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TMI Blog1989 (9) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, herein- after 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 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 evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that the application filed by the appellants as landlords for possession of the lands treating the opponents thereof as tenants was dis- missed. 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; AIR 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 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 Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 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 mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 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 Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontested 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 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 cau ..... 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