JUDGMENT
1. This second appeal arises out of O. S. No. 131/63 filed by the appellants in the Court of the Additional Munsiff, Gokak. The suit is for a declaration that the decree passed in O. S. 111/51 in favour of respondents 4 to 7 on 23-9-1955 is not binding on them, that the same is null and void and for a perpetual injunction restraining respondents 1 to 3 from interfering with the possession of the plaintiffs in respect of the suit lands. Both the lower Courts dismissed the suit.
2. According to the case of the plaintiffs, the first plaintiff is the protected tenant of survey No. 17 and the second plaintiff is the protected tenant of survey No. 68 both situated within the limits of Gokak and they are in possession cultivating the lands as tenants since 30 to 40
years. Defendants-respondents 4 to 7 had filed a suit for partition. Regular Original Suit No. 111/51 against the other co-sharers, defendants-respondents 8 to 14. The deceased husband of the first plaintiff as well as the second plaintiff were added as parties to the said suit as defendants 8 and 9 respectively. The present plaintiffs believed that they would not be evicted from the suit lands, but the plaintiffs in that suit practised fraud on the Court and obtained a preliminary decree for actual possession of their 1/3 share. In execution of that decree the Tahsildar, Gokak, is purported to have handed over possession of ‘half the suit survey numbers on 29-10-1963 to defendants 1 and 2 jointly since defendants 1 and 2 claimed to be the assignees of the decree. Defendants 2. 3 and 5 filed a written statement admitting that the husband of the first plaintiff and the second plaintiff are parties to O. S. 111/51 and contended that since there was a final adjudication regarding their possession in respect of the suit lands by a competent Court the suit is barred by res judicata. The plaintiffs are parties even in the execution proceedings and the defendants have been awarded actual possession of the suit lands on 29-10-1963, that the suit lands have been given Survev No. 68, measuring 4 acres 39 guntas, and Survey No. 17, measuring 1 acre 30 guntas and mutation entries have been made in respect of these lands in their names.
They also denied that the plaintiffs were the tenants of the suit lands- Even if they had got false entries made in the revenue records, the same would not be binding on the defendants. They also pleaded that defendants 1, 7 and 14 and deceased Dadibi had not leased their 2/3 share to the plaintiffs. They also denied that any assurance had been given to the plaintiffs that they will not be evicted from the suit lands in O. S. 111/51. Defendants 1. 3, 6 and 14 adopted the written statement ot defendants 2, 4 and 5. The seventh defendant supported the plaintiffs’ case. She was one of the five plaintiffs in O. S. 111/51. All the five plaintiffs together were awarded 1/3 share in that suit. Defendant 8 also supported the plaintiffs’ case. Defendants 9, 12 and 13 adopted the written statement of defendant 8. Defendants 10 and 11 remained ex parte. Defendants 1 to 3 are respectively husbands of defendants 4 to 6 who are the daughters of deceased Dadibi.
3. The contention of the plaintiffs is that on the date of the suit O. S. 111/51 the Bombay Tenancy and Agricultural Lands Act was in force and the Civil Court had no jurisdiction to pass the decree and that an order of eviction has to be made only under Section 29 (2) of the B. T. & A. L. Act by the prescribed authority under that Act. It is therefore null and void and without jurisdiction, and that any proceedings in furtherance of that decree are also null and void. Defendants 1 to 4 pleaded in answer to this contention that the plaintiffs and their predecessors-in-title did not contend in O. S. 111/51 that they had any tenancy rights in respect of the suit lands under the B. T. & A. L. Act. 1948. No issues regarding their tenancy were sought by the plaintiffs in that suit, no decision was given in their favour and the decree and judgment in O. S. 111/51 is binding on the plaintiffs.
4. The trial Court held that the decree in R. O. S. 111/51 is binding on the plaintiffs, that they were not in lawful possession of the suit properties on the date of suit and accordingly dismissed the suit. It held that the plaintiffs were barred by res iudicata from questioning the validity of the decree in O. S. 111/51. The lower appellate Court also held that the suit is barred by res iudicata. It further held that the decree Passed in, O. S. 111/51 is not without jurisdiction and therefore is not null and void.
5. Exhibit P-6 is the copy of the preliminary decree dated 23-9-1955 passed in O. S. 111/51. That suit was filed by Dadibi, the deceased mother of defendants 4 and 5, and by defendants 4 to 7 against the present defendants 8 to 14 claiming a half share in the properties in that suit. Dadibi died on 23-8-1962. Defendants 1, 2 and 3 claimed to be the assignees of the decree. The present suit is filed on 27-11-1963. Ext. P-6 has set out the contents of the plaint. There was no allegation in the plaint in O. S. 111/51 that the defendants 8 and 9 in that suit were tenants. The plaint, judgment and the written statement of the present plaintiffs in O. S. 111/51 have not been produced. It is not the case of the plaintiffs that defendants 8 and 9 in O. S. 111/51 pleaded their tenancy rights though it is contended that they did engage a counsel to appear for them and had filed their written statement in that suit The plaintiffs relied on Ext. P-8 which is a certified copy of the evidence of Dadibi in O. S. 111/51. Dadibi stated in her evidence in that suit that the husband of first plaintiff and the second plaintiff had been inducted as tenants on the suit lands. Exhibits- P-6 and P-8 are the only documents relating to O. S. 111/51 which have been produced in the present case.
6. In 1966 (1) Mys LJ 738. (Bandu Tukaram v. Vijayasingrao), in the earlier suit for redemption of a mortgage and possession, the defendants pleaded that they are protected tenants under the Bombay Tenancy and Agricultural Lands Act.
The Civil Court granted a decree for possession subject to the tenancy rights of the defendants, if any. Thereafter, the plaintiffs filed an application before the Mamlatdar for a declaration that the defendants were not tenants. That declaration was granted and was upheld on appeal. Thereafter, the suit which save rise to the second appeal was filed for declaration that the decree in the mortgage suit was not binding on the plaintiff. Following the decision of the Supreme Court in Bhimaji Shankar v. Dundappa Vithappa, it was held that since the question arose in the earlier suit as to whether a party was or was not a tenant, the Civil Court should have directed the parties to obtain a decision from the Mamlatdar on that question before passing a decree for possession and that the proper course for the Civil Judge would have been to stoo the proceedings before him when the question of tenancy was raised, to direct the party who raised the plea of tenancy to obtain a decision from the Mamlatdar and thereafter to decide whether to direct delivery of possession or not. But since the plaintiff did not file any appeal against the decision in the mortgage suit, it wag held that the decree became final and binding as between the parties since it operated as res judicata between the parties to the suit. It was held that it was not a case of initial lack of jurisdiction of the Civil Court.
In 1969 (1) Mys LJ 121. (L. V. Kul-karni v. Siddappa Basappa) the writ petitioners filed a suit against the respondents for possession and obtained a decree for possession and in execution recovered possession. Thereafter, respondents filed a petition under Section 29 of the B. T. & A. L. Act for possession claiming to be tenants. It was held that after the decree for possession and petitioners obtaining possession, respondents’ application under Section 29 was not sus-tainable. In the original suit, the respondent contended that he was a tenant but that contention was negatived by the Civil Court. It was urged that the Civil Court hail no jurisdiction to decide the question of tenancy by virtue of the Bom-bav Tenancy and Agricultural Lands Act. The fact that such a contention was raised before Civil Court was disputed. It was held by a Division Bench of this Court that the Civil Court had jurisdiction to decide the suit and the fact that the Civil Court had no jurisdiction to decide one of the issues arising in that suit did not divest the Civil Court of its jurisdiction to make a decree in that suit. Following the decision in 1966 (1) Mys LJ 738, (Bandu Tukaram v. Vijavasingrao).
7. The learned counsel appearing for the appellants contended that the above decisions of this Court must be
deemed to be no longer good law in view of the decision in (Mathura Prasad v. Dossibai) wherein the law relating to the res judicata has been stated as follows :–
“It is true that in determining the application of the rule of res .iudicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be re-opened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i- e. the interpretation of a statute, it will be res iudicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in Section 11. Code of Civil Procedure, means the right litigated between the parties, i. e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one Purely of law and it relates to the jurisdiction of the Court sanctioning something which is illegal, by resort to the rule of res iudicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.”
But the question whether defendants 8 and 9 were tenants of the suit lands is not a pure question of law, but is a mixed question of fact and law. Hence, it cannot be said that the decisions of this Court referred to above are no longer good law. In (Kani Ram v. Kazani) it was held that the decision given in the first execution proceeding on a mixed question of law and fact, and not one of law only, would operate as res judicata in a subsequent execution proceeding between the same parties. In the earlier execution proceeding, the Court came to the conclusion that the learned Judge who passed the decree for eviction under Section 13 of the Delhi Rent Control Act. was satisfied that one or more of the grounds mentioned in that section had been made out before passing the order and therefore held that the decree for eviction was valid. It was therefore held to be a decision on a mixed question of law and fact and operated as res judicata.
8. In it was held that a Civil Court has no jurisdiction to try a suit for recovery of possession of
agricultural lands from a trespasser or from a mortgagee on redemption of a
mortgage, but that if the defendant to the suit pleads that he is a tenant or a pro-tected tenant or a permanent tenant, and an issue arises whether he is such a tenant, the Court must refer the issue to the Mamlatdar for determination and must stay the suit pending such determination and dispose of the suit after the Mamlatdar decides the issue in the light of the decision of the Mamlatdar. After considering the combined effect of Sections 29, 70, 85 and 85-A of the B. T. & A. L. Act, it was held that independently of Section 85-A and under the law as it stood before Section85-A came into force, the Civil Courts were bound to refer to the Mamlatdar the decision of the issue whether the defendant is a tenant under such circumstances.
8-A. The contention of the plaintiffs in the present case is that the Court in O. S. 111/51 should have raised an issue as to the tenancy rights of the present plaintiffs, who were defendants 8 and 9 in that suit and referred the same to the Mamlatdar for his decision and thereafter decided the suit in the light of the said decision of the Mamlatdar. The Court had no jurisdiction to pass a preliminary decree for delivery of possession of the suit properties without following the said procedure and that therefore, the preliminary decree is null and void. It is not pleaded in the present suit by the plaintiffs that they had raised the plea as to their tenancy rights in O. S. 111/51. Ext. P-6 shows that there was no reference to the tenancy rights of the pre-sent plaintiffs in the plaint in O. S. 111/51 Ext. P-8 shows that Dadibi had stated during the course of her evidence that the husband of the present plaintiff and plaintiff 2 had been inducted on to the suit lands. But this evidence of Dadibi does not amount to a statement that defendants 8 and 9 in that suit were tenants of the suit land on the date of suit and that they continued to be so on the date of the preliminary decree. Moreover. Dadibi was only one of the plaintiffs in that suit. It cannot therefore be said that all the parties to the suit admitted that defendants 8 and 9 were tenants. Hence, merely on the basis of Ext. P-8, it cannot be said that the Court was bound to raise en issue as to the tenancy of defendants 8 and 9 in that suit. In fact, there was no occasion for the Court to raise such an issue in the absence of any controversy between the parties to that suit in that regard. In (1966) 7 Law Rep 151 (Mys) (Mallapa Rangappa Chikkannavar v. Parappa Bandeppa Yamni), in a suit for recovery of possession filed by the respondent, the appellant pleaded that he was a tenant of the suit land the question of tenancy
was made the subiect of an issue by the Civil Judge and was referred to the Tah-sildar under Section 85-A of the B. T. and A. L. Act. The Tahsildar held that the appellant was not a tenant. On receipt of that finding the trial Court decreed the suit for possession but made it conditional, the condition being that if the Assistant Commissioner or any other higher appellate Court holds in the appeal that the defendant is a tenant in respect of the suit lands, the decree would be inoperative. The appellant took the Tahsildar’s order in appeal to the Assistant Commissioner who confirmed the order of the Tahsildar. Thereafter, the respondent took out execution of the decree. During the pendency of the execution proceeding the appellant approached the Revenue Appellate Tribunal in revision against the Assistant Commissioner’s order. The Revenue Appellate Tribunal following the Full Bench decision of this Court, held that neither the Tahsildar nor the Assistant Commissioner had jurisdiction to decide the issue as to the tenancy of the suit land and set aside the orders of both those authorities. It was contended before this Court that the delivery of possession effected under the decree was illegal and inoperative. It was contended that the Civil Court had no jurisdiction to pass the decree. Rejecting that contention it was observed as follows while referring to the matters dealt with under Section 85-A of the Bombay Tenancy and Agricultural Lands Act:–
“…..The primary jurisdiction to
deal with the suit rests with the Civil Court and is never taken away from it. Only one of the issues concerned in the suit, namely, the issue as to the status of tine defendant or plaintiff, as the case may be as a tenant under the Act, is removed from the decision of the Civil Court and placed within the competence of Special Revenue Courts under that Act. The exercise of the primary jurisdiction by the Civil Court in respect of the suit cannot therefore be said to depend to any extent upon a finding given by the Revenue Courts in the same way as a final decree may be said to flow directly from a preliminary decree passed by a Civil Court. The substance of the matter is that the jurisdiction of the Civil Court rests with it and only so much of it as is expressly removed from its ambit and placed within the competence of Special Courts must be taken to have been taken away from it. The Civil Court docs not depend upon the Revenue Court for the jurisdiction which it has for disposing of suits. I do not accept therefore the argument that although the decision or final conclusion of the Civil Court must be, according to the statute, in accordance with law on the finding returned by the tenancy Tahsildar the jurisdiction in ex
ercise of which the Court passed a decree is the original jurisdiction which it possessed by virtue of Section 9 of the Code of Civil Procedure. A similar situation is that under the present Code of Criminal Procedure in which a Criminal Court, functioning under Section 145, is required in certain circumstances to refer an issue as to possession to a Civil Court and then proceed to dispose of the matter on its file in accordance with the rinding of the Civil Court. For that reason it does not mean that the jurisdiction of the Magistrate is derived not from the Criminal Procedure Code but from the Civil Court functioning under the Civil P. C. The jurisdictions are distinct and clearly relatable to two different statutes under which the two courts function.”
In ILR (1969) Guj 291, (Ahmedabad Municipal Corporation v. Joitaram Ganesh) the question was whether a consent decree passed by the court in a previous suit was a nullity. The respondents in the previous suit contended that she Bombay Tenancy and Agricultural Lands Act 1948 applied to the suit lands and their tenancy and claimed an injunction in that suit against the Municipal Corporation of Ahmedabad. The Corporation contended that the lands were exempted from the provisions of that Act. The suit was ultimately compromised and a consent decree was passed. It was held that it is only an objection as to the powers of the court over the subject-matter to try the suit or over the parties which cannot be waived and which would therefore render a decree a nullity in the true sense and such an objection alone can be raised before the executing court or even in collateral proceedings, and that the other objections as to the defect of jurisdiction were those which would be capable of waiver. Following the decision in , (Hiralal Patni’s case), it was held that the court never lacked in competence over the subject-matter of the compromise and it had jurisdiction to pass the consent decree and that such a decree could not be attacked on the ground that it is a nullity.
In AIR 1958 Andh Pra 1, (Venkateshayya v. Virayya) certain service inam lands were sold in execution of a mortgage decree. The question of inalienability of service inam lands was not raised in the suit or in execution. Section 5 of the Madras Hereditary Village Offices Act (3 of 1895) prohibited the sale of service inam lands. It was held that it was not open to the Inamdar to treat the Court sale as null and void and recover possession of the lands from the purchaser at a Court sale or resist the claim of the purchaser to be put in possession of the lands, and it was observed as follows:–
“There is no conflict between the principle of res judicata and that of prohibited alienation of particular properties on the ground of public policy. An alienation of properties prohibited by public policy or statute may be void. But the said prohibi
tion cannot have the effect of depriving the jurisdiction of Courts to decide in a particular suit whether the alienation is void or not.
Nor can it override the principles of res judicata. The former belongs to the domain of substantive law and the latter to the rule giving finality to decrees of competent Courts. The sanctity of final judgments is as much based on public policy as prohibition against the alienation of properties annexed to certain public offices. The fundamental question in each case, therefore, is whether the Court has inherent jurisdiction to entertain a particular suit.
A duty is cast upon a Court to raise relevant issues arising on the pleadings and give definite finding on each of the issues. The question whether a carpenter service inam is alienable raises a mixed question of fact and law which is certainly within the jurisdiction of the Court to decide. When it decides the question one way, the finding will be res judicata in another suit.”
It was held that since the validity of the mortgage on the ground of public policy was not raised in the earlier suit or in the execution proceedings, the decree and the order confirming the sale would operate as res judicata in the subsequent suit.
9. In the present case also, defendants 8 and 9 in O. S. 111/51 failed to raise the necessary issue as to their tenancy. Hence, it is not open to them to contend that the decree passed in that suit is a nullity. Both the lower courts were therefore justified in coming to the conclusion that the claim of the present plaintiffs is barred by res judicata.
10. Mr. Bhatta, appearing for the appellants, relied on several decisions in support of his contention that the record in the earlier suit can be looked into for the purpose of determining the question whether the court had jurisdiction to pass the decree. But it is not necessary to consider them since the appellants have to fail even if the contents of Exts. P-6 and P-8, the only material produced in that regard, are taken into consideration, as stated already.
11. The trial court held that the plaintiffs were not in possession of the suit properties on the date of suit. But the lower appellate court has not given any finding in[ that regard. Since the decree passed in O. S.| 111/51 is binding on the plaintiffs, no injunction could be granted in their favour even if it is to be found that they were in possession of the suit properties on the date of suit since such an injunction would defeat the rights of the decree-holders who are entitled to obtain possession.
12. I. A. IV is an application under Order 22, Rule 10, Civil P. C. praying that the Deputy Commissioner, Belgaum District, may be impleaded as supplemental respondent No. 19. This application is opposed by the respondents. According to the contention of the appellants, they continue to be tenants and the suit lands have vested in the State Gov
erment but according to the respondents the State has become the owner of the suit lands and the appellants have no locus standi to file the application. Since it has already been held that it is not open to the plaintiffs to urge that they were tenants of the suit lands the application is dismissed.
13. This appeal fails and is dismissed with costs.
14. Appeal dismissed.
