Holding

A subsequent suit for possession is not barred by res judicata or Order 2 Rule 2(3) when it raises a distinct cause of action, and the Fifth Amendment’s provisions apply prospectively, removing civil court jurisdiction over tenancy questions which must be decided by the Mamlatdar.

Summary

Inacio Martins filed a suit for declaration and injunction concerning his tenancy of a coconut grove, which was dismissed because he was not in possession. He subsequently filed a suit for restoration of possession, alleging unlawful dispossession by the defendants. The defendants contended that the second suit was barred by res judicata and Order 2 Rule 2(3) of the CPC, and that the Fifth Amendment to the Goa, Daman & Diu Agricultural Tenancy Act, 1964 removed the civil court's jurisdiction over the dispute. The Supreme Court held that the second suit raised a distinct cause of action (possession) not decided in the first suit, so res judicata and Order 2 Rule 2(3) did not apply. It also held that the Fifth Amendment applies prospectively to pending suits, ousting civil court jurisdiction over tenancy questions, which must be decided by the Mamlatdar. The appeal was allowed, the High Court order set aside, and the matter remitted to the trial court with directions.

Issues considered

The second suit is barred by the doctrine of res judicata?
The second suit is barred by Order 2 Rule 2(3) of the Code of Civil Procedure?
What is the effect of the Fifth Amendment to the Goa, Daman & Diu Agricultural Tenancy Act, 1964 on pending litigation?
Can a civil court decide questions of tenancy under the Agricultural Tenancy Act, or must it refer them to the Mamlatdar?
What procedure should a civil court follow when its jurisdiction is partially or wholly ousted by the Act?

Legislation cited

Code of Civil Procedure, 1908s. 11, s. Order 2 Rule 2(3)
Fifth Amendment (Act 17 of 1976) to the Goa, Daman and Diu Agricultural Tenancy Act, 1964s. 7A, s. 7B
Goa, Daman and Diu Agricultural Tenancy Act, 1964s. 11, s. 2, s. 23, s. 4, s. 58, s. 58(2), s. 7, s. 8, s. 9
Specific Relief Act

Subjects

res judicataOrder 2 Rule 2(3)Civil ProceduretenancyAgricultural Tenancy ActFifth AmendmentjurisdictionMamlatdarpossessioninjunctiondeclarationcoconut grove

Judgment

INACIO MARTINS DECEASED THROUGH LRS. A
v.
NARAYAN HARi NAIK AND ORS.

APRIL 7, 1993

(A.M. AHMADI AND S. MOHAN, JJ.) B

- Code of Civil Procedure, 1908:

S.11--Res judicata-Subsequent suit raising issue not settled in previous
suit-Held, not bamd.
c
_,,._ Or.2 R.2(3}-0mission to sue for one of several reliefs emanating from
same cause of actiort-Ejfect of-Held, Rule does not preclude a second suit
based on distinct cause of action.

S.11 & Or.2 R.2-Distinction betwee,t--Explained.
D
nie Goa, Daman and Diu Agricultural Tenancy Ac~ 1964:
Ss.2,2(7A), 2(78),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 tenon- E
cy---During pendency of suit, change in law by Act 17 of 1976 (Fifth Amend-
ment)-Suit propeTty 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.
F
~·
Impact of Fifth Amendment on pending litigatio..-E.xplaine~
Guidelines for civil courts laid down.

The plaintiff, predecessor-in-interest or the appellants, filed a suit
for a de«larat.ion and an injunction to restrain the defendant-respondents
from dispossessing him from a certain property comprising or a coconut G
'I- 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 filed
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 H
1015
l

1016 SUPREME COURT REPORTS [1993) 2 S.C.R.

A that he was forcibly dispossessed by defendant no. 1, in collusion .with
derendant no. 2, without his tenancy having been lawl'ully tenninated. It
•
was alleged that the derendants were trespassers and liable to be evicted.

The defendants, besides raising the pleas or res judicata and/or
conslructive res judicata purported to be based on Order 2 Rule 2(3) or the
B Code or Civil Procedure, contended that derendant no. 1 was in lawl'ul
possession or the suit property as the same was let out to him by deren-
dant no. 2 arter the lease in favour or the plaintiff stood tenninated by
effiux or time, and the suit, as such, was not maintainable. -
The trial court decreed the suit holding that the suit property was
c demised to the plain!ilT as be was the lawCul tenant thereor, and derendant
no. 1 in collusion with deCendant no. 2 wrongfully dispossessed him. ~

The appeal filed by the defendants was dismissed by the first appel-
late court.
D
The second appeals tiled 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 or the
suit as a result or the amendment of the Goa, Daman and Diu Agricultural
Tenancy Act, 1964 by Act 17 of 1976, known as the Fifth Amendment, the ~
E 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 or the plaintiff, filed the
appeal by special leave.
F Allowing the appeal, this Court, ~

HELD: 1.1 A subsequent suit would be barred by res judicata only
when the subject matter or the suit was directly and substantially in issue
in the previous suit. [p. 1022-C]
G
1.2. The first suit was dismissed on.a technical ground that the suit for
a mere declaration without seeking consequential relief or possession could ~.
not lie. In that suit the issue regarding the status or 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
H possession orthe demised property. The High Court was not right in holding
'(~
• I. MARTINS v. N.H. NAIK

that the second suit was barred by res judicata. [0.1022 F-H)
1017

A
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 or action. [p. 1023 C-E)
B
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) c
' _,..__ 2.3. The cause of action for ·the former suit was based on an ap-
prehension that the defendants were likely lo 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 D
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 Rule 2(3)
;I.- 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 E
suit, the relief for po~session was not claimed whereas in the second suit

- the relief was for restoration of possession. That makes all the difference.
[pp. 1023·F; 1024 B-DI .
3.1. The impact of the Fifth Amendment on pending litigation is that
.,. the question of tenancy in regard to agricultural land cannoi be decided
by the civil court under the Act and there being no express saving clause
F

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 jurisu;otion which it undoubtedly possessed on the dale of
the institution of the suit. Thus, the provisions of the Fifth Amendment
G
would apply to pending suits also. [pp. 1027 D-E; 1028 D-E; 1029-C]
~ I

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 tire institution of a suit by a tenant H
1018 SUPREME COURT REPORTS (1993] 2 S.C.R.

A ror restoration or possession rrom a trespasser. [p. 1029-CJ
3.3. If a suit is filed to recover possession or agricultural land from
a trespasser and no dispute arises, the adjudication whereof is required
to be done by the special machinary set up under the Act, the civil court
will continue to have jurisdiction. [p. 1027 F-G]
B
3.4. If possession or agricultural land is sought on the plea that the
defendant is a trespasser and the derendant 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 or S.7 read with s. 58(2) or the Act. In such a
C situation, it would not stand to reason to non-suit the plaintiff who had
filed the snit in a competent court having jurisdiction to try the same,
merely because of the subsquent change in law. The proper course, there· ~
fore, 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, ir the issue is held against the derendant, the
·D civil court may consider passing of a. decree. for eviction but if, on the other
band, 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 Kulkarni v. Dundappa Vithappa Udapudi & Anr.,
AIR 1966 SC 166=.[1966] 1 SCR 145 and Dhondi Tukaram v. Hari Dadu,
E
AIR 1954 Born. 100 = ILR (1953) Bom. 969, relied on.

3.5. The impact or Fifth Amendment may give rise to a situation
where a deemed tenant under s.4 or the Act is evicted from the land on or
after 1st July, 1962; bis remedy under s.8(2) is to approach the authority
F under the Act for recovery or possession or the land or which he has been
dispossed, and jurisdiction or 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 or possession to the deemed tenant. Ir such a situation
arises in a pending suit which was instituted in a competent court having
G jurisdiction at the date of its institution, it would be unrair to non-suit the
plaintiff altogether for no fault or his own and the proper course would be
to follow in spirit the procedure outlined in Order 7, Rules 10 and lOA, ,\it
C.P.C. [pp. 1031 F -H; 1032 A·B]

4. The High Court lacked jurisdiction to decide the question regard-
H ing tenancy c:-n merits. Its order is set aside and the matter is remitted to
y

I. MARTINS v. N.H. NAIK [AHMADI, J.] 1019

the trial court to determine the course or action to be adopted in accord· A
ance with the guideline indicated hereinabove. [p. 1032 D-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No.1695of19'J.3.

From the Judgment and Order dated 5.4.1991 of the Bombay High
Court in S.C.A. Nos. 27 and 31 of 1988. B

- G.L. Sanghi, Dhruv Mehta, Guru Raikar, S.K. Mehta and Arvind
Verma for the Appellants.

BA Masodkar, Dr. R.B. Masodkar and K.L. Taneja for the Respondents. ·
c
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 D
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 Oiter.al do Predio Aivao' comprising seven lots of coconut grove
situated at Caranzalem belonging to defendant No. 2. The said suit was
dismissed on March 28, 1974 on the ground that the plaintiff was no more
in possession of the suit property and, therefore, a suit for a mere decla- E
ration 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 <lefen-
dants who were mere trespassers were liable to be evicted. The plaintiffs F
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 instalment
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 G
possession of the property sometime in the second week of June, 1968
without his tenancy having been lawfully terminated. The plaintiff, there-
fore, 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. H
1020 SUPREME COURT REPORTS [1993) 2 S.C.R. _.
A 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
B
property. The plaintiffs allegation that he was forcibly dispossessed was
denied. The defendants, therefore, contended that the suit was not main-
tainable. and deserved to be dismissed.

The Trial Court upheld the plaintiffs contenllon that the property
-
c was demised to him and he was the lawful tenant thereof till his possession
canie t~ 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 commencing
from January 1, 1968. The Trial Court, therefore, held that the plaintiff was
D 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 o[ the appeal, the defendants preferred separate Second ~
E 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

F
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
G 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-sedions (7A) .& (78) to
_,
section 2 which rendered the Civil Court without jurisdiction. The High ·
Court, therefore, held that the decree passed by the Civil Court was
H unsustainable. On these findings the High Court allowed the appeals and
• I. MARTINS v. N.H. NAIK [AHMADI-, J.] 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
A

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
B
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 c
lessee in respect of the demised property apprehended his forcible dispos-
session 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 Trfal Court
came to the conclusion that the plaintiff was no more in possession of the D
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 instalment
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
E

sham and bogus document set up with a view to supporting their illegal
1ction in dispossessing him. The High Court, in the backdrop of these facts,
::ame to the conclusion that the subject matter of the second suit was
directly and substantially in issue in the previous suit between the same F
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 G
..., 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 H
't
1022 SUPREME COURT REPORTS [1993] 2 S.C.R.
;4
A 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
B 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,
-
c 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 para-
D
graph 31 which reads as under:

I
"Thus it is compelling to ac~nowledge that the subject

E
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 conse-
quence. Therefore the second suit is to be deemed as
-
F barred by res judicata .... ".
'(
With respect it is difficult to accept this line of reasoning. As stated earlier,
the first :.uit was dismissed on a technical ground that the suit for a mere
declaration without seeking consequential relief of possession could not lie.
G 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
H fudicata.
I. MARTINS v. N.H. NAIK [AHMADI, J.} 10~

The next contention which found favour with the High Court was A
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 B
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 C
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 D
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 E
that the doctrine of res judicata differs from the rule embodied in Order 2
Rule 2, in that, the former places emphasis on the plaintiffs 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. The
High Court is, therefore, clearly wrong in its view that the relief claimed is F
neither relevant nor maierial. Now, in the fact-situation of the present caoe,
as we have pointed out earlier, the first suit was for an injunctfon 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 declaratior, of status
without seeking the consequential relief for possession could not lie. Once G
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 H
'i

1024 SUPREME COURT REPORTS (1993) 2 S.C.R.
~
A 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

..
)I
the court held could .not be granted in view of the provisions of Specific
B
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
-
c based on a distinct cause of action not 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
D
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 secon<I suit the

E
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 there-
F
with. 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 (lA) to include horticulture and raising of food crops, grass or
garden produce, but not allied pursuits, meaning thereby rearing or main-
taining piough bulls, breeding of livestock,. dairy farming, poultry farming,
G 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 : '
H "7A. 'Garden' means land used primarily for growing
y

.... I. MARTINS v. N.H. NAIK [AHMADI, J.] 1025

coconut trees, arecanut trees, cashewnut trees or mango A
trees;

7B. 'garden produce' means any produce from a garden.'

"'- It will be seen from the aforesaid definitions that land used primarily for B
I
gro"ing 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-sec-
tion (lA) of section 2 it is clear that land used primarily for growing
coconut could be described as agricultural land. Sub-section (11) (i)
c
defines land inter a/ia to mean land which is used for agriculture or which
is capable of being so used but is left fallow. Section 2(23) defmes a tenant
to mean 'a person who on or -after the date of commencement of t~is Act
holds land on lease afld 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 D
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
A:. 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 !st July, 1962 E
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 SA says that any
tenant in possession of any land or dwelling house who apprehends that he F
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 G
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 H
r
1026 SUPREME COURT REPORTS [1993] 2 S.C.R. ~
A 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 con-
trary 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 >-
B
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
c 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:
D (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 _,.
E . 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?

F 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 Amend-
ment became effective in regard to land used primarily for growing coconut
trees and garden produce, the jurisdiction of the civil court was ousted by
G 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
H the effect of the Fifth Amendment on pending litigation? No provision is
y

•• I. MARTINS v. N.H. NAIK [AHMADI, J.] 1027

made in the Act in that behalf. The High Court concluded that since 'there A
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 should be neces-
sarily 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
B
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. c
.... From the above discussion it emerges that the Civil Court undoub-
tedly had jurisdiction under section 9 of the Code of Civil Procedure to try
and grant eviction till the Fifth Amendment be.came effective. After that
amendment came into force, the provisions of the Act became applicable D
to the lands in question which were primarily used for growing coconut
trees and receiving produce therefrom. By virtue of section 7 any question
\Vhether 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
j(_ 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 undoub- E
tedly 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
falling within the ambit of section 7 of the Act or (iii) the Civil Court's F
-y 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 amend-
ment 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 G
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 H
1028 SUPREME COURT REPORTS [1993] 2 S.C.R.

A 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 posses-
sion of agricultural land is sought on the plea that the defendant is a
B
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 i'!'isdiction of the Mamlatdar t:n,der 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
-
C jurisdiction of the special machinery under the Act and had the litigation
commenced after the Fifth Amendment was brought int i 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 determina-
tion.
D
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 back-
ground if we examine the question from the angle whether the Civil Court
can decide any question falling within the jurisdiction of the special forum
E 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.
-
F A similar. situation did arise in the context of another statute. In Shah
Bhojraj 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
G 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 II of the Rent Act which
H deprived the landlord of the right of possession under certain circumstan-
•
,... I. MARTINS v. N.H. NAIK [AHMADI, J.] 1029

ces. The question which arose for consideration was whether the tenants A
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
B
language of the sub-section applies equally to suits pending when Part II
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 c
·~ 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 D
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
H deemed to be a tenant under the Act, the Mamlatdar shall decide such E
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 Mam-
latdar. Section 8(2) has limited operation where a person referred to in
F
section 4 has been evicted on or after lst July, 1%2. In that case he would
'r 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 G
dispossessed him by an act of trespass. He, therefore, sought possession of
? the demised property from the trespasser, defendant No.l. He impleaded
the owner of the land as defendant No.2 on the plea that she had colluded
with defendant No.l. Defendant No.l raised a contention in his written
statement that he was lawfully inducted as a tenant in the lands in question H
1030 SUPREME COURT REPORTS (1993] 2 S.C.R.
(
A by the owner, defendant No.2. In other words, he disputed the plaintifrs
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.l 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
r
I
B
,
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
c followed by the Bombay High Court in Bhimaji Shankar Kulkarni v. Dun-

!
dappa Vithappa Udapudi & Anr., AIR 1%6 S.C. 166 = (1966] 1 SCR 145.
That was a case arising under the provisions of t~e 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
D 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 per-
manent tenant. Section 85(1) laid down that no Civil Court shall have
E 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
with by the Civil Court. This question squarely arose for consideration by
F the Bombay High Court in Dhondi Tukaram v. Hari Dadu, AIR 1954 Born
100 = !LR 1953 Born. 969 wherein that court observed as under:

"Therefore, we hold that in a suit filed against the defen-
{
dant on the footing that he is a trespasser if he raises the
plea that he is a tenant or a protected tenant, the Civil
G 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
H think that the proper procedure to adopt in such cases
y

I. MARTINS v. N.H. NAIK [AHMADI, J.] 1031

would be to direct the party who raises such a plea to A
obtain a decision from the Mamlatdar 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

'· Ccurt to give any relief to the landlord by way of posses-
sion of the agricultural land. If, on the other hand, the
B
Mamlatdar rejects the plea raised under the Tenancy Act,
the Civil Court would be entitled to deal with the dispute

J
- on the footing that the defendant is a trespasser."

Pursuant to the court's recommendation, the Bombay Legislature intro- c
duced section 85A which provi~ed .that if in any suit instituted in a Civil
Court issues which are..required to be settled, decided and dealt with by
any authority comp~tent 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
D
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
it"
decision is received by the Civil Court if the issue is held against defendant E
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 F
..., 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 t-aken 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 G
.., 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 H
J032 SUPREME COURT REPORTS (1993) 2 S.C.R.

A the Act, tne 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 ;,; .
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 com- )~
B petent court having jurisdiction at the date of its institution. It would seem
unfair lo 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

c
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 lOA of
the Code of Civil Procedure.
-
Since the paper b()ok 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 proce-
dure to be followed by the Civil Court on illustrative fact-situations. In the
D 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 cleat that the
E hypothetical situations may or may not apply to the faci-situation that may
emanaie of the pleadirigs in this tase and it would be for the Trial Court
to determine the course of aotion to be adopted in the light of the
guidelines indicated hereinabove.

In view of the foregoing discussion, we allow this appeal, set aside
F the order of the H.igh Court which irt either case lacked jurisdiction tc
dedde the question regarding tenancy on merits and remit the matter to
the Trial Court for further orders in the light of the observatio;; '(
ltereinabove made, Having regard to the peculiar facts and circumstance'
of the case, we make no order as to costs.

R.P. Appeal allowed.

~