JUDGMENT
J.C. Verma, J.
1. The petitioner is challenging the impugned orders passed by the Assistant Collector dated 18.11.1976 (Annex-6), Revenue Appellate Authority dated 12-4.1982 (Annex-7) and Board of Revenue dated 9.12.1982 and 20.12.1982 (Annexs-9 and 10).
2. It is stated that one Thakur Ram Singh son of Thakur Kishan Singh, resident of village Bhankhari Tehsil Rajgarh, real uncle of the petitioner had bequeathed all his properties (movable or Immovable) in favour of the petitioner by a registered Will dated 26.11,1965. The testator died on 9.1.1996. Mutation of the agricultural lands comprising of Khasra Nos. 42, 44, 46 and 48 was also sanctioned in favour of the petitioner.
3. One Hari Singh, brother of the petitioner claimed to be adopted son of the testator. Hari Singh has since died and the respondent Nos. 4 to 8 are legal representatives of Hari Singh. He also produced a will and, therefore, the petitioner. filed a suit for permanent injunction against him u/s 188 of the Rajasthan Tenancy Act in the court of Assistant Collector, Rajgarh along with the application u/s 212 of the Rajasthan Tenancy Act. A receiver was appointed by the orders of the court on 18.4.1968. The petitioner had filed another suit in regard to the residential house left by Thakur Ram Singh, basing his claim on the same will. Respective issues were framed as claimed. The suit in regard to house was decreed in favour of the plaintiff petitioner on 15.1.1973 vide Annex. 4. On the appeal being filed by Hari Singh, Against decree Annex. 4, it is stated that the same was dismissed vide Annex. 5. In the mean time the civil suit for permanent injunction in regard to the land was also decreed on 18.11.1976 which decree was relying on the judgment Annex. 4. Legal representatives of Hari Singh, filed an appeal before the Revenue Appellate Authority against the judgment dated 18.11.1976, Annex. 6. The order Annex. 6 was challenged by the legal representatives of Hari Singh before the Revenue Appellate Authority and the Revenue Appellate Authority vide its judgment and decree dated 12.4.1982 accepted the appeal and dismissed the suit of the plaintiff. The Revenue Appellate Authority had held that the Will Ex.-1 and document Ex. 2 had not been proved in accordance with law as no evidence was produced by the plaintiff to prove the same. It was further observed that even the plaintiff had not entered into the witness box.
4. It was observed by the lower appellate authority that for maintaining the suit for permanent injunction it was necessary for the plaintiff to have proved that the possession had been in the hands of the plaintiff and only then the suit could have been decreed so far the injunction is concerned. The issues as framed were:
(1) Whether the plaintiff is in possession of the property in question and whether the land Khasra Nos. 44, 46 and 48 could have been transferred in the name of the plaintiff?
(2) Whether the plaintiff is entitled to obtain the mandatory injunction;
(3) Whether Hari Singh is adopted son of Ram Singh;
(4) Whether Ram Singh had executed any will in favour of Hari Singh and the effect of such Will on the suit;
(5) Whether no such suit of permanent injunction is maintainable if the plaintiff is not in possession?
5. The order Annex. 7 was challenged before the Board of Revenue and the Board of Revenue vide Annex. 9 had observed that the Will in question was bequeathed in favour of the plaintiff by a registered document. The mutation and the entry in Khasra Girdawari were also in favour of the plaintiff based on registered document of Will, but it had been observed that because of the reason that the Will was not proved in the trial Court in accordance with the manner laid down in Section 68 of the Indian Evidence Act by calling the attesting witnesses and, therefore, the mutation attested and entries made in the Khasra Girdawari on the basis of this Will could not be relied upon. Review was filed by the present plaintiff which was dismissed vide Annex. 10 on 20.12.1982. It was mentioned in the order Annex. 10 that a submission was made that the same Will was admitted in evidence and was treated as having been proved in the earlier civil suit, Annex. 4. The review application was dismissed on the ground that the attention was not invited to such a document at the time of arguments. The reviewing authority had observed that even the document was proved in a separate court which did not mean that it should be automatically admitted by a different court as well. The reviewing authority had further observed that they had gone into the judgment of the Munsiff dated 5.1.1973 wherein the Munsiff had observed that the registered Will was produced and was proved by two attesting witnesses and the scribe who had written the document and it was further observed that this Will stood proved before the Munsiff, Rajgarh and only because the document is admitted and proved in the Court of the Munsiff, which could not be admitted automatically by a revenue court as well. In Annex. 10 the Board of Revenue had observed as under:
We may mention that our attention was not drawn towards the said judgment of the Munsiff, Rajgarh in the main appeal. We also find that before the first appellate court also, petitioner had not argued that this Will was proved before a civil court. However, even if a document was proved and admitted by a separate court it does not mean that it should be automatically admitted by a different court also. We have gone through the judgment of the Munsiff, Rajgarh dated 15.1.1973. While deciding issue No. 1, the Munsiff had observed that the registered Will was produced by PW 1 Raghunath Singh, the present petitioner and proved by two attesting witnesses and the scribe who had written the document. It is, therefore, clear that the provisions of Section 68 of the Evidence Act were complied with in the proceedings before the Munsiff, Rajgarh. Simply because a document was admitted by the Munsiff, it could not have been admitted automatically by a revenue court. In our judgment dated 9.12.1982 we have said that since the plaintiff-petitioner had not produced any attesting witness before the trial court as required by Section 68 of the Evidence Act it could not be used in evidence in the present proceedings as laid down in Section 68 itself. There is, therefore, no mistake in our judgment dated 9.12.1982 and the present review petition is dismissed at the stage of admission itself.
6. Counsel for the petitioner submits that Annex. 7, 9 and 10 cannot be sustained in the eyes of law for the reason that this very Will in favour of the petitioner had been proved in accordance with law before the civil court, which is clear from the judgment dated 15.1.1973 (Annex. 4) and confirmed by the appellate court vide Annex. 5 dated 5.1.1977 and, therefore, the principle of resjudicata was applicable in the present case.
7. After hearing learned Counsel of the parties, I am of the opinion that there is substance and merit in the argument made by the counsel for the petitioner. The ‘Will’ being relied upon was a subject matter in the judgment dated 15.1.1973. It was so proved in the court of Munsiff by the attesting witnesses and also by the scribe. So far the execution of the Will is concerned, finality had been attached to it and if in parallel or subsequent proceedings the decree as such is relied upon where the Will had been so proved as having been executed, it is binding on all the other courts as a final judgment. The Revenue Board had erred in saying that once a ‘Will’ has been proved in accordance with law and has become a part of the judgment, the ‘Will’ is to be time and again proved in all other proceedings as well. If this argument is accepted, there would be no end to the litigation. May be in a given case a ‘Will’ or document is proved in accordance with law in a given suit; validity and the legality of the Will or the document has become final and in subsequent suit there is hardly any necessity to prove the same document once again between the same parties, it will lead to enomolous position, situation and uncertainty. The Will once proved to be genuine ‘Will’ and proved in accordance with law in one case; the same Will can be interpreted or commented upon differently by the different court resulting to different results. Principles of resjudicata are applicable in such situation for a document having been proved between the same parties.
8. The principles of resjudicata are well established; if any citation is required, reference can be made to (1) AIR 1971 SC 664, (2) AIR 1971 SC 1676 and (3) AIR 1976 Raj. 20.
9. For the reasons and discussions mentioned above, I am of the opinion that the RAA and the Board of Revenue in the impugned judgments (Annexs. 7, 9 and 10) were in error to say that a document which stands proved in a earlier decree between the same parties needs to be proved again and again in subsequent proceedings as well and the finding that the Will properly proved and executed, in favour of the petitioner as per Annex. 4 judgment of the court of Munsiff and confirmed by the appellate court vide Annex. 5 is not resjudicata, cannot be sustained and such findings are illegal being against the principles of Resjudicata.
10. For the reasons mentioned above, the writ petition is allowed and the impugned judgments Annexs. 7, 9 and 10 are quashed and that Annex. 6 dated 18.11.1976 passed by the Assistant Collector is restored. No order as to costs.