1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.453 OF 2003 1. Smt. Nalini Vasantlal Naik Bocal, wife of late Vasantlal Ramchandra Bocal, and her son; 2. Shri Rajendra Vasantlal Naik Bocal (since deceased), through legal representatives: 2a) Smt. Rajani Bocal, wife of the deceased Petitioner No.2; 2b) Ranjita Rajan Bocal, daughter, minor in age, 2c) Sainata Rajan Bocal, son, major in age, 2d) Seema Rajan Bocal, daughter, minor, through her natural guardian Smt. Rajani Bocal. All residents of Porvorim, Bardez-Goa. 3. Smt. Snehalata Raghunath Khadpe alias Shaila Bocal, resident of Santa Cruz-Goa. …. Petitioners V/s 1. Shri Jeronima Fernandes (since deceased) represented by his legal heirs Respondents Nos.2(1) to 2(8) 2. Smt. Rosaria Pires; Residing at Azossim, (since deceased) represented through legal representatives: 2(1) Smt. Maria Josefa Agostinho 2 Fernandes e Caldeira, aged 29 years, and her husband; 2(2) Shri Agonstinho Remedios Caldeiro, married; 2(3) Mast. Peter Fatima Fernandes, aged 27 years; 2(4) Miss Maria Fernandes, aged 26 years; 2(5) Miss Amelia Fernandes, aged 25 years; 2(6) Mast. Anthony Fernandes, aged 18 years; 2(7) Mast. Serafino Fernandes, aged 15 years; 2(8) Miss Filomena Fernandes, aged 13 years; All residing at Azossim. Respondent Nos.2(7) and 2(8) are represented by respondent no.1, Shri Jeronimo Fernandes. 3. Shri Anantrau Sinum Naik Bocal and his wife; 4. Miss Maria Fernandes, aged 26 years; 5. Miss Amelia Fernandes, aged 25 years; 6. Mast. Anthony Fernandes, aged 18 years; 7. Mast. Serafino Fernandes, aged 15 years; … deleted 8. Miss Filomena Fernandes, aged 13 years; All residing at Azossim. Respondent Nos.2(7) and (8) are represented by Respondent no.1, Shri Jeronimo Fernandes. (3) Shri Anantrau Sinum Naik Bocal, and his wife; (4) Smt. Yashashribai Anantrau Sinum Naik Bocal, Both residing at Mandur-Goa. (5) Shri Bicu Rau Naik Bocal, and his wife (since deceased), through their legal heirs; 5(a) Kum. Sujata B. Bakal, major; 3 5(b) Kum. Suvruta B. Bakal, major; 5(c) Kum. Sadatta B. Bakal, minor; 5(d) Kum. Suvarsha B. Bakal, minor; 5(e) Kum. Sujusha B. Bakal, minor; All residents of Bainguinim. 6. Shri Prataplal Shrinivassa Bocal, and his wife 7. Smt. Vasanti Prataplal Bocal, Both residing at Santa Cruz Goa. 8. Shri Sricanta Naique Bokal and his wife, 9. Smt. Vasanti Sricanta Bocal, Both residing at Mandur-Goa. 10. Shri Raghunath Balkrishan Khadpe, teacher, residing at Santa Cruz-Goa. …. Respondents Shri P. Rao, Advocate for the Petitioners. Shri S.D. Lotlikar, Senior Advocate with Ms. S. Pai Kir, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 14th OCTOBER, 2011 JUDGMENT: Heard Shri P. Rao, learned Counsel appearing for the petitioners and Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondents. 2. The above petition challenges the order dated 18/02/2000 passed in Special Civil Suit No.108/1979 whereby the learned Judge ordered a reference of issue no.4 to the learned 4 Mamlatdar, Tiswadi and pending the decision of the learned Mamlatdar the proceedings in the suit were ordered to be stayed. 3. The petitioners filed the suit praying, inter alia, for recovery of possession of the suit property as well as for mesne profits in respect of the said property. The respondents opposed the said suit by filing the written statement and raised a preliminary objection to the said proceedings. Amongst the issues framed by the learned Judge two issues were framed one as to whether the respondents establish that they are the tenants of the suit property and the other is whether the suit property is an agricultural property. Admittedly, the learned Judge referred the issue as to whether the suit property is an agricultural land to the learned Mamlatdar. The learned Joint Mamlatdar by judgment dated 27/10/1986, while answering issue no.5 came to the conclusion that the property surveyed under nos.49/2 50, 55/4 and 55/5 are not of the same category. The learned Mamlatdar further held that the part of the suit land surveyed under no.50 and 55/5 is an agricultural land under Section 7(A) of the Agricultural Tenancy Act, 1964. Whilst passing the said order, the learned Mamlatdar found that the portion of the suit property which were not 5 agricultural lands were admittedly the property surveyed under no.49/2 and 55/4 which were cashew groves consisting of cashew trees and do not come within the meaning of 'agricultural land' as provided by the Agricultural Tenancy Act, 1964. It is also not disputed that when the said judgment was passed by learned Joint Mamlatdar the validity of the Fifth Amendment to the Agricultural Tenancy Act which was held to be unconstitutional by the learned Judicial Commissioner was pending adjudication before the the Hon'ble Supreme Court in the appeal challenging the said judgment. Only after the said judgment was passed the Hon'ble Supreme Court has held that the fifth amendment to the Agricultural Tenancy Act was valid somewhere in the year 1990 by judgment dated 23/07/1990. There is also no dispute that in view of the Fifth Amendment to the Agricultural Tenancy Act, even the properties which are cashew groves are considered to be agricultural lands within the meaning of 'agricultural lands' as provided in the Agricultural Tenancy Act, 1964. 4. The respondents, thereafter, filed an application to refer the said matter again to the Mamlardar in view of the decision of the Hon'ble Supreme Court, but however, the learned Civil 6 Judge, Senior Division by order dated 18/08/1994 held that the suit shall proceed before the Court in accordance with law. The learned Judge while passing the said order held that the said orders were passed by the learned Mamlatdar after coming into force of the amendment of 1996 to the Agricultural Tenancy Act, 1964 and, as such, in view of the fact that the learned Mamlatdar has held that the property under survey no.49/2 and 55/4 are non agricultural lands, the learned Judge refused to make any further reference. Thereafter, the respondents filed an application to refer issue no.4 to the learned Mamlatdar, as admittedly there was no reference to that effect. An application was also filed to stay the proceedings on the ground that the respondents had filed an application before the Mamlatdar under Section 7(A) of the Agricultural Tenancy Act. The said application came to be rejected by order dated 3/07/1999. Thereafter, the respondents filed an application to the effect that the issue regarding tenancy of the respondents is required to be decided by the learned Mamladar. Accordingly, an application was filed by the respondents dated 19/08/1999. A reply was filed to the said application stating, inter alia, that the issue has already been answered by the learned Mamlatdar and there was no question of making any further reference as sought by the respondents. It was 7 also contended that the learned Judge held that the issue with regard to the jurisdiction of the Court had already attained finality and further stated that there was no revision preferred against the said order. By the impugned order dated 18/02/2000, the learned Judge referred the issue no.4 as to whether respondents prove that the suit property was leased through them to the learned Mamlatdar for his decision. Being aggrieved by the said order, the plaintiffs/petitioners have preferred the present petition. 5. Shri P. Rao, learned Counsel appearing for the petitioners has vehemently argued to the effect that considering the earlier orders passed in the suit, the question of making any reference by the impugned order does not arise. The learned Counsel pointed out that while deciding the aspect as to whether the matter has to be referred again to the learned Mamlatdar and/or as to whether the issue has to be decided again, the learned Civil Judge had already decided that Civil Court had jurisdiction to decide the issues framed and there was a claim of the appellant with regard to the tenancy. The learned Counsel further pointed out that it is well settled by the Apex Court that principles of res judicata are applicable to the proceedings in the suit and in view of 8 the order holding that he had jurisdiction to decide the suit has not been challenged in the revision before this Court or any other appropriate remedy the said order shall be binding on the respondents and, as such, the question of making any such reference would not arise. The learned Counsel further submitted that the learned Judge while passing the impugned judgment has wrongly directed to refer such issue to the Mamlatdar, as according to him the issue was already decided by the learned Judge while passing earlier orders. The learned Counsel further submitted that the contention of the respondents to refer such issue is also barred by the principles of constructive res judicata as according to him such reliefs could have been sought by the respondents by pressing for such relief earlier in the proceedings. Learned Counsel took me through the impugned order and pointed out that the impugned order cannot be sustained and deserves to be quashed and set aside. In support of submissions the learned Counsel has also relied upon the judgments reported in 2008 (2) SCC 507 in the case of Ajay Mohan and Ors. V/s. H.N. Rai and Ors., 2002 (7) SCC 447 in the case of C.V. Rajendran & Anr. V/s. N.M. Muhammed Kunhi, 1995 (5) SCC 590 in the case of Hope Plantations Ltd. V/s. Taluk Land Board, Peermade & Anr., AIR 9 1960 SC 941 in the case of Satyadhyan Ghosal & Ors. V/s. Smt. Deorajin Debi & Anr., 1986 (1) SCC 100 in the case of Forward Construction Co. & Ors. V/s. Prabhat Mandal (Regd.), Andheri & Ors. and 2009 (10) SCC 273 in the case of Ramchandra Dagdu Sonavane v. Vithu Hira Mahar. The learned Counsel, as such, submitted that the impugned order deserves to be quashed and set aside. 6. On the other hand, Shri S.D. Lotlikar, learned Senior Counsel has supported the impugned judgment. The learned Senior Counsel has pointed out that there is no question of any res judicata in cases in which the earlier order has erroneously decided, the Civil Court has jurisdiction which was not vested in the Civil Court to decide the issue of tenancy and/or as to whether the land was agricultural or not. Learned Senior Counsel further pointed out that the order of the learned Mamlatdar cannot be considered to be final as according to him in view of the change of law the land which was covered by cashew grove is also considered as agricultural land within the meaning of the provisions of the Agricultural Tenancy Act, 1964. Learned Senior Counsel further pointed out that Fifth Amendment to the Agricultural Tenancy Act 10 was held to be invalid by the learned Judicial Commissioner Court and at the time when the joint Mamlatdar held that the two portions of the property were not agricultural lands, the matter with regard to the Fifth Amendment to the Agricultural Tenancy Act was pending before the Apex Court. Learned Senior Counsel further pointed out that the Hon'ble Supreme Court has set aside the judgment passed by the learned Judicial Commissioner and, as such, the Fifth Amendment was retained in the Agricultural Tenancy Act, 1964. Learned Senior Counsel further pointed out that considering that the two portions of the lands are cashew groves said portions of the property are agricultural lands within the meaning of Agricultural Tenancy Act in view of the Fifth Amendment to the said Act. Learned Senior Counsel further pointed out that the contention of the learned Counsel appearing for the petitioners to the effect that the principles of constructive res judicata are applicable to the facts of the present case, are duly far fetched and without any basis in law, as it is well settled that such principles of res-judicata are not applicable in cases in which the change of law and the jurisdiction is not vested in the Civil Court. Learned Senior Counsel took me through the impugned order as well as the orders passed in the earlier proceedings and 11 pointed out that there is no case made out for any interference in the impugned judgment. 7. Having heard the learned Counsel and on perusal of the record, it would be appropriate to consider as to whether the Civil Court had jurisdiction to decide the issue of tenancy which has been referred to the learned Mamlatdar. The Apex Court in the judgment reported in 2009 (4) SCC 183 in the case of Madhumati Atchut Parab v. Rajaram V. Parab has held at paras 10 and 14 thus: 10. On a consideration of the objects and reasons of the Goa Tenancy Act and the relevant provisions of the same, we are of the view that although Section 7 of the Goa Tenancy Act provides that where any question arises whether any person is or should be deemed to be a tenant, the Mamlatdar shall, after holding an enquiry, decide such question, even then, the negative declaration, namely, “such a person is/ was not a tenant” should also be dealt with by the Mamlatdar for the reasons stated hereinafter. 14. At the risk of repetition, it is pertinent to mention that the expression “if any question arises” embraces within its sweep both the facets i.e. positive declaration as well as negative declaration, and the conclusion can be reached only at the end of the enquiry. Considering the said judgment of the Apex Court, 12 there can be no dispute that the issue of tenancy cannot be decided by the Civil Court. This Court has also held in the judgment reported in 2011 (1) AIR Bom R 3 in the case of Pilerne Citizens Forum V/s. State of Goa & Ors. at paras 27 and 30 thus: 27. … The jurisdiction of the Civil Court to decide the issue of tenancy was ousted by Section 58(2) of the Tenancy Act. Even the exclusive jurisdiction to grant a negative declaration that a person is not a tenant vests in the Mamlatdar under Section 7 of the Tenancy Act. What has been permitted under the compromise is surrender/relinquishment of tenancy by the said Hadfadkar which in law is completely prohibited by the Tenancy Act. Surrender could have been permitted only by the Mamlatdar in accordance with Section 10 of Tenancy Act and the jurisdiction of the Civil Court was completely ousted. Thus, the so- called compromise recording surrender or relinquishment by Hadfadkar is null and void and whether it is challenged or not, it has no legal effect in the eye of law. The provisions of Tenancy Act which is a part of agrarian reforms cannot be allowed to be circumvented by such methods. 30. … In fact under Section 7-A of the Tenancy Act, the question whether any land is used for agricultural purpose could have been exclusively decided by the Mamlatdar. Therefore, the order of the Deputy Collector is of no legal effect on the claim of tenancy. Considering the said judgment of the Apex Court, the fact as to whether earlier orders passed by the learned Mamlatdar decides 13 the issue of tenancy raised by respondents, are the matters which are to be considered by the learned Mamlatdar and not by the Civil Court. Once the issue of tenancy has been framed by the Civil Court it is not open to the Civil Court to decide the said issue. Such issue has to be referred to the learned Mamlatdar. It is also an admitted fact that the appellants have never sought deletion of the issue. This itself shows that the appellants did not dispute that such issue arises in the suit proceedings. As such, it is not open to the petitioners to contend that such issue does not arise and the same cannot be referred to the competent Authority being Mamlatdar. 8. The Apex Court in another judgment reported in 1996 (10) SCC 401 in the case of Judith Fernandes v. Conceicao Antonio Fernandes has held at paras 4 & 6 thus: 4. As already mentioned above, the suit on behalf of the plaintiffs had been filed on 10-10- 1973 when the Fifth Amendment was not in force and Section 2(7-A) was not in the Act. It can be said that on the date of filing of the suit the expression ‘agriculture’ as defined then did not include the land which was being used primarily for growing coconut trees. The necessary corollary thereof shall be that any suit for eviction filed against a person in possession of such land which was being used primarily for growing coconut trees was not barred by sub- section (2) of Section 58. It cannot be disputed 14 that after the amendment aforesaid and the introduction of Section 2(7-A) which defines ‘garden’ to include land used primarily for growing coconut trees, the provisions of the Act became applicable even in respect of lands growing coconut trees and the bar prescribed in sub-section (2) of Section 58 became applicable. 6. So far the facts of the present case are concerned, the plea of the defendant- respondents was that they were tenants of the land in question having coconut trees, as such the civil court had no jurisdiction to pass the decree for eviction against them, because of sub- section (2) of Section 58 of the Act. From a bare reference to sub-section (2) of Section 58 it is apparent that the bar has been placed on the court from settling, deciding or dealing with any question which is by or under the said Act required to be settled, decided or dealt by the Mamlatdar, Tribunal, Collector or Government. In the present case, no doubt the suit had been filed on 10-10-1973 but the trial court passed the judgment and decree on 27-1-1983, the Fifth Amendment having come into force with effect from 20-4-1976, several years before the passing of the decree. According to us, the bar of sub- section (2) of Section 58 became applicable. In this background, the High Court was justified in setting aside the judgment and decree passed by the trial court which had been affirmed by the court of appeal. We find no ground to take a view contrary to the view taken by the High Court. Accordingly, the appeal fails and it is dismissed. No costs. Considering the above judgment of the Apex Court, the bar of jurisdiction under the provisions of Agricultural Tenancy Act, 1964 as amended are even applicable to the suit pending even 15 before the Fifth Amendment to the Agricultural Tenancy Act, 1964. The Hon'ble Supreme Court has held that such issue has to be decided by the learned Mamlatdar under the provisions of Agricultural Tenancy Act. 9. The contention of the learned Counsel appearing for the petitioners that the findings have become res judicata in view of the earlier orders is not available to the petitioners in the present proceedings. The suit has not yet been disposed of and, as such, the respondents are entitled to challenge the said order passed at the later stage at the time of filing an appeal against the final disposal of the suit under the provisions of Section 105 of Civil Procedure Code. The Hon'ble Apex Court in the judgment reported 2009 (5) SCC 162 in the case of Nawab Shaqafath Ali Khan v. Nawab Imdad Jah Bahadur has considered the aspect in what circumstances principles of res judicata are applicable in such situation. The Hon'ble Apex Court at paras 38 and 39 has held thus: 38. It may be true that in terms of Section 105 of the Code of Civil Procedure when an appeal against the final decree is passed, legality of the said order could be challenged in the appeal. Only because a civil revision application has not 16 been filed, the same, in our opinion, would not attract the principle of res judicata as an appeal from the final decree could still be maintained. 39. In C.V. Rajendran while holding that the principle of res judicata applies in different stages of the same proceedings, it was held: (SCC p. 449, para 6) “6. … Here what is sought to be reagitated is not really the order of remand but the order deciding a germane issue which was allowed to become final at an earlier stage of the same suit. The principle of res judicata applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be reagitated by him at a subsequent stage in the same suit or proceedings. This position is laid down in Hope Plantations Ltd. v. Taluk Land Board to which one of us (Syed Shah Mohammed Quadri, J.) was a party.” However, as noticed hereinbefore, in this case, an appeal from a final decree is maintainable. Considering the said judgment of the Apex Court, in view of the fact that the order passed by the learned Civil Judge Senior Division, Panaji is always open to be challenged by the respondents at the time of filing of an appeal against the final disposal of the suit, I find that the said order by no stretch of imagination can be considered to have finally decided the issue in controversy. So also the contention of the learned Counsel for the petitioners to the effect that the contention are barred by the 17 principles of constructive res judicta are not at all sound. 10. In any event, it is well settled that the findings with regard to the jurisdiction cannot be considered to be res judicata. It is also to be noted that the order passed by the Civil Judge Senior Division, Panjim dated 18/08/1994 to the effect that the orders as to whether remaining portion of the suit property is agricultural land or not cannot be referred to the Mamalatdar is on the assumption of the Fifth Amendment was valid at the time when the learned Mamlatdar passed the earlier order dated 27/10/1986. There is no dispute that when the said order was passed Fifth Amendment to the Agricultural Tenancy Act, 1964 was not in force, as it was held unconstitutional by the learned Judicial Commissioner Court. Admittedly, after the said order came to be passed by the learned Mamlatdar, the Apex Court upheld the validity of the Fifth Amendment to the Agricultural Tenancy Act, 1964. As such, in view of the Fifth Amendment being in force in full effect which was not the position earlier can such judgment of the Mamlatdar be considered to have finally decided the said aspect. The dispute would have to be considered as per the law now in force. In any event it is for the learned Mamlatdar to decide 18 the said dispute in accordance with law. 11. The judgments relied upon by the petitioners are not at all applicable to the facts and circumstances of the case as the issue raised cannot be stated to have already been decided in the present proceedings. As such, I find that there is no jurisdictional error committed by the learned Judge whilst passing the impugned order and, consequently, the petition stands dismissed with no order as to costs. Rule stands discharged. F.M. REIS, J. NH/-