INACIO MARTINS DECEASED THROUGH LRS. versus NARA YAN HARI NAIK AND ORS.

Citation: [1993] 2 S.C.R. 1015 · Decided: 07-04-1993 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

INACIO MARTINS DECEASED THROUGH LRS. 
A 
v. 
NARA YAN HARi NAIK AND ORS. 
APRIL 7, 1993 
(A.M. AHMADI AND S. MOHAN, JJ.) 
B 
Code of Civil Procedure, 1908: 
-
S.11--Res judicata-Subsequent suit raising issue not settled in previous 
suit-Held, not bamd. 
c 
_,,._ 
Or.2 R.2(3}-0mission to sue for one of several reliefs emanating from 
same cause of actiort-Ejfect of-Held, Rule does not preclude a second suit 
based on distinct cause of action. 
S.11 & Or.2 R.2-Distinction betwee,t--Explained. 
D 
nie Goa, Daman and Diu Agricultural Tenancy Ac~ 1964: 
Ss.2,2(7A), 2(78),7,8,9,58-Land comprising coconut grove-Plaintiff 
._ claiming tenancy of-Suit by plaintiff for restoration of possession from 
defendant alleging him as trespasser-Defendant raising a plea of tenon-
E 
cy---During pendency of suit, change in law by Act 17 of 1976 (Fifth Amend-
ment)-Suit propeTty came within expression 'agricultural land'-Held, Civil 
-
Court's jurisdiction on issue of tenancy in respect of agricultural land stood 
excluded-But, Act does not preclude a suit by a tenant for restoration of 
possession from a trespasser. 
F 
~· 
Impact of Fifth Amendment on pending litigatio..-E.xplaine~ 
Guidelines for civil courts laid down. 
The plaintiff, predecessor-in-interest or the appellants, filed a suit 
for a de«larat.ion and an injunction to restrain the defendant-respondents G 
from dispossessing him from a certain property comprising or a coconut 
'I- grove. The trial court dismissed the suit holding that the. plaintiff was no 
more in possession of the suit property, and, therefore, a suit for a mere 
declaration simplicitor could not lie. Consequently, the plaintiff filed 
another suit for restoration of possession. His case was that _he was a 
tenant of the suit property, whereof defendant no. 2 was the owners' and H 
1015 
l 
1016 
SUPREME COURT REPORTS 
[1993) 2 S.C.R . • 
A 
that he was forcibly dispossessed by defendant no. 1, in collusion .with 
derendant no. 2, without his tenancy having been lawl'ully tenninated. It 
was alleged that the derendants were trespassers and liable to be evicted. 
The defendants, besides raising the pleas or res judicata and/or 
B 
conslructive res judicata purported to be based on Order 2 Rule 2(3) or the 
Code or Civil Procedure, contended that derendant no. 1 was in lawl'ul 
possession or the suit property as the same was let out to him by deren-
dant no. 2 arter the lease in favour or the plaintiff stood tenninated by 
effiux or time, and the suit, as such, was not maintainable. 
-
c 
The trial court decreed the suit holding that the suit property was 
demised to the plain!ilT as be was the lawCul tenant thereor, and derendant 
no. 1 in collusion with deCendant no. 2 wrongfully dispossessed him. 
~ 
The appeal filed by the defendants was dismissed by the first appel-
late court. 
D 
The second appeals tiled by the defendants were allowed by the High 
Court holding that the suit was barred by res judicata as well as Order 2 
Rule 2(3) C.P.C. The High Court also held that during the pendency or the 
suit as a result or the amendment of the Goa, Daman and Diu Agricultural 
Tenancy Act, 1964 by Act 17 of 1976, known as the Fifth Amendment, the 
~ 
E 
definition of 'agriculture' was changed and the suit property came to be 
covered within the expression 'agricultural land' which rendered the civil 
court without jurisdiction and the decree passed by it unsustainable. 
Aggrieved, the heirs and legal representatives or the plaintiff, filed the 
appeal by special leave. 
F 
Allowing the appeal, this Court, 
~ 
HELD: 1.1 A subsequent suit would be barred by res judicata only 
when the subject matter or the suit was directly and substantially in issue 
in the previous suit. [p. 1022-C] 
G 
1.2. The first suit was dismissed on.a technical ground that the suit for 
a mere declaration without seeking consequential relief or possession could 
~. 
not lie. In that suit the issue regarding the status or the plaintiff as a lessee 
was not settled once for all and hence that issue could not be stated to be 
barred by res judicata in the subsequent suit brought by the lessee for 
H possession orthe demised property. The High Court was not right in holding 
'(~ 
• 
I. MARTINS v. N.H. NAIK 
1017 
that the second suit was barred by res judicata. [0.1022 F-H) 
A 
2.1. Order 2 Rule 2 CPC is based on .the salutory principle that a 
defendant or defendants should not be twice vexed for the same cause by 
"(_ 
splitting the cla
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