PETITIONER: OSMAN UMAR Vs. RESPONDENT: MALAL ALIBHAI NATHU & ORS. DATE OF JUDGMENT: 07/02/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) CITATION: 1996 SCC (7) 531 JT 1996 (3) 35 1996 SCALE (2)213 ACT: HEADNOTE: JUDGMENT:
O R D E R
This appeal by special leave arises from the
judgment and order of the Division Bench of the Gujarat
High Court made on February 12, 1976 in LPA No.67/74.
In Jamnagar alias Nawanagar in Saurashtra Region of the
Gujarat State, there are four sets of Muslims by
name,Gujarati Aab, Sidi and Patni. The appellant
representing Patni Jamat made an application on
12.11.1951 to the Mamlatdar for grant of occupancy
certificate in support of Survey Nos.314 and 316 of the
land for use of Kabristan etc. The Mamlatdar granted
the certificate. Subsequently, on representation made
by other Jamats, their names also came to be included
and that had given rise to the endless litigation
culminating in this case. The trial Court in Suit
No.151/66 decreed the suit granting declaration that
all the Jamats are jointly entitled to use the property
for Kabristan etc. Perpetual injunction was granted
against the appellant for interfering with the common
use. On appeal and second appeal, the trial Court
decree stood reversed. In LPA, the Division Bench under
the impugned judgment, restored the decree of the trial
Court. Thus, this controversy.
It is contended that the civil Court has no
jurisdiction over the matters on which the Mamlatdar
had power to grant occupancy certificates and that,
therefore, the Division Bench was not right in
reversing the decree of the appellate Court and that of
the learned single Judge and restoring the decree of
the trial Judge. The High Court has noted thus:
“We however, do not propose to go
to the extent of declaring that the
occupancy certificate granted to
the defendant-jamat in respect of
the suit lands was void because the
suit lands were not governed by the
Saurashtra Barkhali Abolition Act,
1951. It is sufficient for the
purpose of the present case to say
that the three Jamats whom the
plaintiffs represent were not
parties to the occupancy
certificate proceedings and that,
therefore, the occupancy
certificate does not bind them nor
does it is any manner whatsoever
injure, harm or adversely affect
their rights to the suit lands.
In view of this finding the necessary conclusion
is that the occupancy certificate issued on the
application dated November 12, 1951 does not bind the
respondent. It is not in dispute that in 1947 the
application was moved jointly by all the Jamats and
sanad was given by the erstwhile Maharaja for common
use by all the four Jamats. In that view of the matter,
the finding recorded by the High Court. as referred to
earlier, is perfectly legal and does not call for
interference.
The High Court further held’that:
“Firstly, the plaint filed in the
earlier suit, Ex.43, was based upon
the plaintiffs’ joint title to the
suit lands which thy derived from
the Sanad granted to the plaintiffs
and the defendant by the Maharaja
of Navanagar on 14th April, 1928.
That is what has been stated in
that plaint. The present suit is
not based upon that Sanad. It is
based upon the subsequent Sanad
which the Maharaja of Navanagar
granted to the plaintiffs and the
defendant on 10th July, 1947. We
are of the view that the Sanad
Ex.37, conferred upon the parties a
fresh title to the suit lands on
10th July 1947 and that, therefore
what had happened earlier was
completely obliterated. The joint
title to the suit lands flowing
from the Sanad, Ex.37, commenced on
a clean slate with effect from 10th
July, 1947 when the Sanand Ex. 37,
was granted, the earlier suit was
instituted on 17th June, 1943, that
is to say prior to the grant of the
present Sanand Ex. 37. The
plaintiffs’ cause of action for the
present suit is based upon the
Sanad Ex. 37 which represents fresh
acquisition of joint title to the
suit lands for them. What happened
in the earlier suit, therefore,
cannot affect in any manner
whatsoever the joint title which
was conferred upon the plaintiff.”
In the light of the above finding, the contention that
the earlier suit which was to be allowed but had been
dismissed for non-prosecution operate as a res judicata,
bears title force. Thus, we hold that the doctrine of res
judicata does not apply to the facts of this case.
There is no illegality committed by the High Court
warranting interference. The appeal is accordingly
dismissed. No costs.