ORDER
1. This writ petition filed by
Jodhan, which has been referred to us for
decision at the instance of S.N. Singh J., chal
lenges a decision given by the Board of
Revenue on 30-5-1961 in a second appeal
arising out of a suit under Section 176 of the
Zamindari Abolition and Land Reforms Act,
confirming the appellate decision of the Ad
ditional Commissioner. Gorakhpur, dated
2-12-1960.
2. The plots in suit were originally held by one Ghulaman, who left two sons, Salik (father of the petitioner Jodhan and O. P. 6 Natha) and Lochan (father of O. P. 4 Ramdhari). On Ghulaman’s death the property was recorded in the name of Lochan alone; and when Lochan and Salik died a dispute arose between their sons, Ramdhari (son of Lochan) claiming to be the sole tenant, while Jodhan and Natha (sons of Salik) claimed that they were entitled to half share in the plots in question. On 20-3-1957 Jodhan and Natha filed this suit for partition under, Section 17ft of the Zamindari Abolition and Land Reforms Act, which was decided in their favour by the Assistant Collector First Class on 16-8-1960.
Meanwhile Ramdhari on 18-7-1957 had filed a suit in the Civil Court for a permanent
injunction to restrain Jodhan and Natha from interfering with his possession of the disputed plots (and in the alternative for possession of the plots) and that suit was dismissed, in respect of the plots with which we are at present concerned, by the First Additional Munsif of Deoria on 11-1-1960, with the finding that the plaintiff Ramdhari was not the exclusive sirdar of these plots. Ramdhari filed no appeal against the Munsif’s decision, which therefore, became final between the parties. He did however, appeal against the decision of the Assistant Collector in the partition suit and that appeal was allowed on 2-12-1960, in respect of the plots now in dispute, by the Additional Commissioner, who held that the plots in question belonged exclusively to Ramdhari and that Jodhan and Natha had no share therein. The suit for partition filed by Jodhan and Natha thus stood dismissed; and this decision was confirmed by the Board of Revenue by means of the impugned second appeal order dated 30-5-1961.
3. The contention now advanced by the petitioner Jodhan (which was also taken by him. before the Commissioner and before the Board of Revenue) is that the defence of Ramdhari in the partition suit to the effect that he was the sole sirdar of the disputed plots was barred by the principle of res judicata, in view of the earlier decision Riven against him by the First Additional Munsif of Deoria on 11-1-1960, which had become final between the parties. This plea was repelled by the Board of Revenue on the ground that the Civil Court had no jurisdiction to try the subsequent suit for partition of the holding and consequently the Civil Court judgment could not operate as res judicata under Section 11 C. P. C. 4. The fundamental question that calls for determination in this case therefore is whether a decision given by a Civil Court in a civil suit can operate as res judicata in a revenue suit subsequently decided by a Revenue Court, in which the same matter is directly and substantially in issue. Section 11 C. P. C. is couched in the following terms:
“11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigation 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.”
It is clear that in the case that we are now considering the conditions demanded by this section are not satisfied, for the civil Court which gave the earlier decision did not have the jurisdiction to try the subsequently decided revenue suit. Consequently, on a strict application of the terms of Section 11, the decision in the earlier civil suit could not operate as res judicata to bar the trial of the subsequent suit in the Revenue Court. It is argued on behalf of the petitioner, however, that in a situation like this the restricted rule enunciated by Section 11 C. P. C. should not be applied but
the subsequent revenue suit should be held to
be barred by the earlier Civil Court decision on
the basis of the general principles of res
judicata.
5. When considering this question of whether the strict terms of Section 11 C. P. C. or the wider principles of the general doctrine of res judicata apply to a case like the present, we are faced with an unfortunate discordance, if not contradiction, in the rulings cited by the parties in support of their respective contentions. In Bhagwan Dayal v. Mst. Reoti Devi, AIR 1962 SC 287 the Supreme Court held that a revenue Court decision on a question of title did not operate as res judicata in a subsequent civil suit, because the conditions required by Section 11 C. P. C. (viz. that the court trying the earlier suit should be competent to try subsequest suit) were not satisfied; and the general principles of res judicata were not permitted to be invoked.
Again, in Jankirama Iyer v. Nilakanta Iyer, AIR 1962 SC 633, which dealt with a case involving two successive suits in the Civil Courts it was observed:
“When Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of Section 11 and no other.”
On the other hand, Gulab Chand v. State of Gujarat, AIR 1965 SC 1153 it was held that a civil suit was barred upon general principles of res judicata by an earlier decision on the merits in a writ petition and the Supreme Court remarked:
“We are of opinion that the provisions of Section 11, 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 that on the general princnple 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. It is 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”.
6. It is difficult to reconcile this latter case of Gulab Chand, AIR 1965 SC 1153 with the earlier decision given by the Supreme Court in Bhagwan Dayal v. Mst. Reoti Devi AIR 1962 SC 287, holding Section 11 Civil P. C. to be attracted in a case where a Revenue Court decision was followed by a civil suit dealing with the same questions of title. That case has not been referred to or discussed in the later ruling, but by implication would appear to have overruled. It is to be noted that when deciding Bhagwan Dayal’s case, AIR 1962 SC 287 their Lordships did not embark on any discussion of the applicability
of the general principles of res judicata to such a case, but remarked that it was not necessary to consider the differences between the
scope of the principle of res judicata covered by Section 11 of the Code of Civil Procedure and that of the principle of res judicata dehors the said section.”
7. The view that now holds the field appears to be that Section 11 C. P. C. is applicable only to cases where both the earlier proceeding and the later proceeding and which is said to be barred by the earlier one are civil suits, whereas in other cases, in which neither of e two proceedings or only one of them is a civil suit, the general doctrine of res judicata, shorn of the limitations imposed by Section 11, is to be applied. This view finds expression in the following passage from, AIR 1965 SC 1153 (already cited above):
“The Code was dealing with procedure of the Civil Courts only and had therefore not to consider what would be the effect on the trial of suits in view of the provisions of other
enactments or of general principles of res judicata or of any other kind. It had to restrict its provision about res judicata to the effect of decisions in a civil suit on a subsequent civil suit and therefore enacted Section 11 in the form in which we find it. It made one of the conditions for the application of a previous decision to operate as res judicata to be that the previous decision is made not only by a Court competent to make it but by a Court which may be competent to try the subsequent suit, This condition must have been considered necessary in view of the observations of the Privy Council in Misser Raghubardial’s case, (1883) 9 Ind App 197 (PC) and OB account of the hierarchy of Courts under the various Acts constituting Courts of Civil Judicature and it could have been felt that a decision by a Court which is not competent to decide the subsequent suit be not treated of a binding nature. Such an exceptional procedure seems to have been provided as a matter of precaution as the Court not competent to try the subsequent suit must necessarily be a Court of inferior jurisdiction and therefore more liable to go wrong. Whatever the reason may be, the provisions of Section 11 will govern a previous decision in a suit barring a subsequent suit with respect to the same matter in controversy and general principle of res judicata in such particular circumstances will
neither be available to bar a subsequent suit nor will be needed”.
It is true, as has been pointed out in the dissenting judgment of Subba Rao J., that the rule that has been laid down in this case of Gulab Chand, AIR 1965 SC 1153 gives rise to anomalies, for it implies that a decision in a previous civil suit that does not certify the stringent conditions of Section 11 C. p. C. will not
operate as res judicata in a subsequent suit, whereas a decision in a proceeding that is not a suit will be res judicata whether it satisfies the conditions of Section 11 or not. But that cannot be helped; in the conflict between the terms
of Section 11 and general principles of res judicata,
anomalies of one kind or another are inevitable; and the only way to avoid them Would seem to be to re-enact Section 11 in some wider and less restrictive form.
8. Applying the rule enunciated above to the facts of the present case, we find that Section 11 C. p. C. is not applicable and that the case is governed by the general doctrine of res judicata. The decision of 11-1-1960 was no doubt gives by a Civil Court in a civil suit, but the subsequent decision of 16-8-1960 was by a Revenue Court in a revenue suit. Revenue courts are courts of special limited jurisdiction, belonging to an entirely separate hierarchy and Courts are courts of special limited jurisdiction, cannot be equated with Civil Courts; and only made applicable to revenue suits (vide Chapter IX of the U. P. Land Revenue) Act and Appendix I to the Revenue Court Manual. If, therefore, Section 11 C. p. C. is concerned solely with the effect of decisions in a civil suit on a subsequent civil suit, it cannot govern the effect of the decision in a civil suit on a subsequent revenue court decision.
9. The Board of Revenue was thus wrong in holding that the Munsif’s decision of 11-1-1 1960 could not operate as res judicata in the subsequently decided revenue suit on the ground that the requirement of Section 11 C. P. C., had not been satisfied. In the circumstances of this case the general principles of res judicata would apply and the Munsif’s decision would bar the defence taken by Ramdhani in the revenue suit, despite the fact that the Munsif had no jurisdiction to try the latter suit.
10. The Additional Commissioner had repelled the plea of res judicata on other grounds, but these are clearly untenable. He was of opinion that the Munsif’s decision could not operate as res judicata because the suit in which it was given had been filed later than the revenue suit. But it is the date of decision that counts, not the date of institution; and the Munsif decided the civil suit on 11-1-60, whereas the revenue suit, though instituted earlier, was not decided until 16-8-1960. The Civil suit, having been decided earlier is the ‘former suit’ for the purposes of res judicata while the revenue suit, decided later, is the ‘subsequent suit’.
The Additional Commissioner also thought that the Munsif’s decision could not operate as res judicata because the civil courts had no jurisdiction at that time to decide sirdari rights. The fact is however, that the decision was fully within jurisdiction. The question of Sirdari rights was referred by the Munsif to the revenue court under Section 332 of the Zamindari Abolition and Land Revenue Act and the findings given by the Revenue Court on this point were accepted by the Munsif and incorporated in his final decision. An attempt has been made to argue before us that Section 332 had been deleted at the relevant time, but we find that it was not deleted until 7-11-1958, whereas the reference had been made to the revenue Court on 30-1-1958 (as is clear from the certified copy produced by the petitioners).
11. We are satisfied therefore that both the. Additional Commissioner and the Board of Revenue were wrong in holding that the civil Court decision of 11-1-1960 could not operate as res judicata. This petition is accordingly allowed with costs and the impugned orders of 2-12-1960 and 30-5-1961 are quashed (with the result that the decree of the Assistant Collector dated 16-8-1960 is restored).
