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PETITIONER: RICHPAL SINGH AND OTHERS ETC.

       Vs.

RESPONDENT: DALIP

DATE OF JUDGMENT09/09/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) OZA, G.L. (J)

CITATION:  1987 AIR 2205            1988 SCR  (1)  93  1987 SCC  (4) 410        JT 1987 (3)   516  1987 SCALE  (2)527

ACT:      Punjab Tenancy  Act,  1887:  Section  77(3)-Decree  for ejectment passed  by Revenue Court-Whether bar to subsequent suit in Civil Court for determining title.      Code of Civil Procedure, 1908: Section 11-Res judicata- Applicability of-Decree  for  ejectment  passed  by  Revenue Court under  Punjab Tenancy  Act, 1887-Whether applicable to subsequent  suit   in  a   Civil   Court   for   determining relationship between landlord and the tenant.

HEADNOTE:      A suit  was filed by the appellants in the Court of the Assistant Collector  seeking ejectment  of  the  respondent- tenant from  his lands,  under s.  77(3) proviso 2(e) of the Punjab Tenancy Act, 1887 on the ground that he had defaulted in the  payment of rent, and it was decreed. In execution of the decree,  the respondent  was ejected from the suit land. No appeal  was filed from the said decree but the respondent filed a  suit in  the Civil  Court  against  the  appellants alleging that  he was  in fact  a mortgagee in possession of the suit  land and  not a  tenant and  that  the  decree  of ejectment  passed   by  the   Revenue  Court   was   without jurisdiction  and,   therefore,  a   nullity,  and   claimed restoration of the possession of the suit land from which he had been  wrongly ousted  by the Revenue Court. The suit was dismissed by the Subordinate Judge holding that the claim of the respondent  to be  a mortgagee in possession of the suit land was  wrong and  that the order of the Revenue Court was perfectly in  order and  within that  court’s jurisdictional competence and  that it  was of  a  binding  nature  on  the respondent and  was not  open  to  challenge  in  subsequent proceedings. The  appellant asserted  that the  claim by the respondent  in   the  subsequent  suit  was  barred  by  the principles of res judicata. The suit was dismissed.      In appeal,  the Additional  District Judge reversed the findings of  the trial  court and  decreed the  suit of  the respondent. The  appellants  filed  regular  second  appeals before the High Court. 94      A Single  Judge of the High Court was of the view that, in view  of the  conflicting judgments  on  the  points  for

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determination  in  the  case,  the  matter  required  to  be referred to  a larger  bench. The  Full Bench, by a majority view, held  that the  decision of the Revenue Court under s. 77 of  the Punjab  Tenancy  Act  upon  the  relationship  of landlord and tenant between the parties would not operate as res judicata  and  it  would  be  open  to  challenge  in  a subsequent suit  or in  other collateral proceedings between the parties,  and remitted  the matter  back to  the  Single Judge for disposal in accordance with the above decision.      The  question  for  consideration  in  the  appeals  by Special Leave  before this Court was: as to how far an order of eviction  of a person by the Revenue Court under s. 77(3) of the Punjab Tenancy Act, 1887 operated as res judicata for a title  suit filed  by a  person claiming to be a mortgagee and not a tenant of the alleged landlord.      Dismissing the appeals by special leave, this Court, ^      HELD: 1. The High Court was right in holding that there was no  res judicata  so far as the second suit based on the assertion of  the title  of the  respondent  was  concerned. [105C-D]      2.1 The  overall scheme of the Act is to provide speedy remedies with  regard to  disputes between the landlords and tenants and  also under what circumstances that relationship came to  an end. Sections 98 and 99 do not in any way affect the question whether the decision of the Revenue Court under the Revenue  Act can  operate as  res  judicata  in  certain cases. The  limits of  the jurisdiction would be apparent by the fact  that all  suits by a landlord to eject a tenant do not encompass  suits to decide whether a person was a tenant or not or whether the plaintiff was a landlord or not. [98C; 99 F-G]      2.2 ouster  of jurisdiction  of Civil Courts should not be inferred  easily. It  must be  clearly provided  for  and established. If  the dispute  was as  to the  nature of  the relationship of landlord and tenant between the parties, the Revenue  Court   under  the   Punjab  Tenancy   Act  had  no jurisdiction;  when   there  was   admitted  position,   the relationship  of  landlord  and  tenant  was  accepted,  the remedies and  rights of  the parties  should be  worked  out under the scheme of the Act. [103C-D]      2.3 A  salutory and simple test to apply in determining whether the previous decision operated as res judicata or on principles analogous  thereto was  to find  out whether  the first court could go into the question 95 whether  the  respondent  was  a  tenant  in  possession  or mortgagee in  A possession.  In  view  of  the  language  of section 77  it is  clear that  it could  not and, therefore, there was  no res  judicata. The  subsequent civil suit was. therefore, not barred by res judicata. [105B-C]      Raj Lakshmi Dasi and others v. Banamali Sen and others, [1953] 4  SCR 154;  Om Prakash  Gupta v.  Rattan  Singh  and another, [1964] 1 SCR 259; Shri Raja Durga Singh of Solan v. Tholu, [1963]  2 SCR  693; Magiti  Sasamal v. Pandab Bissoi, [1962] 3  SCR 673;  Lal Chand  (dead) by  Lrs. and others v. Radha Kishan,  [1977] 2  SCR 522  and State of Tamil Nadu v. Ramalinga Samigal Madam, AIR 1986 S.C. 794, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 1741 and 1742 of 1981.      From the  Judgment and  order dated  12.3.1981  of  the

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Punjab and Haryana High Court in R.S.A. No. 1822 of 1978.      Harbans Lal and Balmukand Goel for the Appellants.      Anil Dev  Singh, N.D.  Garg  and  Rajiv  Garg  for  the Respondent.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI,  J. How  far  an  order  directing eviction of  a person  by the  Revenue Court  under  section 77(3) of  the Punjab  Tenancy Act,  1887 (hereinafter called ’the Act’)  operates as  res judicata for a title suit filed by a  person claiming  to be a mortgagee and not a tenant of the alleged  landlord, is  the question  that arises in this appeal by  special leave from the Full Bench decision of the High Court  of Punjab  and Haryana dated 12th March, 1981 in second appeal.  By the  impugned order and judgment the High Court  has  dismissed  the  appeal  of  the  appellants  and affirmed the judgment and order dated 7th September, 1978 of the  Additional   District  Judge,   Gurgaon  reversing  the judgment and  order of Sub Judge 1st Class, Ballabgarh dated 4th of November, 1977 dismissing the suit of the respondent.      It appears that the appellants filed proceedings in the Court of  Assistant Collector, 1st Grade, Ballabgarh seeking ejectment of  the respondent  from his  lands on  29th July, 1975 under  section 77(3)  proviso 2(e)  of the  Act on  the ground that the respondent-tenant had H 96 defaulted in  the payment  of rent.  The suit was decreed on 29th  October,   1976.  In   execution  of  the  decree  the respondent was  ejected from the suit land. No appeal though provided under the said Act was filed by the respondent from the said  decree. The resondent, however filed a suit in the civil court against the appellants alleging that he fact was a mortgagee  in possession of the suit land and not a tenant and that the decree of ejectment dated 29th of October, 1976 by  the   Revenue  Court   was  without   jurisdiction  and, therefore, a  nullity. The respondent claimed to be restored the possession  of the  suit land  from which  he  had  been wrongly ousted  by the Revenue Court. The suit was dismissed by the  learned Subordinate  Judge  on  4th  November,  1977 holding that  the claim  of the respondent to be a mortgagee in possession  of the suit land was wrong and that the order of the  Revenue Court  was perfectly in order and was within that court’s  jurisdictional competence. It was alleged that it was  of binding  nature on  the respondent  and  was  not capable to challenge the same in subsequent proceedings. The claim, it  was asserted, by the respondent in the subsequent suit, was  barred by  the principles  of res  judicata.  The respondent lost.  He filed  an appeal against the said order of the  learned Subordinate  Judge. The  learned  Additional District Judge,  Gurgaon vide his order dated 7th September, 1978 reversed  the findings  of the  trial court and decreed the suit  of the  respondent. Against  the said order of the learned  Additional  District  Judge  the  appellants  filed Regular Second Appeals which were placed for disposal before one of  the learned  Judges of  the High Court of Punjab and Haryana at Chandigarh. After hearing counsel for the parties the  learned   Judge  was   of  the  view  that  there  were conflicting judgments on the points for determination in the case which were of importance and the matter was referred to the Hon’ble the Chief Justice of the said High Court for the constitution of  a larger bench for the determination of the points in  controversy. The  question referred  to a  larger bench was whether, the decision of Rent Controller under the Rent Control Laws or a Revenue Court under section 77 of the Punjab Tenancy  Act upon  the relationship  of landlord  and tenant between  the parties  operates as res judicata and is

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not open  to challenge  in a  subsequent suit  or  in  other collateral proceedings  between  the  parties.  The  learned Chief Justice  constituted a  Full Bench  of  three  learned Judges  for  resolving  the  conflict  pointed  out  in  the referring order.  The three learned Judges of the Full Bench have given  three separate  judgment and ultimately the case came to be decided in accordance with the majority view.      The order of the Full Bench was that in accordance with the majority  view it  was held  that the  decision  of  the Revenue Court under 97 Section 77  of the  Punjab Tenancy Act upon the relationship of landlord and tenant between the parties would not operate as res  judicata and  it would  be open  to challenge  in  a subsequent suit  or any other collateral proceedings between the parties.  The Full  Bench thereafter directed the matter to go  back to  the learned  single Judge  for  disposal  in accordance with the decision of the Full Bench. Aggrieved by the aforesaid order and decision the appellants have come up in appeal before this Court.      It may  be mentioned  that of the three learned Judges, Sandhawalia, CJ.  was of  the view that it was to operate as res judicata, but the other two learned judges, namely, J.V. Gupta, J.  and S.P. Goyal, J. held contrary views. It is the propriety and  the validity of the majority view of the Full Bench which calls for an examination in this appeal. C      In order  to appreciate the controversy in appeal it is necessary to  refer to  the relevant  provisions of the said Act. The  preamble of  the Act  states that it was an Act to amend the  law relating  to the  tenancy of  land in Punjab. These provinces  of Punjab  had the  distinction between the occupancy tenants  and tenants-at-will  with the rest of its early revenue Code from the United Provinces. The possession of a  right to  fixity of  tenure  by  many  cultivators  in northern India was early recognised. Indeed the fact that in Lower Bengal  the connection of persons whom were recognised as proprietors  with the land was often far more recent than that of the cultivators inevitably suggested that the latter had rights  in the  soil that required protection. Fixity of tenure  of  resident  cultivators  at  rents  determined  by authority was  prominent feature of the Bengal settlement as originally planned.  Regulation XXVIII  of 1803 professed to extend the Bengal system to the North Western Provinces, but it left the subject of tenant right in a vague and uncertain condition. The  provisions of  Regulation VII  of 1922  were more definite.  By its  9th section Settlement officers were required not  only to  prepare a record of "persons enjoying the possession  and property of the soil, or vested with any heritable or  transferable interest"  in it, that is to say, of  proprietors,  but  also  of  "the  rates  per  bigha  .. demandable from  the resident  cultivators not  claiming any transferable property  in the  soil whether  possessing  the right of  hereditary occupancy  or not". It is not necessary to trace  the history  of these settlement laws which can be found in  Douie’s Settlement  Manual,  4th  Edition.  Twelve years’ uninterrupted  possession of  a holding  at the  same rate of  rent  was  considered  as  a  sufficient  proof  of occupancy right  in the  United Provinces. The twelve years’ rule was very generally adopted in early Punjab settlements, though the best H 98 revenue officers  held that it should not be regarded as the sole criterion,  and that the quality, as well as the length of occupation  should be considered. The Act in question was passed to amend the law of tenancy in Punjab which was later

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the object  of the  Act to  protect  the  tenants  from  the exactions of  the landlords  The tenants  as usual  in other parts of  the world  were in many cases peculiarly liable to oppression or  duress from  their landlords  and in order to protect them  quite effectively  from the possibility of any such oppression or duress the Act was passed.      The overall  scheme of  the Act  is to  provide  speedy remedies with  regard to  disputes between the landlords and tenants and  also under what circumstances that relationship comes to an end. It is appropriate to bear in mind the whole basic question involved in this appeal is whether the courts created by  this Act  have limited power and jurisdiction or plenary powers  and jurisdiction.  In  this  appeal  we  are concerned with  the amplitude  of the  jurisdiction  of  the courts under  section 77  of the Act which deals with Courts and suits cognizable by them. Relevant portion of section 77 of the Act provides as follows:                "77. Revenue  Courts and  suits cognizable by           them.-(1) When  a Revenue  officer  is  exercising           jurisdiction with  respect to  any such suit as is           described in  sub section  (3), or with respect to           an appeal  or other  proceeding arising out of any           such suit, he shall be called a Revenue Court.           (2)  .............................................           (3) The  following suits  shall be  instituted in,           and heard  and determined  by, Revenue Courts, and           no  other  Court  shall  take  cognizance  of  any           dispute or  matter with  respect to which any such           suit might be instituted:-           Provided that-           (1)  .............................................           (2)  .............................................                            FIRST GROUP                           ............                           SECOND GROUP                           ............ 99           (e) suit by a landlord to eject a tenant;" A      The controversy  with which  we are  concerned in  this appeal is  a type  of suits  indicated in second group under clause (e), namely, suits by a landlord to eject a tenant      The question  of  res  judicata  was  analysed  in  the background of  land acquisition proceedings by this Court in Raj Lakshmi  Dasi and  others v.  Banamali Sen  and  others, [1953] 4  S C.R.  154. There  this Court  observed that  the right to  receive compensation for property acquired in land acquisition proceedings  as between rival claimants depended on the  title to the property acquired and the dispute as to title was raised by the parties and had to be decided by the Land Acquisition Judge after contest, so this decision as to title operates  as res judicata in a subsequent suit between the same  parties on the question of title The binding force of a  judgment delivered  under  the  Land  Acquisition  Act depended on  general principles of law and not on section 11 of the  Civil Procedure  Code, and  the decision  of a  Land Acquisition Judge  would operate as res judicata even though he was  not competent  to try the subsequent suit. It has to be  emphasised,  however  that  the  right  to  compensation depended upon  the title,  but here  in the instant case the right to  ejectment existed  only  if  the  relationship  of landlord and  tenant existed. The Revenue Court did not have jurisdiction whether  the claimant  was the  landlord to  be entitled to eject the tenant.      Our attention  was drawn  by Sree  Harbans Lal, learned counsel appearing  for the  appellants to  section 98 of the

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Act, as  to the  power of  the Revenue Court to refer to the Civil Court  a decision  by the  Revenue Court if it thought proper and also to section 99, where there is power to refer to High  Court question as to jurisdiction. These provisions in our  opinion, do  not in  any  way  affect  the  question whether the  decision of the Revenue Court under the Revenue Act can  operate as  res judicata  in certain cases like the present. The limits of the jurisdiction would be apparent by the fact that in all suits by a landlord to reject a tenant, do not  encompass suits  to decide  whether a  person  is  a tenant or not or whether the plaintiff is a landlord or not. The question  was answered by this Court in Om Prakash Gupta v. Rattan  Singh and  another, l  19641 1  S.C.R. 259  where Sinha, C.J. dealing with the Delhi Rent Control Act observed at pages 264 and 265 as follows:           "The  most  important  question  that  arises  for           determination 100           in this  case is  whether or  not the Rent Control           authorities had  jurisdiction  in  the  matter  in           controversy in  this case-ordinarily it is for the           Civil Courts to determine whether and, if so, what           jural relationship  exists between  the litigating           parties But  the Act  has been  enacted to provide           for the control of rents and evictions of tenants,           avowedly for their benefit and protection. The Act           postulates the relationship of landlord and tenant           which must be a pre-existing relationship. The Act           is directed  to control  some  of  the  terms  and           incidents of that relationship. Hence, there is no           express  provision   in  the  Act  empowering  the           Controller, or  the Tribunal, to determine whether           or not  there is  a relationship  of landlord  and           tenant. In  most cases  such a  question would not           arise for  determination by  the authorities under           the Act.  A landlord  must be  very ill-advised to           start proceedings  under the  Act, if  there is no           such relationship  of landlord  and tenant.  If  a           person in  possession of  the premises  is  not  a           tenant,  the   owner  of  the  premises  would  be           entitled to  institute a suit for ejectment in the           Civil Courts,  untrammelled by  the provisions  of           the Act.  It is  only when  he happens  to be  the           tenant of  premises in  an  urban  area  that  the           provisions of  the Act  are attracted."  (Emphasis           supplied. )      In Shri  Raja Durga  Singh of  Solan v. Tholu, [19631 2 S.C.R. 693, this Court had occasion to consider the question of res judicata in the background of the jurisdiction of the Court. That  was a  case under  section  77  of  the  Punjab Tenancy Act.  In that  case the  appellant had  filed a suit before the  Civil Court  for the ejectment of the respondent therein  on   the  ground  that  they  were  licensees.  The respondents claimed  that they  were occupancy  tenants  and contended that  under section  77 of the Punjab Tenancy Act, 1887, the  suit was  triable by a revenue court only and not by the  civil court. The trial court and the first appellate court decreed the suit holding that the respondents were not tenants. On  second appeal  the Judicial  Commissioner  held that the  respondents were  occupancy tenants  and that  the civil court  had no  jurisdiction to  entertain the suit. It was held by this Court that the civil court had jurisdiction to entertain  the suit  and section 77 of the Punjab Tenancy Act was  applicable "only  to  suits  between  landlord  and tenants  where   there  was   no  dispute  that  the  person

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cultivating the  land was a tenant". But where the status of the defendant  as a tenant was not admitted by the landlord, section 77  did not  bar a suit in a civil court. This Court held that it would, therefore, be reasonable to infer 101 that the  legislature barred only those suits which form the cognizance of  a civil  court where  there  was  no  dispute between the  parties that  a person  cultivating land or who was in  possession of  land was  a tenant. This is precisely what has  been held  in the two decisions of the Lahore High Court where  there was  reference at  pages 698-699  of  the report. In  the first  of these  two cases. Tek Chand J. had observed:           "It is  obvious that  the bar  under clause (4) is           applicable  to  those  cases  only  in  which  the           relationship of  landlord and  tenant is  admitted           and the  object of  the suit  is to  determine the           nature of  the tenancy  i.e. whether the status of           the tenant falls under section 5, 6, 7 or 8 of the           Act.           In that  case the  suit was  instituted by someone           claiming to succeed to the tenancy of certain land           on the  death of the occupancy tenant. The learned           Judge observed:                ’In a  suit like  the one before us the point                for  decision   is  not  the  nature  of  the                tenancy, but whether the defendant is related                to the  deceased tenant  and  if  so  whether                their common  ancestor had occupied the land.                If these facts are established, the claimant,                ipso facto succeeds to the occupancy tenancy.                But if  they are found against him, he is not                a tenant at all.’                As these  facts were not established the High           Court held  that the  landlord was entitled to sue           the  defendant   who  had   entered  on  the  land           asserting a  claim  to  be  a  collateral  of  the           deceased tenant but who failed to substantiate his           claim. This  view was  affirmed by  a  Full  Bench           consisting of  five Judges  in  the  other  Lahore           case. In  Daya Ram v. Jagir Singh, A.I.R 1956 H.P.           61 the  same Judicial Commissioner who decided the           appeal before us has expressed the view that where           in a  suit for  ejectment  the  existence  of  the           relationship  of   landlord  and   tenant  is  not           admitted  by  the  parties  the  Civil  Court  had           jurisdiction to  try the suit and that such a suit           did not  fall under  section 77(3)  of the Act. In           Magiti Sasamal  v. Pandab  Bissoi, [1962] 3 S.C.R.           673 this  Court was  considering the provisions of           section 17(1)  of the  Orissa  Tenants  Protection           Act, 1948  (3 of  1948). The  provisions  of  that           section run thus:           ’Any dispute  between the  tenant and the landlord           as re- 102           gards, (a)  tenant’s possession of the land on the           1st day  of September,  1947 and  his right to the           benefits under this Act, or (b) misuse of the land           by  tenant,  or  (c)  failure  of  the  tenant  to           cultivate the land properly, or (d) failure of the           tenant to deliver to the landlord the rent accrued           due within  two months  from the  date on which it           becomes pay  able, or  (e)  the  quantity  of  the           produce payable  to the landlord as rent, shall be

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         decided by  the Collector  on the  application  of           either of the parties. ’                lt was  contended in  that case  on behalf of           the respondents  who claimed  to be  tenants  that           suit for  permanent injunction  instituted by  the           appellant landlord was barred by the provisions of           section 7(1).  Dealing with  this contention  this           Court observed as follows.                ’In  other  words,  s.  7(1)  postulates  the           relationship of  tenant and  landlord between  the           parties and  proceeds to provide for the exclusive           jurisdiction of  the Collector  to  try  the  five           categories of  disputes that may arise between the           landlord and  the tenant.  The disputes  which are           the subject-matter  of section  7(1)  must  be  in           regard to  the five  categories. That is the plain           and obvious construction of the words ’any dispute           as regards’.  On this  construction  it  would  be           unreasonable to  hold that  a  dispute  about  the           status of the tenant also falls within the purview           of the said section. The scheme of section 7(1) is           unambiguous and clear. It refers to the tenant and           landlord as  such and  it contemplates disputes of           the  specified  character  arising  between  them.           Therefore, in  our  opinion,  even  on  a  liberal           construction of section 7(1) it would be difficult           to uphold  the argument  that a dispute as regards           the existence  of  relationship  of  landlord  and           tenant falls  to be  determined by  the  Collector           under section 7(1). ’ "      As regards  the said  observations, in  so far  as  the essential facts  are concerned,  precisely the  same is  the position in  the instant  appeal.  Here  the  respondent  is claiming to be a mortgagee in possession and not a tenant in possession. In  Magiti Sasamal  v. Pandab  Bissoi, [1962]  3 S.C.R. 673,  the appellant  had filed  in the  Civil Court a suit for  permanent injunction  restraining the  respondents from entering  the lands  in suit on the allegation that the lands belonged to him and were in his cultivatory possession for many years and the respondents had 103      no right  or title  and had  never cultivated them. The respondents contended  that they were tenants of portions of the said  lands and  were in  cultivating possession  of the same as  tenants. The  question which arose for decision was whether having  regard to  the provisions of section 7(1) of the Orissa Tenants Protection Act, 1948, the Civil Court had jurisdiction to  entertain the suit which involved a dispute as to  the relationship  of landlord  and tenant between the parties. It  was held that even on a liberal construction of section 7(1)  of the Act, it cannot be held that disputes as regards the  existence of  the relationship  of landlord and tenant fall  to be  determined by  the Collector  under that section. Disputes which are entrusted to the Collector under section 7(1)  are the  simple disputes  specified therein in the five  categories and do not include a serious dispute as to the  relationship between  the parties  as  landlord  and tenant.           It is  well-settled that ouster of jurisdiction of civil courts  should not  be inferred  easily.  It  must  be clearly provided for and established.           This question  was again  viewed in the background of the  Slum Areas  (Improvement and Clearance) Act, 1956 in Lal Chand  (dead) by Lrs. and others v. Radha Kishan, [1977] 2 S.C.R.  522, where  this Court  reiterated that section 11

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was not  exhaustive and  the principle  which motivates that section could  be  extended  to  cases  which  do  not  fall strictly within  the letter  of the  law. This Court further reiterated that  the principle of res judicata was conceived in the  larger  public  interest  which  required  that  all litigation must,  sooner than  later, come  to an  end. This Court in the State of Tamil Nadu v. Ramalinga Samigal Madam, A.I.R. 1986 S.C.794 has analysed the position in paragraph 8 as follows:           "The principles bearing on the question as to when           exclusion of the Civil Court’s jurisdiction can be           inferred have  been indicated  in several judicial           pronouncements but  we  need  refer  to  only  two           decisions. In  Secretary  of  State  v.  Mask  and           company, A.I.R.  1940 P.C. lOS at p. 110 the Privy           Council at  page 236  of the  Report has  observed           thus:                ’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. It is also well settled that even if                jurisdiction is so excluded, the Civil Courts                have jurisdiction to examine into cases where                the provi- 104                sions of  the Act have not been complied with                or the  statutory tribunal  has not  acted in                conformity with the fundamental principles of                judicial procedure.           In Dhulabhai v. State of Madhya Pradesh, [ 1968] 3      S.C.R. 662  Hidayatullah, C.J., speaking for the Court,      on the  analysis of  the various decisions cited before      the Court ex pressing diverse views, called out as many      as 7  propositions; out of them the first two which are      material for our purposes are these:                ’(1) Where the  statute gives  a finality  to                the orders  of the special tribunal the civil                Court’s  jurisdiction  must  be  held  to  be                excluded if  there is  adequate remedy  to do                what the  civil Courts would normally do in a                suit.  Such   provision,  however,  does  not                exclude those  cases where  the provisions of                the particular  Act have  not  been  complied                with or  the statutory tribunal has not acted                in conformity with the fundamental principles                of judicial procedure.                (2) Where  there is  an express  bar  of  the                jurisdiction of  the Court, an examination of                the scheme  of the particular Act to find the                adequacy or  the sufficiency  of the remedies                provided may  be relevant but is not decisive                to sustain  the  jurisdiction  of  the  Civil                Court.                     Where there  is no express exclusion the                examination of the remedies and the scheme of                the particular Act to find out the intendment                becomes  necessary  and  the  result  of  the                inquiry may  be decisive.  In the latter case                it is necessary to see if the statute creates                a special  right or  a liability and provides                for  the   determination  of   the  right  or                liability and  further  lays  down  that  all                questions about  the said right and liability                shall  be  determined  by  the  tribunals  so

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              constituted, and  whether  remedies  normally                associated with  actions in  civil Courts are                prescribed by the said statute or not’.      Applying the  aforesaid principles,  it appears  to  us that if the dispute was as to the nature of the relationship of landlord and tenant 105 between the  parties, the  Revenue Court  under  the  Punjab Tenancy A  Act had  no jurisdiction  when there was admitted position,  the  relationship  of  landlord  and  tenant  was accepted, the  remedies and  rights of the parties should be worked out under the scheme of the Act.      A salutary  and simple  test to  apply  in  determining whether the previous decision operated as res judicata or on principles analogous  thereto is  to find  out  whether  the first court,  here the  Revenue  Court  could  go  into  the question whether  the respondent  was a tenant in possession or mortgagee in possession. It is clear in view of langugage mentiond before  that it  could not. If that be so there was no res judicata. The subsequent civil suit was not barred by res judicata.      In that  view of the matter, we are of the opinion that the High  Court of  Punjab and  Haryana was right in holding that there  was no  res judicata  so far  as the second suit based on  the assertion  of the  title of the respondent was concerned.  The   appeals  must,  therefore,  fail  and  are accordingly dismissed with costs. D N.P.V.                                    Appeals dismissed. 106