Holding

After the amendment to Section 70(b), civil courts are statutorily ousted from deciding any issue that the Bombay Tenancy and Agricultural Lands Act, 1948 (as amended) requires to be decided by the Mamlatdar or other competent authority, and the Mamlatdar’s prior decision does not operate as res judicata.

Summary

The landlords leased agricultural land to the respondents for ten years (1950‑60). After the lease expired, the landlords sought possession under the Bombay Tenancy and Agricultural Lands Act, 1948, but the application was dismissed because the land was only natural grass. They then terminated the tenancy under the Land Revenue Code and filed a civil suit for possession, mesne profits and damages. The trial court ruled in favour of the landlords, holding the Act inapplicable; the High Court set aside that judgment and remanded the case, directing the trial court to refer any tenancy‑related issues to the competent authority under Section 85A of the Act. On appeal, the Supreme Court examined whether a civil court can decide such issues, whether the Mamlatdar’s earlier ex‑parte order under Sections 29(2) and 25(2) operates as res judicata, and the effect of the amendment to Section 70(b) adding “or was at any time in the past a tenant”. The Court held that, after the amendment, civil courts are ousted from deciding issues that must be determined by the Mamlatdar or other competent authority; the Mamlatdar’s prior decision does not constitute res judicata, and the High Court’s direction to refer the issues was correct. The appeal was dismissed.

Issues considered

Whether a civil court has jurisdiction to decide tenancy issues that are required to be determined by the Mamlatdar under Sections 85 and 85A of the Bombay Tenancy and Agricultural Lands Act, 1948 as amended.
Whether the Mamlatdar’s ex‑parte order under Sections 29(2) and 25(2) of the Act operates as res judicata against the civil suit.
Whether Section 11 of the Code of Civil Procedure, 1898 (res judicata) applies to the Mamlatdar’s decision.
Effect of the amendment to Section 70(b) inserting the words “or was at any time in the past a tenant”.
Whether the High Court’s direction to refer the tenancy issues to the competent authority was legally valid.

Legislation cited

Bombay Tenancy and Agricultural Lands Act, 1948s. 2(17), s. 2(18), s. 2(2), s. 2(5), s. 25(2), s. 2(8), s. 29(2), s. 70(b), s. 85, s. 85A
Code of Civil Procedure, 1898s. 11
Land Revenue Code
Mamlatdar's Courts Act, 1906

Subjects

Tenancy ActCivil court jurisdictionMamlatdarRes judicataSection 85Section 85ASection 70(b) amendmentLease terminationPossession suit

Judgment

PANDURANG RAMCHANDRA MANDLIK (SINCE DEAD) A
BY HIS LRS. AND ANR.
v.
SMT. SHANTABAI RAMCHANDRA GHATGE AND ORS.

SEPTEMBER 12, 1989
B
[M.N. VENKATACHALIAH AND K.N. SAIKIA, JJ.)

Bombay Tenancy and Agricultural Lands Act, 1948-Sections
2(2), 2(5). 2(8), 2( 17), 2( 18), 25(2), 29(2), 70(b), 85A-Mamlatdar's
court-Whether Civil Court-'Or was at any time in the past a tenant'
in Section 70(b)-lnterpretation of-Jurisdiction of Civil Court to C
decide issues-When excluded.

Code of Civil Procedure, 1898-Section I /-Res judicata-'Heard
and finally decided'-Essentiality of-What operates as res judicata is
the ratio of what is fundamental to the decision.
D
The appellants-landlords leased out their land, situate at Kolha-
pur, to respondents Nos. I and 2 and the husband of respondents Nos. 3
and 4 on 12.10.1950 for a period of ten years. After the expiry of the
lease period, they initiated proceedings under the Bombay Tenancy and
Agricultural Lands Act, 1948, for obtaining possession of the lands but
the application was dismissed ex parte, as it was held that the provisions E
of the Act were not applicable to the land inasmuch as only grass grew
thereon naturally. Thereupon the appellants terminated the tenancy
under the provisions of the Land Revenue Code and tiled a Civil Suit
against the respondents for possession mesne profits and for damages.
Respondents I and 2 contested the suit condtending inter alia that the
civil court had no jurisdiction to try the suit inasmuch as the Act was F
applicable lo the land and that they having been in rightful possession,
the notice of termination of tenancy was invalid. The trial court tried
the issues amongst others relating to the applicability of the Act, juris-
diction of the civil court and estoppel and after going through the evi-
dence led by the parties, decreed the suit. The respondents appeal
against the said decree having failed before the first appellate court, G
they preferred Second Appeal to the High Court of Bombay. The High
Court set aside the judgment and order of the trial court as affirmed by
the first appellate court and remanded the case back to the trial court
with a direction that it should raise the necessary issues on the pleadings
of the parties and should make a reference to the competent authority
under Section SSA of the Act in regard to the issues which are required H
2 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

to be determined by the competent authority under the Act and on
A
receipt of findings, dispose of the suit according to law. Being
dissatisfied with the said order, the appellants moved application for
leave to appeal under the Letters Patent but the same having been
dismissed, they have filed this appeal after obtaining special leave.

B The appellants' principal contention, amongst others, before this
court is that the appellants' application under Section 29(2) read with
section 25(2) of the Act having been dismissed on the ground that the
Act was not applicable and thus the authority had no jurisdiction to
deliver possession is a finding which would operate as res judicata;
hence the High Court's direction making a reference to the competent
authority under s. SSA of the Act, now would be barred. According to
C them the civil court itself has jurisdiction to decide the issues. Respon-
dents' contention is that the direction of the High Court is consistent
with the provisions of the Act and that the earlier proceedings under the
Act initiated by the appellants having been determined ex parte, it could
not operate as res judicata.
D
Dismissing the appeal, this Court,

HELD: After the amendment of s. 70(b) of the Act by inserting
the words 'or was at any time in the past, a tenant', the position has
changed. The Civil Court has now no jurisdiction to decide an issue
E arising incidentally in a civil suit which is to be specifically decided by a
competent authority under the Act. Civil Court in such a case shall
refer the issue to that authority and dispose of the suit in accordance
with the decision of the authority. I I I Fl

(See G.S. Shinde v. R.B. Joshi, [1979] 2 SCC 495;)
F
The High Court in the instant case has rightly sent back the
suit to the trial court with the direction to refer issues, if raised
to ·be determined exclusively by the competent authority, to that
authority. l13G]

G lf a matter directly and substantially in issue in a former suit has
been adjudicated upon by a court of exclusive jurisdiction, the adju-
dication will bar the trial of the same matter in a subsequent suit. [!SE]

In the instant case, the Mamlatdar having decided the appellants'
application for possession, the appellants themselves went to the Civil
H Court and filed the suit. It does not now lie in their mouth to s~y that

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

the decision of the Mamlatdar would act as res judicata for the trial
A
court. I!SF]

The Mamlatdar's Court is a civil court for the purpose of Section
SSA of the Act. [!SF]
In its comprehensive sense the word 'suit is understood to apply to
B
any proceeding in a court of justice by which an individual pursues that
remedy which the law affords. The modes of proceedings may be various but
if a right is litigated between parties in a court of justice the proceeding
by which the decision of the court is sought may be a suit. But if the
proceeding is of a summary nature not falling within the definition of a
suit it may not be so treated for the purpose of Sec. II. I ISH; 16A]
Besides, assuming the Mamlatdar in deciding the application in
c
1962-63 to have been a court of exclusive jurisdiction for the purpose of
s. II C.P.C., its decision rejecting the application would not be an
evidence on the question of tenancy merely because it could be inferred
from that decision. I 16B]
D
The expression 'heard and finally decided', in s. 11 means a
matter on which the court has exercised its judicial mind and has
after argument and consideration come to a decision on a contested
matter. It is essential that it should have been heard and finally
decided. What operates as res judicata is the ratio of what is funda-
mental to the decision but it cannot be ramified or expanded by E
logical extension. [16F-G]
(See Vithal Yaswant v. Shikander Khan Mutumukhtan, AIR
1963 SC 385. l
The law is well settled that a court which had no jurisdiction to try
a cause cannot by its own erroneous decision confer on itself compe- F
tence to decide it and its decision on the question of jurisdiction cannot
operate as res judicata. Conversely the decision relating to jurisdiction
cannot be said to constitute the bar of res judicata where by an erro-
neous interpretaton of a statute it holils that it has no jurisdiction. [ I7B]

(See Pandurang Mahadeo Kavade & Ors. v. Annaji Ba/want G
Bokil & Ors., [1971] 3 SCC S30;)

Shivappa Satawappa Ashtekar v. Gajanan Chintaman Desk
Pande, [1953] 55 Bom. Law Reporter. 84.<Dhondi Tukaram v. Dadoo
·' Piraji, [1952] 55 llom. L.R. 663; Bhimaji Shanker Kulkarni v.
Dundappa Vithappa Udapudi and Anr., [1966] l SCR 145; Mussamiya H
4 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

Imam Haidar Bax Razvi v. Rabari Govindhai Ratnabhai & Ors., [1969]
A I SCR 785; Trimbak Sopana Girme v. Gangaram Mhatarba Yadav, 55
Born. L.R. 56; Jshverlal Thakorelal Almaula v. Motibhai Nagjibhai,
[1966] I SCR 367; Pandurang Hari Jadhav v. Shankar Maruti Todkar,
62 Born. L.R. 873; Kalicharan Bhajanlal Bhayya v. Rtii Mahalaxmi, 4
Guj. L.R. 145; Neminath Appayya Hanammannaver v. Jambu Rao
B Satappa Kocheri, AIR 1966 Mys. 154; Jambu. Rao Satappa Kocheri v.
Neminath Appayya Hanammannaver, [1968] 3 SCR 706; Noor Mohd.
Khan Ghouse Khan Soudagar v. Fakirappa Bharmappa Machenahalli,
[1978] 3 SCC 188; Ramchandra Rao v. Ramchandra Rao, [1922] 49
I.A. 129 .and Bhagwan Dayal v. Mst. Reoti Devi, [1962] 3 SCR 440,
referred to.

c CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1582
of 1973.

From the Judgment and Order dated 27.3.72 of the Bombay
High Court in Appeal No. 983 of 1966.
D
S.B. Bhasme and V.N. Ganpule for the Appellants.

Mrs. C.K. Sucharita for the Respondents.

The Judgment of the Court was delivered by
E
SAIKIA, J. This plaintiffs' appeal by special leave is from the
Judgment of tbe High Court of Bombay in Second Appeal No. 983 of
1966 setting aside the Judgment of the courts below and remanding the
_case to the trial court for hearing with a direction to refer the issue
regarding tenancy to the tenancy authorities.
F
The appellants are the owners of land bearing R.S. No. 1442 and ...
1445, situate at Kasha Karvir, within the municipal limits of Kolhapur.
The said land was leased out to the father of respondent Nos. I and 2
and the husband of respondent Nos. 3 and 4 on October 12, 1950 for a
period of ten years. The appellants had filed Revision Civil Suit No.
G 298 of 1964 against the respondents for possession thereof, mesne
profits and for damages. It was averred in the plaint that the appellants
had earlier initiated proceedings under the Bombay Tenancy and
Agricultural Lands Act, 1948, hereinafter referred to as 'the Act', and
in the said proceedings it was held that the provisions of the Act were
not applicable to the land inasmuch as only grass grew thereon natur-
H ally. It was further averred that on expiry of the period of lease the ~
. P.R. MANDLIK v. SMT. S.R. GHATGE [SAJKJA, J.l

appellants terminated the tenancy under the provisions of the Land
Revenue Code and filed the aforementioned suit. The respondent Nos.
5

A
1 & 2 contested the suit contending, inter alia, that the civil court had
no jurisdiction inasmuch as the Act was applicable to the land; and
that they having not been in wrongful possession thereof, the notice of
termination was invalid. The learned trial court tried the issues regard-
ing the applicability of the Act, jurisdiction of the civil court, and B
estoppel, out of the issues framed, as preliminary issues and by order
dated March 16, 1965 fixed the date for hearing of the other issues and
on that date the respondent Nos. 1 & 2 being absent, after recording
the appellants evidence, by Judgment dated July 17, 1965 decreed the
•
suit in favour of the appellants. The respondents' appeal therefrom
•
having been dismissed by the District Judge, they took Second Appeal
No. 983 of 1966 to the High Court of Bombay, and the learned Single c
Judge has set aside the Judgment of the trial court as affirmed by the
lower appellate court, and remanded the case back to the trial court
with a direction that it should raise the necessary issues on the plead-
ings of the parties and should make a reference to the competent
authority under s. 85A of the Act with respect to those issues which are D
required to be decided by the competent authority under the Act and
)
on receipt of the findings, dispose of the suit according to law. The
appellants' application for leave to appeal under the Letters Patent
having been rejected by the High Court, they have obtained special
leave to appeal.
E
Mr. S.B. Bhasme, the learned counsel for the appellants sub-
mits, inter alia, that the appellants' application under s. 29(2) read with
s. 25(2) of the Act, being case No. 184 of 1962-63 having been dismis-
. sed by the tenancy authorities on the ground that only natural grass
grew thereon and therefore the authority had no jurisdiction to deliver
possession thereof under s. 29(2) of the Act, that finding should act as F
...... res judicata, wherefore, remitting of the case by the High Court to the
trial court for hearing and deciding after making a reference to the
competent authority, unde s. 85A of the Act with respect to those
issues which are reyuired to be decided by the competent authority
under the Act, would be barred; and that in the facts and circum-
stances of the case the civil court itself has jurisdiction to decide the G
issues which have been directed to be referred to the civil court.

Mrs. C.K. Sucharita, the learned counsel for the respondents
submits that under s. 85A in a civil suit involving any issues which are
required to be decided or dealt with by any authority competent to
,;
settle or decide such issues under the Act, the civil court is to settle the H
6 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

A issues and refer those to such competent authority for determination;
that the High Court's direction in the impugned Judgment is consistent
•'
with this provision; and that the appellant's earlier proceedings under
the Act before the tenancy authority having been dismissed ex pa rte, it
could not operate as res judicata.

B The question to be decided,'t!:!_erefore, is whether the High Court
was correct in directing the trial co"urt to refer the issues relating to
tenancy to the competent authority under the Act. To decide it, we
may conveniently refer to the relevant provisions of the Act. The Act
has amended the law which governs the relations of landlords and
tenants of agricultural lands. As defined in s. 2(8) of the Act, "land"
means-( a) land which is used for agricultural purposes or which is so
c used but is left fallow, and includes the sites of farm buildings
appurtenant to such land. This definition is as amended by Born. 15 of
1957. The amendment is not material for the purpose of our case. As
defined ins. 2(1), "Agriculture" includes horticulture, the raising of
crops, grass or garden produce, the use by an agriculturist of the land
D held by him or a part thereof for the grazing of his cattle, the use of any
land, whether or not an appanage to rice or paddy land, for the
purpose of rab manure but does not include allied pursuits, or the '·
cutting of wood only. This definition is after amendments by Born. 13
and 15 of 1956 and 1957, respectively. As defined in s. 2(2),
"Agriculturist" means a person who cultivates land personally. As
E defined in s. 2(5), "to cultivate" with its grammatical variations and
cognate expressions means to till or husband the land for the purpose
of raising or improving agricultural produce, whether by manual
labour or by means of cattle or machinery, or to carry on any
agricultural operations thereon; and the expression "un-cultivated"
shall be construed correspondingly. The explanation thereunder says:
F A person who takes up a contract to cut grass, or to gather the fruits or
other produce of trees on any land, shall not on that account only be
deemed to cultivate such land. This definition is as substituted by
Born. 13 of 1956. As defined in s. 2( 17), "Tenancy" means the rela-
tionship of landlord and tenant; and as defined ins. 2(18), "tenant"
means a person who holds land on lea'e and includes (a) a person who
G is deemed to be a tenant under s. 4; (b) a person who is a protected
tenant; and (c) a person who is a permanent tenant; and the word
"landlord" shall be construed accordingly. This definition is as sub-
stituted by Born. 13 of 1956.

The High Court has found that the appellants had leased out th·~
H land on October 12, 1950 for a period of 10 years under a Kabulayat at
P.R. MANDLIK v. SMT. S.R. GHATGE [SAJKIA, J.] 7

an annual rental of Rs.1000 and that period expired on October 11,
1960. The appellants submitted an application under s. 29(2) of the A
Act, being case No. 2068 of 1957 but that application was dismissed.
Thereafter, they moved another application under s. SSC of the Act
being case No. 285 of 1961 and that application was also dismissed on
the ground that the lands were governed bys. 43C of the Act, but the
Act did not apply as the lands were within the limits of the municipal B
borough. Thereafter, they started the third proceeding being applica-
tion under s. 29(2) read with s. 25(2) of the Act being case No. 184 of
1962-63. That application also came to be dismissed by the tenancy
authorities on the ground that the lands in dispute were lands growing
natural grass and, therefore, the authority under the Act had no
jurisdiction to deliver possession under s. 29(2) of the Act. The High
Court noticed that the application was decided ex parte but the Court c
did not know under what circumstances, the competent authority pro-
ceeded ex parte. The effect of that decision was that the application
filed hy the appellants as landlords for possession of the lands treating
the opponents thereof as tenants was dismissed. It was only thereafter
that the appellants served the respondents with a notice terminating D
the tenancy and demanding possession, and the defendants having not
I complied with the notice, the appellants filled the instant suit.

Considered in the light of the above definitions and the provi-
sions of s. 85A of the Act there arises no doubt that some of the issues
involved in the suit may be such as have necessarily to be decided by E
-the competent authority under the Act and to that extent the jurisdic-
tion of the civil court to decide those issues may be excluded.

In Shivappa Satawappa Ashtekar v. Gajanan Chintaman Desh
Pande, [1953] 55 Bombay Law Reporter 843; AIR 1954 Bombay 107,
in the landlord's suit for possession of lands filed in civil court, the F
.,;. • defendants having contended that the lands were agricultural lands
and that the defendant.s were protected tenants, interpreting the then
s. 85(1) it was held:

"Ex facie, by the operation of s. 70 and s. 85 of the Bombay
Tenancy and Agricultural Lands Act, 1948, the jurisdiction G
of the civil court to decide whether the defendants were
tenants or protected tenants must be regarded as excluded
and the Mamlatdar alone must be regarded as competent to.
decide that question. That is the view which has been taken
by a division bench of this Court in Dhondi Tukaram v.
Dadoo Piraji, [1952] 55 Born. L.R. 663." H
8 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.

Section 70(b) of the Act then provided:
A
"For the purposes of this Act the following shall be the
duties and functions to be performed by the Mamlatdar:

(a}
B
(b) to decide whether a person is a tenant or a pro-
tected tenant."

Section 85(1) provided:

"No Civil Court shall have jurisdiction to settle, decide or
c deal with any question which is by or under this Act
required to be settled, decided or dealt with by the
Mamlatdar or Tribunal, a Manager, the Collector or the
Bombay Revenue Tribunal in appeal or revision or the
State Government in exercise of their powers of cotrol."
n
This Court in Bhimaji Shanker Kulkarni v. Dundappa Vithappa
Udapudi and Anr., [1966] I SCR 145, considering the decision in
Dhondi Tukaram;s case (supra) which held that the Mamlatdar had
exclusive jurisdiction to decide those issues though they arose for deci-
sion in a suit properly cognisable by a civil court, observed:
E
"The result was somewhat startling, for normally the Civil
Court has jurisdiction to try all the issues arising in a suit
properly cognisable by it. But having regard to the fact that
the Bombay Legislature approved of Dhondi Tukaram's
case and gave effect to it by introducing s. 85A, we must
F hold that the decision correctly interpreted the law as it
stood before the enactment of s. 85A. It follows that inde-
pendently of s. 85A and under the law as it stood before
s. 85A came into force, the courts below were bound to
refer to the Mamlatdar the decision of the issue whether
the defendant is a tenant."
G
Section 70 of the Act now provides:

"For the purposes of this Act the following shall be the
duties and functions to be performed by the Mamlatdar:

H (a) to decide whether a person is an agriculturist;
P.R. MANDLIK v. SMT. S.R. GHATGE [SAIKIA, J.l 9

\b) to decide whether a person is, or was at any time
in the past, a tenant or a protected tenant or a permanent A
tenant;

xxxxx xxxxx xxxxx

xxxxx xxxxx xxxxx B

(n) to take measures for putting the tenant or land-
lord or the agricultural labourer or artisan or person carry-
ing on as allied pursuit into the possession of the land or
dwelling house under this Act;

(o) to decide such other matters as may be referred c
to him by or under this Act."

The words "person is, or was at any time in the past, a tenant", and the
words "or a permanent tenant" were substituted for the words
"person is a tenant" by Mah. 49 of 1969. Section 85 and s. 85A as D
inserted by Bombay Act 13 of 1956 provide:

85. (1) No Civil Court shall have jurisdiction to settle,
decide or deal with any question including a question
whether a person is or was at any time in the past a tenant
and whether any such tenant is or should be deemed to E
have purchased from his landlord the land held by him
which is by or under this Act required to be settled,
decided or dealt with by the Mamlatdar or Tribunal, a
Manager, the Collector or the Maharashtra Revenue Tri-
bunal in appeal or revision or the State Government in
exercise of their powers of control. F

(2) No order of the Mamlatdar, the Tribunal, the
Collector or the Maharashtra Revenue Tribunal or the
State Government made under this Act shall be questioned
in any Civil or Criminal Court.
G
Explanation-For the purposes of this section a Civil Court
shall include a Mamlatdar's Court constituted under the
Mamlatdar's Courts Act, 1906."

"SSA. (1) If any suit instituted in any Civil Court involves
,/ any issues which are required to be settled, decided or dealt H
10 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.

with by any authority competent to settle, decide or deal
A
with such issues under this Act (hereinafter referred to as
the "competent authority") the Civil Court shall stay the
suit and refer such issues to such competent authority for
determination.

B (2) On receipt of such reference from the Civil
Court, the competent authority shall deal with and decide
such issues in accordance with the provisions of this Act
and shall communicate its decision to the Civil Court and
such court shall thereupon dispose of the suit in accordance
with the procedure applicable thereto.
c Explanation-For the purpose of this section a Civil Court
shall include a Mamlatdar's Court constituted under the
Mamlatdar's Courts Act, 1906."

This section was inserted by Bombay Act 13 of 1956.
D
Before the amendment of s. 70(b) by Maharashtra Act 49 of
1969, when the question as to whether a party was in the past tenant or
not for the purpose of acquiring some other right, that is, not as mairi
issue but as a subsidiary issue, Civil Court's jurisdiction to decide such
subsidiary issue could not be said to be barred. Section 70(b) of the
E Act imposed a duty on the Mamlatdar to decide "whether a person is a
tenant" and not "whether a person was or was not a tenant in the
past". In Mussamiya Imam Haider Bax Razvi v. Rabari Govindhai
Ratnabhai & Ors., [1969] 1 SCR 785, the appellant filed a suit on July
11, 1958 for recovery of possession of the suit lands and mesne profits
averring that the lease was fraudulently obtained by the respondents.
F The respondents contended that they became statutory owners u/s. 32
ors. 88 of the Act and the Civil Court had no jurisdiction to decide the ••
suit. The trial court decreed the suit and on appeal the High Court held
that fraud was not proved; the respondents failed to prove that they
were statutory owners before the date of the suit; that the Civil Court
had jurisdiction to decide whether defendants were tenants on the
G relevant dates namely, July 28, 1956 or May 11, 1958; and that the
Civil Court had no jurisdiction to decide whether the defendants were
tenants on date of the suit and that question was to be referred to the
Mamlatdar. This Court on consideration of the provisions of s. 70 and
s. SSA with other relevant provisions held at page 797:

H "We are accordingly of the opinion that s. 85 read with '
P.R. MANDLIK v. SMT. S.R. GHATGE [SAIKIA, J.[ 11

s. 70 of the Act does not bar the jurisdiction of the Civil
A
Court to examine and decide the question whether the
defendants had acquired the title of statutory owners to the
disputed lands under the new Act. In this context, it is
necessary to bear in mind the important principle of con-
struction which is that if a statute purports to exclude the
ordinary jurisdiction of a Civil Court it must do so either by B
express terms or by the use of such terms as would neces-
sarily lead to the inference of such exclusion. As the Judi-
cial Committee observed in Secretary of State v. Mask &
Co., 67 I.A. 222, 236.

'It is settled law that the exclusion of the jurisdiction of the
civil courts is not to be readily inferred, but that such exclu- c
sion must either be explicitly expressed or clearly implied.'

In our opinion, there is nothing in the language or context
of s. 70 ors. 85 of the Act to suggest that the jurisdiction of
the Civil Court is expressly or by necessary implication D
barred with regard to the question whether the defendants
had become statutory owners of the land and to decide in
that connection whether the defendants had been in the
past tenants in relation to the land on particular past dates.
We are also of the opinion that the jurisdiction of the Civil
Court is not barred in considering the question whether the E
provisions of the Act are applicable or not applicable to the
disputed land during a particular period."

It may be noted that after the amendment of s. 70(b) of the Act
by inserting the words "or was at any time in the past, a tenant", the
position has changd. The Civil Court has now no jurisdiction to decide F
an issue arising incidentally in a civil suit which is to be specifically
decided by a competent authority under the Act. Civil Court in such a
case shall refer the issue to that authority and dispose of the suit in
accordance with the decision of the authority. In G.S. Shinde v. R.B.
Joshi, [1979] 2 sec 495, the appellant filed the suit for specific
performance of a contract for sale of land dated December 15, 1965 G
coupled with a supplementary agreement dated April 26, 1966 for sale
of agricultural land. The suit was resisted by the defendant, contend-
ing, inter alia, that the provisions of the Act were applicable to the
land and the appellant not being an agriculturist, s. 63 of the Act was a
bar to his purchase of the land, and the agreement being contrary to
/ law could not be specifically enforced. The plaintiff (appellant) sought H
12 SUPREME COURT REPORTS [1989] Supp. 2 S:C.R.
...
to repel that contention by producing a certificate, Ext. 78, issued by
A the Mamlatdar certifying that the plaintiff was an agricultural labourer
and the bar of s. 63 was not operative. If that Ext. 78 was not taken
note of, the issue would arise whether the plaintiff was an agriculturist
·and in view of the provisions s. 70(a) read withs. 85 ands. 85A of the
Act, the issue would have to be referred to the Mamlatdar for decision
B as the civil court would have no jurisdiction to decide the issue. The
trial court and the High Court held that Ext. 78 had no evidentiary
value and the issue whether the plaintiff was an agriculturist being an
incidental issue, main issue being that of specific pe,rforrnance, Civil
Court had jurisdiction. Allowing the appeal therefrom and remanding
the suit to the trial court this Court speaking through Desai, J. held at
para 10:
c
"Now, if Section 85 bars the jurisdiction of the Civil Court
to decide or deal with an issue arising under the Tenancy
Act and if Section 85A imposes an obligation on the Civil
Court to refer such issue to the competent authority under
D the Tenancy Act, it would be no answer to the provisions to
say that the issue is an incidental issue in a properly con-
(
,.
stituted civil suit before a Civil Court having jurisdiction to
entertain the same. In fact Section 85A comprehends civil
suits which Civil Courts are competent to decide but takes
note of the situation where upon a contest an issue may
E arise therein which would be required to be settled,
decided or dealt with by the competent authority under the
Tenancy Act, and, therfore, it is made obligatory for the
Civil Court not only not to arrogate jurisdiction to itself to
decide the same treating it as a subsidiary or incidental
issue, but to refer the same to the competent authority
F under the Tenancy Act. This is an inescapable legal posi-
tion that emerges from a combined reading of Sections 85
and 85A ................... In a civil suit nomenclature
of the issue as principal or subsidiary or substantial or inci-
dental issue is hardly helpful because each issue, if it
arises, has to be determined to mould the final relief.
G
Further, Sections 85 and 85A oust jurisdiction of Civil
Court not in respect of civil suit b•Jt in respect of questions
and issues arising therein and Section 85A mandates the
reference of such issues as are within the competence of the
competent authority. If there is an issue which had to be
settled, decide or dealt with by competent authority under
H the Tenancy Act, the jurisdiction of the Civil Court, '
P.R. MANDLIK v. SMT. S.R. GHATGE {SAIKIA, J.] 13

notwithstanding the fact that it arises in an incidental
manner in a civil suit, will be barred and it will have to be A
referred to the competent authority under the Tenancy
Act. By such camouflage of treating issues arising in a suit
as substantial or incidental or principal or subsidiary, Civil
Court cannot arrogate to itself jurisdiction which is
statutorily ousted. This unassailable legal position emerges B
from the relevant provisions of the Tenancy Act."

After considering the precedents in Trimbak Sopana Girme v.
Gangaram Mhatarba Yadav, 55 Born. L.R. 56=AIR 1953 Born. 241;
Dhondi Tukaram Mali, (supra); Bhimaji Shanker Kulkarni, (supra);
Ishwer/al Thakorelal Almaula v. Motibhai Nagjibhai, [1966] I SCR
367=AIR 1966 SC 459; Pandurang Hari Jadhav v. Shankar Maruti c
Todkar, 62 Born. L.R. 873; Kalicharan Bhajan/al Bhayya v. Rai
Mahalaxmi, 4 Guj. L.R. 145; Neminath Appayya Hanammannaver v.
Jambu Rao Satappa Kocheri, AIR 1966 Mysore 154; Jambu Rao
Satappa Kocheri v. Neminath Appayya Hanammannaver, [1968] 3
SCR 706=AIR 1968 SC 1358; Mussamiya Imam, (supra) and Noor D
Mohd. Khan Ghouse Khan Soudagar v. Fakirappa Bharmappa
Machenahalli. 11978] 3 SCC 188=1978 3 SCR 789, their Lordships
observed at para 19:

"Thus, both on principle and on authority there is no
escape from the conclusion that where in a suit properly E
constituted and cognizable by the Civil Court upon a con-
test an issue arises which is required to be settled, decided
or dealt with by a competent authority under the Tenancy
Act, the jurisdiction of the Civil Court to settle, decide or
deal with the same is not only ousted but the Civil Court is
under a statutory obligation to refer the issue to the compe- F
tent authority under the Tenancy Act to decide the same
and upon the reference being answered back, to dispose of
the suit in accordance with the decision of the competent
authority under the Tenancy Act."

In the instant case, applying the settled law as enunciated above, and G
in view of the certainty of the questions involved, we are of the view
that the High Court has rightly sent back the suit to the trial court with
the direction to refer issues, if raised any, to be determined exclusively
by the competent authority, to that authority.

We now deal with the submission of Mr. Bhasme that the order H
14 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.

of the tenancy authority in case No. 184 of 1962-63 dismissing his
A application under s. 29(2) read with s. 25(2) of the Act holding that it
had no jurisdiction to deliver possession of the land on the ground that
the natural grass grew thereon, should act as res judicata, wherefore,
referring of issues to the Mamlatdar in the suit remitted by the High
Court would be barred. Counsel submits that the Mamlatdar in decid-
B ing the aforesaid application acted under the Mamlatdar's Courts Act,
1906 (Born. Act No. II of 1906) and would be a Court competent to
determine ~he issue as to whether the act was applicable to the appel- ti
!ants' land under the lease, and it already decided that the Act was not
applicable as on that land only natural grass grew, which meant that it
was not 'land' and the defendants were not 'tenants' as defined in the
Act.
c
Section 11 of the C.P.C. which deals with res judicata provides:

"No Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and
D 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."
E
(Explanations I to VIII are not so relevant for the purpose of this case)

In Duchess of Kingston's case Sir William de Grey said:

"From the variety of cases relative to judgments being
F given in evidence in civil suits, these two deductions seem
to follow as generally true: first that judgment of a court of
concurrent jurisdiction, directly upon the point, is, as a
plea, a bar, or as evidence conclusive between the same
parties, upon the same matter, directly in question in
another Court; secondly that the judgment of a Court of
G exclusive jurisdiction, directly on the point, is, in like
manner, conclusive upon the same matter, between the
same parties, coming incidentally in question in another
Court, for a different purpose. But neither the judgment of
a Court, of concurrent or exclusive jurisdiction is evidence
of any matter which came collaterally in question, though
H within their jurisdiction nor of any matter incidentally
P.R. MANDLIK v. SMT. S.R. GHATGE [SAIKIA, J.] 15

cognizable, nor of any matter to be inferred by argument
from the judgment." A

Section 11 bars the trial of a suit or issue in which the matter
directly and substantially in issue has already been adjudicated upon in
a previous suit. This Section applies in terms to cases where the matter
in issue in a subsequent 'suit' was an issue in a "former suit". A 'suit' is B
a proceeding which is commenced by a plaint. As provided in Section
26 of the C.P .C. every suit shall be instituted by the presentation. of a
plaint or in such other manner as may be prescribed. In the instant case
admittedly the appellants submitted an application to the Mamlatdar
under s. 29(2) read with s. 25(2) of the Act. Sub-section (2) of s. 29
provides:
c
"Save as otherwise provided in sub-section (3A), no land-
lord shall obtain possession of any land or dwelling house
held by a tenant except under an order of the Mamlatdar.
For obtaining such order he shall make an application in
the prescribed form and within a period of two years from D
the date on which the right to obtain possession of the land
or dwelling house, as the case may be, is deemed to have
accrued to him."

This sub-section is as amended by Mah. 39 of 1964. It does not speak
of a plaint, a suit or a decree. The appellants did not call its application E
a plaint or the case a suit.

If a matter directly and substantially in issue in a former suit has
been adjudicated upon by a Court of exclusive jurisdiction, the adjudi-
cation will bar the trial of the same matter in a subsequent suit. In the
instant case the Mamlatdar having decided the appellants' application F
J
for possession, the appellants themselves went to the Civil Court and
filed the suit. It does not now lie in their mouth to say that the decision
of the Mamlatdar would act as res judicata for the trial court. We have
·seen that now the Mamlatdar's Court is a Civil Court for the purpose
of s. 85A of the Act.
G
It is true that s. 11 is now made applicable by the Explanations
and interpretation to certain proceedings giving more extensive mean-
ing to the word 'suit'. In its comprehensive sense the word 'suit' is
understood to apply to any proceeding in a court of justice by which an
individual pursues that remedy which the law affords. The modes of
./ proceedings may be various but that if a right is litigated between H
16 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

parties in a court of justice the proceeding by which the decision ot the
A
Court is sought may be a suit. But if the proceeding is of a summary
nature not falling within the definition of a suit, it may not be so
treated for the purpose of s. 11. Jn the absence of the details of the
proceeding concerned in the instant case, it has not been possible for
us to hold that it was of the nature of a suit and not a summary
B proceeding. Besides, assuming the Mamlatdar in deciding the applica-
tion in 1962-63 to ha·;e been a court of exclusive jurisdiction for the
purpose of s. 11 C.P.C., its decision rejecting the application would
not be an evidence on the question of tenancy merely because it could
be inferred from that decision.

Admittedly the appellants' application was decided ex parte. It is
C true that ex parte decrees operate to render the matter decided res
judicata, and the defendants' failure to apper will not deprive the
plaintiff of the benefit of his decree. But in the case of a suit in which a
decree is passed ex parte, the only matter that can be 'directly and
substantially in issue' is the matter in respect of which relief has been
D claimed by the plaintiff in the plaint. A matter in respect of which no
relief is claimed cannot be 'directly and substantially in issue' in a suit
in which a decree is passed ex parte though the Court may have gone
out of its way and declare the plaintiff to be entitled to relief in respect
of such matter. In the instant case applying the above principle the
order having been passed ex parte, assuming the doctrine of res
E judicata applied, it could be only to the extent of the appellants having
been not entitled to possession at the relevant time; and it could not be
extended logically to the issue whether the defendants were tenants
under the Act.

The expression 'heard and finally decided; in s. 11 means a mat-
F ter on which the court has exercised its judicial mind and has after
argument and consideration come to a decision on a contested matter. .
I

It is essential that it should have been heard and finally decided. What
operates as res judicata is the ratio of what is fundamental to the
decision but it cannot be ramified or expanded by logical extension. In
Vithal Yaswant v. Shikandar Khan Mutumukhtan, AIR 1963 SC 385, it
G has been held by this Court that when a court bases its decision on
more than one point, each of which would by itself be sufficient for the
ultimate decision, the decision on each one of those points woula be
res judicata. In the instant case what were the points specifically urged
and decided are not clear. Jn Pandurang Mahadeo Kavade & Ors. v.
Annaji Ba/want Bokil & Ors., [ 1971) 3 SCC 530 it was held that in
H order to operate as res judicata it must be established that the previous
P.R. MANDL!K v. SMT. S.R. GHATGE [SAIKIA, J.] 17
-+-
decision was given by a court which had jurisdiction to try the present
A
suit, and there would be no res judicata if the previous decision was by
a court having no jurisdiction. Of course that was a case of pecuniary
jurisdiction, but there is no reason why the same principle should not
apply in other cases of courts without jurisdiction. The law is well
settled that a court which had no jurisdiction to try a cause cannot by
its own erroneous decision confer on itself competence to decide it and B
its decision on the question of jurisdiction cannot operate as res
judicata. Conversely the decision relating to jurisdiction cannot be said
to constitute the bar of res judicata where by an erroneous interpreta-
tion of a statute it holds that it has no jurisdiction. It is stated that there
was no appeal filed by the defendants from the order of the Mam-
latdar. That is not material. In Ramchandra Rao v. Ramchandra Rao,
[ 1922] 49 I.A. 129, the Privy Council decided that where the suit as to c
the title for compensation had been referred to the Court, a decree
thereon was not appealed from, the question of title would be res
judicata in a suit between the parties to the dispute.

In Bhagwan Dayal v. Mst. Reali Devi, [1962] 3 SCR 440, a dis- D
pule arose as to proprietary title. A suit was filed in a Revenue Court
under the U.P. Tenancy Act. The Revenue Court framed an issue
thereon and referred it to the Civil Court as required by the Act. The
Civil Court held that the respondent had a half share in the villages
and on the basis of this finding the Revenue Court decreed his suit.
Thereafter, the appellant filed a suit in Civil Court for a declaration E
that he was the absolute owner of all the property in the suit. The
defendants contended that the suit was barred by res judicata. This
Court held that a subsequent suit was not barred by res judicata by the
Judgment of the Revenue Court, as it was not within the exlcusive
jurisdiction of the Revenue Court and suit was maintainable in the
Civil Court. The Judgment of the Revenue Court on the issue of F
proprietary title could not operate as res judicata as a Revenue Court
was not competent to try the subsequent suit.

In the instant case, the Mamlatdar declined to exercise jurisdic-
ti on holding that the Act did not apply. If an issue is referred to it by
the trial court under the Act, the question of jurisdiction would not G
arise and there could be no question of res judicata as to jurisdiction of
the Mamlatdar on reference.

Bearing in mind the above provisions and the principles of law,
we are of the view that there could arise no question of res judicata in
,, the instant case. Section 11 would not be a bar to the trial court in H
18 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.

A referring issues which are to be exclusively determined by a competent
authority under the Act, to that authority. Nor should arise any such
question of res judicata in the competent authority deciding those
issues when referred to by the trial court.

In the result, we find no merit in this appeal whieh is accordingly
B dismissed, but without any order as to costs.

Y. Lal Appeal dismissed.