Appeal No 1695 of 1993
From the Judgment and Order dated 541991 of the Bombay High Court in SCA Nos 27 and 31 of 1988
GL Sanghi Dhruv Mehta Guru Raikar SK Mehta and Arvind Verma for the Appellants
BA Masodkar Dr RB Masodkar and KL
Taneja for the Respondents
The Judgment of Court was delivered by AHMADI J Special leave granted
The appellants are the legal representatives of the deceased plaintiff Inacio Martins who died pendente lite
He had on October 26 1968 instituted a suit No 157 of 1968 for a declaration and an injunction to restrain the defendants from dispossessing him from the property known as Palmar Oiteral do Predio Aivao  comprising seven lots of coconut grove situated at Caranzalem belonging to defendant No 2
The said suit was dismissed on Match 28 1974 on the ground that the plaintiff was no more in possession of the suit property and therefore a suit for a mere declaration simpliciter could not lie
On the dismissal of the said suit the original plaintiff filed another suit No 11474 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 dispossessedin accordance with law the defen dants who were mere trespassers were liable to be evicted
The plaintiffs case in the plaint was that he was the lessee in respect of seven lots on an annual rent of Rs 3600 payable in advance in three instalments that he had paid the rent upto the end of December 1967 and the first installment of 1968 but the owner defendant No 2 in collusion with defendant No 1 executed a deed of lease in favour of the latter effective from January 1 1968 on the strength whereof defendant No 1 claimed to have assumed possession of the property sometime in the second week of June 1968 without his tenancy having been lawfully terminated
The plaintiff therefore contended that defendant No 1 was a trespasser in the property and was liable to be evicted therefrom
He therefore sought possession of the property in respect of which he claimed to be a lessee
1020 The defendants besides contending that the suit was barred on the principle of res judicata andor constructive res judicata as found in Order 2 Rule 23 of the Code of Civil Procedure averred that on the expiry of the lease at the end of December 1967 the lease stood terminated by efflux of time and defendant No 2 was therefore entitled to let out the property to defendant No 1 and hence the latter was in lawful possession of the said property The plaintiffs allegation that he was forcibly dispossessed was denied
The defendants therefore contended that the suit was not maintainable and deserved to be dismissed
The Trial Court upheld the plaintiffs contention that the property was demised to him and he was the lawful tenant thereof till his possession came to be disturbed sometime in June 1968
The Trial Court also found that the plaintiff had paid a sum of Rs 1200 to defendant No2 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 wrongly dispossessed by defendant No 1 in collusion with defendant No2 and decreed the suit for eviction on September 25 1985
Against the said decree both the defendants preferred an appeal No 8285
The First Appellate Court concurred with the findings recorded by the Trial Court and dismissed the appeal on March 25 1986
Feeling aggrieved by the order of dismissal of the appeal the defendants preferred separate Second Appeals Nos
2788 and 3188 which came to be allowed on April 5 1991
Interfering with the concurrent findings recorded by the two courts below the High Court came to the conclusion that the courts below had applied the wrong test and had based their findings on the question of tenancy and dispossession on mere conjectures
It therefore held that the findings were perverse and it was open to the High Court in Second Appeal to interfere with the said findings
It also held that the suit was barred by res judicata as well as Order 2 Rule 23 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 141976 known as the Fifth Amendment which was brought into effect from April 20 1976 by which the definition of agriculture  was changed and the expressions garden  and garden produce  were defined by the insertion of sub sections 7A
 7B to suction 2 which rendered the Civil Court without jurisdiction
The High Court therefore held that the decree passed by the Civil Court was unsustainable
On these findings the High Court allowed the appeals and 1021 reversed the decree of the Trial Court with no order as to costs
It is against this order of the High Court that the present appeal by special leave is preferred
Before we deal with the impact of the Act as amended by Act 17 of 1976 we may first deal with the two technical grounds on which the High Court has dismissed the suit
The first ground on which the High Court dismissed the suit is that the suit was barred by the principle of res judicata in view of the dismissal of the former suit No 15768
That suit was for a declaration that the plaintiff was a lessee and for an injunction to restrain the defendants from interfering with his possession of the suit property
The foundation for that suit was that the plaintiff who claimed to be a lessee in respect of the demised property apprehended his forcible dispossession therefrom
With a view to preventing any such action on the part of the defendants he instituted the suit for an injunction to restrain them from so doing
That suit however came to be dismissed as the Trial Court came to the conclusion that the plaintiff was no more in possession of the property in respect of which he claimed to be a lessee
It was only thereafter that the plaintiff filed the suit for restoration of his possession
In the subsequent suit the plaintiff contended that he had been forcibly dispossessed sometime in the second week of June 1968 contrary to law even though his tenancy was subsisting and he had paid the first installment of rent for the year 1968
He therefore contended that the lease stated to have been created in favour of defendant No 1 by defendant No 2 was a sham and bogus document set up with a view to supporting their illegal action in dispossessing him
The High Court in the backdrop of these facts came to the conclusion that the subject matter of the second suit was directly and substantially in issue in the previous suit between the same parties and hence regardless of the relief claimed the second suit was clearly barred by res judicata
This finding of the High Court is difficult to sustain
Section 11 of the Code of Civil Procedure provides that no court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court 
It is not the finding of the High Court that in the previous suit the question regarding the tenancy of the plaintiff was determined against the plaintiff
As the record stands the only ground on which the previous suit 1022 was dismissed was the technical ground that a suit for a mere declaration cannot lie without claiming possession once it is found that the plaintiff had lost possession
Injunction could not be granted to the plaintiff against dispossession as he had already been dispossessed
The court came to the conclusion that a mere declaration of his status as a tenant could not be granted unless the consequential relief for possession was prayed
It was for this technical reason that the suit was dismissed
It is therefore difficult to comprehend how the High Court came to the conclusion that the subject matter of the second suit was directly and substantially in issue in the previous suit
It would have been a different matter if in the previous suit the court had decided the question of status as lessee against the plaintiff in which case perhaps it could be argued that the second suit based on the factum of tenancy was not maintainable
It is only when the subject matter of any suit is directly and substantially in issue in the previous suit that the subsequent suit would be barred by res judicata if the competent court trying it had decided the issue regarding tenancy against the plaintiff
The High Court has concluded against the plaintiff on this point in paragraph 31 which reads as under Thus it is compelling to acknowledge that the subject matter of the second suit was directly and substantially in issue in the previous suit between the same parties
The facts of the case clearly reveal that the res invoked in both the suits is the same
The lite is also the same
Hence the relief by itself is neither material nor relevant for the direct adjudication of the real issue
The relief is only a consequence
Therefore the second suit is to be deemed as barred by res judicata  With respect it is difficult to accept this line of reasoning
As stated earlier the first suit was dismissed on a technical ground that the suit for a mere declaration without seeking consequential relief of possession could not lie
In that suit the issue regarding the status of the plaintiff as a lessee was not settled once for all and hence that issue could not be stated to be barred by res judicata in the subsequent suit brought by the lessee for possession the demised property
We are therefore of the opinion that the High Court was wrong in holding that the second suit was barred by res judicata
1023 The next contention which found favour with the High Court was based on the language of Order 2 Rule 23 of the Code of Civil Procedure
The submission regarding constructive res judicata was also based on this very provision
Now Order 2 concerns the framing of a suit
Rule 2 thereof requires that the plaintiff shall include the whole of his claim in the framing of the suit
Sub rule 1 of Rule 2 inter alia provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action
If he relinquishes any claim to bring the suit within the jurisdiction of any court he will not be entitled to claim that relief in any subsequent suit
However sub rule 3 of Rule 2 provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits except with the leave of the court to sue for all such reliefs he shall not afterwards sue for any relief so omitted
It is well known that Order 2 Rule 2 CPC is based on the salutary principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs
To preclude the plaintiff from so doing it is provided that if he omits any part of the claim or fails to claim a remedy available to him in respect of that cause of action he will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the court
But the Rule does not preclude a second suit based on a distinct cause of action
It may not be out of place to clarify that the doctrine of res judicata differs from the rule embodied in Order 2 Rule 2 in that the former places emphasis on the plaintiff s duty to exhaust all available grounds in support if his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action
The High Court is therefore clearly wrong in its view that the relief claimed is neither relevant nor material
Now in the fact situation of the present case as we have pointed out earlier the first suit was for an injunction and not for possession of the demised property
The first suit was dismissed on the technical ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie
Once it was found that the plaintiff was not in actual physical possession of the demised property the suit had become infructuous
The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June 1968
The allegation in the former suit was that the plaintiff was a lessee and his 1024 possession was threatened and therefore he sought the court s assistance to protect his possession by a prohibitory injunction
When in the course of that suit it was found that the plaintiff had in fact been dispossessed there was no question of granting an injunction and the only relief which the court could have granted was in regard to the declaration sought which the court held could not be granted in view of the provisions of Specific Relief Act
Therefore the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff
The cause of action for that suit was not on the premise that he had in fact been illegally and forcibly dispossessed and needed the court s assistance to be restored to possession
Therefore the subsequent suit was based on a distinct cause of action not 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 23 of the Code of Civil Procedure
It may be that the subject matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent
suit was not identical to the relief claimed in the previous suit
The High Court was therefore wrong in thinking that the difference in the reliefs claimed in the two suits was immaterial and irrelevant
In the previous suit the relief for possession was not claimed whereas in the second suit the relief was for restoration of possession
That makes all the difference
We are therefore of the opinion that the High Court was completely wrong in the view that it took based on the language of Order 2 Rule 23 of the Civil Procedure Code
The Act was enacted on 16th October 1964 to provide for the regulation of the terms of tenancy with respect to agricultural lands in the Union Territory of Goa Daman  Diu and for matters connected therewith
The definition of the various terms employed in the statute have been set out in section 2 thereof The expression agriculture  is defined in sub section 1A to include horticulture and raising of food crops grass or garden produce but not allied pursuits meaning thereby rearing or maintaining plough bulls breeding of livestock dairy farming poultry farming grazing on grounds reserved for the purpose and such other pursuits connected with agriculture as may be prescribed
Sub sections 7A and 7B which came to be incorporated by the Fifth Amendment read as under  7A Garden  means land used primarily for growing 1025 coconut trees arecanut trees cashewnut trees or mango trees 7B garden produce  means any produce from a garden
 It will be seen from the aforesaid definitions that land used primarily for growing coconut trees falls within the expression garden  and any produce therefrom would be covered by the expression garden produce  Since garden produce is included within the definition of agriculture in sub section 1A of section 2 it is clear that land used primarily for growing coconut could be described as agricultural land
Sub section 11 i defines land inter alia to mean land which is used for agriculture or which is capable of being so used but is left fallow
Section 223 defines a tenant to mean a person who on or after the date of commencement of this Act holds land on lease and cultivates it personally and includes a person who is deemed to be a tenant under this Act 
Section 7 posits that if any question arises whether any person is a tenant or should be deemed to be a tenant under the Act the Mamlatdar shall after holding an enquiry decide such question
Section 81 stipulates that no tenancy of any land shall be terminated and no person holding as tenant shall be liable to be evicted therefrom save as provided under the Act
Sub section 2 of section 8 next provides that where any person as is referred to in section 4 deemed tenant has been evicted from the land on or after 1st July 1962 such person shall be entitled to recover immediate possession of the land in the manner prescribed by or under the Act unless the landlord proves that the termination of tenancy was in the manner authorised by section 9
Even in cases of threatened wrongful possession section 8A says that any tenant in possession of any land or dwelling house who apprehends that he may be dispossessed contrary to the provisions of this Act may apply in the prescribed manner to the Mamlatdar for an order safeguarding his right to possession
Section 9 lays down the modes of termination of tenancy which are a by the tenant surrendering his right to the landlord in the manner provided in section 10 or b by the landlord terminating the tenancy on the grounds specified in section 11 or c under any other specific provision of the Act
Section 18 lays down the procedure for taking possession
It says that a tenant entitled to possession of any land under any of the provisions of the Act may apply in writing for such possession to the Mamlatdar
It will be seen from the aforesaid provisions that the forum created for determination of the question whether a person is a 1026 tenant or a deemed tenant under the Act is the Mamlatdar
Ever where a tenant apprehends that his possession is likely to be interfered with contrary to the provisions of the Act he can make an application in the prescribed manner to the Mamlatdar for safeguarding the same
So also where a tenant is evicted illegally section 82 permits him to approach the Mamlatdar for recovery of possession
Unless the tenancy is terminated in the manner provided by section 9 the law precludes the landowner from terminating the tenancy and obtaining possession of the land from the tenant
Section 58 bars the jurisdiction of courts
Sub section 2 thereof provides that save as otherwise provided in the Act no court shall have jurisdiction to settle decide or deal with any question which is by or under this Act required to be settled decided or dealt with by the Mamlatdar and no order passed by him under the Act shall be questioned in any civil or criminal court
It will thus be seen that the Act sets up an independent machinery and invests the Mamlatdar with jurisdiction to decide questions such as  i Whether any person is a tenant or should be deemed to be a tenant under the Act ii Whether the possession of any tenant in regard to any land or dwelling house is threatened and if so whether an order safeguarding the same is required iii Whether the tenancy of any deemed tenant is legally terminated and if no whether the tenant evicted from the land held by him as such is entitled to restoration of possession The jurisdiction of the civil court is specifically barred by sub section 2 of Section 58 from settling deciding or dealing with any question which is by or under the Act required to be settled decided and dealt with by the Mamlatdar
There can therefore be no doubt that after the Fifth Amendment became effective in regard to land used primarily for growing coconut trees and garden produce the jurisdiction of the civil court was ousted by virtue of section 582 of the Act
The suit in question was instituted on May 6 1974 ie before the Fifth Amendment was brought into force
Thus the amendment came into force during the pendency of the suit
The question therefore is what is the effect of the Fifth Amendment on pending litigation No provision is 1027 made in the Act in that behalf
The High Court concluded that since there is nothing in the language of sections 7 and 58 of the
Act which is primarily a welfare legislation to indicate that it should not be applied retrospectively there is no question that its applicability should be necessarily prospective
Proceeding further the High Court takes the view that even after the Fifth Amendment came into force the plaintiff had not applied to the Mamlatdar for possession of the land within the period allowed by Section 18 of the Act and had therefore allowed the first defendant to become a deemed purchaser of the suit property on the strength of his tenancy
Since the civil court had lost jurisdiction to decide the suit the High Court dismissed it
We may now proceed to examine whether this view taken by the High Court is correct
From the above discussion it emerges that the Civil Court undoubtedly had jurisdiction under section 9 of the Code of Civil Procedure to try and grant eviction till the Fifth Amendment became effective
After that amendment came into force the provisions of the Act became applicable to the lands in question which were primarily used for growing coconut trees and receiving produce therefrom
By virtue of section 7 any question whether a person is a tenant or a deemed tenant was required to be decided by the Mamlatdar and the jurisdiction of the Civil Court stood ousted by section 582 of the Act
The question is whether this subsequent change in the law deprived the Civil Court of jurisdiction which it undoubtedly possessed on the date of the institution of the suit
Three situations therefore develop in the context of the provisions of the Act as amended by the Fifth Amendment namely i the Civil Court retains jurisdiction or ii the Civil Court is precluded from deciding even incidentally questions failing within the ambit of section 7 of the Act or iii the Civil Court s jurisdiction is wholly ousted
Since the Act is silent as to the fate of pending litigation after the Fifth Amendment the situation arising on the amendment of the Act must be decided on first principles
If a suit is filed to recover possession of agricultural land from a trespasser and no dispute arises the adjudication whereof is required to be done by the special machinery set up under the Act the Civil Court will continue to have jurisdiction
If however the defendant raises a dispute which is required to be resolved by the special machinery under the Act a question will arise what procedure the Civil Court should adopt
There may arise a situation where the entire dispute pending before the Civil Court can be adjudicated by the special machinery only and not the Civil Court what procedure the 1028 Civil Court follow in such a situation In the case of the first mentioned situation there is no difficulty as the Civil Court will continue to have jurisdiction to settle and decide the dispute and grant appropriate relief The problem arises in the two other situations where the jurisdiction of the Civil Court is partly or wholly ousted
Take the case of suit where possession of agricultural land is sought on the plea that the defendant is a trespasser and the defendant contends that he is a tenant
The question of the defendant s tenancy in respect of agricultural land would be within the exclusive jurisdiction of the Mamlatdar under section 7 read with section 582 of the Act
In such a situation what procedure should the Civil Court follow  Now take a case where the entire dispute falls within the exclusive jurisdiction of the special machinery under the Act and had the litigation commenced after the Fifth Amendment was brought into force it could not have been instituted in a Civil Court
In that case what procedure should the Civil Court follow These are the questions which arise for determination
Before we answer those questions we must decide on the impact of the Fifth Amendment on pending litigation
The question whether the Fifth Amendment is prospective or retrospective really recedes in the background if we examine the question from the angle whether the Civil Court can decide any question falling within the jurisdiction of the special forum under the Act in a pending litigation in the absence of an express provision in that behalf
If the question of tenancy in regard to agricultural land cannot be decided by the Civil Court under the Act and there is no express saving clause permitting the Civil Court to decide the same it is obvious that any decision rendered by the Civil Court would be without jurisdiction
A similar situation did arise in the context of another statute
In Shah Yograj Kuverji Oil Mills and Ginning Factory vs Subhash Chandra Yograj Sinha    the facts were that the landlord had filed a suit for eviction on April 25 1957 in the regular court ie the Court of the Joint Civil Judge Junior Division Erandol which admittedly had jurisdiction to pass a decree for possession of the demised premises
However during the pendency of the suit a notification was issued under section 6 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter called the Rent Act  applying Part II of the Act to areas where the property in question was situate
The tenants claimed protection of section 12 in Part 11 of the Rent Act which deprived the landlord of the right of possession under certain circumstance 1029 The question which arose for consideration was whether the tenants were entitled to the protection of section 12 in pending cases and if yes its effect
Since section 12 of the Rent Act was held to be prospective the question which arose for consideration was whether its protection could be extended to tenants in pending litigation
This court pointed out that the point of time when sub section 1 of Section 12 operates is when the court is called upon to pass a decree for eviction
Thus said this Court the language of the sub section applies equally to suits pending when Part 11 comes into force and those to be filed subsequently
The contention of the landlord that the operation of section 121 is limited to suits filed after the Rent Act comes into force in a particular area was not accepted
Applying the same principle to the facts of the present case we have no hesitation in concluding that the provisions of the Fifth Amendment would apply to pending suits also
However the Act does not preclude the institution of a suit by a tenant for restoration of possession from a trespasser
If the defendant who is sued as a trespasser raises a plea of tenancy a question arises whether his plea of tenancy can be decided by the Civil Court as incidental to the grant of relief for possession or is the Civil Court precluded from deciding the same in view of section 7 read section 582 of the Act
As pointed out earlier section 7 in terms states that if any question arises whether any person is a tenant or should be deemed to be a tenant under the Act the Mamlatdar shall decide such question
The jurisdiction is therefore vested in the Mamlatdar under section 7 of the Act and section 582 specifically bars the jurisdiction of all other courts to settle decide or deal with any question which is by or under the Act required to be settled decided or dealt with by the Mamlatdar
Section 82 has limited operation where a person referred to in section 4 has been evicted on or after 1st July 1962
In that case he would 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 No1 had dispossessed him by an act of trespass
He therefore sought possession of the demised property from the trespasser defendant No1
He impleaded the owner of the land as defendant No2 on the plea that she had colluded with defendant No1
Defendant No1 raised a contention in his written statement that he was lawfully inducted as a tenant in the lands in question 1030 by the owner defendant No2
In other words he disputed the plaintiff s contention that he was a trespasser and pleaded tenancy
If his plea was found to be well founded he would be entitled to retain possession but not otherwise
Therefore the question which arose in the suit was whether defendant No1 proved that he was a tenant in respect of the land in question
This question could not be gone into by the Civil Court in view of the clear language of section 7 read with section 582 of the Act
What procedure should the court follow in such situations It would not stand to reason to non suit the plaintiff who had filed the suit in a competent court having jurisdiction to try the same merely because of the subsequent change in law
The proper course therefore would be one which was followed by the Bombay High Court in Bhimaji Shankar Kulkami vs Dundappa Vithappa Udapudi  Anr    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 292 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 70b 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 851 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 vs Hari Dadu AIR 1954 Bom 100 ILR wherein that court observed as under Therefore we hold that in a suit filed against the defendant on the footing that he is a trespasser if he raises the plea that he is a tenant or a protected tenant the Civil Court would have no jurisdiction to deal with that plea 
We would however like to add that in all such cases where the Civil Court cannot entertain the plea and accepts the objection that it has no jurisdiction to try it it should not proceed to dismiss the suit straightaway
We think that the proper procedure to adopt in such cases 1031 would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar within a reasonable time
If the decision of the Mamlatdar is in favour of the party raising the plea the suit for possession would have to be dismissed because it would not be open to the Civil Court to give any relief to the landlord by way of possession of the agricultural land
If on the other hand the Mamlatdar rejects the plea raised under the Tenancy Act the Civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser
 Pursuant to the court s recommendation the Bombay Legislature introduced section 85A which provided that if in any suit instituted in a Civil Court issues which are required to be settled decided and dealt with by any authority patent to settle decide and deal with the same arises the Civil Court shall stay the suit and refer such issues to such competent authority for determination under the statute
Unfortunately even under the Act with which we are concerned the Legislature though aware of section 85A has not chosen to make any provision for dealing with such situations
We are therefore of the opinion that it would be just and fair that the issue whether defendant No1 was a tenant in respect of the lands in question should be referred to the Mamlatdar for decision and after his decision is received by the Civil Court if the issue is held against defendant No1 the Civil Court may consider passing of a decree in eviction but if on the other hand he is held to be tenant the Civil Court may be required to dismiss the suit
One further situation which may arise under the provisions of the Act may be taken note of
The impact of the Fifth Amendment may give rise to a situation where the remedy lies entirely under the Act and may have to be taken in the manner prescribed by or under the Act
For example where a person who is a deemed tenant under section 4 of the Act if evicted from the land on or after  1st July 1962 his remedy under section 82 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 82 of the Act
But in the case of a deemed tenant who has been evicted from the land on or after 1st July 1962 since a remedy has been provided under 1032 the Act the Jurisdiction of the Civil Courts stands wholly barred by virtue of Section 58 2 of the Act
In such a situation the Civil Court would not be competent to pass any order for restoration of possession to the deemed tenant
His remedy would therefore to be entirely under the Act
This is just by way of an illustration
If such a situation arises what procedure should the court follow in a pending suit which was instituted in a competent court having jurisdiction at the date of its institution
It would seem unfair to non suit the plaintiff altogether for no fault of his own
We think in such a situation where the entire dispute falls outside the Civil Court s jurisdiction on account of the change in law the proper course would be to follow in spirit the procedure outlined in Order 7 Rules 10 and 10A of the Code of Civil Procedure
Since the paper book in this appeal does not contain the original plaint and the written statement and counsel were unable to enlighten us on the actual nature of the pleadings we have tried to indicate the procedure to be followed by the Civil Court on illustrative fact situations
In the circumstances we are left with no alternative but to remit the matter to the Trial Court with a direction to follow the course that may be found appropriate in the fact situation arising out of the pleadings in this case and the nature of the questions required to be determined for grant or refusal of relief claimed in the suit
We would like to make it clear that the hypothetical situations may or may not apply to the fact situation that may emanate of the pleadings in this case and it would be for the Trial Court to determine the course of action to be adopted in the light of the guidelines indicated hereinabove
In view of the foregoing discussion we allow this appeal set aside the order of the High Court which in either case lacked jurisdiction to decide the question regarding tenancy on merits and remit the matter to the Trial Court for further orders in the light of the observation hereinabove made
Having regard to the peculiar facts and circumstance of the case we make no order as to costs
RP Appeal allowed


Summary:
The plaintiff predecessor in interest of the appellants flied a suit for a declaration and an injunction to restrain the defendant respondents from dispossessing him from a certain property comprising of a coconut grove
The trial court dismissed the suit holding that the plaintiff was no more in possession of the suit property and therefore a suit for a mere declaration simplicitor could not lie
Consequently the plaintiff flied another suit for restoration of possession
His case was that he was a tenant of the suit property whereof defendant No 2 was the owners  and 1016 that he was forcibly dispossessed by defendant No 1 in collusion with defendant No 2 without his tenancy having been lawfully terminated
It was alleged that the defendants were trespassers and liable to be evicted
The defendants besides raising the pleas of res judicata andor constructive res judicata purported to be based on Order 2 Rule 23 of the Code of Civil Procedure contended that defendant No 1 was in lawful possession of the suit property as the same was let out to him by defendant No 2 after the lease in favour of the plaintiff stood terminated by efflux of time and the suit as such was not maintainable
The trial court decreed the suit holding that the suit property was demised to the plaintiff as he was the lawful tenant thereof and defendant No 1 in collusion with defendant No 2 wrongfully dispossessed him
The appeal riled by the defendants was dismissed by the first appellate court
The second appeals filed by the defendants were allowed by the High Court holding that the suit was barred by res judicata as well as Order 2 Rule 23 CPC
The High Court also held that during the pendency of the suit as a result of the amendment of the Goa Daman and Diu Agricultural Tenancy Act 1964 by Act 17 of 1976 known as the Fifth Amendment the definition of agriculture  was changed and the suit property came to be covered within the expression agricultural land  which rendered the civil court without jurisdiction and the decree passed by it unsustainable
Aggrieved the heirs and legal representatives of the plaintiff filed the appeal by special leave
Allowing the appeal this Court HELD 11 A subsequent suit would be barred by res judicata only when the subject matter of the suit was directly and substantially in issue in the previous suit
p 1022 C 12
The first suit was dismissed on a technical ground that the suit for a mere declaration without seeking consequential relief of possession could not lie
In that suit the issue regarding the status of the plaintiff as a lessee was not settled once for all and hence that issue could not be stated to be barred by res judicata in the subsequent suit brought by the lessee for possession of the demised property
The High Court was not right in holding 1017 that the second suit was barred by res judicata
1022 F H 21
Order 2 Rule 2 CPC is based onthe salutory principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs
It does not preclude a second suit based
on a distinct cause of action
p 1023 C E 22
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 23
The cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff
The suit was for an injunction and not for possession of the demised property
It was not on the premise that the plaintiff had in fact been illegally and forcibly dispossessed and needed the court s assistance to be restored to possession
Therefore the subsequent suit was based on a distinct cause of action not found in the former suit
The High Court was not right in concluding that the suit was barred by Order 2 Role 23 of the Code of Civil Procedure and that the difference in the reliefs claimed in the two suits was immaterial and irrelevant
In the previous suit the relief for possession was not claimed whereas in the second suit the relief was for restoration of possession
That makes all the difference
pp 1023 F 1024 B D 31
The impact of the Fifth Amendment on pending litigation is that the question of tenancy in regard to agricultural land cannot be decided by the civil court under the Act and there being no express saying clause permitting the civil court to decide the same any decision rendered by the civil court would be without jurisdiction
The change in law deprived the civil court of jurisdiction which it undoubtedly possessed on the date of the institution of the suit
Thus the provisions of the Fifth Amendment would apply to pending suits also
pp 1027 D E 1028 D E 1029 C Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs Subhash Chandra Yograj Sinha   relied on
The Act does not preclude the institution of a suit by a tenant 1018 for restoration of possession from a trespasser
p 1029 C 33
If a suit Is riled to recover possession of agricultural land from a trespasser and no dispute arises the adjudication whereof is required to be done by the special machinery set up under the Act the civil court will continue to have jurisdiction
p 1027 F G 3A
If possession of agricultural land is sought on the plea that the defendant is a trespasser and the defendant contends that he is a tenant the claim of tenancy by defendant cannot be gone into by the civil court in view of the clear language of S7 read with section 582 of the Act In such a situation it would not stand to reason to non suit the plaintiff who had flied the suit in a competent court having jurisdiction to try the same merely because of the subsequent change in law
The proper course therefore would be that the issue whether the defendant was a tenant should be referred to the Mamlatdar for decision and after his decision is received by the civil court if the issue is held against the defendant the civil court may consider passing of a decree
for eviction but if on the other hand he is held to be a tenant the civil court may be required to dismiss the suit pp 1029 F H 1030 A B 1031 D E Bhimaji Shankar Kulkam vs Dundappa Vithappa Udapudi  Anr    and Dhondi Tukaram vs Hari Dadu AIR 1954 Bom
100  ILR  relied on
The impact of Fifth Amendment may give rise to a situation where a deemed tenant under s4 of the Act is evicted from the land on or after 1st July 1962 his remedy under s82 is to approach the authority under the Act for recovery of possession of the land of which he has been disposed and jurisdiction of the civil court stands wholly barred by virtue of s582 of the Act as it would not be competent to pass any order for restoration of possession to the deemed tenant
If such a situation arises in a pending suit which was instituted in a competent court having jurisdiction at the date of its institution it would be unfair to non suit the plaintiff altogether for no fault of his own and the proper course would be to follow in spirit the procedure outlined in Order 7 Rules 10 and 10A CPC pp 1031 F H 1032 A B 4
The High Court lacked jurisdiction to decide the question regarding tenancy on merits
Its order is set aside and the matter is remitted to 1019 the trial court to determine the course of action to be adopted in accordance with the guideline indicated hereinabove
p 1032 D F