DATTATREYA AND ORS.versusMAHAVEER AND ORS.

                     DATTATREYA AND ORS.                               A
                                  V.

                      MAHA VEER AND ORS.

                           MAY 31, 2004
                                                                       B
           [BRJJESHKUMAR AND ARUN KUMAR, JJ.]

    Karnataka Land Reforms Act, 1961; Section 45/Karnataka Certain
lnams Abolition Act, 1977; Section 5 :

      Rights of occupancy tenancy over disputed land-Claim of-Land C
Tribunal granted rights in favour of applicant/respondents-However, on
the application of another person/appellant, Tribunal also granted him the
rights on the same land-Challenged by the respondents-Remanded to the
Tribunal by Single Judge of the High Court for consideration of the
Applications of both appellants and respondents afresh-Challenged by D
both the parties-Division Bench of the High Court allowed the appeal of
the respondents and rejected the other-On appeal, Held : since tenancy
rights were acquired and granted in favour of respondents under the
provisions of the Karnataka Land Reforms Act, in terms of the earlier
order of the Tribunal, the same land was not available any more for E
registration of occupancy under the provisions of the 1977 Act-Since
earlier Order of the Tribunal was neither void nor challenged by the
appellants, it cannot be ignored in a collateral proceeding-Hence
Division Bench of the High Court rightly set aside the order of the Single
Judge.
                                                                       F
      Respondents filed an application before the Land Tribunal claiming
occupancy tenancy rights in respect of the land in dispute belonging
to a temple. The Tribunal granted them rights in terms of provisions
of the Karnataka Land Reforms Act. Later, some other persons,
appellants moved applications under the provisions of the Karnataka G
Certain Inams Abolition Act for registering them as occupants over the
same land and subsequently, they also filed a writ petition challenging
the Tribunal's Order. The writ petition was dismissed by the High
Court. Appellants filed another writ petition, and the High Court
directing the Tribunal to dispose of the pending application on merits. H
                                 811
    812               SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A Tribunal granted the occupancy rights in favour of the appellants, but
    observed that in view of its earlier order, occupancy rights which were
    granted in favour oft he respondents stood confirmed as not challenged.
    Respondents challenged the order of the Tribunal. Single Judge of the
    High Court remanded the matter to the Tribunal for reconsideration
B   of the applications moved earlier by both the parties. Both the parties
    challenged the order by filing cross appeals. Division Bench of the High
    Court allowed the appeal of the respondents and dismissed the other.
    Hence the present appeal.

          Dismissing the appeal, the Court
c
        HELD : 1. The appellants cannot be allowed to claim any
  bonafides in not impleading the respondents as parties in the writ
  petition or about non-disclosure of the earlier order of the Tribunal
  before High Court in respect of the same land knowingly on the ground
D that it was not necessary to disclose it. They knew well that if any order
  is passed in their favour the respondents would be the affected persons.
  The respondents were deprived from raising this point before the
  Single Judge. The conduct of the appellants had been far from being
  fair if not fraudulent. It was a deliberate suppression of material fact
  which caused prejudice to the respondents. Fair play is the basic rule
E to seek relief under Article 226 of the Constitution. [821-E-F-GJ
        2.1. The appellants claimed their rights as pujari by filing an
  application under Section 5(2)(i) of the Karnataka Central lnams
  Abolition Act, 1977 which plea could have been taken by then: while
F the matter was before the Tribunal and before the order was finally
  passed. Nothing has been indicated as to why it could not be done. As
  a matter of fact the tenancy rights of the respondents were admitted
  before the Tribun·al. The Tribunal and the Single Judge of the High
  Court have rightly observed that once the matter was finalized and the
  High Court had declined to interfere in the position as existed in terms
G of the orders of the Tribunal, there was no occasion to reopen the
  matter and decide the same on merits. As a matter of fact the earlier
  order was also on merits. It was passed on the basis of the revenue
  records and the statements on the record of the case and the admission
  made by one of the parties, and the matter was allowed to attain
H finality. (822-A-B-C-D(
                    DATTATREYAv.MAHAVEER                          813

      2.2. The Courts below felt compelled to consider the application A
of the appellants moved in the year 1985 under the provisions of the
Karnataka Certain Inams Abolition Act on merits in view of the order
passed by the High Court in the writ petition but this, order could not
be construed so narrowly. The fact of the matter is that by Tribunal's
order dated 3.7.1979 rights of the occupancy tenancy had been granted B
in favour of the respondents and certificate to the same effect had also
been issued in their favour. The order was passed in the presence of
the appellants. The result was that the tenancy rights were acquired
and granted in favour of the respondents under Section 45 of the
Karnataka Land Reforms Act and the land was not available any more
for registration of occupancy under Section 5(2)(i) of Karnataka C
Certain Inams Abolition Act, 1977, more 'so when the Tribunal's order
dated 3.7.1979 was not challenged much less before or up to the time
of appellants moving application in the year 1985. Thus, it attained
finality. For the first time it was challenged after a lapse of about 11
years by the appellants by filing a writ petition. The writ petition was D
dismissed ultimately on the ground of Iaches which order was again
not challenged. Moreover, the order dated 3.7.1979 is not a void order
so as to be ignored in any collateral proceedings nor it was put in
question in the proceedings initiated by the appellants in 1985. Merely
filing a writ petition does not mean that it automatically by itself E
 reopens the whole matter to be examined in any other collateral
 proceedings and the finality attained by the order is lost. Therefore,
it is not a question of bar of res judicata as well. (822-F-G-H; 823-A-
B, C-D-E]

      Basappa Gurusangappa v. Land Tribunal, (1979) 2 KLJ 370, F
distinguished.

     2.3. The order passed by the Single Judge in the writ petition
behind the back of the respondents and obtained by suppressing the
material facts does not compel the Tribunal or the Single Judge -to G
allow the claim of the appellants in the facts and circumstances of the
case. The Division Bench has rightly held that the question of validity
of Tribunal's order dated 3. 7.1979 was not in question before the
Tribunal in the petition moved by the appellants in the year 1985 nor
it was a matter for consideration before the Single Judge of the High H
    814                SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.

A Court. Hence, the order of Single Judge has rightly been set aside by
  the Division Bench in appeal. The merits of the Tribunal's order dated
  3.7.1979 is not a matter to be considered in these proceedings. No good
  reason has been found to interfere in the order passed by the Division
  Bench except to delete some of the observations which are a bit harsh
B and were not necessary to be made for disposal of the case. (823-F-G-
  H; 824-A-B-CrD]

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 35 of 1999.

C        From the Judgment and Order dated 31.3 .1998 of the Kamataka High
    Court in W.A. Nos. 9706 and 6915 of 1996.

         Rajinder Sachar, Sudarsh Menon, Mahesh Singh and G.S. Sharma for
    the Appellants.

D        P.A. Kulkarni, Khwairakpam Nobin Singh and Sanjay R. Hegde for
    the Respondents.

          The Judgment of the Court was delivered by

E      BRIJESH KUMAR, J. : The dispute in the present appeal relates
  to Sy. No. 1033/1 + 2 situate in Belgaum belonging to the temple Shri
  Chandramouleshwara Dev of Belgaum which is a registered public trust.
  The respondents in this appeal claimed occupancy tenancy rights under the
  provisions of Section 45 of the Kamataka Land Reforms Act, 1961 by
F moving an application dated 23.8.1974. The aforesaid claim of the
  respondents was considered by the Land Tribunal, Belgaum and by order
  dated 3.7 .1979 it declared the respondents as tenants and granted occupancy
  tenancy rights under Section 45 of the Kamataka Land Reforms Act (for
  short 'the Act') with effect from 1.3.1974. While passing the aforesaid
  order, the Tribunal made a reference...,,to the relevant records and the
G statements of the parties and it also noted the fact that the tenancy of the
  respondents, who were applicants, was admitted by Madhukar Adhyapak,
  one of the appellants in this appeal. The relevant date for accrual of rights
  of occupancy tenancy is 1.3.1974, on which date the Tribunal came to the
  conclusion, on the basis of the evidence on the record, that the respondents
H were in possession over the land in dispute as tenants. The order dated
          DATIATREYA v. MAHA VEER [BRIJESH KUMAR, J.]                815

3.7.1979 was not challenged by any party by filing any appeal, revision A
or any other proceedings in any court whatsoever except for the first time
in 1990 by filing a writ petition. In the meantime in 1981 the occupancy
tenancy certificate was also issued in favour of the respondents.

       The appellants, however, on 22.6.1985 moved an application under B
Section 5 of the Karnataka Certain Inams Abolition Act, 1977 (Karnataka
Act No. 10 of 1978) in Form I for registration as occupants over the same
land namely, Sy. No. 1033/1 +2 claiming possession over the land for a very
long time and having been rendering service to the temple by performing
religious worship. The appellants claimed to be the wahivatdars of Shri C
Chandramouleshwar Devasthanam, Belgaum. After five years of filing of
the aforesaid application the appellants filed a writ peition No. 14033 of
1990 challenging the order dated 3.7.1979 granting occupancy tenancy
rights in favour of the respondents. The aforesaid writ petition was
dismissed by order dated June 3, 1991. The order dated 3.7.1979 appears
to have been challenged on the ground oflack of individual notice and that D
it was urban land, therefore, the Karnataka Land Reforms Act would not
be applicable. The court also discussed the point relating to service of
notice and found that the parties were represented. In any case, ultimately
it was held that the writ petition was filed nearly I I years next after the
impugned order of the Tribunal hence the petition was dismissed on the E
ground of !aches. The matter rested at that and the order of the High Court
dated 3.6. I 991 was not challenged any more and was allowed to become
final.

      After the dismissal of the writ pet1t10n No. 14033 of 1990 the F
appellant filed another writ petition No. 5495of1992. The grievance raised
in the above noted writ petition seemed to be' that no orders have been
passed on the application filed by the appellant in Form No. 1 dated
22.6.1985 under the provisions of the Karnataka Certain Inams Abolition
Act, I 977. The court allowed the writ petition directing the Tribunal to
dispose of the application on merits in accordance with law within a period G
of four months from the date of receipt of the order. It would be worth
noticing that the private respondents in whose favour occupancy tenancy
was granted by order dated 3.7.1979 were not impleaded as the respondents
in the writ petition and the order was passed in their absence. However,
in view of the direction issued by the High Court the Tribunal took up the H
    816                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A matter for decision on merits.

        The Tribunal by order dated 21.9.1993 granted occupancy rights to
  the appellants under Section 12(2) of the Karnatka Certain lnams Abolition
  Act. While disposing of the application the Tribunal took note of the fact
B that by order dated 3. 7.1979 occupancy rights were granted in favour of
  the respondents under Section 45 of the Karnataka Land Reforms Act,
  196 l and further the fact that the writ petition preferred about l 1 years after
  the aforesaid order was dismissed on the ground of !aches. The Tribunal
  further observed that in view of the above position the occupancy rights
  granted to the respondents stood confirmed by reason of non-interference
C by the High Court. Therefore, the Tribunal observed that the question of
  reconsideration of the case by the Tribunal did not arise. Despite the above
  observation the Tribunal felt that since there was a direction by the High
  Court given in writ petition No. 5495 of 1992 to consider and dispose of
  form No. I filed by the appellants, it was necessarily to be considered on
D merits. Interestingly the Tribunal mentions the fact that the Chairman of
  the Tribunal opined that the order dated 3.7.1979 was not to be reopened.
  But the two Members without considering the effect of the order dated
  3.7.1979 passed an order for granting occupancy tenancy rights in favour
  of the appellant on the ground that they had been performing pooja in the
E temple since long.

           The aforesaid order of the Tribunal dated 21.9.1993 was challenged
    by the respondents by filing a writ petition No. 35394of1993. The learned
    single Judge while considering the effect of the order dated 3.7.1979 passed
F   in favour of the respondents observed •that earlier the writ petition (No.
     I 4033 of 1990) was filed by "R3- to R-8" as wahivatdars of the temple
    but the later petition has been filed though by the same person "R-3 To
    R-8" but in capacity of poojaris and trustees. Thereafter the learned single
    Judge referred to a decision of this Court reported in AIR ( 1989) SC P.
    1764, Pujaribai v. Madan Gopa/, to observe that a writ petition dismissed
G   on the ground of !aches does not operate as res judicata. In so far as the
    non-impleadment of the respondents in the writ petition No. 5495 of 1992
    is concerned, the learned single Judge observed that they failed to move
    any review or modification application to modify the order dated 16.4.1993
    viz. the direction given to consider the application of the appellants dated
H   26.6.1985, under the Karnataka Certain lnams Abolition Act. It was further
          DATIATREYA v. MAHAVEER [BRIJESH KUMAR, J.]                    817

observed that there was no occasion to say that the present appellant acted A
fraudulently in not impleading the respondents as parties in the writ
petition. The single Judge was rather emphatic on the point that it was for
the respondents to have got the earlier order reviewed. Surprisingly it
refrained from observing anything in respect of the conduct of the
appellants in not impleading the respondents as parties in the writ petition. B
Thereafter the learned single Judge placed reliance upon a decision of the
Karnataka High Court reported in 1979(2) KLJ P. 370, Basappa
Gurusangappa v. Land Tribunal and quoted the following paragraph from
the said judgment which is reproduced below :

         "Even if one of the rival applicants has filed his application earlier C
         and the Tribunal had granted him occupancy right in respect of
         the land and subsequently another applicant makes an application
         within the time limit provided by S.48A in respect of the same
         land, the Tribunal is bound to consider the later application by
         setting aside its earlier order and consider both the rival D
         applications".

We, however, find that the learned single Judge totally failed to give due
weight to the observation made in the case of Basappa (supra) that if the
subsequent application is made "within the time limit provided under E
Section 48A in respect of the same land". The decision of the Division
Bench seems to have been rendered in a different fact situation where it
appears that within the time allowed for making on application for grant
of tenancy rights, the subsequent application had been moved under the
provisions of the same Act, therefore, rightly it could not be thrown out F
on the ground that earlier an order had already been passed in favour of
another party. Claim of both the applicants who approached the Tribunal
within time shall have to be considered on merits. But we find that the
position in the case in hand is different. The application for grant of
occupancy rights had been moved by the respondents some time in 1974
under the provisions of the Kamataka Land Reforms Act, 1961. The order G
on the said application was passed in favour of the respondents on 3.7.1979
after the appellants were heard. Yet the application for grant of tenancy
rights on the basis of Karnataka Certain lnams Abolition Act, 1977 was
moved by the appellants in the year 1985. It is nowhere to be found that
the application moved subsequently under a different Act was within the H
    818                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A time allowed under the law for the purpose, though we feel that "within
    the time allowed" should be under the one and the same provision. The
    learned single Judge thereafter came to the conclusion as follows :

             " ...... The Tribunal has got powers to set aside its earlier order,
             even if that order has been confirmed by the High Court, if it is
B
             required to be considered along with another application filed by
             other person for the occupancy rights in the same land. The proper
             course to be followed in this respect would be to set aside the order
             of the land Tribunal whether it is confirmed by the High Court
             or not and then consider both the forms together and pass orders
c            in accordance with law."

    The decision in the case of Basappa (supra) has been totally misapplied
    by the learned single Judge. The other question for application of Basappa 's
    case (supra) was as to whether the subsequent application was filed by the
D   same or other persons. In the present case the learned single Judge has
    found that the same persons who were before the Tribunal in the
    proceedings in 1974 in which the order was passed in 1979 had moved
    the application of 1985 but they were claiming right in a different capacity.
    Such a distinction is immaterial as they are the same persons in any case.
E   It is not that the appellants could not resist the claim of respondent or claim
    those rights as claimed by means of an application moved in 1985, when
    the matter was earlier considered by the Tribunal in respect of the same
    land and an order was passed by it on 3.7.1997. However, the learned single
    Judge passed an order remanding the matter to the Tribunal for considering
F   both the applications as moved by the appellants and respondents in the
    year 1985 and 1974 respectively. It is worthwhile to note that the validity
    of the order dated 3.7.1979 passed by the Tribunal was not in question
    before the learned single Judge, yet the matter was reopened in a collateral
    proceedings.

G         Both parties challenged the order passed by the learned single Judge
    before the Division Bench. The Division Bench allowed the appeal
    preferred by the respondents and dismissed the appeal filed by the
    appellants. The Division Bench while dealing with the appeal, observed
    that the tenants namely the respondents were not made parties to the writ
H   petition No. 5495 of 1992. The Court, it is observed, while issuing an order
          DATIATREY~ v. MAHA VEER [BRIJESH KUMAR,l]                    819

to consider the application of appellants under the Karnataka Certain Inams A
Abolition Act, 1977, was not aware of the earlier writ petition, which was
filed by the appellants and was dismissed, namely writ petition No. 14033
of 1990. The Division Bench took the view that by refusing to interfere
with the order passed by the Tribunal dated 3. 7.1979, the High Court while
dismissing the writ petition No. 14033 of 1990 on the ground of !aches, B
in effect confirmed the order of the Tribunal. The Division Bench was also
of the view that the appellant played fraud by not disclosing the earlie(
order dated 3.7.1979 passed by the Tribunal, and further by not impleading
the respondents as parties in the aforesaid writ petition. The respondents
had been granted the occupancy certificate as well on 28.2.1981, The writ C
petition was filed after a lapse of 11 years. It was also observed that the
matter had already been closed and could not be reopened nor there was
any such prayer to that effect. The Division Bench also held that the
decision of the Karnataka High Court in the case of Basappa (supra) would
not be applicable as the objections cannot be said to have been filed within
the stipulated time. The Division Bench came to the conclusion that there D
 has been suppression of facts, and fraud has been played by the appellants,
resulting in abuse of process oflaw in unsettling the settled position which
had attained finality by order dated 3.7.1979 passed by the Tribunal and
 by refusal of the High Court to interfere in the matter though on the ground
of !aches.                                                                    E

     Our attention has also been drawn by the learned counsel for the
appellants to certain strong observations made by the Division Bench
saying that there was apparent collusion with the members of the Land
Tribunal and the wahivatdars and so on and so forth.
                                                                             F
      On behalf of the appellants it has been vehemently urged that refusal
of the High Court to interfere with the order on the ground of !aches, does
not mean that the order passed by the Tribunal was confirmed, nor the order
of the High Court operates as res judicata in respect of the rights accrued
to the appellants under the provisions of the Kamataka Certain lnams G
Abolition Act, 1977 which question in any case, had to be considered on
merits but it has not been considered by any court. It is strongly submitted '-
that there was no occasion for the Division Bench of the High Court to
have made disparaging remarks against the members of the Tribunal and
to record findings of fraud played by the appellants.                          H
    820                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A         Viewing the facts in the light of the submissions made on behalf of
    the appellants the sequence of the events which becomes important is that
    in the year 1979, the order of grant of occupancy tenancy under Section
    45 of the Kamataka Land Reforms Act was passed by the Tribunal in the
    presence of the appellants. The tenancy rights of the respondents had also
B   been admitted as observed in the order of the Tribunal. For a long time
    thereafter nothing happened i.e. no appeal or revision was filed and the
    order was allowed to become final. A period of eleven years were allowed
    to lapse before the order dated 3. 7 .1979 was challenged by means of a writ
    petition No. 14033 of 1990 which was ultimately rejected on the ground
C   of !aches after discussing some of the points also. The effect of such an
    order would obviously be that the High Court has been of the view that
    the position as has been coming down unchallenged since 1979 for about
    11 years must be allowed to be continued and it was too late a stage to
    entertain the matter. Again we find that the above order of the High Court
    has been allowed to become final and no appeal or any other proceeding
D   was even preferred against the said order. Thus the challenge made to the
    order dated 3. 7 .1979 rested at that and its validity was not in question
    anywhere not even in proceedings sought to be initiated by the appellants
    in the application moved in 1985.

E        In the meantime, in the year 1985 an application in Form I was given
   by the appellants for registration of occupancy under the provisions of the
   Kamataka Certain Inams Abolition Act, 1977. Since it remained pending
   and was not decided, another writ petition was filed, namely, writ petition
   No. 5495 of 1992 but the respondents were not impleaded as parties to the
F said petition. It is true a direction was sought for the Tribunal to dispose
   of the application moved by the appellants in the year 1985 and the learned
   single Judge being uninformed about the earlier order passed by the
   Tribunal in 1979 in respect of the same land on an application in which
   both parties were represented, passed the order for disposal of the
   application on merits. We, however, feel that the learned single Judge went
G wrong one-sidedly in saying that it was incumbent upon the respondents
   to have got the order reviewed or modified. By not impleading the present
   respondents as parties in writ petition No. 5495 of 1992 the appellants
 . deprived the respondents of an opportunity to challenge that order, rather
   they were kept in dark about the whole proceeding. Any order to consider
H the application of the appellants moved in 1985 was likely to affect the
           DATTA TREY Av. MAHA VEER [BRIJESH KUMAR, J.]                 821

order dated 3. 7.1979 passed in favour ofrespondents. The appellants knew A
it, being parties in the earlier proceedings of 1974. The fact thus remains
that the material facts were not brought to the notice of the court and the
persons who were ultimately to be effected were avoided to be impleaded
as parties. It was merely not a question of non-impleadment of necessary
parties technically and strictly in accordance with the provision of the Code B
of Civil ·Procedure rather was very much a question of proper parties being
there before the court particularly in proceedings under Article 226 of the
Constitution. The argument tried to be raised otherwise is not tenable. The
Tribunal and the High Court also felt the question of rights of the parties
in that land- stood decided in 1979 and there was no occasion to reopen
that matter still, it was reopened in view of the direction to dispose of the C
application on merits given by· the learned single Judge in absence of the
respondents as parties in the writ petition. The direction never meant that
the application moved in 1985 could not 'be disposed of saying that the
matter had already been decided in respect of the same land in presence
of the same parties or the land was no more available for passing an order D
to register occupancy. Perhaps the direction of the learned single Judge was
misunderstood that such a view was not open to be taken and that the matter
must be considered on merits ignoring the earlier order dated 3.7.1979 or
that to reopen the order not even in question. It was certainly a very relevant
fact which was suppressed in writ petition No. 5495 of 1992 while making E
a prayer for disposal of the application moved in 1985. The appellants
cannot be allowed to claim any bonafides in not imp leading the respondents
as parties in that writ petition or about non-disclosure of the earlier order
dated 3.7.1979 in respect of the same land and within their knowledge on
the ground that it was not necessary to disclose it. As observed earlier, they F
knew well that if any order is passed in their favour the respondents would
be the affected persons. The respondents were deprived from raising this
point before the learned single Judge regarding a pre-existing order relating
to the same land and non-disclosure of the same. The conduct of the
appellants had been far from being fair if not fraudulent. It was a deliberate
suppression of material fact which caused prejudice to the respondents. Fair G
play is the basic rule to seek relief under Article 226 of the Constitution.

      The next question is about the decision of the Karnataka High Court
in the case of Basappa (supra) on the basis of which the learned single
Judge reopened the order dated 3.7.1979 and i:i respect of which we have H
    822                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A already made our observations in the earlier part of the judgment. On the
  face of it, the above noted decision is not applicable to this case. At this
  juncture we may also like to observe that the order was passed by the
  Tribunal on 3.7.1979. The appellants had claim their rights as pujari under
  Section 5(2)(i) of the Karnataka Certain lnams Abolition Act, 1977 which
B plea could be taken by them while the matter was before the Tribunal and
  the order was finally passed on 3.7.1979. Nothing has been indicated as
  to why it could not be done. As a matter of fact the tenancy rights of the
  respondents were admitted before the Tribunal. The application moved in
   1985 was between the same persons and in respect of the same land. What
C was claimed in the application moved in 1985 could well be claimed or
  put forward while the order was passed in 1979. The Tribunal and the
  learned single Judge cannot be said to have gone wrong in observing that
  once the matter was finalized and the High Court had declined to interfere
  in the position as existed as per orders of the Tribunal dated 3.7.1979, there
  was no occasion to reopen the matter and decide the same on merits. As
D a matter of fact the earlier order was also on merits. It was passed on the
  basis of the revenue records and the statements on the record of the case
  and the admission made by one of the parties. That matter was allowed
  to attain finality.


E       We may now deal with tl:e next submission made on behalf of the
  appellants that the order passed by the High Court in writ petition No.
   14033 of 1990 dismissing it on the ground of !aches would not be res
  judicata so as to bar consideration of the claim of the appellants on merits
  in subsequent proceedings namely, the application moved in 1985 under
F the provisions of the Karnataka Certain Inams Abolition Act, 1977. As a
   matter of fact question of bar of res judicata is not relevant in the present
  case. The matter is to be considered in a slightly different perspective. The
   Tribunal and the learned single Judge felt compelled to consider the
  application of the appellants under the provisions of the Kamataka Certain
   Inams Abolition Act, 1977 "on merits" in view of the order passed by the
G High Court in writ petition No. 5495 of 1992 but this order could not be
  construed so narrowly as done by the Tribunal and the learned single Judge.
  The fact of the matter is that by order dated 3. 7 .1979 rights of the
  occupancy tenancy had been granted in favour of the respondents and
  certificate to the same effect had also been issued in their favour in the year
H 1981. As indicated earlier also the order was passed in the presence of the
           DATTATREY Av. MAHA VEER [BRIJESH KUMAR,].]                  823

 appellants. The result was that the tenancy rights were acquired and granted A
 in favour of the respondents under Section 45 of the Karnataka Land
.Reforms Act hence the land was not available any more for registration
 of occupancy under Section 5(2)(i) of Karnataka Certain Inams Abolition
 Act, 1977, more so when the order dated 3.7 .1979 was not challenged
 much less before or up to the time of moving application dated 22.6.1985. B
It had attained finality. For the first time it was challenged after a lapse
 of about 11 years by filing a writ petition, namely, writ petition No. 14033
 of 1990. We have already noticed that the said writ petition was dismissed
 ultimately on the ground of !aches which order was again not challenged
 by filing any appeal before the Division Bench or otherwise.
                                                                             c
      Merely by filing a writ petition, impugning an order passed 11 years
ago, which petition is dismissed on the ground of !aches, does not mean
that it automatically by itself reopens the whole matter to be examined in
any other collateral proceedings and the finality attained by the order is
lost. Therefore, it is not a question of bar of res judicata but the point is D
that in the year 1985 when the application was moved by the appellants
under the provisions of the Kamataka Certain Inams Abolition Act, 1977
for registration of occupancy over the land in dispute by virtue of
provisions contained in Section 5(2)(i) of the aforesaid Act, the land was
not available for the purpose, as in the year 1979 itself the respondents were E
granted rights of occupancy tenancy by a forum of competent jurisdiction.
The order dated 3. 7.1979 is not a void order so as to be ignored in any
collateral proceedings nor it was put in question in the proceedings initiated
by the appellants in 1985. The order passed by the learned single Judge
in writ petition No. 5495of1992 behind the back of the respondents and
obtained by suppressing the material facts does not compel the Tribunal
                                                                               F
or the learned single Judge to allow the claim of the appellants despite the
facts and circumstances as enumerated above. It is not understandable that
how the single Judge could order for fresh consideration of the application
which was moved by the respondents in 1974 for rights of occupancy
tenancy under Section 45 of the Karnataka Land Reforms Act reopening G
the whole matter, except on the basis of the decision in the case of Basappa
(supra) which has been totally misapplied to the present case. The Division
Bench has rightly held that the question of validity of order dated 3.7.1979
was not in question before the Tribunal in the petition moved by the
appellants in the year 1985 nor it was a matter for consideration before the H
    824                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A learned single Judge. The order of Single Judge has been rightly set aside
    by the Division Bench in appeal.

          On the close of the arguments learned counsel for the appellants
    requested and was allowed to file written arguments within a few days. But
B   they seem to have been filed after more than two weeks and that too, as
    indicated by the forwarding note of the registry, without serving a copy
    on the counsel for the respondents. This fact alone disentitles the appellants
    for considering the written submissions which otherwise also, we find, only
    deal with the merit of the matter that right of occupancy tenancy would
C   not accrue to the respondents under the provisions of the Kamataka Land
    Reforms Act. The merits of the order dated 3. 7.1979 is not a matter to be
    considered in these proceedings. All factual questions are sought to be
    raked which cannot be gone into in these proceedings.

          In view of the discussion held above, we find no good reason to
D interfere in the order passed by the Division Bench except to delete some
    of the observations which are a bit harsh and were not necessary to be made
    for disposal of the case, viz. part of the order where it is observed that "the
    appellant had played fraud and there was collusion between the wahivatdars
    and members of the Land Tribunal and the Members had gone ahead
E   unashamedly to grant occupancy tenancy to the appellants", further the
    observation that the appell<:nts were otherwise liable to be prosecuted.

         In the result, the appeal is dismissed subject to the observations made
    above. There would, however, be no order as to costs.

F S.K.S.                                                       Appeal dismissed.




                                                                                      'lo