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

Citation: [1989] SUPP. 2 S.C.R. 1 · Decided: 12-09-1989 · Supreme Court of India · Bench: M.N. VENKATACHALIAH · Disposal: Dismissed

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Judgment (excerpt)

PANDURANG RAMCHANDRA MANDLIK (SINCE DEAD) 
BY HIS LRS. AND ANR. 
v. 
SMT. SHANTABAI RAMCHANDRA GHATGE AND ORS. 
SEPTEMBER 12, 1989 
[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' 
A 
B 
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. 
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 
D 
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 
A 
2 
SUPREME COURT REPORTS 
[ 1989] Supp. 2 S.C.R. 
to be determined by the competent authority under the Act and on 
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 
F 
(See G.S. Shinde v. R.B. Joshi, [1979] 2 SCC 495;) 
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 adjudicat

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