Pandurang
Ramchandra Mandlik & Anr Vs. Smt. Shantabai Ramchandra Ghatge & Ors
[1989] INSC 273 (12
September 1989)
Saikia,
K.N. (J) Saikia, K.N. (J) Venkatachalliah, M.N. (J)
CITATION:
1989 AIR 2240 1989 SCR Supl. (2) 1 1989 SCC Supl. (2) 627 JT 1989 (3) 647 1989
SCALE (2)572
ACT:
Bombay
Tenancy and Agricultural Lands Act, 1948--Sections 2(2), 2(5), 2(8), 2(17),
2(18), 25(2), 29(2), 70(b), 85A--Mamlatdar's court--Whether Civil Court--'Or
was at any time in the past a tenant' in Section 70(b)--Interpretation
of--Jurisdiction of Civil Court to decide issues--When excluded.
Code
of Civil Procedure, 1898--Section II--Res judicata--Heard and finally
decided--Essentiality of---What operates as res judicata is the ratio of what
is fundamental to the decision.
HEAD NOTE:
The
appellants-landlords leased out their land, situate at Kolhapur, to respondents Nos. 1 and 2 and
the husband of respondents Nos. 3 and 4 on 12.10.1950 for a period of ten
years. After the expiry of the lease period, they initiated proceedings under
the Bombay Tenancy and Agricultural Lands Act, 1948, for obtaining possession
of the lands but the application was dismissed ex parte, as it was held that
the provisions of the Act were not applicable to the land inasmuch as only
grass grew thereon naturally. Thereupon the appellants terminated the tenancy
under the provisions of the Land Revenue Code and filed a Civil Suit against
the respondents for possession mesne profits and for damages.
Respondents
1 and 2 contested the suit contending inter alia that the civil court had no
jurisdiction to try the suit inasmuch as the Act was applicable to the land and
that they having been in rightful possession, the notice of termination of
tenancy was invalid. The trial court tried the issues amongst others relating
to the applicability of the Act, jurisdiction of the civil court and estoppel
and after going through the evidence led by the parties, decreed the suit. The
respondents appeal against the said decree having failed before the first
appellate court, they preferred Second Appeal to the High Court of Bombay. The
High Court set aside the judgment and order of the trial court as affirmed by
the first appellate court and remanded the case back to the trial court with a
direction that it should raise the necessary issues on the pleadings of the
parties and should make a reference to the competent authority under Section
85A of the Act in regard to the issues which are required 2 to be determined by
the competent authority under the Act and on receipt of findings, dispose of
the suit according to law. Being dissatisfied with the said order, the
appellants moved application for leave to appeal under the Letters Patent but
the same having been dismissed they have filed this appeal after obtaining
special leave.
The
appellants' principal contention, amongst others, before this court is that the
appellants' application under Section 29(2) read with section 25(2) of the Act
having been dismissed on the ground that the Act was not applicable and thus
the authority had no jurisdiction to deliver possession is a finding which
would operate as res judicata; hence the High Court's direction making a
reference to the competent authority under s. 85A of the Act, now would be
barred.
According
to them the civil court itself has jurisdiction to decide the issues.
Respondents' contention is that the direction of the High Court is consistent
with the provisions of the Act and that the earlier proceedings under the Act
initiated by the appellants having been determined ex parte, it could not
operate as res judicata.
Dismissing
the appeal, this Court,
HELD:
After the amendment of s. 70(b) of the Act by inserting words 'or was at any
time in the past, a tenant' the position has changed. The Civil Court has now no jurisdiction to decide
an issue arising incidentally in a civil suit which is to be specifically
decided by a competent authority under the Act. Civil Court in such a case shall refer the issue to that authority and
dispose of the suit in accordance with the decision of the authority. [11F]
(See G.S. Shinde v. R.B. Joshi, [1979] 2 SCC 495;) The High Court in the
instant case has rightly sent back the suit to the trial court with the
direction to refer issues, if raised to be determined exclusively by the
competent authority, to that authority. [13G] If a matter directly and
substantially in issue in a former suit has been adjudicated upon by a court of
exclusive jurisdiction, the adjudication will bar the trial of the same matter
in a subsequent suit. [15E] In the instant case, the Mamlatdar having decided
the appellants' application for possession, the appellants themselves went to
the Civil Court and filed the suit. It does not now lie in their mouth to say
that 3 the decision of the Mamlatdar would act as res judicata for the trial
court.[15F] The Mamlatdar's Court is a civil court for the purpose of Section
85A of the Act. [15F] In its comprehensive sense the word 'suit is understood
to apply to any proceeding in a court of justice by which an individual pursues
that remedy which the law affords. The modes of proceedings may be various but
if a right is litigated between parties in a court of justice the proceeding by
which the decision of the court is sought may be a suit.
But if
the proceeding is of a summary nature not falling within the definition of a
suit it may not be so treated for the purpose of Sec. 11. [15H; 16A] Besides,
assuming the Mamlatdar in deciding the application in 1962-63 to have been a
court of exclusive jurisdiction for the purpose of s. 11 C.P.C., its decision
rejecting the application would not be an evidence on the question of tenancy
merely because it could be inferred from that decision. [16B] The expression
'heard and finally decided', in s. 11 means a matter on which the court has
exercised its judicial mind and has after argument and consideration come to a
decision on a contested matter. It is essential that it should have been heard
and finally decided. What operates as res judicata is the ratio of what is
fundamental to the decision but it cannot be ramified or expanded by logical
extension. [16F-G] (See Vithal Yaswant v. Shikander Khan Mutumukhtan, AIR 1963
SC 385.) The law is well settled that a court which had no jurisdiction to try
a cause cannot by its own erroneous decision confer on itself competence to
decide it and its decision on the question of jurisdiction cannot operate as res
judicata.
Conversely
the decision relating to jurisdiction cannot be said to constitute the bar of res
judicata where by an erroneous interpretation of a statute it holds that it has
no jurisdiction. [17B] (See Pandurang Mahadeo Kavade & Ors. v. Annaji Balwant
Bokil & Ors., [1971] 3 SCC 530;) Shivappa Satawappa Ashtekar v. Gajanan Chintaman
Desh Pande, [1953] 55 Bom. Law Reporter. 843; Dhondi Tukaram v. Dadoo Piraji,
[1952] 55 Bom. L.R. 663; Bhimaji Shanker Kulkarni v. Dundappa Vithappa Udapudi
and Anr., [1966] 1 SCR 145; Mussamiya 4 Imam Haidar Bax Razvi v. Rabari Govindhai
Ratnabhai & Ors., [1969] 1 SCR 785; Trimbak Sopana Girme v. Gangararn Mhatarba
Yadav, 55 Bom. L.R. 56; Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai,
[1966] 1 SCR 367; Pandurang Hari Jadhav v. Shankar Maruti Todkar, 62 Bom. L.R.
873; Kalicharan Bhajanlal Bhayya v. Rai Mahalaxmi, 4 Guj. L.R. 145; Neminath Appayya
Hanammannaver v. Jambu Rao Satappa Kocheri, AIR 1966 Mys. 154; Jambu Rao Satappa
Kocheri v. Neminath Appayya Hanammannaver, [1968] 3 SCR 706; Noor Mohd. Khan Ghouse
Khan Soudagar v. Fakirappa Bharmappa Machenahalli, [1978] 3 SCC 188; Ramchandra
Rao v. Ramchandra Rao, [1922] 49 I.A. 129 and Bhagwan Dayal v. Mst. Reoti Devi,
[1962] 3 SCR 440, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1582 of 1973.
From
the Judgment and Order dated 27.3.72 of the Bombay High Court in Appeal No. 983
of 1966.
S.B. Bhasme
and V.N. Ganpule for the Appellants.
Mrs.
C.K. Sucharita for the Respondents.
The
Judgment of the Court was delivered by SAIKIA, J. This plaintiffs' appeal by
special leave is from the Judgment of the High Court of Bombay in Second Appeal
No. 983 of 1966 setting aside the Judgment of the courts below and remanding
the case to the trial court for hearing with a direction to refer the issue
regarding tenancy to the tenancy authorities.
The
appellants are the owners of land bearing R.S. No. 1442 and 1445, situate at Kasba
Karvir, within the municipal limits of Kolhapur. The said land was leased out
to the father of respondent Nos. 1 and 2 and the husband of respondent Nos. 3
and 4 on October 12,
1950 for a period of
ten years. The appellants had filed Revision Civil Suit No.
298 of
1964 against the respondents for possession thereof, mesne profits and for
damages. It was averred in the plaint that the appellants had earlier initiated
proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter
referred to as 'the Act', and in the said proceedings it was held that the
provisions of the Act were not applicable to the land inasmuch as only grass
grew thereon naturally. It was further averred that on expiry of the period of
lease the 5 appellants terminated the tenancy under the provisions of the Land
Revenue Code and filed the aforementioned suit. The respondent Nos. 1 & 2
contested the suit contending, inter alia, that the civil court had no
jurisdiction inasmuch as the Act was applicable to the land; and that they
having not been in wrongful possession thereof, the notice of termination was
invalid. The learned trial court tried the issues regarding the applicability
of the Act, jurisdiction of the civil court, and estoppel, out of the issues framed,
as preliminary issues and by order dated March 16, 1965 fixed the date for
hearing of the other issues and on that date the respondent Nos. 1 & 2
being absent, after recording the appellants evidence, by Judgment dated July
17, 1965 decreed the suit in favour of the appellants. The respondents' appeal
there from having been dismissed by the District Judge, they took Second Appeal
No. 983 of 1966 to the High Court of Bombay, and the learned Single Judge has
set aside the Judgment of the trial court as affirmed by the lower appellate
court, and remanded the case back to the trial court with a direction that it
should raise the necessary issues on the pleadings of the parties and should
make a reference to the competent authority under s. 85A of the Act with
respect to those issues which are required to be decided by the competent
authority under the Act and on receipt of the findings, dispose of the suit
according to law. The appellants' application for leave to appeal under the
Letters Patent having been rejected by the High Court, they have obtained
special leave to appeal.
Mr.
S.B. Bhasme, the learned counsel for the appellants submits, inter alia, that
the appellants' application under s. 29(2) read with s. 25(2) of the Act, being
case No./84 of 1962-63 having been dismissed by the tenancy authorities on the
ground that only natural grass grew thereon and therefore the authority had no
jurisdiction to deliver possession thereof under s. 29(2) of the Act, that
finding should act as res judicata, wherefore, remitting of the case by the
High Court to the trial court for hearing and deciding after making a reference
to the competent authority, under s. 85A of the Act with respect to those
issues which are required to be decided by the competent authority under the
Act, would be barred; and that in the facts and circumstances of the case the
civil court itself has jurisdiction to decide the issues which have been
directed to be referred to the civil court.
Mrs.
C.K. Sucharita, the learned counsel for the respondents submits that under s.
85A in a civil suit involving any issues which are required to be decided or
dealt with by any authority competent to settle or decide such issues under the
Act, the civil court is to settle the 6 issues and refer those to such
competent authority for determination; that the High Court's direction in the
impugned Judgment is consistent with this provision; and that the appellant's
earlier proceedings under the Act before the tenancy authority having been
dismissed ex parte, it could not operate as res judicata.
The
question to be decided, therefore, is whether the High Court was correct in
directing the trial court to refer the issues relating to tenancy to the
competent authority under the Act. To decide it, we may conveniently refer to
the relevant provisions of the Act. The Act has amended the law which governs
the relations of landlords and tenants of agricultural lands. As defined in s.
2(8) of the Act, "land" means--(a) land which is used for
agricultural purposes or which is so used but is left fallow, and includes the
sites of farm buildings appurtenant to such land. This definition is as amended
by Bom. 15 of 1957. The amendment is not material for the purpose of our case.
As defined in s. 2(1), "Agriculture" includes horticulture, the
raising of crops, grass or garden produce, the use by an agriculturist of the
land held by him or a part thereof for the grazing of his cattle, the use of
any land, whether or not an appanage to rice or paddy land, for the purpose of rab
manure but does not include allied pursuits, or the cutting of wood only.
This
definition is after amendments by Bom. 13 and 15 of 1956 and 1957,
respectively. As defined in s. 2(2), "Agriculturist" means a person
who cultivates land personally. As defined in s. 2(5), "to cultivate"
with its grammatical variations and cognate expressions means to till or
husband the land for the purpose of raising or improving agricultural produce,
whether by manual labour or by means of cattle or machinery, or to carry on any
agricultural operations thereon; and the expression "un-cultivated"
shall be construed correspondingly. The explanation thereunder says: A person
who takes up a contract to cut grass, or to gather the fruits or other produce
of trees on any land, shall not on that account only be deemed to cultivate
such land. This definition is as substituted by Bom. 13 of 1956. As defined in
s. 2(17), "Tenancy" means the relationship of landlord and tenant;
and as defined in s. 2(18), "tenant" means a person who holds land on
lease and includes (a) a person who is deemed to be a tenant under s. 4; (b) a
person who is a protected tenant; and (c) a person who is a permanent tenant;
and the word "landlord" shall be construed accordingly.
This
definition is as substituted by Bom. 13 of 1956.
The
High Court has found that the appellants had leased out the land on October 12, 1950 for a period of 10 years under a Kabulayat
at 7 an annual rental of Rs. 1000 and that period expired on October 11, 1960. The appellants submitted an
application under s. 29(2) of the Act, being case No. 2068 of 1957 but that
application was dismissed. Thereafter, they moved another application under s.
88C of the Act being case No.
285 of
1961 and that application was also dismissed on the ground that the lands were
governed by s. 43C of the Act, but the Act did not apply as the lands were
within the limits of the municipal borough. Thereafter, they started the third
proceeding being application under s. 29(2) read with s. 25(2) of the Act being
case No. 184 of 1962-63. That application also came to be dismissed by the
tenancy authorities on the ground that the lands in dispute were lands growing
natural grass and, therefore, the authority under the Act had no jurisdiction
to deliver possession under s. 29(2) of the Act. The High Court noticed that
the application was decided ex-parte but the Court did not know under what
circumstances, the competent authority proceeded ex parte. The effect of that
decision was that the application filed by the appellants as landlords for
possession of the lands treating the opponents thereof as tenants was
dismissed. It was only thereafter that the appellants served the respondents
with a notice terminating the tenancy and demanding possession, and the
defendants having not complied with the notice, the appellants filled the
instant suit, Considered in the light of the above definitions and the
provisions of s. 85A of the Act there arises no doubt that some of the issues
involved in the suit may be such as have necessarily to be decided by the
competent authority under the Act and to that extent the jurisdiction of the
civil court to decide those issues may be excluded.
In Shivappa
Satawappa Ashtekar v. Gajanan Chintaman Desh Pande, [1953] 55 Bombay Law
Reporter 843; AlR 1954 Bombay 107, in the landlord's suit for possession of
lands filed in civil court, the defendants having contended that the lands were
agricultural lands and that the defendants were protected tenants, interpreting
the then s. 85(1) it was held:
"Ex
facie, by the operation of s. 70 and s. 85 of the Bombay Tenancy and
Agricultural Lands Act, 1948, the jurisdiction of the civil court to decide
whether the defendants were tenants or protected tenants must be regarded as
excluded and the Mamlatdar alone must be regarded as competent to decide that
question.
That
is the view which has been taken by a division bench of this Court in Dhondi Tukaram
v. Dadoo Piraji, [1952] 55 Bom. L.R. 663." 8 Section 70(b) of the Act then
provided:
"For
the purposes of this Act the following shall be the duties and functions to be
performed by the Mamlatdar:
(a)
...............
(b) to
decide whether a person is a tenant or a protected tenant." Section 85(1)
provided:
"No Civil Court shall have jurisdiction to settle,
decide or deal with any question which is by or under this Act required to be
settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the
Collector or the Bombay Revenue Tribunal in appeal or revision or the State
Government in exercise of their powers of control." This Court in Bhimaji Shanker
Kulkarni v. Dundappa Vithappa Udapudi and Anr., [1966] 1 SCR 145, considering
the decision in Dhondi Tukaram's case (supra) which held that the Mamlatdar had
exclusive jurisdiction to decide those issues though they arose for decision in
a suit properly cognisable by a civil court, observed:
"The
result was somewhat startling, for normally the Civil Court has jurisdiction to try all the issues arising in a suit
properly cognisable by it. But having regard to the fact that the Bombay
Legislature approved of Dhondi Tukaram's case and gave effect to it by
introducing s. 85A, we must hold that the decision correctly interpreted the
law as it stood before the enactment of s. 85A. It follows that independently
of s. 85A and under the law as it stood before s. 85A came into force, the
courts below were bound to refer to the Mamlatdar the decision of the issue
whether the defendant is a tenant." Section 70 of the Act now provides:
"For
the purposes of this Act the following shall be the duties and functions to be
performed by the Mamlatdar:
(a) to
decide whether a person is an agriculturist;
9 (b)
to decide whether a person is, or was at any time in the past, a tenant or a
protected tenant or a permanent tenant;
XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX (n) to take measures for putting the tenant or landlord
or the agricultural labourer or artisan or person carrying on as allied pursuit
into the possession of the land or dwelling house under this Act;
(o) to
decide such other matters as may be referred to him by or under this Act."
The words "person is, or was at any time in the past, a tenant", and
the words "or a permanent tenant" were substituted for the words
"person is a tenant" by Mah. 49 of 1969.
Section
85 and s. 85A as inserted by Bombay Act 13 of 1956 provide:
85.
(1) No Civil Court shall have jurisdiction to settle, decide or deal with any
question including a question whether a person is or was at any time in the
past a tenant and whether any such tenant is or should be deemed to have
purchased from his landlord the land held by him which is by or under this Act
required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a
Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or
revision or the State Government in exercise of their powers of control.
(2) No
order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue
Tribunal or the State Government made under this Act shall be questioned in any
Civil or Criminal Court.
Explanation--For
the purposes of this section a Civil Court shall include a Mamlatdar's Court
constituted under the Mamlatdar's Courts Act, 1906." "85A. (1) If any
suit instituted in any Civil Court involves any issues which are required to be
settled, decided or dealt 10 with by any authority competent to settle, decide
or deal with such issues under this Act (hereinafter referred to as the
"competent authority") the Civil Court shall stay the suit and refer
such issues to such competent authority for determination.
(2) On
receipt of such reference from the Civil Court, the competent authority shall deal with and decide such
issues in accordance with the provisions of this Act and shall communicate its
decision to the Civil
Court and such court
shall thereupon dispose of the suit in accordance with the procedure applicable
thereto.
Explanation--For
the purpose of this section a Civil Court shall include a Mamlatdar's Court
constituted under the Mamlatdar's Courts Act, 1906." This section was
inserted by Bombay Act 13 of 1956.
Before
the amendment of s. 70(b) by Maharashtra Act 49 of 1969, when the question as
to whether a party was in the past tenant or not for the purpose of acquiring
some other right, that is, not as main issue but as a subsidiary issue, Civil
Court's jurisdiction to decide such subsidiary issue could not be said to be
barred. Section 70(b) of the Act imposed a duty on the Mamlatdar to decide
"whether a person is a tenant" and not "whether a person was or
was not a tenant in the past". In Mussamiya Imam Haider Bax Razvi v.
Rabari
Govindhai Ratnabhai & Ors., [1969] 1 SCR 785, the appellant filed a suit on
July 11, 1958 for recovery of possession of the suit lands and mesne profits
averring that the lease was fraudulently obtained by the respondents. The
respondents contended that they became statutory owners u/s.
32 or
s. 88 of the Act and the Civil
Court had no
jurisdiction to decide the suit. The trial court decreed the suit and on appeal
the High Court held that fraud was not proved;
the
respondents failed to prove that they were statutory owners before the date of
the suit; that the Civil
Court had
jurisdiction to decide whether defendants were tenants on the relevant dates
namely, July 28, 1956 or May 11, 1958; and that the Civil Court had no jurisdiction to decide whether the defendants were
tenants on date of the suit and that question was to be referred to the Mamlatdar.
This Court on consideration of the provisions of s. 70 and s. 85A with other
relevant provisions held at page 797:
"We
are accordingly of the opinion that s. 85 read with 11 S. 70 of the Act does
not bar the jurisdiction of the Civil Court to examine and decide the question whether the defendants
had acquired the title of statutory owners to the disputed lands under the new
Act. In this context, it is necessary to bear in mind the important principle
of construction which is that if a statute purports to exclude the ordinary
jurisdiction of a Civil
Court it must do so
either by express terms or by the use of such terms as would necessarily lead
to the inference of such exclusion. As the Judicial Committee observed in
Secretary of State v. Mask & Co., 671.A. 222,236.
'It is
settled law that the exclusion of the jurisdiction of the civil courts is not
to be readily inferred, but that such exclusion must either be explicitly
expressed or clearly implied.' In our opinion, there is nothing in the language
or context of s. 70 or s. 85 of the Act to suggest that the jurisdiction of the
Civil Court is expressly or by necessary implication barred with regard to the
question whether the defendants had become statutory owners of the land and to
decide in that connection whether the defendants had been in the past tenants
in relation to the land on particular past dates.
We are
also of the opinion that the jurisdiction of the Civil Court is not barred in considering the question whether the
provisions of the Act are applicable or not applicable to the disputed land
during a particular period." It may be noted that after the amendment of
s. 70(b) of the Act by inserting the words "or was at any time in the
past, a tenant", the position has changed. The Civil Court has now no jurisdiction to decide
an issue arising incidentally in a civil suit which is to be specifically
decided by a competent authority under the Act. Civil Court in such a case shall refer the issue to that authority and
dispose of the suit in accordance with the decision of the authority.
In
G.S. Shinde v. R.B. Joshi, [1979] 2 SCC 495, the appellant filed the suit for
specific performance of a contract for sale of land dated December 15, 1965
coupled with a supplementary agreement dated April 26, 1966 for sale of
agricultural land. The suit was resisted by the defendant, contending, inter alia,
that the provisions of the Act were applicable to the land and the appellant
not being an agriculturist, s. 63 of the Act was a bar to his purchase of the
land, and the agreement being contrary to law could not be specifically
enforced. The plaintiff (appellant) sought 12 to repel that contention by
producing a certificate, Ext. 78, issued by the Mamlatdar certifying that the
plaintiff was an agricultural labourer and the bar of s. 63 was not operative.
If that Ext. 78 was not taken note of, the issue would arise whether the
plaintiff was an agriculturist and in view of the provisions s. 70(a) read with
s. 85 and s. 85A of the Act, the issue would have to be referred to the Mamlatdar
for decision as the civil court would have no jurisdiction to decide the issue.
The trial court and the High Court held that Ext. 78 had no evidentiary value
and the issue whether the plaintiff was an agriculturist being an incidental
issue, main issue being that of specific performance, Civil Court had jurisdiction. Allowing the appeal
therefrom and remanding the suit to the trial court this Court speaking through
Desai, 3. held at para 10:
"Now,
if Section 85 bars the jurisdiction of the Civil Court to decide or deal with
an issue arising under the Tenancy Act and if Section 85A imposes an obligation
on the Civil Court to refer such issue to the competent authority under the
Tenancy Act, it would be no answer to the provisions to say that the issue is
an incidental issue in a properly constituted civil suit before a Civil Court
having jurisdiction to entertain the same. In fact Section 85A comprehends
civil suits which Civil Courts are competent to decide but takes note of the
situation where upon a contest an issue may arise therein which would be
required to be settled, decided or dealt with by the competent authority under
the Tenancy Act, and, therefore, it is made obligatory for the Civil Court not
only not to arrogate jurisdiction to itself to decide the same treating it as a
subsidiary or incidental issue, but to refer the same to the competent
authority under the Tenancy Act. This is an inescapable legal position that
emerges from a combined reading of Sections 85 and 85A ................... In a
civil suit nomenclature of the issue as principal or subsidiary or substantial
or incidental issue is hardly helpful because each issue, if it arises, has to
be determined to mould the final relief. Further, Sections 85 and 85A oust
jurisdiction of Civil
Court not in respect
of civil suit but in respect of questions and issues arising therein and
Section 85A mandates the reference of such issues as are within the competence
of the competent authority. If there is an issue which had to be settled,
decide or dealt with by competent authority under the Tenancy Act, the
jurisdiction of the Civil Court, 13 notwithstanding the fact that it arises in
an incidental manner in a civil suit, will be barred and it will have to be
referred to the competent authority under the Tenancy Act. By such camouflage
of treating issues arising in a suit as substantial or incidental or principal
or subsidiary, Civil
Court cannot arrogate
to itself jurisdiction which is statutorily ousted. This unassailable legal
position emerges from the relevant provisions of the Tenancy Act." After
considering the precedents in Trimbak Sopana Girme v. Gangaram Mhatarba Yadav,
55 Bom. L.R. 56=AIR 1953 Bom.
241; Dhondi
Tukaram Mali, (supra); Bhimaji Shanker Kulkarni,
(supra); Ishwerlal Thakorelal Almaula v. Motibhai Nagjibhai, [1966] 1 SCR
367=AIR 1966 SC 459; Pandurang Hari Jadhav v. Shankar Maruti Todkar, 62 Bom. L.R.
873; Kalicharan Bhajanlal Bhayya v. Rai Mahalaxmi, 4 Guj. L.R. 145; Neminath Appayya
Hanammannaver v. Jambu Rao Satappa Kocheri, AIR 1966 Mysore 154; Jarnbu Rao Satappa
Kocheri v. Neminath Appayya Hanamrnannaver, [1968] 3 SCR 706=AIR 1968 SC 1358; Mussamiya
Imam, (supra) and Noor Mohd; Khan Ghouse Khan Soudagar v. Fakirappa Bharmappa Machenahalli.
[1978] 3 SCC 188=1978 3 SCR 789, their Lordships observed at para 19:
"Thus,
both on principle and on authority there is no escape from the conclusion that
where in a suit properly constituted and cognizable by the Civil Court upon a
contest an issue arises which is required to be settled, decided or dealt with
by a competent authority under the Tenancy Act, the jurisdiction of the Civil
Court to settle, decide or deal with the same is not only ousted but the Civil
Court is under a statutory obligation to refer the issue to the competent
authority under the Tenancy Act to decide the same and upon the reference being
answered back, to dispose of the suit in accordance with the decision of the
competent authority under the Tenancy Act." In the instant case, applying
the settled law as enunciated above, and in view of the certainty of the
questions involved, we are of the view that the High Court has rightly sent
back the suit to the trial court with the direction to refer issues, if raised
any, to be determined exclusively by the competent authority, to that
authority.
We now
deal with the submission of Mr. Bhasme that the order 14 of the tenancy
authority in case No. 184 of 1962-63 dismissing his application under s. 29(2)
read with s. 25(2) of the Act holding that it had no jurisdiction to deliver
possession of the land on the ground that the natural grass grew thereon, should
act as res judicata, wherefore, referring of issues to the Mamlatdar in the
suit remitted by the High Court would be barred. Counsel submits that the Mamlatdar
in deciding the aforesaid application acted under the Mamlatdar's Courts Act,
1906 (Bom. Act No. II of 1906) and would be a Court competent to determine the
issue as to whether the act was applicable to the appellants' land under the
lease, and it already decided that the Act was not applicable as on that land
only natural grass grew, which meant that it was not 'land' and the defendants
were not 'tenants' as defined in the Act.
Section
11 of the C.P.C. which deals with res judicata provides:
"No Court shall try any suit or issue in
which the matter. directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties, or between
parties under whom they or any of them claim, litigating under the same title,
in a Court competent to try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been heard and finally decided by
such Court." (Explanations I to VIII are not so relevant for the purpose
of this case) In Duchess of Kingston's case Sir William de Grey said:
"From
the variety of cases relative to judgments being given in evidence in civil
suits, these two deductions seem to follow as generally true: first that
judgment of a court of concurrent jurisdiction, directly upon the point, is, as
a plea, a bar, or as evidence conclusive between the same parties, upon the
same matter, directly in question in another Court; secondly that the judgment
of a Court of exclusive jurisdiction, directly on the point, is, in like
manner, conclusive upon the same matter, between the same parties, coming
incidentally in question in another Court, for a different purpose. But neither
the judgment of a Court, of concurrent or exclusive jurisdiction is evidence of
any matter which came collaterally in question, though within their
jurisdiction nor of any matter incidentally 15 cognizable, nor of any matter to
be inferred by argument from the judgment." Section 11 bars the trial of a
suit or issue in which the matter directly and substantially in issue has
already been adjudicated upon in a previous suit. This Section applies in terms
to cases where the matter in issue in a subsequent 'suit' was an issue in a
"former suit". A 'suit' is a proceeding which is commenced by a
plaint. As provided in Section 26 of the C.P.C. every suit shall be instituted
by the presentation of a plaint or in such other manner as may be prescribed.
In the instant case admittedly the appellants submitted an application to the Mamlatdar
under s. 29(2) read with s. 25(2) of the Act. Sub-section (2) of s. 29
provides:
"Save
as otherwise provided in sub-section (3A), no landlord shall obtain possession
of any land or dwelling house held by a tenant except under an order of the Mamlatdar.
For obtaining such order he shall make an application in the prescribed form
and within a period of two years from the date on which the right to obtain
possession of the land or dwelling house, as the case may be, is deemed to have
accrued to him." This sub-section is as amended by Mah. 39 of 1964. It
does not speak of a plaint, a suit or a decree. The appellants did not call its
application a plaint or the case a suit.
If a
matter directly and substantially in issue in a former suit has been
adjudicated upon by a Court of exclusive jurisdiction, the adjudication will
bar the trial of the same matter in a subsequent suit. In the instant case the Mamlatdar
having decided the appellants' application for possession, the appellants
themselves went to the Civil
Court and filed the
suit. It does not now lie in their mouth to say that the decision of the Mamlatdar
would act as res judicata for the trial court. We have seen that now the Mamlatdar's
Court is a Civil Court for the purpose of s. 85A of the
Act.
It is
true that s. 11 is now made applicable by the Explanations and interpretation
to certain proceedings giving more extensive meaning to the word 'suit'. In its
comprehensive sense the word 'suit' is understood to apply to any proceeding in
a court of justice by which an individual pursues that remedy which the law
affords. The modes of proceedings may be various but that if a right is
litigated between 16 parties in a court of justice the proceeding by which the
decision of the Court is sought may be a suit. But if the proceeding is of a
summary nature not failing within the definition of a suit, it may not be so
treated for the purpose of s. 11. In the absence of the details of the
proceeding concerned in the instant case, it has not been possible for us to
hold that it was of the nature of a suit and not a summary proceeding. Besides,
assuming the Mamlatdar in deciding the application in 1962-63 to have been a
court of exclusive jurisdiction for the purpose of s. 11 C.P.C., its decision
rejecting the application would not be an evidence on the question of tenancy
merely because it could be inferred from that decision.
Admittedly
the appellants' application was decided ex parte. It is true that ex parte
decrees operate to render the matter decided res judicata, and the defendants'
failure to appear will not deprive the plaintiff of the benefit of his decree.
But in the case of a suit in which a decree is passed ex parte, the only matter
that can be 'directly and substantially in issue' is the matter in respect of
which relief has been claimed by the plaintiff in the plaint. A matter in
respect of which no relief is claimed cannot be 'directly and substantially in
issue' in a suit in which a decree is passed ex parte though the Court may have
gone out of its way and declare the plaintiff to be entitled to relief in
respect of such matter. In the instant case applying the above principle the
order having been passed ex parte, assuming the doctrine of res judicata
applied, it could be only to the extent of the appellants having been not
entitled to possession at the relevant time; and it could not be extended
logically to the issue whether the defendants were tenants under the Act.
The
expression 'heard and finally decided' in s. 11 means a matter on which the
court has exercised its judicial mind and has after argument and consideration
come to a decision on a contested matter. It is essential that it should have
been heard and finally decided. What operates as res judicata is the ratio of
what is fundamental to the decision but it cannot be ramified or expanded by
logical extension. In Vithal Yaswant v. Shikandar Khan Mutumukhtan, AIR 1963 SC
385, it has been held by this Court that when a court bases its decision on
more than one point, each of which would by itself be sufficient for the
ultimate decision, the decision on each one of those points would be res judicata.
In the instant case what were the points specifically urged and decided are not
clear. In Pandurang Mahadeo Kavade & Ors. v. Annaji Balwant Bokil &
Ors., [1971] 3 SCC 530 it was held that in order to operate as res judicata it
must be established that the previous 17 decision was given by a court which
had jurisdiction to try the present suit, and there would be no res judicata if
the previous decision was by a court having no jurisdiction. Of course that was
a case of pecuniary jurisdiction, but there is no reason why the same principle
should not apply in other cases of courts without jurisdiction. The law is well
settled that a court which had no jurisdiction to try a cause cannot by its own
erroneous decision confer on itself competence to decide it and its decision on
the question of jurisdiction cannot operate as res judicata. Conversely the
decision relating to jurisdiction cannot be said to constitute the bar of res judicata
where by an erroneous interpretation of a statute it holds that it has no
jurisdiction. It is stated that there was no appeal filed by the defendants
from the order of the Mamlatdar. That is not material. In Ramchandra Rao v. Ramchandra
Rao, [1922] 49 I.A. 129, the Privy Council decided that where the suit as to
the title for compensation had been referred to the Court, a decree thereon was
not appealed from, the question of title would be res judicata in a suit
between the parties to the dispute.
In Bhagwan
Dayal v. Mst. Reoti Devi, [1962] 3 SCR 440, a dispute arose as to proprietary
title. A suit was filed in a Revenue Court
under the U.P. Tenancy Act. The Revenue Court framed an issue thereon and referred it to the Civil Court as required by the Act. The Civil Court held that the respondent had a half
share in the villages and on the basis of this finding the Revenue Court decreed his suit. Thereafter, the
appellant filed a suit in Civil Court
for a declaration that he was the absolute owner of all the property in the
suit. The defendants contended that the suit was barred by res judicata. This
Court held that a subsequent suit was not barred by res judicata by the
Judgment of the Revenue
Court, as it was not
within the exclusive jurisdiction of the Revenue Court and suit was maintainable in the Civil Court. The Judgment of the Revenue Court on the issue of proprietary title
could not operate as res judicata as a Revenue Court was not competent to try the subsequent suit.
In the
instant case, the Mamlatdar declined to exercise jurisdiction holding that the
Act did not apply. If an issue is referred to it by the trial court under the
Act, the question of jurisdiction would not arise and there could be no
question of res judicata as to jurisdiction of the Mamlatdar on reference.
Bearing
in mind the above provisions and the principles of law, we are of the view that
there could arise no question of res judicata in the instant case. Section 11
would not be a bar to the trial court in 18 referring issues which are to be
exclusively determined by a competent authority under the Act, to that
authority. Nor should arise any such question of res judicata in the competent
authority deciding those issues when referred to by the trial court.
In the
result, we find no merit in this appeal which is accordingly dismissed, but
without any order as to costs.
Y. Lal
Appeal dismissed.
Back