Shri Tharu Ram vs Dharam Bir

Mahajan, J.—The only question that requires determination in this petition for revision is whether the previous decision interpartis by the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner operates as res-judicata in a suit filed by the transferee of the government-built property for the eviction of its occupant, who had laid claim to that property at the time of transfer.

The premises in dispute admittedly are government built property. In July 1950 they were allotted to Dharmvir Respondent. Dharmvir took possession of the same. After some time in June, 1951. he left for Bikaner. He, however, put the Petitioner, Tharu Ram, in possession of the property. In 1954, Dharmvir asked Tharu Ram to vacate the premises, but Tharu Ram did not do so. In 1956, Dharmvir returned from Bikaner. But in the meantime, an application had been made by Tharu Ram to the Rehabilition Department for transfer of the premises to him. He claimed to be in possession of the premises in his own right and prayed that his possession be regularised and the property be transferred to him in lieu of his claim. It may be mentioned that both Tharu Ram and Dharmvir are displaced persons holding verified claims. This application was resisted by Dharmvir. The case of Dharmvir was that the possession of Tharu Ram was merely that of a caretaker while on the other hand the stand taken up by Tharu Ram was that his possession was that of a sub-tenant under Dharmvir. The Assistant Settlement Commissioner decided that the property should be transferred to Dharmvir as he was in its occupation in his own right. According to Rule 41 of the Displaced Persons (Compensation & Rehabilitation) Rules-hereinafter referred to as the Rules-transfer could only be made to a displaced person in occupation of the property. Rule 41 is in these terms:

A displaced person having a verified claim who is in occupation of a Government built property which is an allotable property shall be paid compensation by the transfer of the property to him: * * *

An appeal against this decision was preferred by Dharmvir. In appeal it was held by Shri I N. Chib Deputy Chief Settlement Commissioner, exercising the powers of the Chief Settlement Commissioner that the case had not been property decided and he remanded the case for redecision and directed that it should be determined whether Tharu Ram was the sub-tenant of Dharmvir. This matter was enquired into by Mr. H. R. Seth, Assistant Settlement Commissioner, who was exercising the powers of the Settlement Commissioner By an order dated the 31st of August, 1959, it was held by the Settlement Commissioner that Tharu Ram was in possession of the property area(sic) sub-tenant of Dharmvir from June, 1981(sic), and he, therefore, directed that the property be transferred to Tharu Ram. Against this decision a revision was taken to the Chief Settlement Commissioner. It was decided by the Settlement Commissioner exercising the powers of the Chief Settlemenet Commissioner. The revisional authority set aside the decision of the Settlement Commissioner and held that Tharu Ram was merely a caretaker and not a sub-tenant. A further revision to the Central Government by Tharu Ram also failed. Consequently, the property was transferred under Rule 41 of the Rules to Dharmvir and he became the owner of the same.

The present suit was filed by Dharmvir against Tharu Ram for his eviction. The defence of Tharu Ram was that he was a tenant of Dharmvir. In replication the Plaintiff has raised the plea that this defence is barred by the rule of res judicata by reason of the decision of the competent authorities under the Displaced Persons (Compensation & Rehabilitation) Act, wherein it has been held that Tharu Ram is merely a caretaker of the property in dispute and not a sub-tenant. This plea prevailed with the trial Court and it has been held that the suit is barred by the constructive rule of res judicata. The Court below has relied on two decisions of the Supreme Court in Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, and Pandit M.S.M. Sharma Vs. Dr. Shree Krishna Sinha and Others, and another decision of the Lahore High Court in AIR 1929 86 (Lahore) It is against this decision that the present petition for revision has been preferred by Tharu Ram.

As I have already said, the short question that requires determination is whether the decision of the Chief Settlement Commissioner holding Tharu Ram to be a caretaker and not a sub-tenant of Dharmvir is res judicata. This matter stands concluded by the decision of Supreme Court in Pandit M.S.M. Sharma Vs. Dr. Shree Krishna Sinha and Others, . At page 1190, their Lordships of the Supreme Court observed as under:

This Court has laid it down in the case of Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, , that the principle underlying res judicata is applicable in respect of a question which has been raised and decided after full contest, even though the first Tribunal which decided the matter may have no jurisdiction to try the subsequent suit and even though the subject matter of the dispute was not exactly the same in the two proceedings. In that case the rule of res judicata was applied to litigation in land acquisition proceedings In that case the general principles of law bearing on the rule of res judicata, and no the provisions of Section 11 of the Code of Civil Procedure, were applied to the case. The rule of res judicata is meant to give finality to a decision arrived at after due contest and after hearing the parties interested in the controversy." These othervations fully apply to the facts of the present case. In order to determine as to whom the property should be transferred it was incumbent on the authorities to determine as to who was in actual occupation of the property. That is how the controversy was raised before those authorities as to the status of Tharu Ram. There, he contended that he was a sub-tenant whereas Dharmvir contended that he was merely a caretaker, being a close relation. Dharmvir''s plea prevailed ultimately and that too after contest. Thar being so, it must be held that the question as to what status Tharu Ram occupied for the purposes of Rule 41 was of necessity to be decided by the tribunal concerned, and that decision would, therefore, operate as res judicata.

Mr. Chawla, learned Counsel for the Petitioner, contends that it was not essential for the tribunal to decide the status of Tharu Ram. I am unable to agree with this contention for the reasons given above.

He further contends that Tharu Ram being in actual occupation, his possession would be possession in his right in terms of Rule 41. This again is not correct. I put to Mr. Chawla that if a servant is put in possession of the premises by the master, will his possession be deemed possession in his own right in law ? He frankly admitted that it would not be so. If that were so he could certaily keep out the master from the premises, if he so wanted. Mr. Chawla was not, and rightly so, in a position to contend that the possesion of the servant would be

possession in his own right in law. As a matter of fact, the possession would be that of the owner. The master can at any time throw out the servant. Same is the case so far as Tharu Ram is concerned. Therefore, the contention that the possession of Tharu Ram was possession in his on right and should be so treated for purpose of Rule 41 is of no substance.

No other matter arises for determination.

For the reasons given above, this petition fails and is dismissed. However, there will be no order as to costs.