PANDURANG RAMCHANDRA MANDLIK (SINCE DEAD)

BY HIS LRS. AND ANR.

v.

SMT. SHANTABAI RAMCHANDRA GHATGE AND ORS.

SEPTEMBER 12, 1989

[M.N. VENKATACHALIAH AND K.N. SAIKIA, JJ.)

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'

A

B

in Section 70(b)-lnterpretation of-Jurisdiction of Civil Court to C

decide issues-When excluded.

Code

of Civil Procedure, 1898-Section I /-Res judicata-'Heard

and finally decided'-Essentiality of-What operates as res judicata

is

the ratio of what is fundamental to the decision.

The appellants-landlords leased out their land, situate at Kolha­

pur, to respondents Nos. I 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

D

the application was dismissed ex parte, as it was held that the provisions E

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 tiled a Civil Suit

against the respondents for possession mesne profits and for damages.

Respondents I and 2 contested the suit condtending

inter alia that the

civil court had no jurisdiction to try the suit inasmuch

as the Act was F

applicable lo 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,

juris­

diction of the civil court and estoppel and after going through the evi­

dence led by the parties, decreed the suit. The respondents appeal

against the said decree having failed before the first appellate court, G

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

SSA of the Act in regard to the issues which are required H

A

2 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

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.

B 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. SSA of the Act, now would be barred. According to C them the civil court itself has jurisdiction to decide the issues. Respon­

dents' 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.

D

Dismissing the appeal, this

Court,

HELD: 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

E 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. I I I Fl

F

(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. l13G]

G

lf a matter directly and substantially in issue in a former suit has

been adjudicated upon

by a court of exclusive jurisdiction, the

adju­

dication will bar the trial of the same matter in a subsequent suit. [!SE]

In the instant case, the Mamlatdar having decided the appellants'

application for possession, the appellants themselves went to the Civil

H Court and filed the suit. It does not now lie in their mouth to s~y that

..

·'

P.R. MANDLIK v. SMT. S.R. GHATGE 3

the decision of the Mamlatdar would act as res judicata for the trial

court. I !SF]

The Mamlatdar's Court is a civil court for the purpose of Section

SSA of the Act. [!SF]

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. II. I ISH; 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. II 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.

I 16B]

A

B

c

D

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

funda­

mental to the decision but it cannot be ramified or expanded by E

logical extension. [16F-G]

(See Vithal Yaswant v. Shikander Khan Mutumukhtan, AIR

1963 SC 385. l

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 compe-F

tence 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 erro­

neous interpretaton of a statute it

holils that it has no jurisdiction. [ I7B]

(See Pandurang Mahadeo Kavade & Ors. v. Annaji Ba/want G

Bokil & Ors., [1971] 3 SCC S30;)

Shivappa Satawappa Ashtekar v. Gajanan Chintaman Desk

Pande, [1953] 55 Bom. Law Reporter. 84.<Dhondi Tukaram v. Dadoo

Piraji, [1952] 55 llom. L.R. 663; Bhimaji Shanker Kulkarni v.

Dundappa Vithappa Udapudi and Anr., [1966] l SCR 145; Mussamiya H

4 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

Imam Haidar Bax Razvi v. Rabari Govindhai Ratnabhai & Ors., [1969]

A I

SCR 785; Trimbak Sopana Girme v. Gangaram Mhatarba Yadav, 55

Born. L.R. 56; Jshverlal Thakorelal Almaula v. Motibhai Nagjibhai,

[1966] I

SCR 367; Pandurang Hari Jadhav v. Shankar Maruti Todkar,

62 Born. L.R. 873; Kalicharan Bhajanlal Bhayya v. Rtii Mahalaxmi, 4

Guj. L.R. 145; Neminath Appayya Hanammannaver v. Jambu Rao

B Satappa Kocheri, AIR 1966 Mys. 154; Jambu. Rao Satappa Kocheri v.

c

D

E

F

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 tbe 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 Kasha Karvir, within the municipal limits of Kolhapur.

The said land was leased out to the father of respondent Nos. I 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.

G 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 natur-

H ally.

It was further averred that on expiry of the period of lease the

~

P.R. MANDLIK v. SMT. S.R. GHATGE [SAJKJA, J.l 5 ..

appellants terminated the tenancy under the provisions of the Land

A

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 regard-

ing

the applicability of the Act, jurisdiction of the civil court, and B

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 therefrom

having been dismissed by the District Judge, they took Second Appeal

c

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 plead-

ings

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 D

)

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.

E

Mr.

S.B. Bhasme, the learned counsel for the appellants sub-

mits, inter alia, that the appellants' application under

s. 29(2) read with

s. 25(2)

of the Act, being case No. 184 of 1962-63 having been dismis-

. sed 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

F

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, unde

s. 85A of the Act with respect to those

issues which are

reyuired to be decided by the competent authority

under the Act, would be barred; and that in the facts and circum-

stances

of the case the civil court itself has jurisdiction to decide the

issues which have been directed to be referred to the

civil court.

G

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 H

6 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

A 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 pa rte, it

could not operate

as res judicata.

B

c

D

E

F

G

H

The question to be

decided,'t!:!_erefore, is whether the High Court

was correct in directing the trial co"urt 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 Born. 15 of

1957. The amendment is not material for the purpose of our case. As

defined

ins. 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 Born. 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

Born.

13 of 1956. As defined in s. 2( 17),

"Tenancy" means the rela­

tionship

of landlord and tenant; and as defined ins. 2(18),

"tenant"

means a person who holds land on lea'e 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 sub­

stituted by Born.

13 of 1956.

The High Court has found that the appellants had leased out

th·~

land on October 12, 1950 for a period of 10 years under a Kabulayat at

•'

'·

I

P.R. MANDLIK v. SMT. S.R. GHATGE [SAJKIA, J.] 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. SSC of the Act

being case No.

285 of 1961 and that application was also dismissed on

the ground that the lands were governed

bys. 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 applica­

tion 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 pro­

ceeded

ex parte. The effect of that decision was that the application

filed hy 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.

A

B

c

D

Considered in the light of the above definitions and the provi­

sions

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 E

-the competent authority under the Act and to that extent the jurisdic­

tion

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; AIR 1954 Bombay 107,

in the landlord's suit for possession of lands filed in civil court, the F

.,;. • defendants having contended that the lands were agricultural lands

and that the defendant.s 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 G

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 Born. L.R. 663." H

A

B

c

n

E

F

G

H

8 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.

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

pro­

tected 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 cotrol."

This Court in Bhimaji Shanker Kulkarni v. Dundappa Vithappa

Udapudi and Anr., [1966] I 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 deci­

sion 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

inde­

pendently 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;

,/

P.R. MANDLIK v. SMT. S.R. GHATGE [SAIKIA, J.l 9

) 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 land­

lord

or the agricultural labourer or artisan or person carry­

ing 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 Tri­

bunal 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."

"SSA. (1) If any suit instituted in any Civil Court involves

A

B

c

D

E

F

G

any issues which are required to be settled, decided or dealt H

A

B

c

D

10 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

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 mairi

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

E 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.

F The respondents contended that they became statutory owners u/s.

32

ors. 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

G 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. SSA with other relevant provisions held at page 797:

H "We are accordingly of the opinion that s. 85 read with

••

'

/

P.R. MANDLIK v. SMT. S.R. GHATGE [SAIKIA, J.[ 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 con­

struction 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 neces­

sarily lead to the inference

of such exclusion. As the Judi­

cial Committee observed in

Secretary of State v. Mask &

Co., 67 I.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 exclu­

sion must either be explicitly expressed

or clearly implied.'

In

our opinion, there is nothing in the language or context

of s.

70 ors. 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

A

B

c

D

E

by inserting the words "or was at any time in the past, a tenant", the

position has changd. The Civil Court has now no jurisdiction to decide F

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 sec 495, the appellant filed the suit for specific

performance

of a contract for sale of land dated December 15, 1965 G

coupled with a supplementary agreement dated April 26,

1966 for sale

of agricultural land. The suit was resisted by the defendant, contend-

ing,

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 H

12 SUPREME COURT REPORTS [1989] Supp. 2 S:C.R.

...

A

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 withs. 85 ands. 85A of the

Act, the issue would have to be referred to the Mamlatdar for decision

B

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

pe,rforrnance, Civil

Court had jurisdiction. Allowing the appeal therefrom and remanding

the suit to the trial court this Court speaking through Desai, J. held at

c

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

( D

the Tenancy Act, it would be no answer to the provisions to

say that the issue

is an incidental issue in a properly con-

stituted 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

E

arise therein which would be required to be settled,

decided or dealt with

by the competent authority under the

Tenancy Act, and, therfore, 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

F

under the Tenancy Act. This

is an inescapable legal posi-

tion 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 inci-

dental issue

is hardly helpful because each issue, if it

arises, has to be

determined to mould the final relief.

G

Further, Sections 85 and 85A oust jurisdiction of Civil

Court not in respect of

civil suit

b•Jt 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,

' H

P.R. MANDLIK v. SMT. S.R. GHATGE {SAIKIA, J.] 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 Born. L.R. 56=AIR 1953 Born. 241;

Dhondi Tukaram Mali, (supra); Bhimaji Shanker Kulkarni, (supra);

Ishwer/al Thakorelal Almaula

v. Motibhai Nagjibhai, [1966]

I SCR

367=AIR 1966 SC 459; Pandurang Hari Jadhav v. Shankar Maruti

Todkar,

62 Born. L.R. 873; Kalicharan Bhajan/al Bhayya v. Rai

Mahalaxmi, 4 Guj. L.R.

145; Neminath Appayya Hanammannaver v.

Jambu Rao Satappa Kocheri, AIR 1966 Mysore 154; Jambu Rao

Satappa Kocheri

v. Neminath Appayya Hanammannaver, [1968] 3

SCR 706=AIR 1968 SC 1358; Mussamiya Imam, (supra) and Noor

Mohd. Khan Ghouse Khan Soudagar

v. Fakirappa Bharmappa

Machenahalli.

11978] 3 SCC 188=1978 3 SCR 789, their Lordships

observed at para

19:

A

B

c

D

"Thus, both on principle and on authority there is no

escape from the conclusion that where in a suit properly E

constituted and cognizable by the Civil Court upon a con-

test 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 compe-F

tent 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 G

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 H

14 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.

of the tenancy authority in case No. 184 of 1962-63 dismissing his

A 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 decid-

B ing the aforesaid application acted under the Mamlatdar's Courts Act,

1906 (Born. Act No. II of 1906) and would be a Court competent to

c

D

E

F

G

H

determine ~he issue as to whether the act was applicable to the appel- ti

!ants' 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

J

P.R. MANDLIK v. SMT. S.R. GHATGE [SAIKIA, J.] 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 land­

lord 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.

A

B

c

D

E

If a matter directly and substantially in issue in a former suit has

been adjudicated upon

by a Court of exclusive jurisdiction, the adjudi­

cation will bar the trial

of the same matter in a subsequent suit. In the

instant case the Mamlatdar having decided the appellants' application F

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 mean­

ing

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

G

./ proceedings may be various but that if a right is litigated between H

A

16 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

parties in a court of justice the proceeding by which the decision ot 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 s. 11. Jn 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

B proceeding. Besides, assuming the Mamlatdar

in deciding the applica­

tion in

1962-63 to

ha·;e 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

C true that ex parte decrees operate to render the matter decided res

judicata, and the defendants' failure to apper 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

D 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

E 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 mat-

F ter 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

G 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 woula be

res judicata. In the instant case what were the points specifically urged

and decided are not clear. Jn

Pandurang Mahadeo Kavade & Ors. v.

Annaji Ba/want Bokil & Ors., [ 1971) 3 SCC 530 it was held that in

H

order to operate as res judicata it must be established that

the previous

I

..

P.R. MANDL!K v. SMT. S.R. GHATGE [SAIKIA, J.] 17

-+-

decision was given by a court which had jurisdiction to try the present

A

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 B

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 interpreta-

tion

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 Mam-

latdar.

That is not material. In Ramchandra Rao v. Ramchandra Rao,

c

[ 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. Reali Devi, [1962] 3 SCR 440, a dis-D

pule 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

E

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 exlcusive

jurisdiction

of the Revenue Court and suit was maintainable in the

Civil Court. The Judgment of the Revenue Court on the issue of

F

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 jurisdic-

ti

on 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

G

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 H

18 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

A 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

whieh is accordingly

B dismissed, but without any order as to costs.

Y. Lal Appeal dismissed.