Presumption arising out of an entry in the survey records under section 105 of the Land Revenue Code is to be deemed as prevailing till the final adjudication of a suit challenging the right or title of the beneficiary of such entry which is apparently shown as based on possession. It is a settled position that such entry cannot be disturbed by affidavitary evidence, however strong it may be, or just overlooked on the strength of some other proof which would be normally permissible to establish possessory rights of the parties. In this respect the impugned judgment of the learned District Judge is manifestly a judgment passed in curiam and without taking into consideration the law as laid down by this Court on 24-12-82 in Civil Revision Application No. 50/B/82, Damodara Ranum Porobo Loundo v. Bhasker Jalmi and others. In that case it was observed that section 105 of the Land Revenue Code provides that any entry in the Record of Rights and a certified entry in the register of mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted by a fresh one. And while dealing with the use of affidavits to disprove the presumption the Court held that this presumption could not be rebutted on the basis of affidavitary evidence because such evidence was not tested by cross-examination. Affidavit evidence has got only prima facie value and does not constitute sufficient and conclusive proof to disprove and rebut a presumption that arises by law in respect of the entries made in the Record of Rights after due inquiry.
E.S. Da Silva, J.
1. The respondent filed a suit against the petitioners in the Court of the Civil Judge, S.D., Ponda, being Regular Civil Suit No. 32 of 88, for a permanent injunction to restrain them from interfering with his lawful possession in respect of the suit property situated at Betqui, Ponda, and bearing Survey No. 91/4. Along with the suit an application for temporary injunction was also made before the learned Trial Judge. That application was granted by the learned trial Judge who found the respondent to be in possession of the suit land. The petitioners then moved the learned District Judge who in appeal rejected their claim for possession and by the impugned judgment dated 5-7-89 upheld the finding of the learned Trial Judge. Hence the present Civil Revision Application.
2. Shri S.K. Kakodkar, learned Counsel for the petitioners, has submitted that the exercise undertaken by the respondent in filing Suit No. 32 of 88 was not possible under the law. The learned Counsel brought to my notice that the same respondent somewhere in the year 1986 had already filed a suit against the petitioners, being Regular Civil No. 35 of 86, also for permanent injunction with regard to the same property in which an application for temporary injunction brought by him was rejected by the learned Trial Judge vide order dated 6-6-86. In this order the learned Trial Judge expressly held that the respondent has not been able to show that he was in possession of the suit property and that no prima facie case has been made out by him to obtain the interim relief sought for. The learned Judge has also clearly mentioned in the aforesaid order that "from the survey record and from the licence and from the affidavits filed by the defendants, the defendants have proved that the plaintiff is not in possession of the suit property". This finding was not challenged by the respondent since no appeal was filed by him against the dismissal of his application for temporary injunction. The learned Counsel urged that since the Trial Court had refused to grant an injunction in the respondent's favour in the earlier suit of 1986 the Trial Court had obviously no jurisdiction to grant it now in 1988 with regard to the same property and in respect whereof the same Court has held that the respondent had not been able to show that he was in its possession.
3. There is considerable substance in the submission of Shri Kakodkar. Admittedly the earlier Suit Numbered 35 of 86 being still pending and in which the respondent was found out of possession in respect of the suit property it was not permissible for the respondent to file a fresh suit on the same subject matter during the pendency of the earlier suit. Further if the respondent had not been able to establish his possession over the suit property in the earlier first suit and on this ground the learned Civil Judge had declined to grant him any interim relief it was not open for the respondent, who did not even challenge the order dated 6-6-1986 rejecting his prayer for injunction, to file in the same Court another suit on the same property and move the Trial Judge with a fresh application for a similar relief which was denied to him in the earlier suit. And if such suit was not available no temporary injunction could have been entertained by the learned Trial Judge on the same matter. The learned District Judge clearly overlooked this simple aspect of the matter involving a jurisdictional error committed by the learned trial Judge when he refused to interfere in appeal with this wrong exercise of jurisdiction assumed by the trial Court with material irregularity.
4. Shri Kakodkar is also justified when he makes a grievance against the impugned judgment which appears to have ignored the basic principles of law enunciatted in sections 10 and 11 as well as in Order 23, Rule 1(3) of C.P.C. Section 10 ensures that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title. Similarly section 11 precludes a Court to try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. In its turn Order 23, Rule 1(3) of C.P.C. provides that a party can institute a fresh suit on the same subject matter or on the same cause of action only after he withdraws the first suit and secures permission from the Court to file any suit. This shows that while an earlier suit is pending no fresh suit is available. The principles enshrined in sections 10 and 11 of C.P.C. although referring to suits are also applicable to interim injunctions on the strength of the principle of public policy and aiming at curtailing or putting an end to unnecessary litigation which can be adjudicated in the earlier suit. In this regard the provision of section 151 of C.P.C. comes also into play to justify the applicability of the principle of res judicata and in order to avoid the abuse of the process of the Court. Reliance placed by Shri Kakodkar in the case of Gulabchand Chhotalal Parikh v. State of Gujarat, ,
appears to be very much appropriate. In this judgment the Supreme Court observed that the provisions of section 11 of C.P.C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide, it will operate as res judicata in a subsequent regular suit. The Court further held that it was not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial. Similar reference in the case ofArjun Singh v. Mohindra Kumar and others, , which concerns the
principle of formal res judicata occurring in the same suit suggests that it may operate also in a different suit. In this respect the Court observed :
"The scope of the principle of res judicata is not confined to what is contained in section 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. If the Court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in later proceedings. Where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable.
Interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court".
In another decision cited by Shri Kakodkar in Sudhir Kumar Das and others v. Amitava Dhar, A.I.R. 1983 Gauhati, 52, also dealing with the principle of res judicata and its applicability to interlocutory orders an injunction was held not justified where injunction based on the same ground was refused to another party in the various proceeding.
5. Shri Dessai, learned Counsel appearing for the respondent, while seeking to counter this challenge of the petitioners, has contended that in an earlier suit being Regular Civil Suit No. 49 of 85 filed by the petitioners against the respondent and related to the very same property, although the trial Court and the District Court had negatived the claim of the petitioners with regard to possession of the suit property this decision was subsequently upheld by the High Court and a revision, filed was rejected at the early stage of admission. As such the interim relief prayed for by them was refused on three counts as it was felt that the petitioners failed to establish their possession on the property and instead the said possession was with the respondent. Therefore, the learned Counsel urged that since the respondent was found in possession of the suit property in the earlier suit filed in 1985, however the factual position is that he was to be deemed as continuing with such possession even as of 1989 when the impugned judgment of the learned District Judge was passed.
6. I am unable to accede to this proposition of Shri Dessai. The fact of the trial Court having given a finding of possession in favour of the respondent in the first suit instituted by the petitioners in 1985 that it was the respondent who was found in possession of the suit property at that time has been clearly upset by the subsequent finding of the same Trial Judge in the second suit filed in 1986 wherein it was held that the respondent was not able to establish that he was in possession of the said property at the time of the filing of the second suit, i.e. in the year 1986. For this reason the interim relief sought for by the respondent could not be granted by the Trial Judge and the prayer for temporary injunction was rejected. The respondent did not file any appeal against this rejection as a result whereof the order of dismissal and the finding of the Trial Court refusing to ackowledge the respondent in possession of the suit property became final. Being so, it was not permissible for the learned trial Judge and logically to the learned District Judge to rely on the findings arrived at by the trial Court in the first suit by brushing aside the contrary finding given by the trial Judge in the second suit of 1986. The learned District Judge was therefore in error when he based his impugned order entirely on these findings given in the earlier suit of 1985 and ignoring the subsequent findings rendered in the second suit of 1986 to come to the conclusion that the respondent had succeeded in proving, on the strength of the affidavits evidence produced by him, that he was in physical and actual possession of the suit property at the time of the institution of the third suit in 1988.
7. Insofar as sections 10 and 11 of C.P.C. are concerned, Shri Dessai has argued that section 10 permits that two suits can be instituted on the same subject matter during the pendency of each other. But, however, when identical issues come for consideration then only the second suit is to be stayed. Section 10 does not say that the second suit would not lie. Shri Dessai invited my attention to the language of the provision which clearly implies that two suits on the same cause of action can co-exist. It only says that the trial of the second suit should be stayed and would not proceed. The filing of the second suit on the same cause of action seems to be permissible. Section 10 does not enjoin that there should be only one suit on the same subject matter or on account of the same cause of action.
8. I am afraid that it is impossible for me to subscribe such a position. According to me when the law speaks that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties it means that in the plain language of the statute two suits on the same subject matter or on the same cause of action cannot co-exist. It is a clear case of liges pendens which the law forbids as a pragmatic device so as to avoid a duplication or multiplicity of proceedings and the waste of procedural energy or unnecessary loss of time of the Courts. The ultimate aim of such a principle is to secure procedural economy and the necessary of sparing effort in judicial litigation. It is, in practice, complemental to the principle of finality which is sought to be achieved by section 11 of C.P.C. when it refers to res judicata. It is true that section 11 concerns to cases which have been already finally decided and not to the ones which are still pending decision.
9. Shri Dessai contends that both sections 10 and 11 deal with a situation which is rather different from the one dealt with in a case of interlocutory stage because at this stage there is no adjudication of any rights. The scope of an interlocutory order, namely, if one considers the provisions of Order 39, Rule 4 of C.P.C. shows that interim order can be changed in different circumstance. As such, according to Shri Dessai, in cases where section 10 or 11 apply obviously temporary injunction or interim relief can be granted and such orders are able to be discharged, varied or modified in terms of Rule 4 of Order 39 of C.P.C. There is no question of any finality to be borne in mind at this stage since interlocutory orders are passed as an equitable remedy, in the manner of a stop-gap arrangement, meant to maintain the status quo till the final adjudication of the matter. Res judicata applies when an issue has been already decided finally and such issue cannot be re-agitated in a second suit. It is thus not permissible to say that the same principle should be applied in case of a temporary injunction because at that interlocutory stage no issue is finally decided. On the contrary Rule 4 of Order 39 of C.P.C. suggests that a temporary injunction is entirely an interlocutory order which can be upset by the same Court if circumstances change. Reliance was placed on Madan Lal Khuteta v. Badri Narayan, , which has held that to the second application for issue of temporary injunction under Order 39, Rr. 1 and 2 there is no bar under the principles of res judicata for its consideration, but the same can be considered only when the petitioner shows that such consideration is necessary in view of new facts and new situations and circumstances that have taken place subsequently. Interlocutory orders like temporary injunctions are meant only to preserve the status quo during the pendency of the proceedings and do not decide the controversy in issue on merits. Such order are therefore capable of being altered or varied, but only proof of new facts or new situation which may have emerged subsequently.
10. Shri Dessai although is right seems to overlook, however, that all these submissions and whatever authorities cited by him are to be considered and held good only when it refers to situations arising in the same suit between the same parties and not as it happened in our case when the same parties had instituted two different suits in succession on the same subject matter while alleging different causes of action. Similarly the other decision relied by Shri Dessai in Smt. Sukharani and others v. Hari Shanker and others,
refers also to situations arising in the same suit. Head Note (A) summarises this position as follows:---
"It is true that a decision given at an earlier stage of a suit will bind the parties at later stage of the same suit. But it is equally well settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation".
11. In the instant case we have to see that the respondent instituted two suits which are both pending in the same Court against the same petitioner on the same subject matter and seeking a similar relief. Obviously in terms of Order 23, Rule 1(3) r/w section 151 of C.P.C. the second suit is not competent because the first suit was not withdrawn by the respondent. As such no new suit was available to the respondent and obviously no interim application could have been entertained by the trial Judge. This is a clear jurisdictional error. Further the fact that in the first Suit No. 49 of 85, instituted by the petitioners against the respondent, the Court held, at the stage of interim relief, that the petitioners had not been able to show that they were in possession of the suit property and that this possession as with the respondent does not mean that this finding could not be upset by the same Court in a different suit also at the stage of a temporary injunction, as it happened in the second Suit No. 35 of 86, this second suit having been instituted this time by the respondent against the same petitioners and on the same subject matter, wherein the Court refused to entertain his prayer for relief and ruled that the respondent was not in possession of the suit property for reasons recorded in the order dated 6-6-86. This means that the earlier finding of the Court regarding possession of the suit property which had gone against the petitioners as on 18-6-85, the date of the institution of the first Suit No. 49 of 85, by virtue of the order passed on 29-1-86 was subsequently reversed by the second order dated 6-6-86 in the subsequent Suit No. 35 of 86 this time filed by the respondent against the same petitioners. It is in this context that the learned trial Judge and the learned District Judge as well are said having committed a jurisdiction error when they relied and took into consideration the findings given by the trial Court in the first Suit No. 49 of 85 and overlooked the factual and juridical position arising out consequent upon the finding of the learned trial Judge in Suit No. 35 of 86 wherein the respondent was found to be not in possession of the suit property. To be noted that this finding had become final since the order dated 6-6-86 was not challenged by the respondent before the Appellate Court.
12. Shri Dessai's contention that the respondent did not file an appeal against the order dated 6-6-86 because he had a finding in his favour in the first Suit No. 49 of 85 and also that the trial Court did not held the petitioners in the aforesaid Suit No. 35 of 86 in possession of the suit property is manifestly unacceptable. The finding of possession in favour of the respondent in Suit No. 49 of 85 is to be deemed as being given as on 18-6-1985 i.e. on the date the suit was instituted while the subsequent finding that the respondent was not in possession of the same property is to be deemed as operating right from the date of the institution of the second Suit No. 35 of 86 filed by him as on 1-4-86. Further this finding clearly shows that the injunction sought for by the respondent was refused to him because the respondent was found not in possession of the suit property and that the same possession was instead with the petitioners. The respondent failed to challenge this order dated 6-6-86 and the same became final. It is, therefore, not correct to say that the respondent continued in possession of the suit property even after that order was passed, being also inconceivable that due to the alleged reason of the finding rendered by the trial Court in the previous Suit No. 49 of 85 the respondent did not appeal against the order dated 6-6-86 because thereafter the petitioners did not interfere with his possession in respect of the suit property.
13. If the respondent found the necessity of approaching the Court for relief, even on the aftermath of the first Suit No. 49 of 85 which went in his favour upto the last appellate stage, it is because obviously the petitioners were obstructing his possession and therefore it is impossible to believe that when the Court reversed the earlier finding of possession given in his favour in the earlier suit by holding in Suit No. 35 of 86 the petitioners in possession of the suit property the said petitioners might have stopped interfering with his possession or ceased to obstruct his enjoyment and possession in respect of the same property. Similarly the argument of Shri Dessai that the finding given in the second Suit No. 35 of 86 against the respondent has not nullified the finding given earlier in Suit No. 49 of 85 in his favour is misconceived. As such the submissions of Shri Dessai in this behalf are obviously devoid of any substance and bound to be rejected.
14. It was also urged by Shri Dessai that the trial Court was certainly not justified in practically reviewing his earlier judgment and the findings rendered in the first Suit No. 49 of 85, by giving a different finding in the subsequent Suit No. 35 of 86, on the ground that the respondent had not been able to make a prima facie case on his possession with regard to the suit property when the same trial Judge had held earlier in the first suit that he was in its actual possession. Shri Desai contended that the first finding could have been upset only by the appellate courts which had upheld this finding in all available stages. That finding could also have been unsettled on a review filed before the same Judge and in the same suit. Thus, according to Shri Dessai, the exercise indulged by the learned trial Judge in Second Suit No. 35 of 86 in respect of the finding rendered by him in the first Suit No. 49 of 85 was not permissible and the order was without jurisdiction.
15. With due regard I must say that the belated criticism of Shri Dessai against the order dated 6-6-86 is totally unwarranted and uncalled for. Apart from the fact that the respondent miserably failed to timely challenge the said order and instead sought to justify the fact of his not having appealed against the same it appears that Shri Dessai has lost sight to the circumstance that the first order refers to a situation existing right from 18-6-85 when the first suit was instituted by the petitioners while, on the strength of facts and documentary evidence adverted by the learned trial Judge, the second order dated 6-6-86 deals with a situation which was deemed to prevail when the Suit No. 35 of 86 was instituted by the respondent on 1-4-86. Hence no question of jurisdiction can be raised by Shri Dessai so much so the subsequent order dated 6-6-86 was passed in a different suit filed by the respondent on a totally different cause of action.
16. On the other hand the reliance placed by Shri Kakodkar in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others, , which appears to follow the view taken in
the case of Amir Din and others v. S. Shiv Dev Singh, Vol.XL VIII P.L.R., 471, seems to be very much to the point in the special circumstance of our case. In the said decision the Supreme Court held that in a case of withdrawal of a petition under Article 226 of the Constitution without permission to institute a fresh petition, no new petition under Article 226 was maintainable in respect of the same cause of action and the rule of public policy as contained in Order 23, Rule 1 C.P.C. applies to such case. The Court observed that in order to prevent a litigant from abusing the process of the Court by instituting suits again and again in the same cause of action without any good reason the Civil P.C. insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Order 23, Rule 1(3) of C.P.C. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata. This principle underlying Rule 1 of Order 23 should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy. That would also discourage the litigant from indulging in bench hunting tactics.
17. Another view on the point of res judicata and on the question of applicability of Order 23, Rule 1(3) has been taken in the cases of Ram Mal v. Upendra Datt and another, A.I.R 1928 Lahore, 710; Mangi Lal and another v. Radha Mohan and another, A.I.R. 1930 Lahore, 599(2), and Girdhari lal Bansal v. The Chairman, Bhakra Beas Management Board, Chandigarh and others, . In the first case A.I.R. 1928 Lahore, 710 it has been held that the basic principle of res judicata is that there should have been a final adjudication on merits. The case of withdrawl is analogous to a dismissal in default and as there is no decision on merits there is no res judicata. Hence the second suit will not be barred in the case of withdrawal of a previous suit unless the conditions of Order 23, Rule 1 are fully satisfied. In the second case A.I.R. 1930 Lahore, 599(2) it has been again reaffirmed that Order 23, Rule 1 of C.P.C. does not bar suit already instituted before other suit has been abandoned or dismissed. Order 23, Rule 1 refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. Order 23, Rule 1 cannot be read so as to bar a suit which has been already instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suits instituted after the withdrawal or abandonment of previous suit. In the third case , the same ratio has been
followed and it has been held that in case of filing of the second suit on same allegations and for same relief before first suit is withdrawn the provisions of Order 23, Rule 1 are not attracted and the second suit is not barred.
18. We need not, however, concern with these conflicting views expounded above as our case is clearly distinguishable on facts and stand on a completely different footing. In the instant case we must see that the respondent who had instituted the earlier Suit No. 35 of 86 has not withdrawn the earlier suit with permission to file another one on the same cause of action or on the same subject matter. Admittedly the Suit No. 35 of 86 is still pending inspite of his having filed a fresh suit on the same subject matter and on the same cause of action. In the circumstances, obviously, such suit is not maintainable within the meaning of Order 23, Rule 1 C.P.C. and it appears to carry on with it all the trappings which amount to a clear abuse of the process of Court. We are inclined to say so because, as it was observed above about the earlier Suit No. 35 of 86, when the respondent approached the Court seeking for an interim relief against the petitioners restraining them from interfering with his alleged possession on the ground that they were disturbing the said possession and enjoyment in respect of the suit property, the Court refused to entertain his prayer and by order dated 6-6-86 declined to grant the relief by holding that the respondent could not be said as being in possession of the property. The said order was passed by considering the documentary evidence produced by the petitioners, namely, the Survey Records and the Excise licences and the Court has expressly acknowledged that the order passed in the Civil Suit No. 49 of 85 has overlooked the entries of Form I, X, XIV of the Record of Rights showing the petitioner No. 2 as a lessee of the suit property. This order which was not challenged by the respondent attained finality and became res judicata. The effect of such order is that it means to practically acknowledge that the possession of the petitioners in respect of the suit property was admitted by the Court as prevailing, at least, right back from 18-6-85 when Suit No. 49 of 85 was instituted. Hence the order dated 6-6-86 could not be in fact challenged in fresh Suit No. 32 of 88 since the respondent failed to timely challenge it before and is thus to be deemed as still holding the field.
19. It follows therefore that in view of this order dated 6-6-86 holding the petitioners in possession of the suit property, the burden had shifted on the respondent to prove that it was still in possession and to establish when and how it was dispossessed.
20. Shri Dessai's contention that the Suit No. 32 of 88 was filed on a different cause of action cannot be accepted. No fresh cause of action would be available to the respondent in 1988 when the real cause of action arose in 1986. There was no change in the cause of action and also no change in the circumstances. The subject matter and the very foundation of the Suit No. 32 of 88 is the same as it has in the earlier Suit No. 35 of 86, that is to say, the alleged disturbance of possession by the petitioners claimed by the respondent as occurred somewhere in 1986. Therefore, viewed the case in every angle, the Suit No. 32 of 88 is entirely misconceived, incompetent and without jurisdiction.
21. It was next submitted by Shri Kakodkar that once the name of the petitioner No. 1 was shown as occupant of the suit property and the name of the petitioner No. 2 was mentioned as its lessee in the column of "Other Rights" in Form I & XIV of the Record of Rights in respect of property under Survey No. 91/4. While the name of the respondent is also referred in the same column as holding "on lease basis coconut trees for Rs. 100 per year", obviously such entry which suggests that the possession of the suit property was lying with the petitioners could not be upset by any other means of proof rather than a similar entry to be recorded after following the competent procedure prescribed by law. It was urged by the learned Counsel that such presumption of possession in favour of the petitioners was operating on the basis of section 105 of the Land Revenue Code and the same could not have been disturbed by mere affidavits or any other documentary evidence pointing out to the purported possession eventually exercised by the respondent.
22. The submission of Shri Kakodkar is correct and deserves acceptance. Presumption arising out of an entry in the survey records under section 105 of the Land Revenue Code is to be deemed as prevailing till the final adjudication of a suit challenging the right or title of the beneficiary of such entry which is apparently shown as based on possession. It is a settled position that such entry cannot be disturbed by affidavitary evidence, however strong it may be, or just overlooked on the strength of some other proof which would be normally permissible to establish possessory rights of the parties. In this respect the impugned judgment of the learned District Judge is manifestly a judgment passed in curiam and without taking into consideration the law as laid down by this Court on 24-12-82 in Civil Revision Application No. 50/B/82, Damodara Ranum Porobo Loundo v. Bhasker Jalmi and others. In that case it was observed that section 105 of the Land Revenue Code provides that any entry in the Record of Rights and a certified entry in the register of mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted by a fresh one. And while dealing with the use of affidavits to disprove the presumption the Court held that this presumption could not be rebutted on the basis of affidavitary evidence because such evidence was not tested by cross-examination. Affidavit evidence has got only prima facie value and does not constitute sufficient and conclusive proof to disprove and rebut a presumption that arises by law in respect of the entries made in the Record of Rights after due inquiry.
23. Again the same judgment goes also against the principle that one who claims any right on the basis of possession simpliciter and seeks an interim relief merely on the strength of such possession must satisfy that this possession is traceable to the title. The said proposition has been also affirmed by this very Court in Datta Damodar Kukule v. Krishna Sridor Pai, 1989(2) G.L.T. 44, wherein it has been held that the Court must examine whether the person claiming possession of the property has got a title of title to remain in possession in order to grant injunction.
24. Further it is also a well settled law that a party who claims a right or title which is based on possession such claim can be opposed against everybody except the rightful owner of the property. The proposition has been laid down in another judgment of this Court dated 17th/18th March, 1983 in Second Civil Appeal No. 10 of 1983, Smt. Anandi Anant pai v. Shri Ramesh Kashinath Porobo and others, based on the ratio of the ruling of the Supreme Court in M. Kallappa Setty v. M.V. Lakshminarayana Rao, , which has held that the
plaintiff in possession of the suit property can, on the strength of his possession, resist interference from persons who have no better title than himself to the suit property and get an injunction restraining the defendant from disturbing his possession.
25. Admittedly the petitioner No. 1 who has been shown as occupant of the suit property in the survey records is the owner of the property and the respondent has never disputed this position. It has also not been denied by the respondent that the petitioner No. 2 is claiming possession of the property through the petitioner No. 1 as its lawful tenant which fact appears also reflected in the said survey records. It is also not the case of the respondent that the survey document was not prepared or issued by the competent authority and is a fabricated document. Being so there is no question of its genuineness and veracity being disputed by the respondent at this stage and the entries in the said record are to be deemed as correct until they are changed or replaced by any other ones only after following the due process of law.
26. It is thus clear that the learned District Judge while dismissing the petitioner's appeal has acted without jurisdiction or exercised his jurisdiction with material irregularity and/or in excess of it.
27. In the result the petition is to succeed, and the judgment dated 3-11-90 is hereby quashed and set aside with costs for the respondent. Rule made absolute in the above terms.
Bombay High Court
Shriram Narayan Dhond And Anr. vs Demu Surya Gaude on 3 September, 1991
Bench: E D Silva
JUDGMENTE.S. Da Silva, J.
1. The respondent filed a suit against the petitioners in the Court of the Civil Judge, S.D., Ponda, being Regular Civil Suit No. 32 of 88, for a permanent injunction to restrain them from interfering with his lawful possession in respect of the suit property situated at Betqui, Ponda, and bearing Survey No. 91/4. Along with the suit an application for temporary injunction was also made before the learned Trial Judge. That application was granted by the learned trial Judge who found the respondent to be in possession of the suit land. The petitioners then moved the learned District Judge who in appeal rejected their claim for possession and by the impugned judgment dated 5-7-89 upheld the finding of the learned Trial Judge. Hence the present Civil Revision Application.
2. Shri S.K. Kakodkar, learned Counsel for the petitioners, has submitted that the exercise undertaken by the respondent in filing Suit No. 32 of 88 was not possible under the law. The learned Counsel brought to my notice that the same respondent somewhere in the year 1986 had already filed a suit against the petitioners, being Regular Civil No. 35 of 86, also for permanent injunction with regard to the same property in which an application for temporary injunction brought by him was rejected by the learned Trial Judge vide order dated 6-6-86. In this order the learned Trial Judge expressly held that the respondent has not been able to show that he was in possession of the suit property and that no prima facie case has been made out by him to obtain the interim relief sought for. The learned Judge has also clearly mentioned in the aforesaid order that "from the survey record and from the licence and from the affidavits filed by the defendants, the defendants have proved that the plaintiff is not in possession of the suit property". This finding was not challenged by the respondent since no appeal was filed by him against the dismissal of his application for temporary injunction. The learned Counsel urged that since the Trial Court had refused to grant an injunction in the respondent's favour in the earlier suit of 1986 the Trial Court had obviously no jurisdiction to grant it now in 1988 with regard to the same property and in respect whereof the same Court has held that the respondent had not been able to show that he was in its possession.
3. There is considerable substance in the submission of Shri Kakodkar. Admittedly the earlier Suit Numbered 35 of 86 being still pending and in which the respondent was found out of possession in respect of the suit property it was not permissible for the respondent to file a fresh suit on the same subject matter during the pendency of the earlier suit. Further if the respondent had not been able to establish his possession over the suit property in the earlier first suit and on this ground the learned Civil Judge had declined to grant him any interim relief it was not open for the respondent, who did not even challenge the order dated 6-6-1986 rejecting his prayer for injunction, to file in the same Court another suit on the same property and move the Trial Judge with a fresh application for a similar relief which was denied to him in the earlier suit. And if such suit was not available no temporary injunction could have been entertained by the learned Trial Judge on the same matter. The learned District Judge clearly overlooked this simple aspect of the matter involving a jurisdictional error committed by the learned trial Judge when he refused to interfere in appeal with this wrong exercise of jurisdiction assumed by the trial Court with material irregularity.
4. Shri Kakodkar is also justified when he makes a grievance against the impugned judgment which appears to have ignored the basic principles of law enunciatted in sections 10 and 11 as well as in Order 23, Rule 1(3) of C.P.C. Section 10 ensures that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title. Similarly section 11 precludes a Court to try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. In its turn Order 23, Rule 1(3) of C.P.C. provides that a party can institute a fresh suit on the same subject matter or on the same cause of action only after he withdraws the first suit and secures permission from the Court to file any suit. This shows that while an earlier suit is pending no fresh suit is available. The principles enshrined in sections 10 and 11 of C.P.C. although referring to suits are also applicable to interim injunctions on the strength of the principle of public policy and aiming at curtailing or putting an end to unnecessary litigation which can be adjudicated in the earlier suit. In this regard the provision of section 151 of C.P.C. comes also into play to justify the applicability of the principle of res judicata and in order to avoid the abuse of the process of the Court. Reliance placed by Shri Kakodkar in the case of Gulabchand Chhotalal Parikh v. State of Gujarat, ,
appears to be very much appropriate. In this judgment the Supreme Court observed that the provisions of section 11 of C.P.C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide, it will operate as res judicata in a subsequent regular suit. The Court further held that it was not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial. Similar reference in the case ofArjun Singh v. Mohindra Kumar and others, , which concerns the
principle of formal res judicata occurring in the same suit suggests that it may operate also in a different suit. In this respect the Court observed :
"The scope of the principle of res judicata is not confined to what is contained in section 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. If the Court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in later proceedings. Where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable.
Interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court".
In another decision cited by Shri Kakodkar in Sudhir Kumar Das and others v. Amitava Dhar, A.I.R. 1983 Gauhati, 52, also dealing with the principle of res judicata and its applicability to interlocutory orders an injunction was held not justified where injunction based on the same ground was refused to another party in the various proceeding.
5. Shri Dessai, learned Counsel appearing for the respondent, while seeking to counter this challenge of the petitioners, has contended that in an earlier suit being Regular Civil Suit No. 49 of 85 filed by the petitioners against the respondent and related to the very same property, although the trial Court and the District Court had negatived the claim of the petitioners with regard to possession of the suit property this decision was subsequently upheld by the High Court and a revision, filed was rejected at the early stage of admission. As such the interim relief prayed for by them was refused on three counts as it was felt that the petitioners failed to establish their possession on the property and instead the said possession was with the respondent. Therefore, the learned Counsel urged that since the respondent was found in possession of the suit property in the earlier suit filed in 1985, however the factual position is that he was to be deemed as continuing with such possession even as of 1989 when the impugned judgment of the learned District Judge was passed.
6. I am unable to accede to this proposition of Shri Dessai. The fact of the trial Court having given a finding of possession in favour of the respondent in the first suit instituted by the petitioners in 1985 that it was the respondent who was found in possession of the suit property at that time has been clearly upset by the subsequent finding of the same Trial Judge in the second suit filed in 1986 wherein it was held that the respondent was not able to establish that he was in possession of the said property at the time of the filing of the second suit, i.e. in the year 1986. For this reason the interim relief sought for by the respondent could not be granted by the Trial Judge and the prayer for temporary injunction was rejected. The respondent did not file any appeal against this rejection as a result whereof the order of dismissal and the finding of the Trial Court refusing to ackowledge the respondent in possession of the suit property became final. Being so, it was not permissible for the learned trial Judge and logically to the learned District Judge to rely on the findings arrived at by the trial Court in the first suit by brushing aside the contrary finding given by the trial Judge in the second suit of 1986. The learned District Judge was therefore in error when he based his impugned order entirely on these findings given in the earlier suit of 1985 and ignoring the subsequent findings rendered in the second suit of 1986 to come to the conclusion that the respondent had succeeded in proving, on the strength of the affidavits evidence produced by him, that he was in physical and actual possession of the suit property at the time of the institution of the third suit in 1988.
7. Insofar as sections 10 and 11 of C.P.C. are concerned, Shri Dessai has argued that section 10 permits that two suits can be instituted on the same subject matter during the pendency of each other. But, however, when identical issues come for consideration then only the second suit is to be stayed. Section 10 does not say that the second suit would not lie. Shri Dessai invited my attention to the language of the provision which clearly implies that two suits on the same cause of action can co-exist. It only says that the trial of the second suit should be stayed and would not proceed. The filing of the second suit on the same cause of action seems to be permissible. Section 10 does not enjoin that there should be only one suit on the same subject matter or on account of the same cause of action.
8. I am afraid that it is impossible for me to subscribe such a position. According to me when the law speaks that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties it means that in the plain language of the statute two suits on the same subject matter or on the same cause of action cannot co-exist. It is a clear case of liges pendens which the law forbids as a pragmatic device so as to avoid a duplication or multiplicity of proceedings and the waste of procedural energy or unnecessary loss of time of the Courts. The ultimate aim of such a principle is to secure procedural economy and the necessary of sparing effort in judicial litigation. It is, in practice, complemental to the principle of finality which is sought to be achieved by section 11 of C.P.C. when it refers to res judicata. It is true that section 11 concerns to cases which have been already finally decided and not to the ones which are still pending decision.
9. Shri Dessai contends that both sections 10 and 11 deal with a situation which is rather different from the one dealt with in a case of interlocutory stage because at this stage there is no adjudication of any rights. The scope of an interlocutory order, namely, if one considers the provisions of Order 39, Rule 4 of C.P.C. shows that interim order can be changed in different circumstance. As such, according to Shri Dessai, in cases where section 10 or 11 apply obviously temporary injunction or interim relief can be granted and such orders are able to be discharged, varied or modified in terms of Rule 4 of Order 39 of C.P.C. There is no question of any finality to be borne in mind at this stage since interlocutory orders are passed as an equitable remedy, in the manner of a stop-gap arrangement, meant to maintain the status quo till the final adjudication of the matter. Res judicata applies when an issue has been already decided finally and such issue cannot be re-agitated in a second suit. It is thus not permissible to say that the same principle should be applied in case of a temporary injunction because at that interlocutory stage no issue is finally decided. On the contrary Rule 4 of Order 39 of C.P.C. suggests that a temporary injunction is entirely an interlocutory order which can be upset by the same Court if circumstances change. Reliance was placed on Madan Lal Khuteta v. Badri Narayan, , which has held that to the second application for issue of temporary injunction under Order 39, Rr. 1 and 2 there is no bar under the principles of res judicata for its consideration, but the same can be considered only when the petitioner shows that such consideration is necessary in view of new facts and new situations and circumstances that have taken place subsequently. Interlocutory orders like temporary injunctions are meant only to preserve the status quo during the pendency of the proceedings and do not decide the controversy in issue on merits. Such order are therefore capable of being altered or varied, but only proof of new facts or new situation which may have emerged subsequently.
10. Shri Dessai although is right seems to overlook, however, that all these submissions and whatever authorities cited by him are to be considered and held good only when it refers to situations arising in the same suit between the same parties and not as it happened in our case when the same parties had instituted two different suits in succession on the same subject matter while alleging different causes of action. Similarly the other decision relied by Shri Dessai in Smt. Sukharani and others v. Hari Shanker and others,
refers also to situations arising in the same suit. Head Note (A) summarises this position as follows:---
"It is true that a decision given at an earlier stage of a suit will bind the parties at later stage of the same suit. But it is equally well settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation".
11. In the instant case we have to see that the respondent instituted two suits which are both pending in the same Court against the same petitioner on the same subject matter and seeking a similar relief. Obviously in terms of Order 23, Rule 1(3) r/w section 151 of C.P.C. the second suit is not competent because the first suit was not withdrawn by the respondent. As such no new suit was available to the respondent and obviously no interim application could have been entertained by the trial Judge. This is a clear jurisdictional error. Further the fact that in the first Suit No. 49 of 85, instituted by the petitioners against the respondent, the Court held, at the stage of interim relief, that the petitioners had not been able to show that they were in possession of the suit property and that this possession as with the respondent does not mean that this finding could not be upset by the same Court in a different suit also at the stage of a temporary injunction, as it happened in the second Suit No. 35 of 86, this second suit having been instituted this time by the respondent against the same petitioners and on the same subject matter, wherein the Court refused to entertain his prayer for relief and ruled that the respondent was not in possession of the suit property for reasons recorded in the order dated 6-6-86. This means that the earlier finding of the Court regarding possession of the suit property which had gone against the petitioners as on 18-6-85, the date of the institution of the first Suit No. 49 of 85, by virtue of the order passed on 29-1-86 was subsequently reversed by the second order dated 6-6-86 in the subsequent Suit No. 35 of 86 this time filed by the respondent against the same petitioners. It is in this context that the learned trial Judge and the learned District Judge as well are said having committed a jurisdiction error when they relied and took into consideration the findings given by the trial Court in the first Suit No. 49 of 85 and overlooked the factual and juridical position arising out consequent upon the finding of the learned trial Judge in Suit No. 35 of 86 wherein the respondent was found to be not in possession of the suit property. To be noted that this finding had become final since the order dated 6-6-86 was not challenged by the respondent before the Appellate Court.
12. Shri Dessai's contention that the respondent did not file an appeal against the order dated 6-6-86 because he had a finding in his favour in the first Suit No. 49 of 85 and also that the trial Court did not held the petitioners in the aforesaid Suit No. 35 of 86 in possession of the suit property is manifestly unacceptable. The finding of possession in favour of the respondent in Suit No. 49 of 85 is to be deemed as being given as on 18-6-1985 i.e. on the date the suit was instituted while the subsequent finding that the respondent was not in possession of the same property is to be deemed as operating right from the date of the institution of the second Suit No. 35 of 86 filed by him as on 1-4-86. Further this finding clearly shows that the injunction sought for by the respondent was refused to him because the respondent was found not in possession of the suit property and that the same possession was instead with the petitioners. The respondent failed to challenge this order dated 6-6-86 and the same became final. It is, therefore, not correct to say that the respondent continued in possession of the suit property even after that order was passed, being also inconceivable that due to the alleged reason of the finding rendered by the trial Court in the previous Suit No. 49 of 85 the respondent did not appeal against the order dated 6-6-86 because thereafter the petitioners did not interfere with his possession in respect of the suit property.
13. If the respondent found the necessity of approaching the Court for relief, even on the aftermath of the first Suit No. 49 of 85 which went in his favour upto the last appellate stage, it is because obviously the petitioners were obstructing his possession and therefore it is impossible to believe that when the Court reversed the earlier finding of possession given in his favour in the earlier suit by holding in Suit No. 35 of 86 the petitioners in possession of the suit property the said petitioners might have stopped interfering with his possession or ceased to obstruct his enjoyment and possession in respect of the same property. Similarly the argument of Shri Dessai that the finding given in the second Suit No. 35 of 86 against the respondent has not nullified the finding given earlier in Suit No. 49 of 85 in his favour is misconceived. As such the submissions of Shri Dessai in this behalf are obviously devoid of any substance and bound to be rejected.
14. It was also urged by Shri Dessai that the trial Court was certainly not justified in practically reviewing his earlier judgment and the findings rendered in the first Suit No. 49 of 85, by giving a different finding in the subsequent Suit No. 35 of 86, on the ground that the respondent had not been able to make a prima facie case on his possession with regard to the suit property when the same trial Judge had held earlier in the first suit that he was in its actual possession. Shri Desai contended that the first finding could have been upset only by the appellate courts which had upheld this finding in all available stages. That finding could also have been unsettled on a review filed before the same Judge and in the same suit. Thus, according to Shri Dessai, the exercise indulged by the learned trial Judge in Second Suit No. 35 of 86 in respect of the finding rendered by him in the first Suit No. 49 of 85 was not permissible and the order was without jurisdiction.
15. With due regard I must say that the belated criticism of Shri Dessai against the order dated 6-6-86 is totally unwarranted and uncalled for. Apart from the fact that the respondent miserably failed to timely challenge the said order and instead sought to justify the fact of his not having appealed against the same it appears that Shri Dessai has lost sight to the circumstance that the first order refers to a situation existing right from 18-6-85 when the first suit was instituted by the petitioners while, on the strength of facts and documentary evidence adverted by the learned trial Judge, the second order dated 6-6-86 deals with a situation which was deemed to prevail when the Suit No. 35 of 86 was instituted by the respondent on 1-4-86. Hence no question of jurisdiction can be raised by Shri Dessai so much so the subsequent order dated 6-6-86 was passed in a different suit filed by the respondent on a totally different cause of action.
16. On the other hand the reliance placed by Shri Kakodkar in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others, , which appears to follow the view taken in
the case of Amir Din and others v. S. Shiv Dev Singh, Vol.XL VIII P.L.R., 471, seems to be very much to the point in the special circumstance of our case. In the said decision the Supreme Court held that in a case of withdrawal of a petition under Article 226 of the Constitution without permission to institute a fresh petition, no new petition under Article 226 was maintainable in respect of the same cause of action and the rule of public policy as contained in Order 23, Rule 1 C.P.C. applies to such case. The Court observed that in order to prevent a litigant from abusing the process of the Court by instituting suits again and again in the same cause of action without any good reason the Civil P.C. insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Order 23, Rule 1(3) of C.P.C. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata. This principle underlying Rule 1 of Order 23 should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy. That would also discourage the litigant from indulging in bench hunting tactics.
17. Another view on the point of res judicata and on the question of applicability of Order 23, Rule 1(3) has been taken in the cases of Ram Mal v. Upendra Datt and another, A.I.R 1928 Lahore, 710; Mangi Lal and another v. Radha Mohan and another, A.I.R. 1930 Lahore, 599(2), and Girdhari lal Bansal v. The Chairman, Bhakra Beas Management Board, Chandigarh and others, . In the first case A.I.R. 1928 Lahore, 710 it has been held that the basic principle of res judicata is that there should have been a final adjudication on merits. The case of withdrawl is analogous to a dismissal in default and as there is no decision on merits there is no res judicata. Hence the second suit will not be barred in the case of withdrawal of a previous suit unless the conditions of Order 23, Rule 1 are fully satisfied. In the second case A.I.R. 1930 Lahore, 599(2) it has been again reaffirmed that Order 23, Rule 1 of C.P.C. does not bar suit already instituted before other suit has been abandoned or dismissed. Order 23, Rule 1 refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. Order 23, Rule 1 cannot be read so as to bar a suit which has been already instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suits instituted after the withdrawal or abandonment of previous suit. In the third case , the same ratio has been
followed and it has been held that in case of filing of the second suit on same allegations and for same relief before first suit is withdrawn the provisions of Order 23, Rule 1 are not attracted and the second suit is not barred.
18. We need not, however, concern with these conflicting views expounded above as our case is clearly distinguishable on facts and stand on a completely different footing. In the instant case we must see that the respondent who had instituted the earlier Suit No. 35 of 86 has not withdrawn the earlier suit with permission to file another one on the same cause of action or on the same subject matter. Admittedly the Suit No. 35 of 86 is still pending inspite of his having filed a fresh suit on the same subject matter and on the same cause of action. In the circumstances, obviously, such suit is not maintainable within the meaning of Order 23, Rule 1 C.P.C. and it appears to carry on with it all the trappings which amount to a clear abuse of the process of Court. We are inclined to say so because, as it was observed above about the earlier Suit No. 35 of 86, when the respondent approached the Court seeking for an interim relief against the petitioners restraining them from interfering with his alleged possession on the ground that they were disturbing the said possession and enjoyment in respect of the suit property, the Court refused to entertain his prayer and by order dated 6-6-86 declined to grant the relief by holding that the respondent could not be said as being in possession of the property. The said order was passed by considering the documentary evidence produced by the petitioners, namely, the Survey Records and the Excise licences and the Court has expressly acknowledged that the order passed in the Civil Suit No. 49 of 85 has overlooked the entries of Form I, X, XIV of the Record of Rights showing the petitioner No. 2 as a lessee of the suit property. This order which was not challenged by the respondent attained finality and became res judicata. The effect of such order is that it means to practically acknowledge that the possession of the petitioners in respect of the suit property was admitted by the Court as prevailing, at least, right back from 18-6-85 when Suit No. 49 of 85 was instituted. Hence the order dated 6-6-86 could not be in fact challenged in fresh Suit No. 32 of 88 since the respondent failed to timely challenge it before and is thus to be deemed as still holding the field.
19. It follows therefore that in view of this order dated 6-6-86 holding the petitioners in possession of the suit property, the burden had shifted on the respondent to prove that it was still in possession and to establish when and how it was dispossessed.
20. Shri Dessai's contention that the Suit No. 32 of 88 was filed on a different cause of action cannot be accepted. No fresh cause of action would be available to the respondent in 1988 when the real cause of action arose in 1986. There was no change in the cause of action and also no change in the circumstances. The subject matter and the very foundation of the Suit No. 32 of 88 is the same as it has in the earlier Suit No. 35 of 86, that is to say, the alleged disturbance of possession by the petitioners claimed by the respondent as occurred somewhere in 1986. Therefore, viewed the case in every angle, the Suit No. 32 of 88 is entirely misconceived, incompetent and without jurisdiction.
21. It was next submitted by Shri Kakodkar that once the name of the petitioner No. 1 was shown as occupant of the suit property and the name of the petitioner No. 2 was mentioned as its lessee in the column of "Other Rights" in Form I & XIV of the Record of Rights in respect of property under Survey No. 91/4. While the name of the respondent is also referred in the same column as holding "on lease basis coconut trees for Rs. 100 per year", obviously such entry which suggests that the possession of the suit property was lying with the petitioners could not be upset by any other means of proof rather than a similar entry to be recorded after following the competent procedure prescribed by law. It was urged by the learned Counsel that such presumption of possession in favour of the petitioners was operating on the basis of section 105 of the Land Revenue Code and the same could not have been disturbed by mere affidavits or any other documentary evidence pointing out to the purported possession eventually exercised by the respondent.
22. The submission of Shri Kakodkar is correct and deserves acceptance. Presumption arising out of an entry in the survey records under section 105 of the Land Revenue Code is to be deemed as prevailing till the final adjudication of a suit challenging the right or title of the beneficiary of such entry which is apparently shown as based on possession. It is a settled position that such entry cannot be disturbed by affidavitary evidence, however strong it may be, or just overlooked on the strength of some other proof which would be normally permissible to establish possessory rights of the parties. In this respect the impugned judgment of the learned District Judge is manifestly a judgment passed in curiam and without taking into consideration the law as laid down by this Court on 24-12-82 in Civil Revision Application No. 50/B/82, Damodara Ranum Porobo Loundo v. Bhasker Jalmi and others. In that case it was observed that section 105 of the Land Revenue Code provides that any entry in the Record of Rights and a certified entry in the register of mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted by a fresh one. And while dealing with the use of affidavits to disprove the presumption the Court held that this presumption could not be rebutted on the basis of affidavitary evidence because such evidence was not tested by cross-examination. Affidavit evidence has got only prima facie value and does not constitute sufficient and conclusive proof to disprove and rebut a presumption that arises by law in respect of the entries made in the Record of Rights after due inquiry.
23. Again the same judgment goes also against the principle that one who claims any right on the basis of possession simpliciter and seeks an interim relief merely on the strength of such possession must satisfy that this possession is traceable to the title. The said proposition has been also affirmed by this very Court in Datta Damodar Kukule v. Krishna Sridor Pai, 1989(2) G.L.T. 44, wherein it has been held that the Court must examine whether the person claiming possession of the property has got a title of title to remain in possession in order to grant injunction.
24. Further it is also a well settled law that a party who claims a right or title which is based on possession such claim can be opposed against everybody except the rightful owner of the property. The proposition has been laid down in another judgment of this Court dated 17th/18th March, 1983 in Second Civil Appeal No. 10 of 1983, Smt. Anandi Anant pai v. Shri Ramesh Kashinath Porobo and others, based on the ratio of the ruling of the Supreme Court in M. Kallappa Setty v. M.V. Lakshminarayana Rao, , which has held that the
plaintiff in possession of the suit property can, on the strength of his possession, resist interference from persons who have no better title than himself to the suit property and get an injunction restraining the defendant from disturbing his possession.
25. Admittedly the petitioner No. 1 who has been shown as occupant of the suit property in the survey records is the owner of the property and the respondent has never disputed this position. It has also not been denied by the respondent that the petitioner No. 2 is claiming possession of the property through the petitioner No. 1 as its lawful tenant which fact appears also reflected in the said survey records. It is also not the case of the respondent that the survey document was not prepared or issued by the competent authority and is a fabricated document. Being so there is no question of its genuineness and veracity being disputed by the respondent at this stage and the entries in the said record are to be deemed as correct until they are changed or replaced by any other ones only after following the due process of law.
26. It is thus clear that the learned District Judge while dismissing the petitioner's appeal has acted without jurisdiction or exercised his jurisdiction with material irregularity and/or in excess of it.
27. In the result the petition is to succeed, and the judgment dated 3-11-90 is hereby quashed and set aside with costs for the respondent. Rule made absolute in the above terms.
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