MOTA RAGHUNATH MARWADI Vs. SIDHRAM ANNAJI MANURKAR

JUDGEMENT

(1.) This is a Letters Patent appeal from the decision of Mr. Justice Barlee reversing the decree of the District Judge of Poona passed on appeal. The facts are simple. There was a dispute about a wall between the plaintiff and the defendant, who are neighbours. The first Court awarded the plaintiff's claim, and on appeal the District judge of Poona confirmed the decree on the ground that the matter was res judicata by reason of a suit in 1913 between the parties. On appeal Mr. Justice Barlee, sitting singly, reversed the decision of the District Judge on the ground that the question that was decided in 1913 was a boundary dispute with which the Court had no jurisdiction to deal, and, therefore, that decision does not bar the present suit by res judicata, and that in 1917 there was a demarcation of- the boundary line which showed that this wall was in defendant's land. Therefore, the plaintiff was not entitled to succeed. From that decision this Letters Patent appeal is presented.

(2.) In 1913 the present defendant brought a suit against the plaintiff's pre decessors for certain relief-s including a declaration that he was the owner of the wall now in suit. That was decided against him and an issue was framed as to the ownership of the wall and it was found that the defendant (i.e., the predecessor of the present plaintiff) was the owner of the wall. That decision would operate as res judicata. But it is contended that, when in 1917 the boundary between the two survey numbers, which are the same as the houses occupied by the parties, was fixed, that decision Under Section 121 of the Land Revenue Code is determinative, and that, therefore, as the wall falls within the boundary of the present defendant's survey number, the plaintiff cannot succeed. No doubt it has been laid down in a series of decisions which are referred to by Mr. Justice Barlee that the decision as to a boundary line between two plots is a matter for the Collector, and in Lakshman V/s. Antajt (1900) I.L.R. 25 Bom. 312 the Court was directed by this Court to ascertain whether there had been a decision by the Collector; and if there was no such decision, to order the plaintiff to apply to the Collector to secure a decision. It may be observed that in 1913 when the present defendant brought the suit already referred to, there had been no decision by the Collector as to the boundary. Had that suit proceeded on the question of the boundary between the two houses, it might be argued that that was a matter for the decision of the Collector under Section 121 of the Bombay Land Revenue Code. But from the judgment in that suit we find no reference to the boundary. The suit was decided on title and it was held that the wall belonged to the predecessors of the present plaintiff and not to the present defendant, and it would be a strange thing if several years after the decision in 1913, from which there was no appeal, and which, therefore, became final, it were possible to reopen the question by a decision of the Collector or the survey officer fixing the boundary between the two houses--a decision which deals with the boundary between two plots of land and has no direct reference to the wall in question.

(3.) It has been held by a bench of this Court in a recent decision in Kanhailal v. Ismailbhai (1926) 28 Bom. L.R. 1498, that the civil Court has jurisdiction to entertain a suit for settlement of boundaries of fields, where subsequent to the filing of the suit the boundaries have been determined by revenue officers. That view has been criticized by the learned Counsel for the respondent. It is, however, a decision of this Court and is binding upon us. But, in the present case, it is not necessary to go so far as that, because a perusal of the judgment in the suit of 1913 shows that there was no question of any boundary dispute but that the title to the wall was determined on the sale-deeds of the parties. It is quite true that neither party claimed to be in possession of any portion of the house beyond their own plot, and, therefore, no question of adverse possession or anything of the kind will arise. But it seems to me clear that the parties had not in mind when they went to the trial Court the question of the boundary, and with respect I do not agree with the decision of Mr. Justice Barlee that the real point was as to whether the wall was or was not within the boundary of survey No. 1245. In these circumstances I do not know how a subsequent decision with regard to the boundary between two survey numbers can have the effect of setting aside a judgment given four years earlier in which the ownership of the wall in dispute was decided in favour of the plaintiff, when that matter is clearly barred by res judicata; and although questions of boundaries are matters which are to be decided by the Collector whose decision is determinative, I do not think that we can hold that other consequences should flow from that which will have the effect of disturbing the decision which has already been given by a competent Court.