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PETITIONER: INACIO MARTINS DECEASED THROUGH LRS.

       Vs.

RESPONDENT: NARAYAN HARI NAIK AND ORS.

DATE OF JUDGMENT07/04/1993

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) MOHAN, S. (J)

CITATION:  1993 AIR 1756            1993 SCR  (2)1015  1993 SCC  (3) 123        JT 1993 (2)   723  1993 SCALE  (2)480

ACT: Code of Civil Procedure, 1908: S.  11--Res  judicata--Subsequent  suit  raising  issue  not settled in previous suit--Held, not barred. Or.2  R.2(3)--Commission to sue for one of  several  reliefs emanating  from same cause of action--Effect  of--Held  Rule does  not preclude a second suit based on distinct cause  of action. S. 11 & Or.2 R.2--Distinction between--Explained. The Goa, Daman and Diu Agricultural Tenancy Act, 1964: Ss.2,2(7A),    2(7B),7,8,9,58--Land    comprising    coconut grove--Plaintiff claiming tenancy of--Suit by plaintiff  for restoration  of  possession from defendant alleging  him  as trespasser--Defendant  raising  a  plea  of  tenancy--During pendency  of  suit, change in law by Act 17 of  1976  (Fifth Amendment)--Suit    property    came    within    expression ’agricultural  land’--Held,  Civil Court’s  jurisdiction  on issue  of  tenancy  in respect of  agricultural  land  stood excluded--But, Act does not preclude a suit by a tenant  for restoration of possession from a trespasser. Impact of Fifth Amendment on pending litigation--Explained-- Guidelines for civil courts laid down.

HEADNOTE: The  plaintiff, predecessor-in-interest of  the  appellants, flied a suit for a declaration and an injunction to restrain the  defendant-respondents  from dispossessing  him  from  a certain  property comprising of a coconut grove.  The  trial court dismissed the suit holding that the, plaintiff was  no more  in possession of the suit property, and, therefore,  a suit  for  a  mere declaration simplicitor  could  not  lie. Consequently,   the   plaintiff  flied  another   suit   for restoration  of  possession.   His case was that  he  was  a tenant of the suit property, whereof defendant no. 2 was the owners’ and 1016 that  he  was forcibly dispossessed by defendant no.  1,  in collusion  with defendant no. 2, without his tenancy  having been   lawfully  terminated.   It  was  alleged   that   the defendants were trespassers and liable to be evicted. The  defendants, besides raising the pleas of  res  judicata

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and/or  constructive res judicata purported to be  based  on Order 2 Rule 2(3) of the Code of Civil Procedure,  contended that  defendant no.  1 was in lawful possession of the  suit property  as the same was let out to him by defendant no.  2 after the lease in favour of the plaintiff stood  terminated by  efflux  of  time,  and  the  suit,  as  such,  was   not maintainable. The  trial  court  decreed the suit holding  that  the  suit property  was demised to the plaintiff as he was the  lawful tenant  thereof,  and  defendant no.  1  in  collusion  with defendant no. 2 wrongfully dispossessed him. The  appeal  riled by the defendants was  dismissed  by  the first appellate court. The  second appeals filed by the defendants were allowed  by the  High  Court  holding that the suit was  barred  by  res judicata as well as Order 2 Rule 2(3) C.P.C. The High  Court also  held that during the pendency of the suit as a  result of  the  amendment of the Goa, Daman  and  Diu  Agricultural Tenancy  Act,  1964 by Act 17 of 1976, known  as  the  Fifth Amendment,  the definition of ’agriculture’ was changed  and the  suit property came to be covered within the  expression ’agricultural  land’ which rendered the civil court  without jurisdiction  and  the decree passed  by  it  unsustainable. Aggrieved,  the  heirs  and  legal  representatives  of  the plaintiff, filed the appeal by special leave. Allowing the appeal, this Court, HELD: 1.1 A subsequent suit would be barred by res  judicata only  when the subject matter of the suit was  directly  and substantially in issue in the previous suit. [p. 1022-C] 1.2. The first suit was dismissed on a technical ground that the   suit   for   a  mere   declaration   without   seeking consequential  relief of possession could not lie.  In  that suit  the issue regarding the status of the plaintiff  as  a lessee  was  not settled once for all and hence  that  issue could  not  be stated to be barred by res  judicata  in  the subsequent suit brought by the lessee for possession of  the demised property.  The High Court was not right in holding 1017 that the second suit was barred by res judicata. [0. 1022 F- H] 2.1.  Order 2 Rule 2 CPC is based on,the salutory  principle that a defendant or defendants should not be twice vexed for the  same cause by splitting the claim and the reliefs.   It does  not preclude a second suit based. on a distinct  cause of action. [p. 1023 C-E] 2.2.  The  doctrine of res judicata differs  from  the  rule embodied  In  Order  2 Rule 2, in that,  the  former  places emphasis  on the plaintiff’s duty to exhaust  all  available grounds  in support of his claim while the  latter  requires the  plaintiff to claim all reliefs emanating from the  same cause of action. [p. 1023-E] 2.3. The cause of action for the former suit was based on an apprehension  that  the defendants were likely  to  forcibly dispossess  the plaintiff.  The suit was for  an  injunction and not for possession of the demised property.  It was  not on the premise that the plaintiff had in fact been illegally and forcibly dispossessed and needed the court’s  assistance to  be  restored to possession.  Therefore,  the  subsequent suit  was based on a distinct cause of action not  found  in the former suit. The High Court was not right in  concluding that the suit was barred by Order 2 Role 2(3) of the Code of Civil  Procedure,  and that the difference  in  the  reliefs claimed in the two suits was immaterial and irrelevant.   In the previous suit, the relief for possession was not claimed whereas in the second suit the relief was for restoration of

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possession.   That  makes all the difference.  [pp.  1023-F, 1024 B-D] 3.1. The impact of the Fifth Amendment on pending litigation is  that the question of tenancy in regard  to  agricultural land cannot be decided by the civil court under the Act  and there  being no express saying clause permitting  the  civil court to decide the same, any decision rendered by the civil court  would  be without jurisdiction.  The  change  in  law deprived   the   civil  court  of  jurisdiction   which   it undoubtedly possessed on the date of the institution of  the suit.   Thus,  the provisions of the Fifth  Amendment  would apply to pending suits also. [pp. 1027 D-E; 1028 D-E;  1029- C] Shah  Bhojraj  Kuverji  Oil Mills  and  Ginning  Factory  v. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596= [1962] 2 SCR 159, relied on. 3.2. The Act does not preclude the institution of a suit  by a tenant 1018 for restoration of possession from a trespasser. [p. 1029-C] 3.3.   If  a  suit  Is  riled  to  recover   possession   of agricultural  land from a trespasser and no dispute  arises, the  adjudication  whereof  is required to be  done  by  the special machinery set up under the Act, the civil court will continue to have jurisdiction. [p. 1027 F-G] 3A.   If  possession of agricultural land is sought  on  the plea  that the defendant is a trespasser and  the  defendant contends  that  he  is a tenant, the  claim  of  tenancy  by defendant cannot be gone into by the civil court in view  of the  clear language of S.7 read with s. 58(2) of the Act  In such  a situation, it would not stand to reason to  non-suit the  plaintiff who had flied the suit in a  competent  court having  jurisdiction to try the same, merely because of  the subsequent  change  in law.  The proper  course,  therefore, would  be that the issue whether the defendant was a  tenant should be referred to the Mamlatdar for decision and,  after his decision is received by the civil court, if the issue is held  against  the defendant, the civil court  may  consider passing  of  a. decree. for eviction but if,  on  the  other hand,  he  is held to be a tenant, the civil  court  may  be required  to dismiss the suit [pp. 1029 F-H; 1030 A-B;  1031 D-E] Bhimaji Shankar Kulkam v. Dundappa Vithappa Udapudi &  Anr., AIR  1966 SC 166 =. [1966] 1 SCR 145 and Dhondi  Tukaram  v. Hari  Dadu, AIR 1954 Bom. 100 = ILR (1953) Bom. 969,  relied on. 3.5.  The  impact  of Fifth Amendment may  give  rise  to  a situation  where  a deemed tenant under s.4 of  the  Act  is evicted from the land on or after 1st July, 1962; his remedy under s.8(2) is to approach the authority under the Act  for recovery  of  possession of the land of which  he  has  been disposed, and jurisdiction of the civil court stands  wholly barred  by virtue of s.58(2) of the Act as it would  not  be competent to pass any order for restoration of possession to the deemed tenant.  If such a situation arises in a  pending suit  which  was  instituted in  a  competent  court  having jurisdiction  at  the date of its institution, it  would  be unfair to non-suit the plaintiff altogether for no fault  of his own and the proper course would be  to follow in  spirit the procedure outlined in Order 7, Rules 10 and 10A,  C.P.C. [pp. 1031 F-H; 1032 A-B] 4. The High Court lacked jurisdiction to decide the question regarding tenancy on merits.  Its order is set aside and the matter is remitted to 1019

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the  trial  court to determine the course of  action  to  be adopted   in   accordance  with  the   guideline   indicated hereinabove. [p. 1032 D-F]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1695 of 1993. From  the  Judgment and Order dated 5.4.1991 of  the  Bombay High Court in S.C.A. Nos. 27 and 31 of 1988. G.L. Sanghi Dhruv Mehta, Guru Raikar, S.K. Mehta and  Arvind Verma for the Appellants. BA  Masodkar,  Dr.  R.B. Masodkar and KL.   Taneja  for  the Respondents. The Judgment of Court was delivered by AHMADI, J. Special leave granted. The appellants are the legal representatives of the deceased plaintiff Inacio Martins who died pendente lite.  He had  on October  26,  1968 instituted a suit No. 157 of 1968  for  a declaration  and  an injunction to restrain  the  defendants from  dispossessing him from the property known  as  ’Palmar Oiteral  do Predio Aivao’ comprising seven lots  of  coconut grove  situated at Caranzalem belonging to defendant No.  2. The said suit was dismissed on Match 28, 1974 on the  ground that  the  plaintiff was no more in possession of  the  suit property  and,  therefore,  a suit for  a  mere  declaration simpliciter  could  not lie.  On the dismissal of  the  said suit the original plaintiff filed another suit No. 114/74 on May 6, 1974 for restoration of possession on the ground that he  was the lawful tenant of the said property and since  he had not been dispossessed,in accordance with law the  defen- dants  who were mere trespassers were liable to be  evicted. The plaintiffs case in the plaint was that he was the lessee in  respect  of  seven lots on an annual rent  of  Rs.  3600 payable  in advance in three instalments; that he  had  paid the  rent  upto  the end of December,  1967  and  the  first installment  of  1968  but the owner, defendant  No.  2,  in collusion  with defendant No. 1 executed a deed of lease  in favour  of the latter effective from January 1, 1968 on  the strength  whereof  defendant No. 1 claimed to  have  assumed possession  of the property sometime in the second  week  of June,   1968  without  his  tenancy  having  been   lawfully terminated.    The  plaintiff,  therefore,  contended   that defendant  No.  1 was a trespasser in the property  and  was liable  to  be  evicted therefrom.   He,  therefore,  sought possession of the property in respect of which he claimed to be a lessee. 1020 The defendants, besides contending that the suit was  barred on  the  principle of res judicata and/or  constructive  res judicata as found in Order 2 Rule 2(3) of the Code of  Civil Procedure,  averred that on the expiry of the lease  at  the end  of December, 1967 the lease stood terminated by  efflux of time and defendant No. 2 was, therefore, entitled to  let out the property to defendant No. 1 and hence the latter was in  lawful  possession of the said property  The  plaintiffs allegation  that  he was forcibly dispossessed  was  denied. The  defendants, therefore, contended that the suit was  not maintainable and deserved to be dismissed. The  Trial Court upheld the plaintiffs contention  that  the property  was  demised to him and he was the  lawful  tenant thereof till his possession came to be disturbed sometime in June,  1968.  The Trial Court also found that the  plaintiff had  paid  a sum of Rs. 1200 to defendant No.2  through  his employee  Dattu Kenkro by way of advance rent for  the  year

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commencing   from  January  1,  1968.   The   Trial   Court, therefore, held that the plaintiff was  wrongly dispossessed by  defendant  No. 1 in collusion with  defendant  No.2  and decreed  the  suit  for  eviction  on  September  25,  1985. Against  the  said decree both the defendants  preferred  an appeal No. 82/85.  The First Appellate Court concurred  with the  findings recorded by the Trial Court and dismissed  the appeal on March 25, 1986.  Feeling aggrieved by the order of dismissal  of the appeal, the defendants preferred  separate Second    Appeals  Nos.  27/88 and 31/88 which  came  to  be allowed  on April 5, 1991.  Interfering with the  concurrent findings  recorded  by the two courts below the  High  Court came to the conclusion that the courts below had applied the wrong  test and had based their findings on the question  of tenancy   and  dispossession  on  mere   conjectures.    It, therefore,  held that the findings were perverse and it  was open  to the High Court in Second Appeal to  interfere  with the said findings.  It also held that the suit was barred by res  judicata  as well as Order 2 Rule 2(3) of the  Code  of Civil Procedure.  Lastly it noticed that during the pendency of  the suit the Goa, Daman & Diu Agricultural Tenancy  Act, 1964 (hereinafter called ’the Act’) was amended by Act 17 of 1976  dated  October 14,1976 known as  the  Fifth  Amendment which  was brought into effect from April 20, 1976 by  which the   definition  of  ’agriculture’  was  changed  and   the expressions  ’garden’ and ’garden produce’ were  defined  by the insertion of sub-sections (7A).& (7B) to suction 2 which rendered  the  Civil Court without jurisdiction.   The  High Court,  therefore, held that the decree passed by the  Civil Court  was unsustainable.  On these findings the High  Court allowed the appeals and 1021 reversed  the decree of the Trial Court with no order as  to costs.  It is against this order of the High Court that  the present appeal by special leave is preferred. Before we deal with the impact of the Act as amended by  Act 17 of 1976 we may first deal with the two technical  grounds on  which the High Court has dismissed the suit.  The  first ground  on which the High Court dismissed the suit  is  that the suit was barred by the principle of res judicata in view of  the dismissal of the former suit No. 157/68.  That  suit was  for a declaration that the plaintiff was a  lessee  and for   an   injunction  to  restrain  the   defendants   from interfering  with his possession of the suit property.   The foundation for that suit was that the plaintiff who  claimed to   be  a  lessee  in  respect  of  the  demised   property apprehended  his forcible dispossession therefrom.   With  a view  to  preventing  any such action on  the  part  of  the defendants  he  instituted  the suit for  an  injunction  to restrain them from so doing.  That suit, however, came to be dismissed as the Trial Court came to the conclusion that the plaintiff  was  no  more in possession of  the  property  in respect  of  which he claimed to be a lessee.  It  was  only thereafter that the plaintiff filed the suit for restoration of  his  possession.  In the subsequent suit  the  plaintiff contended that he had been forcibly dispossessed sometime in the  second week of June, 1968 contrary to law  even  though his  tenancy  was  subsisting  and he  had  paid  the  first installment  of  rent  for the year  1968.   He,  therefore, contended  that  the lease stated to have  been  created  in favour of defendant No. 1 by defendant No. 2 was a sham  and bogus  document  set  up with a  view  to  supporting  their illegal action in dispossessing him.  The High Court, in the backdrop  of  these facts, came to the conclusion  that  the subject   matter  of  the  second  suit  was  directly   and

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substantially in issue in the previous suit between the same parties  and  hence  regardless of the  relief  claimed  the second  suit  was  clearly barred  by  res  judicata.   This finding of the High Court is difficult to sustain.   Section 11  of the Code of Civil Procedure provides that  ’no  court shall try any suit or issue in which the matter 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’.  It is not the finding of the  High Court  that in the previous suit the question regarding  the tenancy   of  the  plaintiff  was  determined  against   the plaintiff.   As the record stands the only ground  on  which the previous suit 1022 was  dismissed  was the technical ground that a suit  for  a mere declaration cannot lie without claiming possession once it  is  found  that  the  plaintiff  had  lost   possession. Injunction  could  not be granted to the  plaintiff  against dispossession  as  he had already  been  dispossessed.   The court came to the conclusion that a mere declaration of  his status  as  a  tenant  could  not  be  granted  unless   the consequential relief for possession was prayed.  It was  for this  technical reason that the suit was dismissed.  It  is, therefore,  difficult to comprehend how the High Court  came to the conclusion that the subject matter of the second suit was  directly  and substantially in issue  in  the  previous suit.   It  would  have been a different matter  if  in  the previous  suit the court had decided the question of  status as lessee against the plaintiff, in which case, perhaps,  it could be argued that the second suit based on the factum  of tenancy  was not maintainable.  It is only when the  subject matter of any suit is directly and substantially in issue in the  previous suit that the subsequent suit would be  barred by res judicata if the competent court trying it had decided the issue regarding tenancy against the plaintiff.  The High Court  has concluded against the plaintiff on this point  in paragraph 31 which reads as under:               Thus it is compelling to acknowledge that  the                             subject matter of the second suit was directly               and  substantially  in issue in  the  previous               suit  between the same parties.  The facts  of               the  case clearly reveal that the res  invoked               in  both the suits is the same.  The  lite  is               also the same.  Hence the relief by itself  is               neither  material nor relevant for the  direct               adjudication of the real issue.  The relief is               only a consequence.  Therefore the second suit               is   to   be   deemed   as   barred   by   res               judicata......." With  respect  it  is  difficult  to  accept  this  line  of reasoning.  As stated earlier, the first suit was  dismissed on  a technical ground that the suit for a mere  declaration without seeking consequential relief of possession could not lie.   In  that suit the issue regarding the status  of  the plaintiff as a lessee was not settled once for all and hence that issue could not be stated to be barred by res  judicata in the subsequent suit brought by the lessee for  possession the  demised  property.  We are, therefore, of  the  opinion that  the  High Court was wrong in holding that  the  second suit was barred by res judicata. 1023 The  next contention which found favour with the High  Court

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was  based on the language of Order 2 Rule 2(3) of the  Code of  Civil Procedure.  The submission regarding  constructive res  judicata  was also based on this very  provision.   Now Order  2  concerns the framing of a suit.   Rule  2  thereof requires  that the plaintiff shall include the whole of  his claim  in the framing of the suit.  Sub-rule (1) of Rule  2, inter alia, provides that every suit shall include the whole of  the  claim which the plaintiff is entitled  to  make  in respect  of  the cause of action.  If  he  relinquishes  any claim to bring the suit within the jurisdiction of any court he  will  not  be  entitled to  claim  that  relief  in  any subsequent  suit.  However, sub-rule (3) of Rule 2  provides that a person entitled to more than one relief in respect of the  same  cause of action may sue for all or  any  of  such reliefs;  but  if  he omits, except with the  leave  of  the court,  to sue for all such reliefs he shall not  afterwards sue for any relief so omitted.  It is well known that  Order 2  Rule  2  CPC is based on the salutary  principle  that  a defendant  or defendants should not be twice vexed  for  the same  cause  by  splitting the claim and  the  reliefs.   To preclude the plaintiff from so doing it is provided that  if he  omits any part of the claim or fails to claim  a  remedy available to him in respect of that cause of action he  will thereafter  be  precluded from so doing  in  any  subsequent litigation  that he may commence if he has not obtained  the prior  permission  of  the court.  But  the  Rule  does  not preclude a second suit based on a distinct cause of  action. It  may not be out of place to clarify that the doctrine  of res judicata differs from the rule embodied in Order 2  Rule 2,  in that, the former places emphasis on  the  plaintiff’s duty  to  exhaust all available grounds in support  (if  his claim  while the latter requires the plaintiff to claim  all reliefs  emanating from the same cause of action.  The  High Court  is,  therefore, clearly wrong in its  view  that  the relief  claimed is neither relevant nor material.   Now,  in the  fact-situation of the present case, as we have  pointed out  earlier, the first suit was for an injunction  and  not for possession of the demised property.  The first suit  was dismissed  on the technical ground that since the  plaintiff was  not  in  de facto possession  no  injunction  could  be granted and a suit for a mere declaration of status  without seeking  the consequential relief for possession  could  not lie.  Once it was found that the plaintiff was not in actual physical  possession of the demised property, the  suit  had become infructuous.  The cause of action for the former suit was  not based on the allegation that the possession of  the plaintiff was forcibly taken sometime in the second week  of June, 1968.  The allegation in the former suit was that  the plaintiff was a lessee and his 1024 possession  was  threatened and, therefore,  he  sought  the court’s   assistance   to  protect  his  possession   by   a prohibitory injunction.  When in the course of that suit  it was found that the plaintiff had in fact been  dispossessed, there was no question of granting an injunction and the only relief  which the court could have granted was in regard  to the  declaration  sought which the court held could  not  be granted  in view of the provisions of Specific  Relief  Act. Therefore, the cause of action for the former suit was based on  an  apprehension  that the  defendants  were  likely  to forcibly dispossess the plaintiff.  The cause of action  for that  suit was not on the premise that he had in  fact  been illegally  and forcibly dispossessed and needed the  court’s assistance  to  be restored to possession.   Therefore,  the subsequent suit was based on a distinct cause of action  not

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found in the former suit and hence we do not think that  the High Court was right in concluding that the suit was  barred by Order 2 Rule 2(3) of the Code of Civil Procedure.  It may be  that  the subject matter of the suit was the  very  same property  but the cause of action was distinct and  so  also the relief claimed in the subsequent. suit was not identical to the relief claimed in the previous suit.  The High  Court was, therefore, wrong in thinking that the difference in the reliefs  claimed  in  the  two  suits  was  immaterial   and irrelevant.  In the previous suit the relief for  possession was  not claimed whereas in the second suit the  relief  was for   restoration  of  possession.   That  makes   all   the difference.  We are, therefore, of the opinion that the High Court was completely wrong in the view that it took based on the  language  of Order 2 Rule 2(3) of the  Civil  Procedure Code. The Act was enacted on 16th October, 1964 to provide for the regulation   of  the  terms  of  tenancy  with  respect   to agricultural  lands in the Union Territory of Goa,  Daman  & Diu and for matters connected therewith.  The definition  of the various terms employed in the statute have been set  out in section 2 thereof The expression ’agriculture’ is defined in  sub-section (1A) to include horticulture and raising  of food  crops,  grass  or  garden  produce,  but  not   allied pursuits,  meaning  thereby rearing  or  maintaining  plough bulls,   breeding  of  livestock,  dairy  farming,   poultry farming,  grazing  on grounds reserved for the  purpose  and such  other  pursuits connected with agriculture as  may  be prescribed.   Sub-sections  (7A) and (7B) which came  to  be incorporated by the Fifth Amendment read as under :               "7A.   ’Garden’ means land used primarily  for                             growing 1025               coconut trees, arecanut trees, cashewnut trees               or mango trees;               7B. ’garden produce’ means any produce from  a               garden." It  will  be seen from the aforesaid definitions  that  land used  primarily for growing coconut trees falls  within  the expression  ’garden’  and  any produce  therefrom  would  be covered  by  the expression ’garden  produce’  Since  garden produce is included within the definition of agriculture  in sub-section  (1A)  of section 2 it is clear that  land  used primarily   for  growing  coconut  could  be  described   as agricultural land.  Sub-section (11) (i) defines land  inter alia to mean land which is used for agriculture or which  is capable of being so used but is left fallow.  Section  2(23) defines a tenant to mean ’a person who on or after the  date of  commencement  of  this  Act  holds  land  on  lease  and cultivates it personally and includes a person who is deemed to  be a tenant under this Act’.  Section 7 posits  that  if any question arises whether any person is a tenant or should be deemed to be a tenant under the Act, the Mamlatdar  shall after holding an enquiry decide such question.  Section 8(1) stipulates  that no tenancy of any land shall be  terminated and  no  person  holding as tenant shall  be  liable  to  be evicted  therefrom  save as provided under  the  Act.   Sub- section (2) of section 8 next provides that where any person as  is  referred to in section 4 (deemed  tenant)  has  been evicted from the land on or after 1st July, 1962 such person shall  be  entitled to recover immediate possession  of  the land in the manner prescribed by or under the Act unless the landlord  proves that the termination of tenancy was in  the manner authorised by section 9. Even in cases of  threatened wrongful  possession  section  8A says that  any  tenant  in

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possession of any land or dwelling house who apprehends that he  may be dispossessed contrary to the provisions  of  this Act may apply in the prescribed manner to the Mamlatdar  for an  order safeguarding his right to possession.   Section  9 lays down the modes of termination of tenancy which are  (a) by the tenant surrendering his right to the landlord in  the manner  provided  in  section 10; or  (b)  by  the  landlord terminating the tenancy on the grounds specified in  section 11;  or (c) under any other specific provision of  the  Act. Section  18 lays down the procedure for  taking  possession. It  says  that a tenant entitled to possession of  any  land under any of the provisions of the Act may apply in  writing for such possession to the Mamlatdar.  It will be seen  from the   aforesaid  provisions  that  the  forum  created   for determination of the question whether a person is a 1026 tenant  or a deemed tenant under the Act is  the  Mamlatdar. Ever where a tenant apprehends that his possession is likely to be interfered with contrary to the provisions of the  Act he  can make an application in the prescribed manner to  the Mamlatdar  for  safeguarding  the, same.  So  also  where  a tenant  is  evicted illegally, section 8(2) permits  him  to approach  the Mamlatdar for recovery of possession.   Unless the tenancy is terminated in the manner provided by  section 9,  the  law precludes the landowner  from  terminating  the tenancy  and  obtaining  possession of  the  land  from  the tenant.   Section 58 bars the jurisdiction of courts.   Sub- section (2) thereof provides that save as otherwise provided in  the  Act  no 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 and no order passed by him under the Act shall  be questioned in any civil or criminal court.  It will thus  be seen  that  the  Act sets up an  independent  machinery  and invests the Mamlatdar with jurisdiction to decide  questions such as : (i) Whether any person is a tenant or should be deemed to be a tenant under the Act? (ii)  Whether the possession of any tenant in regard to  any land  or dwelling house is threatened and if so, whether  an order safeguarding the same is required? (iii)  Whether the tenancy of any deemed tenant  is  legally terminated  and if no, whether the tenant evicted  from  the land  held  by  him as such is entitled  to  restoration  of possession? The  jurisdiction of the civil court is specifically  barred by sub-section (2) of Section 58 from settling, deciding  or dealing  with  any  question which is by or  under  the  Act required  to  be  settled, decided and  dealt  with  by  the Mamlatdar.  There can, therefore, be no doubt that after the Fifth  Amendment  became effective in regard  to  land  used primarily for growing coconut trees and garden produce,  the jurisdiction  of  the civil court was ousted  by  virtue  of section 58(2) of the Act. The  suit  in question was instituted on May  6,  1974  i.e. before the Fifth Amendment was brought into force.  Thus the amendment  came into force during the pendency of the  suit. The question, therefore, is what is the effect of the  Fifth Amendment on pending litigation?  No provision is 1027 made  in the Act in that behalf.  The High  Court  concluded that  since ’there is nothing in the language of sections  7 and  58  of  the......  Act which  is  primarily  a  welfare legislation  to  indicate  that it  should  not  be  applied retrospectively there is no question that its  applicability

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should  be necessarily prospective.  Proceeding further  the High  Court  takes  the  view  that  even  after  the  Fifth Amendment  came into force the plaintiff had not applied  to the  Mamlatdar for possession of the land within the  period allowed by Section 18 of the Act and had, therefore, allowed the first defendant to become a deemed purchaser of the suit property  on the strength of his tenancy.  Since  the  civil court  had  lost jurisdiction to decide the suit,  the  High Court  dismissed it.  We may now proceed to examine  whether this view taken by the High Court is correct. From  the above discussion it emerges that the  Civil  Court undoubtedly had jurisdiction under section 9 of the Code  of Civil  Procedure  to try and grant eviction till  the  Fifth Amendment became effective.  After that amendment came  into force,  the provisions of the Act became applicable  to  the lands  in  question which were primarily  used  for  growing coconut trees and receiving produce therefrom.  By virtue of section  7  any question whether a person is a tenant  or  a deemed  tenant was required to be decided by  the  Mamlatdar and  the  jurisdiction of the Civil Court  stood  ousted  by section  58(2)  of the Act.  The question  is  whether  this subsequent  change  in the law deprived the Civil  Court  of jurisdiction  which it undoubtedly possessed on the date  of the  institution of the suit.  Three situations,  therefore, develop  in  the  context of the provisions of  the  Act  as amended by the Fifth Amendment, namely, (i) the Civil  Court retains  jurisdiction or (ii) the Civil Court  is  precluded from  deciding, even incidentally, questions failing  within the ambit of section 7 of the Act or (iii) the Civil Court’s jurisdiction  is wholly ousted.  Since the Act is silent  as to the fate of pending litigation after the Fifth  Amendment the  situation arising on the amendment of the Act  must  be decided on first principles.  If a suit is filed to  recover possession  of  agricultural land from a trespasser  and  no dispute  arises, the adjudication whereof is required to  be done  by  the special machinery- set up under the  Act,  the Civil  Court  will  continue  to  have  jurisdiction.    If, however, the defendant raises a dispute which is required to be  resolved  by  the special machinery  under  the  Act,  a question  will arise what procedure the Civil  Court  should adopt.  There may arise a situation where the entire dispute pending  before  the Civil Court can be adjudicated  by  the special  machinery  only  and  not  the  Civil  Court,  what procedure the 1028 Civil Court follow in such a situation?  In the case of  the first  mentioned  situation there is no  difficulty  as  the Civil Court will continue to have jurisdiction to settle and decide the dispute and grant appropriate relief The  problem arises in the two other situations where the jurisdiction of the  Civil Court is partly or wholly ousted.  Take the  case of  suit where possession of agricultural land is sought  on the  plea  that  the  defendant  is  a  trespasser  and  the defendant contends that he is a tenant.  The question of the defendant’s tenancy in respect of agricultural land would be within  the  exclusive jurisdiction of the  Mamlatdar  under section  7  read with section 58(2) of the Act.  In  such  a situation what procedure should the Civil Court follow ? Now take  a  case  where the entire  dispute  falls  within  the exclusive  jurisdiction of the special machinery  under  the Act  and  had  the  litigation  commenced  after  the  Fifth Amendment  was  brought into force it could  not  have  been instituted  in a Civil Court.  In that case  what  procedure should  the  Civil Court follow?  These  are  the  questions which arise for determination.

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Before  we  answer  those questions we must  decide  on  the impact  of the Fifth Amendment on pending  litigation.   The question  whether  the  Fifth Amendment  is  prospective  or retrospective really recedes in the background if we examine the  question  from the angle whether the  Civil  Court  can decide  any question falling within the jurisdiction of  the special  forum under the Act in a pending litigation in  the absence  of  an express provision in that  behalf.   If  the question of tenancy in regard to agricultural land cannot be decided  by  the Civil Court under the Act and there  is  no express  saving clause permitting the Civil Court to  decide the  same, it is obvious that any decision rendered  by  the Civil  Court  would  be  without  jurisdiction.   A  similar situation  did arise in the context of another statute.   In Shah Yograj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 S.C. 1596 = [1962] 2 SCR  159 the  facts  were  that the landlord had  filed  a  suit  for eviction  on April 25, 1957 in the regular court, i.e.,  the Court  of the Joint Civil Judge (Junior Division),  Erandol, which  admittedly  had  jurisdiction to pass  a  decree  for possession  of  the demised premises.  However,  during  the pendency  of  the  suit, a  notification  was  issued  under section 6 of the Bombay Rents, Hotel and Lodging House Rates Control  Act,  1947,  (hereinafter called  ’the  Rent  Act’) applying  Part II of the Act to areas where the property  in question  was  situate.  The tenants claimed  protection  of section  12  in Part 11 of the Rent Act which  deprived  the landlord   of   the  right  of  possession   under   certain circumstance- 1029  The question which arose for consideration was whether  the tenants  were  entitled to the protection of section  12  in pending  cases and if yes, its effect.  Since section 12  of the Rent Act was held to be prospective, the question  which arose for consideration was whether its protection could  be extended  to  tenants  in pending  litigation.   This  court pointed  out that the point of time when sub-section (1)  of Section 12 operates is when the court is called upon to pass a  decree for eviction.  Thus, said this Court the  language of  the  sub-section applies equally to suits  pending  when Part 11 comes into force and those to be filed subsequently. The contention of the landlord that the operation of section 12(1)  is  limited to suits filed after the Rent  Act  comes into force in a particular area was not accepted.   Applying the same principle to the facts of the present case, we have no hesitation in concluding that the provisions of the Fifth Amendment  would apply to pending suits also.  However,  the Act does not preclude the institution of a suit by a  tenant for  restoration  of possession from a trespasser.   If  the defendant  who  is  sued as a trespasser raises  a  plea  of tenancy,  a question arises whether his plea of tenancy  can be decided by the Civil Court as incidental to the grant  of relief  for possession or is the Civil Court precluded  from deciding the same in view of section 7 read section 58(2) of the Act.  As pointed out earlier, section 7 in terms  states that  if any question arises whether any person is a  tenant or  should  be  deemed to be a tenant  under  the  Act,  the Mamlatdar shall decide such question.  The jurisdiction  is, therefore,  vested in the Mamlatdar under section 7  of  the Act and section 58(2) specifically bars the jurisdiction  of all other courts to settle, decide or deal with any question which is by or under the Act required to be settled, decided or  dealt with by the Mamlatdar.  Section 8(2)  has  limited operation  where a person referred to in section 4 has  been evicted  on or after 1st July, 1962.  In that case he  would

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be  entitled to recover immediate possession of the land  in the manner prescribed by or under the Act unless it is shown that his tenancy was terminated in the manner authorised  by section 9. In the present case, the plaintiff came to  court contending that even though his lease was not terminated  as provided  by  section  9  of the  Act,  defendant  No.1  had dispossessed  him  by an act of  trespass.   He,  therefore, sought   possession  of  the  demised  property   from   the trespasser,  defendant No.1. He impleaded the owner  of  the land  as  defendant No.2 on the plea that she  had  colluded with  defendant No.1. Defendant No.1 raised a contention  in his  written  statement that he was lawfully inducted  as  a tenant in the lands in question 1030 by  the owner, defendant No.2. In other words,  he  disputed the  plaintiff’s  contention that, he was a  trespasser  and pleaded tenancy.  If his plea was found to be  well-founded, he would be entitled to retain possession but not otherwise. Therefore, the question which arose in the suit was  whether defendant No.1 proved that he was a tenant in respect of the land  in question.  This question could not be gone into  by the  Civil Court in view of the clear language of section  7 read  with section 58(2) of the Act.  What procedure  should the court follow in such situations?  It would not stand  to reason to non-suit the plaintiff who had filed the suit in a competent  court having jurisdiction to try the same  merely because of the subsequent change in law.  The proper course, therefore,  would  be one which was followed by  the  Bombay High  Court in Bhimaji Shankar Kulkami v. Dundappa  Vithappa Udapudi & Anr., AIR 1966 S.C. 166 = [1966] 1 SCR 145.   That was  a  case  arising under the  provisions  of  the  Bombay Tenancy  and  Agricultural Lands Act, 1948.   The  lands  in question were agricultural lands.  Section 29(2) of that law provided  that  no landlord shall obtain possession  of  any land  or  dwelling house held by a tenant  except  under  an order of the Mamlatdar on an application made in that behalf in  the prescribed form.  Section 70(b) next  provided  that for the purposes of the Act, one of the duties and functions to  be  performed by the Mamlatdar is to  decide  whether  a person  is  a tenant or a protected tenant  or  a  permanent tenant.   Section 85(1) laid down that no Civil Court  shall have  jurisdiction  to  settle,  decide  or  deal  with  any question  which is required to be settled, decided or  dealt with by the Mamlatdar under the statute.  The law was silent as  to how a dispute of this nature raised in a  suit  filed for   eviction  on  the  footing that  the  defendant  is  a trespasser should be dealt withby the Civil Court.  This question squarely arose for consideration by the Bombay High Court  in Dhondi Tukaram v. Hari Dadu AIR 1954 Bom  100  ILR 1953 Bom. 969 wherein that court observed as under:               "Therefore,  we  hold  that in  a  suit  filed               against  the defendant on the footing that  he               is a trespasser if he raises the plea that  he               is  a tenant or a protected tenant, the  Civil               Court would have no jurisdiction to deal  with               that  plea....... We would, however,  like  to               add  that  in all such cases where  the  Civil               Court  cannot entertain the plea  and  accepts               the  objection that it has no jurisdiction  to               try  it, it should not proceed to dismiss  the               suit  straightaway.  We think that the  proper               procedure to adopt in such cases 1031               would be to direct the party who raises such a               plea  to obtain a decision from the  Mamlatdar

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             within a reasonable time.  If the decision  of               the  Mamlatdar  is  in  favour  of  the  party               raising  the  plea, the  suit  for  possession               would  have to be dismissed, because it  would               not  be  open to the Civil Court to  give  any               relief to the landlord by way of possession of               the agricultural land.  If, on the other hand,               the  Mamlatdar rejects the plea  raised  under               the  Tenancy  Act, the Civil  Court  would  be               entitled  to  deal  with the  dispute  on  the               footing that the defendant is a trespasser." Pursuant   to   the  court’s  recommendation,   the   Bombay Legislature introduced section 85A which provided that if in any  suit  instituted  in a Civil  Court  issues  which  are required  to  be  settled, decided and  dealt  with  by  any authority  patent to settle, decide and deal with  the  same arises,  the Civil Court shall stay the suit and refer  such issues  to such competent authority for determination  under the statute.  Unfortunately even under the Act with which we are  concerned the Legislature though aware of  section  85A has  not chosen to make any provision for dealing with  such situations.  We are, therefore, of the opinion that it would be just and fair that the issue whether defendant No.1 was a tenant  in  respect  of  the lands  in  question  should  be referred  to  the  Mamlatdar  for  decision  and  after  his decision is received by the Civil Court if the issue is held against defendant No.1, the Civil Court may consider passing of a decree in eviction but if on the other hand he is  held to be tenant, the Civil Court may be required to dismiss the suit. One  further situation which may arise under the  provisions of  the Act may be taken note of.  The impact of  the  Fifth Amendment may give rise to a situation where the remedy lies entirely  under  the  Act and may have to be  taken  in  the manner prescribed by or under the Act.  For example, where a person who is a deemed tenant under section 4 of the Act  if evicted from the land on or after’ 1st July, 1962 his remedy under  section 8(2) is to approach the authority  under  the Act  for recovery of possession of the land of which he  has been  dispossessed.  In such a situation the remedy may  not be  the one available in the case of a tenant other  than  a deemed tenant whose case is not governed by section 8(2)  of the  Act.  But in the case of a deemed tenant who  has  been evicted  from  the land on or after 1st July, 1962  since  a remedy has been provided under 1032 the Act, the Jurisdiction of the Civil Courts stands  wholly barred  by virtue of Section 58 (2) of the Act.  In  such  a situation the Civil Court would not be competent to pass any order  for restoration of possession to the  deemed  tenant. His  remedy would, therefore, to be entirely under the  Act. This is just by way of an illustration.  If such a situation arises  what procedure should the court follow in a  pending suit  which  was  instituted in  a  competent  court  having jurisdiction at the date of its institution.  It would  seem unfair to non-suit the plaintiff altogether for no fault  of his  own.   We think, in such a situation where  the  entire dispute  falls  outside the Civil  Court’s  jurisdiction  on account  of the change in law the proper course would be  to follow in spirit the procedure outlined in Order 7 Rules  10 and 10A of the Code of Civil Procedure. Since  the  paper book in this appeal does not  contain  the original  plaint and the written statement and counsel  were unable to enlighten us on the actual nature of the pleadings we  have tried to indicate the procedure to be  followed  by

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the  Civil  Court on illustrative fact-situations.   In  the circumstances, we are left with no alternative but to  remit the matter to the Trial Court with a direction to follow the course  that may be found appropriate in the  fact-situation arising out of the pleadings in this case and the nature  of the questions required to be determined for grant or refusal of  relief  claimed in the suit.  We would like to  make  it clear that the hypothetical situations may or may not  apply to  the fact situation that may emanate of the pleadings  in this  case and it would be for the Trial Court to  determine the  course  of  action to be adopted in the  light  of  the guidelines indicated hereinabove. In  view of the foregoing discussion, we allow this  appeal, set  aside the order of the High Court which in either  case lacked jurisdiction to decide the question regarding tenancy on  merits  and  remit the matter to  the  Trial  Court  for further  orders in the light of the observation  hereinabove made.  Having regard to the peculiar facts and circumstance, of the case, we make no order as to costs. R.P.                                      Appeal allowed. 1033