TMI Blog1993 (4) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... uit 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 defendants who were mere trespassers were liable to be evicted. The plaintiffs case in the plaint was that he was the lessee in respect of seven lots on an annual rent of ₹ 3600 payable in advance in three instalments; that he had paid the rent upto the end of December, 1967 and the first installment of 1968 but the owner, defendant No. 2, in collusion with defendant No. 1 executed a deed of lease in favour of the latter effective from January 1, 1968 on the strength whereof defendant No. 1 claimed to have assumed possession of the property sometime in the second week of June, 1968 without his tenancy having been lawfully terminated. The plaintiff, therefore, contended that defendant No. 1 was a trespasser in the property and was liable to be evicted therefrom. He, therefore, sought possession of the property in respect of which he claimed to be a lessee. The defendants, besides contending that the suit was barred on the principle of res judica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; were defined by the insertion of sub-sections (7A). (7B) to suction 2 which rendered the Civil Court without jurisdiction. The High Court, therefore, held that the decree passed by the Civil Court was unsustainable. On these findings the High Court allowed the appeals and reversed the decree of the Trial Court with no order as to costs. It is against this order of the High Court that the present appeal by special leave is preferred. Before we deal with the impact of the Act as amended by Act 17 of 1976 we may first deal with the two technical grounds on which the High Court has dismissed the suit. The first ground on which the High Court dismissed the suit is that the suit was barred by the principle of res judicata in view of the dismissal of the former suit No. 157/68. That suit was for a declaration that the plaintiff was a lessee and for an injunction to restrain the defendants from interfering with his possession of the suit property. The foundation for that suit was that the plaintiff who claimed to be a lessee in respect of the demised property apprehended his forcible dispossession therefrom. With a view to preventing any such action on the part of the defendants he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court came to the conclusion that the subject matter of the second suit was directly and substantially in issue in the previous suit. It would have been a different matter if in the previous suit the court had decided the question of status as lessee against the plaintiff, in which case, perhaps, it could be argued that the second suit based on the factum of tenancy was not maintainable. It is only when the subject matter of any suit is directly and substantially in issue in the previous suit that the subsequent suit would be barred by res judicata if the competent court trying it had decided the issue regarding tenancy against the plaintiff. The High Court has concluded against the plaintiff on this point in paragraph 31 which reads as under: Thus it is compelling to acknowledge that the subject matter of the second suit was directly and substantially in issue in the previous suit between the same parties. The facts of the case clearly reveal that the res invoked in both the suits is the same. The lite is also the same. Hence the relief by itself is neither material nor relevant for the direct adjudication of the real issue. The relief is only a consequence. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... died in Order 2 Rule 2, in that, the former places emphasis on the plaintiff's duty to exhaust all available grounds in support (if his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. The High Court is, therefore, clearly wrong in its view that the relief claimed is neither relevant nor material. Now, in the fact-situation of the present case, as we have pointed out earlier, the first suit was for an injunction and not for possession of the demised property. The first suit was dismissed on the technical ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie. Once it was found that the plaintiff was not in actual physical possession of the demised property, the suit had become infructuous. The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968. The allegation in the former suit was that the plaintiff was a lessee and his possession was threatened and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lture as may be prescribed. Sub-sections (7A) and (7B) which came to be incorporated by the Fifth Amendment read as under : 7A. 'Garden' means land used primarily for growing coconut trees, arecanut trees, cashewnut trees or mango trees; 7B. 'garden produce' means any produce from a garden. It will be seen from the aforesaid definitions that land used primarily for growing coconut trees falls within the expression 'garden' and any produce therefrom would be covered by the expression 'garden produce' Since garden produce is included within the definition of agriculture in sub-section (1A) of section 2 it is clear that land used primarily for growing coconut could be described as agricultural land. Sub-section (11) (i) defines land inter alia to mean land which is used for agriculture or which is capable of being so used but is left fallow. Section 2(23) defines a tenant to mean 'a person who on or after the date of commencement of this Act holds land on lease and cultivates it personally and includes a person who is deemed to be a tenant under this Act'. Section 7 posits that if any question arises whether any person is a tenant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar and no order passed by him under the Act shall be questioned in any civil or criminal court. It will thus be seen that the Act sets up an independent machinery and invests the Mamlatdar with jurisdiction to decide questions such as : (i) Whether any person is a tenant or should be deemed to be a tenant under the Act? (ii) Whether the possession of any tenant in regard to any land or dwelling house is threatened and if so, whether an order safeguarding the same is required? (iii) Whether the tenancy of any deemed tenant is legally terminated and if no, whether the tenant evicted from the land held by him as such is entitled to restoration of possession? The jurisdiction of the civil court is specifically barred by sub-section (2) of Section 58 from settling, deciding or dealing with any question which is by or under the Act required to be settled, decided and dealt with by the Mamlatdar. There can, therefore, be no doubt that after the Fifth Amendment became effective in regard to land used primarily for growing coconut trees and garden produce, the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigation after the Fifth Amendment the situation arising on the amendment of the Act must be decided on first principles. If a suit is filed to recover possession of agricultural land from a trespasser and no dispute arises, the adjudication whereof is required to be done by the special machinery- set up under the Act, the Civil Court will continue to have jurisdiction. If, however, the defendant raises a dispute which is required to be resolved by the special machinery under the Act, a question will arise what procedure the Civil Court should adopt. There may arise a situation where the entire dispute pending before the Civil Court can be adjudicated by the special machinery only and not the Civil Court, what procedure the Civil Court follow in such a situation? In the case of the first mentioned situation there is no difficulty as the Civil Court will continue to have jurisdiction to settle and decide the dispute and grant appropriate relief The problem arises in the two other situations where the jurisdiction of the Civil Court is partly or wholly ousted. Take the case of suit where possession of agricultural land is sought on the plea that the defendant is a trespasser and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 in pending cases and if yes, its effect. Since section 12 of the Rent Act was held to be prospective, the question which arose for consideration was whether its protection could be extended to tenants in pending litigation. This court pointed out that the point of time when sub-section (1) of Section 12 operates is when the court is called upon to pass a decree for eviction. Thus, said this Court the language of the sub-section applies equally to suits pending when Part 11 comes into force and those to be filed subsequently. The contention of the landlord that the operation of section 12(1) is limited to suits filed after the Rent Act comes into force in a particular area was not accepted. Applying the same principle to the facts of the present case, we have no hesitation in concluding that the provisions of the Fifth Amendment would apply to pending suits also. However, the Act does not preclude the institution of a suit by a tenant for restoration of possession from a trespasser. If the defendant who is sued as a trespasser raises a plea of tenancy, a question arises whether his plea of tenancy can be decided by the Civil Court as incidental to the grant of relief for possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCR 145. That was a case arising under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. The lands in question were agricultural lands. Section 29(2) of that law provided that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar on an application made in that behalf in the prescribed form. Section 70(b) next provided that for the purposes of the Act, one of the duties and functions to be performed by the Mamlatdar is to decide whether a person is a tenant or a protected tenant or a permanent tenant. Section 85(1) laid down that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is required to be settled, decided or dealt with by the Mamlatdar under the statute. The law was silent as to how a dispute of this nature raised in a suit filed for eviction on the footing that the defendant is a trespasser should be dealt withby the Civil Court. This question squarely arose for consideration by the Bombay High Court in Dhondi Tukaram v. Hari Dadu AIR 1954 Bom 100 ILR 1953 Bom. 969 wherein that court observed as under: Therefore, we hold that in a suit filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person who is a deemed tenant under section 4 of the Act if evicted from the land on or after' 1st July, 1962 his remedy under section 8(2) is to approach the authority under the Act for recovery of possession of the land of which he has been dispossessed. In such a situation the remedy may not be the one available in the case of a tenant other than a deemed tenant whose case is not governed by section 8(2) of the Act. But in the case of a deemed tenant who has been evicted from the land on or after 1st July, 1962 since a remedy has been provided under the Act, the Jurisdiction of the Civil Courts stands wholly barred by virtue of Section 58 (2) of the Act. In such a situation the Civil Court would not be competent to pass any order for restoration of possession to the deemed tenant. His remedy would, therefore, to be entirely under the Act. This is just by way of an illustration. If such a situation arises what procedure should the court follow in a pending suit which was instituted in a competent court having jurisdiction at the date of its institution. It would seem unfair to non-suit the plaintiff altogether for no fault of his own. We think, in such a situation where the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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