Case: Phool Chand Sharma And Others Vs. Chandra Shanker Pathakand Others

The father of the 1st respondent was the Zamindar who filed a suit in the court of Sub-Divisional Officer; Tehsil Iglas at Aligarh for the eviction of Ram Prasad-father of the appellants from certain plots of land situated in village Kanchiraoli in the district of Aligarh. The suit was decreed and in execution of that decree the Zamindar took possession. Thereafter Ram Prasad filed an appeal to the Additional Commissioner but this was dismissed in November, 1944. He then preferred a further appeal to the Board of Revenue but before it came on for hearing the dispute was settled and on March 28, 1948 an application was filed for recording this compromise. The term of the compromise which is of relevance to the present appeal is that Ram Prasad was to be recognised as tenant of the land in dispute; in other words, the order for eviction was nullified. The compromise was recorded and a decree in terms thereof was passed. Some attempt was made by the Zamindar to have the compromise set aside on grounds which it is not necessary to mention, but these attempts failed with the result that it left the compromise decree passed by the Board in full force. It might however, be mentioned that the Zamindar immediately obtained possession in execution of the decree of the Sub-Divisional Officer, admitted one Data Ram and certain others as tenants and put them in possession of the property and this has led to all the subsequent complications in this case2. On the strength of the compromise decree Ram Prasad applied for restitution of possession under S. 144 of the Civil Procedure Code. This application was resisted particularly by Data Ram and others who had been inducted as tenants on the land, while the eviction proceedings were pending before the Additional Commissioner on appeal. The trial court allowed the application on the ground that Data Ram and others were bound by the rule of lis pendens and were not, therefore, entitled to retain the possession which they obtained during the proceedings for ejectment. Form this order an appeal was taken by Data Ram and others to the Additional Commissioner who, for reasons which it is not necessary now to canvass, held that the newly inducted tenants could not be dispossessed and that Ram Prasad was entitled only to symbolical possession as against the Zamindar. This order was taken to the Board in revision where, however, it was dismissed. It is to challenge the correctness of this order that this Appeal has been filed.

Reasoning:
This Court held that where such a petition was heard on the merits and dismissed by the High Court the decision pronounced was binding on the parties unless it was modified or reversed in appeal or by other appropriate proceedings. If thus the rule of res judicata were a bar even to a petition under Art. 32 which is a constitutionally guaranteed right, it looks to us that it would be a fortiori so as regards an appeal under Art. 136 where the right to relief is discretionaryNo doubt, there are few observations of S. K. Das, J. who spoke for the Court which are capable of being understood in the manner suggested by learned Counsel but as ultimately the learned Judges upheld the preliminary objection and dismissed the appeal, these observation are only by way of obiter and cannot outweigh the express decision on the point in Daryaos case, 1962-1 SCR 574   : (AIR 1961 SC 1457  ). We might, however, point out that in Indian Aluminium Co. Ltd. v. Commissioner of Income-tax West Bengal, 1961-43 ITR 532   : (AIR 1962 SC 1619  ) in which also the judgment was delivered by S. K. Das, J. the reasoning of the learned Judge who held a similar preliminary objection is more in line with the decision in Daryaos case 1962-1 SCR-574 : (AIR 161 SC 1457) though the latter judgment which was delivered on the same day as in the Indian Aluminium Co.s case, 1961-43 ITR 532   : (AIR 1962 SC 1619  ) is not naturally referred to. The learned Judge observed :"The question which has arisen in this appeal by way of a preliminary objection is whether in the circumstances set out above - (no-appeal was preferred against the order of the High Court refusing to make a reference under S. 66(2) of the Income-tax Act) - special leave to appeal from the decision of the Tribunal dated May 29, 1956, was properly given under Art. 136 of the Constitution and whether the appellant is entitled to ask this Court to exercise its discretion under the said article when it did not move against the subsequent orders of the Board and the High Court under S. 66 of the Act . . . We hold that special leave to appeal from the decision of the Tribunal dated May 29, 1956, was not properly granted in this case and the appellant is not entitled to ask us to exercise our power under Art. 136 of the Constitution, when it did not move against the subsequent orders of the Board and the High Court."This preliminary objection therefore has to be upheld.