Shamsuddin Ahmed, J. - (1.) This writ application is directed against appellate order passed in R. A. Case No. 83/81 confirming the order passed in R.A.L. Case No. 420/78 as well as appellate order in R. A. Case No. 31/85 confirming the order passed in R. A. L. Case No. 2626 of 1983.
(2.) The facts giving rise to this proceeding may be briefly stated ai follows:- Respondent No. 6, Smt. Indu Rekha Kar filed an application under section 4 of the West Bengal Restoration of Alienated Land Act and the said case was registered as R.A.L. Case No. 420/78. The writ petitioner appeared and filed his objection. The Special Officer dismissed the application. Against that order R. A. Appeal No 83/81 was preferred. The appellate court disposed of the appeal on the definite finding that the application before the Special Officer u/s 4 was barred by limitation. Respondent No. 6 did not tab any further step against the said order passed in appeal. During the pendency of the said appeal she again filed an application u/s 4 of the said Act in respect, of the same transaction. The writ petitioner appeared before the Special Officer and raised objection Hearing the parties and after considering the evidence adduced the Special Officer allowed the application. Against that order as appeal being No. 31/85 was preferred. The appeal was dismissed after hearing. In this background the petitioner has filed this writ application challenging the orders passed in R. A. L. Case as well as appeal against that order in the cases filed later on point of time.
(3.) The main contention raised in this application by Mr. Sahu is that by amendment of the said Act by West Bengal Restoration of Alienated Land (Amendment) Act, 1980. The words within 5 years from the date of such transfer or within 4 years from the date of commencement of this Act, whichever period expires later", the words "within 10 years from the date of commencement of this Act" was substituted. The effect of this amendment was an extension of time of limitation of filing of an application under section 4 of the Act. It will appear from the order passed in R. A. L. Appeal No. 83/81 challenging the order passed in R.A.L. Appeal No. 83/81 challenging the order passed in R. A. L. Case No. 420/78 the appellate order disposed of the same only on the finding that the application was barred by limitation. At the time when the application was filed the period of limitation was within 5 years from the date of such transfer or within 4 years from the date of commencement of the Act. The Appellate Court, found that the transfer was made on 5.4.78, accordingly the application should have been filed by 4.4.78 but the application was filed on 16.10.78. Only on this finding the appellate authority dismissed the appeal. In this connection it may be noted that the Special Officer while disposing of the case did not deal with the point of limitation. He entered into the merits of the application and dismissed the same on merit. Mr. Sahu Id. Advocate appearing for the writ petitioner has submitted that the latter application under section 4 is barred by principles analogous to res judicata. He has relied on Smt. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621. According to him the amendment of 1980 of the Act was not rest was not retrospective in effect. Since the application was disposed of on merit by the Special Officer and the Special Collector Officer dismissed the appeal only on the ground of limitation it may be construed that the findings made by the Special Officer on merit was confirmed by him. After such adjudication between the same parties on the same question and the issue having been finally decided the principles of res judicata is attracted. On the other hand Mr. Das has placed his reliance on a decision reported in Abdulla Asgarh Ali Khan v. Ganesh Dass, AIR 1917 Privy Council 201. The facts of that case involved was that the parties to the litigation carried on certain business in British Baluchisthan in partnership. In July, 1910 they agreed to dissolve the partnership. According to the plaintiff Ganesh Dass accounts were duly adjusted, when a sum of over Rs. 9,900 war found due from the defendant. Asgarh Ali on 12th July a formal deed of dissolution was executed by all the partners ; and on the day following the defendant executed a bond on which the suit was brought. The defendant in that suit made out a case that the deed of dissolution which embodied the settlement and executed the bond agreeing to pay the amount alleged to be due from him on the fraudulent representation of the plaintiff shat the adjustment of accounts was correctly made and on the assurance that should the defendant upon the examination of the accounts at his leissure discover any mistake they would be rectified. The suit for cancellation of the bond cam for trial. The trial court held that the plaintiff had failed to establish his allegation of fraud. The defendant preferred an appeal and the trial court judgment was confirmed by the District Judge. Thereupon a second appeal was preferred before the Judicial Commissioner. The Judicial Commissioner found that the objection as to the frame of the suit was well found and accordingly they entered into the merits of the case dismissed the defendants appeal against the order of the lower court dismissing his action. Thereafter, Ganesh Dass instituted the present suit on the bond executed by the appellant. The defendant again denied liability on the ground that it had been obtained from him by fraud. The courts below held that the issue raised by the defendant was res judicata and they were precluded by the provisions of section 10 of Regulation IX of 1896 from entering upon an enquiry whether the bond had been obtained from him on fraudulent representation. The defendants defence was held to be res judicata. It was found by the Privy Council that the matter in issue in the suit was no doubt same as in the defendants own action. Relying on a decision reported in (3) ILR 24 Cal 616 in connection with a case under section 11 of the I.P.C. which is in pari materia, identical with section 10 of the Baluchisthan Regulation agreed with the Rule ennunciated in that case, viz., to support the plea of res judicata it is not enough that the parties are the same and that the same matter is in issue. The matter must have been heard and finally decided. If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt hive given rise the plea but the appeal destroyed the finality of the decision. The judgment of the lower court was superseded by the judgment of the Court of Appeal and the only thing finally decided by the court of appeal was that in a suit constituted as the suit of 1885 no decision ought to have been pronounced on the merits. " Mr. Das urged that it is clear from the decision that the appellate court judgment did not decide the application on merit. It only dismissed the application oo the ground of res judicata. Whenever an appeal is preferred against a judgment the judgment loses its character of finality and ultimately the judgment in appeal will determine whether any issue raised is hit by the principles of res judicata. According to him his earlier application was dismissed only on the ground of limitation and since by amendment of 1980 to section 4 of the Act the period of limitation was extended he had every right to file the application and the same cannot be rejected on the plea that the mutter has been adjudicated once earlier.;