res judicata is concerned, the materials on record are not sufficient to reach at a conclusion either way. The principle of res judicata which is based on the need of coming to a finality to judicial decisions is embodied, in relation to suits, in S. 11 of the Civil Procedure Code; but even where S. 11 does not in terms apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in the litigation. But in order that the said principle is to be made applicable, it must be shown that the former litigation was between the same parties or between parties under whom they or any of them claim litigating under the same title and the issues arising for decision in the subsequent litigation were directly or substantially in issue in the former one. The necessary documents such as the application of the earlier litigation and objection, if any, filed thereto, the order of the Officer on Special Duty indicating its decision on the question which arose for consideration, are necessary for determining as to whether the principle of res judicata would apply in the present proceeding. Except quoting the order passed by the Officer on Special Duty in the earlier proceeding (R.M.C. No. 84/72) in the writ application, nothing further has been filed by the petitioners. In the subsequent proceeding initiated in the year 1979 the plea of res judicata was taken up at the first instance and in order to substantiate the same, the decision of a previous case (R.M.C. No. 133/72) was produced and relied upon and not the decision in R.M.C. No. 84/72 reference of which has been made in the present writ application. In view of the aforesaid discrepancy and in the absence of materials, we do not find any force to sustain the plea of res judicata. It is well settled in law that the onus of proof lies on the party relying on the theory of res judicata, and since the same had not been discharged, the appellate authority rightly remanded the matter for fresh enquiry and to decide the case on merits. The first point is, therefore, answered against the petitioners.