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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • D.G Dalvi, for the appellant.
  • J.G Rele, for respondent No. 2 and also for heirs of respondent No. 1.
Judges
  • Mr. Madgavkar, J.
Acts
  • rule 5 at page 621, rule 2, clause 3 at page 623 and rule 9
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • D.G Dalvi, for the appellant.
  • J.G Rele, for respondent No. 2 and also for heirs of respondent No. 1.
Judges
  • Mr. Madgavkar, J.
Acts
  • rule 5 at page 621, rule 2, clause 3 at page 623 and rule 9
See more information ...
Smart Summary

Structured Summary of the Opinion (Madgavkar, J.)

Factual and Procedural Background

The dispute concerns whether the plaintiff-appellant (the managing Jahagirdar of the village) is entitled to a refund of an amount he paid to the defendants-respondents representing the respondents' one-sixth share of the revenue of the sharkati inam jahagir of Varkhade (Shevgaon Taluka, Ahmednagar District). The village is described as a dumala sharkati inam village (Government entitled to half of the assessment and the Jahagirdar the other half). The defendants hold a one-sixth share in the Jahagir; assessment is made in a Tharavband, Government recovers revenue and pays the inamdar's half to the managing Jahagirdar (apparently supported by Collector's Chitnis, Exhibit 31).

Historically, in Suit No. 104 of 1895 (Shevgaon Court), the predecessors of the defendants obtained a compromise/consent decree entitling them to a one-sixth share "out of the vasuli rakam" every year, payable in May. In 1900 and again in 1921 the defendants' predecessors applied by darkhast (execution applications) to recover their one-sixth share on the ground that land revenue had been suspended; those darkhasts were allowed. In 1922 Government ordered that the land revenue for 1918–1919, which had been suspended, should be remitted. The defendants had already recovered their one-sixth share for 1918–1919 under the 1921 darkhast.

The plaintiff instituted the present suit seeking (a) a declaration that the defendants had no right to recover their one-sixth share in years when the Collector had suspended or remitted the revenue, and (b) a refund of the amount the defendants recovered for 1918–1919 (which Government later remitted). The defendants pleaded res judicata based on the earlier decree and the two darkhasts of 1900 and 1921. Both lower Courts concluded the plaintiff's claim was res judicata and dismissed the suit. The plaintiff appealed.

Legal Issues Presented

  1. Whether the plaintiff's present claim is res judicata by reason of the findings and orders in the two prior darkhasts of 1900 and 1921.
  2. If not res judicata, whether the appellant is entitled to a refund for the revenue remitted in 1918–1919 and to a declaration as to revenue remitted in subsequent years (as opposed to revenue merely suspended).

Arguments of the Parties

Appellant's Arguments

  • The appellant sought a declaration that the defendants had no right to recover their one-sixth share in years in which the Collector had suspended or remitted revenue, and claimed a refund of the amount recovered for 1918–1919 (which Government later remitted).
  • Implicitly, the appellant contended that the prior darkhasts concerned only suspended revenue and did not decide the separate question of remitted revenue; therefore the present claim was not res judicata and could be brought by suit.

Respondents' Arguments

  • The respondents relied on the 1895 decree and the orders in the two darkhasts (1900 and 1921) and contended that the appellant's present claims were res judicata.
  • They relied on prior constructions of the decree (including authorities such as Beni Ram v. Nanhu Mal) to contend that the issues had already been finally decided.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Khetrapal Singh Roy v. Shyama Prosad Barman Cited for the proposition that a claim which is not contained in a decree (or is inconsistent with it) must be pursued by a suit and not by an application in execution. The Court relied on this authority to hold that the appellant's present claim for refund/declaration could not properly be pursued by execution procedures and required a suit; consequently the lower appellate Court's view that Section 47 (CPC) applied was erroneous.
Beni Ram v. Nanhu Mal Cited by respondents as an example where a construction or previous darkhast prevented re-agitation of an issue (example involved interpretation concerning interest in a decree). The Court held that Beni Ram v. Nanhu Mal had no application to the present facts: the prior darkhasts did not decide the distinct question of remitted revenue, and a prior construction in those darkhasts did not amount to a binding decision on the present issue.

Court's Reasoning and Analysis

The Court conducted a sequential analysis addressing (a) the procedural vehicle for the claim, (b) res judicata, and (c) the substantive distinction between suspension and remission.

  1. Procedural vehicle (execution vs suit): The lower appellate Court treated the present claim as falling under section 47 (Code of Civil Procedure). The Bench disagreed. The Court observed that the present reliefs (a refund and, at least, a declaration) could not properly be claimed under the decree by execution: the refund could not be obtained by execution, and the declaration was not contained in the decree. The Court therefore held that the appellant needed to pursue the claim by a suit rather than by an application in execution, citing Khetrapal Singh Roy v. Shyama Prosad Barman.
  2. Res judicata analysis: The Court examined the scope and content of the two prior darkhasts (1900 and 1921). It found that both darkhasts related to revenue that had been suspended and that neither contained an express decision on the distinct question of remitted revenue. The Court emphasized that res judicata requires a decision or at least a finding on the point; none such existed concerning remission. The respondents' reliance on construction of the decree and on Beni Ram v. Nanhu Mal was addressed: the prior constructions dealt with the meaning of "vasuli rakam" (whether it meant assessed amount or the amounts actually received). In the darkhasts the defendants' view (that it meant assessed amount) was accepted, but that construction was tied to the question of suspended revenue and payments due in May. The Court considered that such prior construction was, at best, a ratio decidendi limited to suspension issues and did not bind the present question of remitted revenue (and refund for 1918–1919).
  3. Substantive distinction between suspension and remission: The Court reviewed relevant rules in Mr. Joglekar's Land Revenue Code (rules cited by the appellant) that post-date the 1895 decree and outline conditions for suspension/remission in famines (including a requirement that remission should reach tenants). The Court observed these rules were promulgated in 1907 and did not exist at the time of the 1895 consent decree. The Court further found, from the Collector's Chitnis evidence, that remission was typically granted only after three continuous bad seasons.
  4. The Court reasoned that the consent decree contemplated payment of a one-sixth share of actual inam revenue in May; that timing may explain why courts in prior darkhasts treated suspension differently (a mere delay in payment to Government and then to the inamdar) and allowed recovery by the defendants despite suspension. However, remission differs fundamentally: when revenue is remitted, the cultivator does not pay Government and Government does not pay the inamdar. The Court saw no reason, on the text of the decree or on custom, why the managing inamdar should be liable to pay co-sharers an amount he never received from Government merely because the decree specified payment in May.
  5. Conclusion of analysis: Because the prior darkhasts did not decide the distinct issue of remitted revenue and because equitable considerations favored the appellant (the equities were "entirely with the appellant" as noted by the Subordinate Judge), the Court concluded the present claim was not res judicata and that on the merits the appellant was entitled to a refund in respect of the remitted revenue for 1918–1919 and to a declaration concerning remitted revenue in future years. The Court expressly limited relief: the appellant did not succeed regarding revenue that was only suspended.

Holding and Implications

Core Ruling: The Court allowed the appeal in part and set aside the decree of the lower appellate Court to the extent indicated.

Specific holdings and direct consequences:

  • The Court set aside the lower appellate Court's dismissal of the suit and allowed the appeal in respect of a refund of the revenue for the year 1918–1919 (which Government eventually remitted) and in respect of a declaration concerning revenue remitted in future years.
  • The appellant's claim relating to revenue that was only suspended (as opposed to remitted) was not allowed; the appellant failed on that part of the claim.
  • Costs: Each party was to bear its own costs throughout ("Each party will bear its own costs throughout" as stated in the opinion).
  • Decree variation: The lower appellate decree dismissing the suit was varied accordingly.

Broader implications: The opinion confines its relief to the parties and to the specific factual distinctions between suspension and remission. The Court relies on existing authorities for procedural and res judicata principles but does not state that it is announcing any novel or general precedent beyond application to these facts.

Decree varied.

Source: opinion by Madgavkar, J., as provided.

Show full summary ...

    Ragho Ravji Bharde v. Gopal Janardan

    Madgavkar, J.:—

    The question in this appeal is whether the plaintiff-appellant is entitled to a refund of a certain amount which he paid to the defendants-respondents in respect of the latters' one-sixth share of the revenue of the sharkati inam jahagir of Varkhade in the Shevgaon Taluka in the Ahmednagar District. Both the lower Courts held that the plaintiff's claim was res judicata and that he was not entitled to a refund nor to the declaration he sought of his non-liability for any amount suspended or remitted for subsequent years.

    The village in question, as stated above is a dumala sharkati inam village, that is to say, Government are entitled to half the assessment and the Jahagirdar ??? the other half. The plaintiff-appellant is the managing Jahagirdar and the defendants-respondents have a one-sixth share in the Jahagir. The assessment is made in a Tharavband and is recovered by Government and ??? inamdar's one-half is subsequently paid to the managing Jahagirdar the appellant, as appears from the evidence of the Collector's Chitnis, Exhibit 31.

    In Suit No. 104 of 1895 of the Shevgaon Court the defendants-respondents' predecessors against ??? predecessor of the appellant, a compromise decree ??? passed ordering that the plaintiffs in that suit should receive a one-sixth share out of the “vasuli rakam” every year and that the defendant should pay to the plaintiffs one-sixth every year in the month of May. In 1900 defendant No. 1 applied in execution for the recovery of the one-sixth share, which the plaintiff had declined to pay, on the ground that the land revenue had been suspended by Government. That darkhast was allowed in favour of defendant No. 1 and similarly the second darkhast in 1921. In 1922, Government ordered that the land revenue for the year 1918-1919, which had so far been only suspended, should be remitted. The defendants had already recovered their one-sixth share of the revenue for 1918-1919 under the darkhast of 1921. The plaintiff sued in the present suit for a declaration that the defendants had no right to recover this one-sixth share in the year in which the Collector had suspended or remitted the revenue and claimed a refund if the amount remitted for the year 1918-1919. The defendants set up the decree and the order in the previous darkhast and contended that the claim was res judicata. Both the lower Courts upheld the defendants' contention and dismissed the claim as res judicata. The plaintiff appeals.

    In the original application the plaintiff included a declaration in respect of the revenue suspended. It is ??? on his behalf in this Court that claim in ??? far as it relates to the suspended revenue is res judicata by reason of the orders in the two darkhasts of 1900 and 1921. The present appeal is, therefore, ??? whether as to the refund or the declaration, ??? to the revenue remitted. The lower appellate Court thought that the present claim fell under section 47, ??? Procedure Code. That view is not in my opinion ???. The present claim is for a refund and a declaration. The refund at least could not be claimed under the decree. Even in respect of the declaration it cannot be said that it is contained in the decree. The appellant can, at the most, urge that the decree is silent while the respondents contend that the decree on its previous construction in the two darkhasts is inconsistent with the present claim. Under these circumstances, it is necessary for the plaintiff to make the present claim by a suit and not by an application in execution: Khetrapal Singh Roy v. Shyama Prosad Barman.(1)

    The two questions in this appeal are, firstly, whether, the present claim is res judicata by reason of the findings and orders of the two darkhasts of 1900 and 1921, and secondly, if not, whether the appellant is entitled to a refund in respect of the revenue remitted in the year 1918-1919 and a declaration for the revenue remitted in the subsequent years.

    On the first point, both the previous darkhasts were in respect of the revenue suspended. There was nor issue nor an express decision on the question of the revenue remitted. The learned Subordinate Judges expressed no opinion as the point did not arise at any rate in those proceedings. The darkhast of 1900 contains no expression of opinion on the point. Such a claim as the present can only be res judicata by reason of a decision or at least a finding. None such is forthcoming in the previous darkhasts. The respondents are thrown back upon the construction of the decree in those darkhasts and upon cases such as Beni Ram v. Nanhu Mal.(2) This case has no application to the present facts. When one darkhast held that the decree gave interest at a certain rate, the question of that ??? of interest in the decree could not be subsequently ??? agitated in a second darkhast. Here the construction would, at the most, be a ratio decidendi and cannot support the plea of res judicata. Even on the question of construction, the previous construction merely came to this: The question in the previous darkhast was the meaning of the words vasuli rakam in the decree. The plaintiff contended that by vasuli rakam was meant the amounts actually received in his hands from Government. The defendants contended that the amount meant the assessed amount. The plaintiff's contention was negatived and the defendants' contention was accepted. The question in both the darkhasts as observed was, whether the defendants were, or were not entitled, to the revenue suspended and not in the hands of the appellant. The present question differs in two essential respects, firstly, that it is a question of the amount remitted and not suspended, and secondly, it is a question of a refund of the year 1918-1919. For these reasons, I am clearly of opinion that the present claim is not res judicata by reason of the findings and orders in the two previous darkhasts.

    As regards suspension and remission, the present rules promulgated in 1907 are to be found in Mr. Joglekar's Land Revenue Code. Out of them pages 620 to 625, and rule 5 at page 621, rule 2, clause 3 at page 623 and rule 9 at page 625 have been brought to my notice for he appellant. They merely in effect direct that in case of a total or partial failure of the crops the villages including inam villages are entitled to certain suspension, provided Government are satisfied that the remission reaches the tenants and does not stop with the ???. On the question of revenue remitted the decree is silent. These rules did not exist in 1895. It ??? a matter of common knowledge that previous to the ??? famine of 1900 and what is called “The ??? Inquiry,” suspensions and remissions, if at ??? were only granted in individual cases. They were not in my opinion, in the contemplation of either party ??? the time of the consent decree in 1895; and no reason appears and none has been shown, why the appellant merely because he was the eldest and the managing Inamdar should make himself liable to pay his co-sharers an amount which he would never receive from Government. He obtained no profits for the guarantee of payment even in bad years. The present question is really on the merits outside the compromise decree as far as the words of the decree go. The decree was however, passed merely on the respondents' one-sixth share of the revenue. It is not alleged for the respondents that there is any such custom of the managing Inamdar paying one-sixth revenue remitted or not obtained. The case of the revenue suspended stands on a different footing. From the evidence of the Chitnis, it appears that it is only after three years continuous bad seasons that a remission is given by Government. The claim which the defendants wished to enforce in the suit of 1895 and which was contemplated by the compromise or the consent decree was a sixth share of the actual Inam revenue. That share was to be paid in May, and therefore it is intelligible, that the Courts in considering the question of suspension would have to hold that the definite and ensuring payment in May to the respondents must oven ride the fact of the suspension, that is, delay in payment by the cultivator to Government and by Government to the plaintiff. The definite date May sufficient explains this view in regard to the revenue suspended. In regard to remissions, however, the case is wide different. The cultivator does not pay Government and Government does not pay the Inamdar. There ??? to be no reason why the respondents should claim retain the amount remitted merely by reason of the ??? May in the decree though it had been held that suspensions should not delay payment to them. ??? decree does not refer to the Tharavband. The defendants claimed in the darkhast of 1900 the suspend revenue. The Court held that the vasuli rakam referred to the revenue assessed and not the revenue actually obtained. That construction and the ratio decidendi are not necessarily binding in considering the present question of the revenue remitted and therefore irrecoverable by the Inamdar. The learned Subordinate Judge has himself observed that the equities are entirely with the appellant and not with the respondents. In regard, therefore, to the refund, I am of opinion that both the lower Courts were wrong. The question is not res judicata and the appellant is in equity entitled to such a refund of the amount remitted. For the same reason, the decree itself being silent, there appears no sufficient reason in this view to refuse him the declaration ??? regard to the revenue remitted in future years.

    I set aside the decree of the lower appellate Court dismissing the suit, and allow the appeal in respect of he refund of the revenue for the year 1918-1919 and in respect of a declaration of the revenue remitted in future years but not in regard to the revenue suspended.

    The appellant has succeeded in respect of remission at has failed in respect of suspension. Each party will ??? its own costs throughout.

    Decree varied.
    J.G.R
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    Comments

    Ragho Ravji Bharde v. Gopal Janardan
    (Sep 4, 1929)