N.K. Vakil, J.
1. The petitioners claim to be the tenants of land bearing S. Nos. 141 and 142 situated in village Vasna. The said land was acquired for the purposes of a Co-operative Housing Society under notification under Section 4 of the Land Acquisition Act, 1894 dated the 10th December 19S2. Thereafter by a notification under Section 17(1) of the Land Acquisition Act dated the 25th of May 1953, applying emergency clause, the possession of the said land was taken over from the petitioners. Proceedings under the Land Acquisition Act, 1894 were then taken before the Additional Special Land Acquisition Officer, Ahmedabad who fixed Rs. 65826.12 P. as compensation of the land acquired. As there were disputes regarding the apportionment of the compensation amongst the claimants, the amount was forwarded to the Court, now the City Civil Court for apportionment between the parties under Sections 30 and 31 of the Land Acquisition Act. The opponents Nos. 1 to 7 and 10 to 13 claim as Inamdars of the property. Opponents Nos. 8 and 9 claim to have a share in the amount of compensation as tenants of the land and as stated above, petitioners claim their share as permanent tenants. In the proceedings before the Civil Court, the parties filed their respective claims. On the 13th of April 1960, all the parties put in a Purshis before the Civil Court stating that the status of the parties as regards they being tenants is a issue which should be decided by the proper authority under the Bombay Tenancy and Agricultural Lands Act (hereafter referred to as 'the Tenancy Act'), 1948 and therefore proper issue should be raised and be referred to the competent authority for its decision. On the same day, the learned Joint Judge then in charge of the proceeding after taking into consideration the joint statement put in by the parties and after examining the position of law and the facts concerned, decided to refer to the Mamlatdar the following point for his decision: 'Whether claimants Nos. 8, 9, 11 to 12 and the heirs of claimant No. 10 were the permanent tenants of Section No. 141 and 142 at the date of their acquisition?' and the matter was adjourned for the return of the decision of the Mamlatdar on the point. Now it appears that on the 4th of April 1960, village Vasna was included within the limits of the Ahmedabad Municipal Corporation by a notification. On the 17th of August, 1961 the Mamlatdar returned the papers stating that during the pendency of the inquiry as regards the issue referred to him, he has been informed that the land in question and other lands of village Vasna by a notification dated 4th April 1960 has been included within me limits of the Ahmedabad Municipal Corporation and therefore he had no jurisdiction to decide the issue referred to him by the Civil Court and that the matter was beyond his jurisdiction and he believed that as a Mamlatdar, he could not give any decision on the issue and consequently the Civil Court and the parties be informed accordingly. After passing this order, he returned the papers with an accompanying letter to the Civil Court. On the 25th of March 1963, the present petitioners gave an application (Ex. 83) to the Civil Court stating that on the Purshis Ex. 68 having been given, under Section 85A of the Tenancy Act, the Civil Court had referred the issue as regards the status of permanent tenants, to the Mamlatdar for his decision under the Tenancy Act but the Mamlatdar without deciding the issue has returned the papers on the ground that he has no jurisdiction to decide the issue as on the 4th of April 1960, the lands concerned have been included within the limits of the Municipal Corporation of Ahmedabad and after giving some reasons to show that the decision of the Mamlatdar was not correct and that the issue was still within the jurisdiction of the Mamlatdar to be decided according to the provisions of the Tenancy Act, they prayed that the issue which was raised under Ex. 68, should be sent back to the Mamlatdar for his decision. The matter was then being bandied by the City Civil Court on coming into existence on the 1st of September 1960 and the learned Judge of the City Civil Court after hearing the parties, decided that Ex. 83 cannot be sustained and must fail on the sole ground that the decision of the Mamlatdar that he has no jurisdiction to determine the status of the claimants in view of the fact that the land in question was taken within the limits of the Ahmedabad Municipal Corporation, is res judicata and binding on the parties to litigation. He has further observed that it is on the aforesaid ground that he was rejecting the application because the Civil Court could not sit in appeal or revision over the decision of the Mamlatdar as embodied in Ex. 69 of the Tenancy Act, even though that decision is based upon an erroneous view of law. Then the learned Judge has made observations to show how the Mamlatdar's view that he has no jurisdiction, was wrong. It is not necessary to mention the reasons given by the learned Judge. However, on the ground that the decision of the Mamlatdar even though wrong was binding on the parties until it was set aside by any process known to law, he held that the application could not be sustained and dismissed the application. Being aggrieved by this order, petitioners have come to this Court by way of this Civil Revision Application.
2. Mr. M.C. Shah, the learned Advocate for the petitioners made the following broad submissions in support of the application: The conclusion of the Civil Court that the decision of the Mamlatdar that he had no jurisdiction to determine the status of the claimants in view of the fact that the land in question was taken within the limits of the Ahmedabad Municipal Corporation, is res judicata and binding on the parties to the litigation, is erroneous. This decision of the Civil Court creates an anomaly as the learned Judge of the City Civil Court has observed that in his judgment, the decision of the Mamlatdar was wrong and the Mamlatdar had jurisdiction to try the issue referred to him and that the Civil Court had no jurisdiction. Therefore, the situation is that the Mamlatdar has refused to decide the issue on the ground that he has no jurisdiction, and the learned Judge of the City Civil Court has held that the Civil Court had no jurisdiction, on the proper construction of the provisions of the Tenancy Act, therefore who would decide that issue? The learned Judge, had, on his own observations, no jurisdiction to proceed with the matter without making a fresh reference and without complying with the requirements of Section 85A. It was further urged that the decision of the Mamlatdar that he had no jurisdiction to decide the issue referred to him is itself without jurisdiction. The jurisdiction of the Mamlatdar to decide the issue referred to him did not depend upon any provisions of the Tenancy Act but depends entirely on the reference made by the Civil Court under Section 85A of the Tenancy Act. The Mamlatdar had no authority to return the reference without deciding the question referred to him on merits. Once the reference is made, the only function of the Mamlatdar is as prescribed under Sub-section (2) of Section 85A. He cannot go behind the reference and decide that he has no jurisdiction, thus sitting in judgment over the decision of the Civil Court that the issue requires to be decided by the Mamlatdar as it lies within his jurisdiction to decide. It is for the Civil Court to decide whether the Tenancy Act applies or not and whether the issue is within the jurisdiction of the Civil Court or is within the jurisdiction of the competent authority under the Tenancy Act. It was further submitted that as the decision of the Mamlatdar was without jurisdiction, it was a nullity and it cannot operate as res judicata. Under the circumstances, the Court should have sent back the issue for the decision of the Mamlatdar.
3. As against that, Mr. S.B. Vakil, the learned Advocate appearing for opponent No. 1 submitted that the decision of the City Civil Court that the matter was res judicata is correct. The matter was sent to the Mamlatdar for his decision and when he rightly or wrongly decided that he had no jurisdiction to decide the issue, the parties were bound by that decision as the latter had the jurisdiction to decide that question also. If any of the parties were dissatisfied by that decision, he ought to have challenged that decision before the higher authority under the Tenancy Act by way of appeal or revision as the case may be and not having done so, they were bound by that decision on general principle of res judicata; and that Section 11 of the Civil Procedure Code may not directly apply. It was further contended by him that in any case when this Court is trying to determine the question as to whether the decision of the City Civil Court is right or not and when the applicants have attacked that decision on the ground that the City Civil Court should have held that under Section 85A when a matter is referred to the Mamlatdar, the Mamlatdar has no jurisdiction at all to go behind the reference and held that he has no jurisdiction to decide the issue referred to him and that the decision made by the Civil Court to refer the matter to it is binding on it, it is open to the opponents to urge that this argument is not open to the petitioners as they are estopped from doing so on the principle of constructive res judicata. The present petitioner should have urged alt those grounds before the Mamlatdar himself to show that he has no jurisdiction to decide the question that he was authorised or had no jurisdiction to decide the issue referred to him. But if they have not so done, they must on the principle of constructive res judicata be taken to have urged and the Court having decided them against the appellants. All these grounds which were tried to be urged before this Court on behalf of the petitioners should have been taken before the Mamlatdar and if they have not done so, they cannot be allowed to raise them now before this Court or could not have been allowed to raise before the City Civil Court, and therefore the Court below was right in holding that the application Ex. 83 was barred on the principle of res judicata. For the latter argument on the principle of constructive res judicata applying to the present case, Mr. Vakil heavily relied upon the decision of Ushadevi Balvant v. Devidas Shridhar LVII Bom. L.R. 275 wherein it was held that the plea of want of jurisdiction of the Court passing the decree cannot be entertained at a later stage of execution proceedings if it was not raised in the earlier stage when an altogether different point was taken and decided.
4. These are the rival contentions of the parties and it is no doubt true that the only question before me is whether the decision reached by the City Civil Court that the order of the Mamlatdar is res judicata, is correct or not. Now it is an undisputed fact that at the initial stage in the matter before the Civil Court, the issue did arise as to whether the applicant-petitioners were permanent tenants or not and the Civil Court then on a joint Purshis Ex. 68 given by all the parties requested the Court to refer that issue to the Mamlatdar as it was an issue to be decided by the Mamlatdar and thereupon as hereinbefore stated, the learned Civil Judge after taking into consideration the facts of the case and the provisions of law, decided to refer the issue referred to herein above to the Mamlatdar and stayed the suit. It would be convenient at this stage to see the provisions of Section 85A of the Tenancy Act which reads as follows:
85A (1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination.
(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.
Explanation. For the purpose of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Courts Act, 1906.
Sub-section (1) casts an obligation on the Civil Court that if any suit before it involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issue under the Tenancy Act, then they shall be referred to such competent authority for determination. This decision as to whether the issues are beyond the jurisdiction of the Civil Court to be tried or whether they are within the jurisdiction of any of the tenancy authorities under the Act is to be taken by the Civil Court. There can indeed be no doubt that the Civil Court has the jurisdiction to decide whether the Tenancy Act applies to the issues raised and should be referred to the Mamlatdar or not. The Full Bench decision of this Court in Gordhanbhai v. Ranchhodbhai VII G.L.R. 311 equivalent to I.L.R. 1966 Gujarat, 457 after examining a number of authorities, some of them conflicting and irreconcilable, held that the Civil Court has inherent power to decide the question of its jurisdiction although as a result of its inquiry, it might turn out that it had no jurisdiction over the suit. It was further held that the question as to the applicability of the Act is neither co-related to nor is it incidental to the question whether a party to a suit is a tenant or not. The first question relates to the jurisdiction of the Court and it is only when that question is first determined and the Act is held to be applicable to the class of land in question that the question of referring to the Mamlatdar the issue whether the person concerned is a tenant or not can arise. If the Act does not apply to the subject matter of the suit, no question of the person being a tenant or not can possibly arise and there would be no question referable to the Mamlatdar. These observations are helpful to us in deciding almost all the contentions raised on behalf of the opponents. I shall point out in due course how it is so. Then Sub-section (2) of Section 85A of the Tenancy Act casts an obligation on the competent authority, in the present case the Mamlatdar to deal with and decide the issue referred to him according to the provisions of the Tenancy Act and then communicate its decision to the Civil Court. The Civil Court is then bound to dispose of the suit in accordance with the procedure applicable thereto. Now as I read Sub-section (2), no discretion is left to the competent authority to decide or not to decide issues referred to it. There is nothing in the said provision to entitle it to go behind the decision already reached by the Civil Court that the issues are to be dealt with and are within the jurisdiction of the competent authority to decide. The language of Sub-section (2) clearly indicates that the Legislature by enacting this provision intended to give to this inferior tribunal or Court a limited power to decide certain facts only on the existence of certain preliminary facts. The tribunal or inferior Court has to accept the existence of those certain preliminary facts and on the basis thereof has to proceed to decide the matter referred to it. It is an accepted principle of law that the Legislature when it creates inferior tribunals or Courts, it has also to decide what jurisdiction it shall vest in that tribunal or Court and it may either vest the powers to the limit as referred to above or vest the powers even to decide whether the preliminary facts presented to it exist or not and on the decision thereof to proceed to decide or not to decide the other questions placed before it for decision. In the first category of tribunals, no jurisdiction is vested to inquire as regards the existence of the preliminary facts, namely no jurisdiction is vested in the tribunal or Court to decide whether it has jurisdiction to decide the facts referred. But in the latter class of cases the tribunal or Court is also vested with the jurisdiction to decide whether it has jurisdiction to entertain the matter and determine the other questions that arise for decision. I am supported in this view of mine by the decision of the Supreme Court in Chaube Jagdish Prasad v. Ganga Prasad : AIR1959SC492 wherein it was held that there are two classes of cases dealing with the power of a tribunal: (1) where the Legislature entrusts a tribunal with the jurisdiction including the jurisdiction to determine whether the preliminary state of facts on which the existence of its jurisdiction depends exists and (2) when the Legislature confers jurisdiction on such tribunals to proceed in a case where a certain state of facts exists or is shown to exist. The difference is that in the former case the tribunal has power to determine the facts giving it jurisdiction and in the latter case it has only to see that a certain state of facts exists. In his Judgment, the learned Judge of the City Civil Court has observed:
Now it is well settled that a tribunal which is seized of a matter has the right to decide whether it has jurisdiction to proceed in the matter or not and the decision given by it will be binding between the same parties even if that decision is erroneous, provided there is no inherent lack of jurisdiction.
Then again he has observed:
It is obvious in the present case that when the matter was referred to the Mamlatdar he was seized of this matter and be bad inherent jurisdiction to decide whether the matter fell within his jurisdiction or outside it. This is not a case of utter lack of jurisdiction whatsoever and the Mamlatdar having decided that he had no jurisdiction that decision unless it is set aside by a competent authority by way of appeal, revision or review is binding between the same parties. This is on the principles of res judicata zthough not strictly falling within the terms of Section 11 of the Civil Procedure Code. It is settled that Section 11 is not exhaustive of this principle of res judicata which exists independently of if.
I shall deal with the aspect of res judicata a little later but it is obvious that the learned Judge was not right in assuming that a tribunal when seized of a matter had always the right to decide whether it has jurisdiction to proceed with the matter or not. The present case falls in the first category of tribunals as pointed out herein above and therefore it had no jurisdiction to enter into the question as to the preliminary facts namely the finding of the Civil Court that the matter lies within the jurisdiction of the Mamlatdar and the fact of reference to him, are rightly decided or not and whether he really had the jurisdiction to decide the question referred to him. The only jurisdiction vested in the Mamlatdar is in respect of the issue referred, namely whether the applicants are permanent tenants or not. It is true that if the inferior tribunal or Court is vested with the wider jurisdiction to inquire into the question as to whether it has jurisdiction to proceed with the matter or not, implicit in that jurisdiction would lie the authority to decide it as it thinks proper and whether the matter is decided rightly or wrongly, as it has the authority to decide the question, the decision would be binding on the parties. But such is not the case in the present matter before us.
5. In order to emphasize this point of view that under Sub-section (2) of Section 85A, the jurisdiction that vests in the Mamlatdar is a limited and peculiar jurisdiction and has no jurisdiction to decide the question whether it has jurisdiction to proceed with the matter, it will be useful to see some other provisions of the Tenancy Act. Section 71 lays down how proceedings shall be commenced before the Mamlatdar or the tribunal and it is provided that save as expressly provided by or under this Act, all inquiries and other proceedings before the Mamlatdar or tribunal shall be commenced by an application which shall contain the prescribed particulars. We need not enter into the details of those particulars to be given. The next Section 72 lays down the procedure to be followed in the inquiries. It provides that in all inquiries and proceedings commenced on the presentation of applications under Section 71 the Mamlatdar or the tribunal shall exercise the same powers as the Mamlatdar's Court under the Mamlatdars' Courts Act, 1906 and shall as provided in Section 29 follow the provisions of the said Act as if the Mamlatdar or the tribunal were a Mamlatdar's Court under the said Act and the application presented was a plaint presented under Section 7 of the said Act. It further lays down that With regard to the matters which are not provided for in the said Act, the Mamlatdar or the tribunal shall follow the procedure as may be prescribed by the State Government. Every decision of the Mamlatdar or the tribunal shall be recorded in the form of an order which shall state reasons for such decision. Therefore it is clear that the Legislature has been careful enough to provide an elaborate procedure and has also provided as to bow the proceedings shall commence before the Mamlatdar or the tribunal. In such cases the proceedings are initiated directly by the parties in their own right and a complete code and procedure is provided for the decision thereof. In such cases it is possible to say though I should not be taken to have decided this point that the Legislature has intended to vest the tribunal or Court with a wider jurisdiction including the authority to deride whether it has jurisdiction to decide the matter that the parties have initiated. In these eases there are no preliminary facts presented to the tribunal or Court on the basis whereof certain other facts are required to be decided. In my judgment, however, on a reference made under Section 85A of the Tenancy Act by the Civil Court, the competent authority under the Act has no jurisdiction at all to decide as to whether it has jurisdiction or not to proceed with the matter referred to it for decision.
6. That brings me directly to the consideration of the question of res judicata and constructive res judicata. Now as I have held that the Mamlatdar has no authority or jurisdiction to investigate or decide the question whether he has jurisdiction to decide the issue referred to him, the decision given by the Mamlatdar in this case is obviously without authority of law or jurisdiction and therefore a nullity. Such a decision has no force of law whatever and it is nonexistent in the eye of law from its inception and can be ignored by the party aggrieved. In my view it is also of no consequence whether the petitioners raise any objection before the Mamlatdar as regards want of jurisdiction; failure toraise such objection cannot vest any jurisdiction in the Mamlatdar where there is none. Where there is total lack of jurisdiction in an authority to decide a question, such decision cannot debar the parties from agitating the question in a subsequent proceeding, because what purports to be a prior 'decision' is no 'decision' at all in the eye of law. The learned Judge of the City Civil Court has gone on the basis that here is not a case where it can be said that there was total want of jurisdiction in the Mamlatdar. This basis, with respect I have to hold, is erroneous. The conclusion based, therefore, by the learned Judge on this basis that the decision arrived at by the Mamlatdar binds the parties on the principle of res judicata cannot stand and becomes unsustainable. In this view that I hold, I am supported by the Division Bench decision of this Court in I.L.R. 1963 Gujarat 1072 IV G.L.R. 873 Bhikhabhai Jethabhai and Ors. v. J.B. Vyas and Anr. In the said case, the facts were that certain agricultural lands were ostensibly sold by the owners to one Ambalal Jaduram. While the land was in possession of Ambalal he leased it out to the second respondent of that Special Civil Application. On the coming into effect of the Bombay Agricultural Debtors Relief Act, the owners by an application under that Act moved the appropriate Court for a declaration that the purported sale in favour of Ambalal was in reality a mortgage and consequential relief of accounts etc. Ambalal resisted this application but ultimately the Court allowed the application of the owners. Thereupon Ambalal filed an appeal but that was dismissed. Ultimately an order for the handing over of the possession was made against Ambalal and as be did not do so, an application for recovering the possession was filed. In the execution proceeding, the second respondent applied to be brought on record claiming to be the tenant of the landlord but the executing Court after hearing the parties negatived the claim of the second respondent to be the tenant of the land and consequently possession of land was handed over to the owner. In the meantime, notices under Section 32G of the Bombay Tenancy and Agricultural Lands Act were issued to determine the price of the land which vested In the tenants as deemed purchasers and notice was sent to the second respondent also as his name continued to appear in the revenue records as the owner of this land. So the owners and the second respondent appeared before the Agricultural Lends Tribunal who held that the judgment of the executing Court in the B.A.D.R. proceeding was binding on the parties on the principle of res judicata. The second respondent filed an appeal. The Additional Collector hearing the appeal took the view that the executing Court in B.A.D.R. proceeding was not competent to decide the question whether the second respondent was a tenant or not since the jurisdiction to decide that question exclusively vested in the Mamlatdar. On this and other considerations with which we are not concerned, the Additional Collector allowed the appeal and ordered that possession should be restored to the second respondent and that the Agricultural Lands Tribunal should proceed to determine the price and dispose of the matter accordingly. The owners then approached the High Court under Article 227 of the Constitution of India. One of the contentions raised before the High was that the decision of the executing Court in B.A.D.R proceeding holding that the second respondent was not a tenant was binding on the parties and the tribunal or the Additional Collector bad no jurisdiction to examine the question afresh. But the High Court held that it is not competent to an executing Court to decide or determine any issue or question, whether a person is a deemed tenant under Section 4 so as to be a tenant within the meaning of Section 2(18) of the Tenancy Act by reason of the combined operation of Section 70B and Section 85, and if inspite of that the executing Court proceeded to determine the question of tenancy, then the decision of the executing Court was obviously a nullity. It also decided that the decision of the executing Court on the question as to whether a person is a tenant or not would not operate as res judicata. This because the decision of a Court which lacks inherent jurisdiction to try the matter cannot operate as res judicata in a subsequent proceeding. The doctrine of res judicata is based on estoppel by record and no estoppel can be created by a nullity. The decision of the excuting Court being a nullity it is not necessary for the person aggrieved by the said decision to prefer any appeal against it or to take proceeding to have it set aside and the same can be ignored. Therefore it decided that it was quite immaterial whether a party to the proceeding raised or did not raise an objection as to the jurisdiction of the Tribunal and the Additional Collector, at the time when the matter was heard by those authorities because there could be no waiver of such objection. The findings in the said decision are a complete answer to the contention raised by Mr. Vakil in this case before me. In the present case, I have held that the Mamlatdar had no authority to decide whether the Act applied or not and whether he had jurisdiction to try the issue referred to him. His order, therefore, was a nullity. The petitioners were therefore under no obligation to challenge that order before any higher authority under the Act nor failure on their part to raise objections before the Mamlatdar as regards want of jurisdiction can come in their way in contending before this Court that the Mamlatdar had no jurisdiction to decide that question. No question of res judicata either on the principle of general res judicata or constructive res judicata arises because the pronouncement by the Mamlatdar that he had no jurisdiction to try the issue referred to him was made without any authority of law vested in him, to decide that question, that is to say he was devoid of that jurisdiction. Constructive res judicata can arise where an authority with jurisdiction proceeds to decide a question within its competency and finally decides the question, then any matter which might and ought to have been made a ground in support of the case of either party in that prior proceeding, shall be deemed to have also been decided in the prior proceeding though actually it was not so decided. It was argued before me on behalf of the opponents that on this principle of constructive res judicata the contention now raised by the applicants that the Mamlatdar had no jurisdiction to decide the issue referred to him or that the act did not apply to the question and also the contention that the Civil Court only had the jurisdiction to decide whether the Act applied or not, where all matters which might and ought to have been made the ground by the applicants before die Mamlatdar. That having not been done, these grounds cannot be raised and this point cannot be agitated as they are barred by the principle of constructive res judicata. To my mind however there is no force in this submission. The important thing to be noticed is that the prerequisite of the application of the principle of constructive res judicata is that the prior determination of the matter in question must amount to a decision in law and nothing can be a decision of binding effect which is given without authority of law to decide the matter in question. The submission of Mr. Vakil that the applicants are debarred from raising the present contention at least on the principle of constructive res judicata must therefore also fail. But Mr. Vakil has placed reliance on the decision in Ushadevi Balvant v. Devidas Shridhar LVII Bom. L.R. 275 and at first sight it may appear to support the contention of the opponents but it is necessary to see what exactly was decided. In the said matter in a suit for possession of immovable property a consent decree was passed by the trial Court for possession. However, the defendant failed to give possession on the due date and the plaintiff filed execution proceedings to recover possession of the suit property. The execution proceedings were however resisted on the ground that the compromise decree created a fresh tenancy which was governed by the Bombay Rents, Hotel and Lodging House Rates Control Act under which she could not be evicted. That contention was however overruled by the executing Court and by the District Court in appeal. The High Court in revision, also reached the same conclusion. The execution proceedings were ordered to go on. Thereafter the petitioner again resisted the proceedings on the ground that the Court which passed the decree had no jurisdiction to pass it. That contention was negatived by the Court below and therefore the defendant approached the High Court in revision. Chagla C.J. as he then was, on these facts observed that it was open to the petitioner before him to raise the contention that the decree was a nullity when she put forward the contention that the decree had created a new tenancy. But she did not choose to do so even in the appeal or the revision application in the prior proceeding. She had not done so. The learned Chief Justice then observed that it was a well-settled principle that the principle of res judicata applied to proceedings other than suits also and to execution proceedings and further that law prevents a party from raising a contention which he could have raised and has failed to raise, if the principle of constructive res judicata were to apply, the petitioner was debarred from raising the contention of the decree 'being a nullity. Then conceding that the contention that the principle of constructive res judicata would not apply, where the question of jurisdiction has been raised, the learned Chief Justice further observed 'that on the facts and the law there was a decision not actual but constructive and that decision was that the executing Court had jurisdiction to execute the decree. Therefore, in the eye of law, the Court had already decided that the executing Court was a Court with jurisdiction and if that was the position, there was no reason why the petitioner should be allowed to raise that contention over again in the subsequent revision application. However, in my view, this principle laid down by the learned Chief Justice can have no bearing on the present case. Firstly because the set of facts and the provision of law with which we are concerned are entirely different. Here in our case, one has to keep uppermost in one's mind the fact that the prior Court viz. the Mamlatdar that purported to decide the question as to whether he had jurisdiction or not to decide the question referred to him, had no jurisdiction whatever to decide that question. It was therefore no decision at all as pointed out by me. In the case before the Bombay High Court, however, the executing Court had jurisdiction, according to the learned Chief Justice, to decide the contention subsequently raised that the decree was a nullity and therefore the principle of constructive res judicata applied. Secondly the fact remains that in the present case, the Civil Judge who had the authority to decide whether the Tenancy Act applied or not and the fact whether the issue regarding the permanent tenancy was an issue which was required to be decided by the Mamlatdar, had decided that the matter was within the jurisdiction of the Mamlatdar and had referred the matter to him under the authority of Sub-section (1) of Section 85A. This decision of the Civil Court was a prior decision and was binding on the parties directly. On the very principle of res judicata canvassed for on behalf of the opponents herein it was not open to the Mamlatdar to permit any one to agitate that question before him and he himself had no right to hold that he had no jurisdiction to hear the issue referred to. In my view therefore it is the opponents who are barred from agitating the contention that they are raising. The ratio decidendi of the Bombay High Court, in my view, has no application to the present case. Besides as pointed out by me, the decision of the Division Bench of this Court in I.L.R. 1963 Gujarat 1072 Bhikhabhai Jethabhai and Ors. v. J.B. Vyas and Anr. clearly supports the view that I am taking. Therefore the Bombay decision cannot come in the way of the applicants' contention. There is one more decision of the Supreme Court which also takes the view that I have taken in respect of the principle of res judicata. It is A.I.R. 1953 S.C. 33 Raj Lakshmi Devi v. Benamali Sen. Therein Their Lordships have held that the condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code of Civil Procedure and has application to suits alone. When a plea of res judicata is found on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it had jurisdiction to hear the later suit. Therefore in the said decision also, Their Lordships have emphasized the position that before the general principle of res judicata can be made applicable to proceedings other than the suit the primary necessity is that the prior decision must be a decision of a competent Court that is to say it must have jurisdiction to decide the point which it deals with.
7. There is the other fact of the anomaly being created by the learned Judge of the City Civil Court. The fact remains that the Civil Court under its powers under Section 85A gave its decision that the issue raised was required to be decided by the Mamlatdar and it referred that Issue to the Mamlatdar for his decision instead of deciding the issue, the Mamlatdar took a contrary view and decided that he had no jurisdiction to hear and decide the issue and returned the papers. The question is can Section 85A be interpreted to contemplate such an anomalous position to arise. The Mamlatdar by arriving at that decision sat in judgment over the decision of the Civil Court Reading Section 85A it becomes clear that when the Civil Court is seized of the matter and if it finds that the issue arises which is required to be decided by the Mamlatdar or other competent authority under the Tenancy Act then it is the Civil Court which has to decide that question as to which of the two authorities, the Civil Court or the Tenancy Court has the jurisdiction to decide that particular issue. If the Civil Court decides wrongly, the Higher Court can correct it in appeal. But the Civil Court and the competent authority under the Tenancy Act cannot be allowed as if to enter into a competition to decide the same question It would indeed create an anomaly if Section 85A is rater-preted to mean that both the Civil Court as well as the competent authority under the Act have jurisdiction to decide which Court has jurisdiction to decide the particular issue. The question has therefore to be decided in view of the special provisions of Section 85A read with Section 85 which bars the jurisdiction of the Civil Court to decide any issue which is required to be decided by the competent authority under the Tenancy Act On a reasonable interpretation the anomaly can be avoided and that can be done by construing the section as I have done that, is to say that is the Civil Court that has the jurisdiction to decide he question which of the two Courts has jurisdiction to decide the particular issue arising in the suit and the competent authority under the Tenancy Act has no jurisdiction to decide whether it has or has not the jurisdiction to decide the issue referred to it. The only thing which the competent authority is expected to do by the Legislature is, once a reference is made on a decision taken by the Civil Court, to proceed straightway to decide the issue referred to it.
7.1 Mr. H. B. Desai on behalf of opponents Nos. 8 and 9 tried to urged that the order passed by the Mamlatdar did not amount to only a decosopm that it had no jurisdiction to try the issue referred to him but it is a decision merits also that the applicant, were not permanent tenants because the Act did not apply to the land as the land was placed within the limits of the of the Municipal Corporation of Ahmedabad. I do not find any merit in this submission. At no stage, such a contention was raised on behalf of anybody. The order of the learned Judge below makes it amply clear that he had decided the question treating the order of the Mamlatdar as a decision concerning his jurisdiction holding that he had no jurisdiction to decide the question referred to him. Even reading the order itself, it leaves no manner of doubt that the decision is not on merits but was only on the point of jurisdiction. Therefore I reject that submission of Mr. Desai.
8. The learned Judge of the City Civil Court has made it amply clear that be had dismissed the application only on the ground that the matter was barred on the principle of res Judicata. It is true that he has made certain observations that the Mamlatdar was wrong in holding that be bad no jurisdiction to decide the issue referred to him and has also given his reasons. All these observations are obviously made only for the purpose of deciding the contention of res judicata. I have already held mat no question of res judicata either on me general principle of res judicata or the principle of constructive res judicata arises in this case. Therefore, the order passed by the City Civil Court has to be set aside. But at the same time the question on merits having not been examined by the learned Judge, the matter will have to go back to the Court below to decide Ex. 83 on merits. Under the circumstances, the Civil Revision Application is allowed with costs. The matter however is remanded to the City Civil Court with a direction that it shall dispose of Ex. 83 according to law. Rule confirmed.