M. Natesan, J.
1. This is a revision by a landlord under the Madras Cultivating Tenants' Protection Act (XXV of 1955) against an order of the Revenue Court rejecting his application for eviction, in limine on the ground of res judicata and as would be seen presently, creating a very anomalous situation. Of course, I do not see any room for such a position either in law or on general principles. The brief facts are: The petitioner herein claims to be the holder of the land in question as having been granted to his family by the Samudayamdars of the village for the purpose of doing piper service on ceremonial occasions such as pongal, sravanam, etc. and in the temples. According to the petitioner, he leased the disputed land to the respondent herein in the year 1958 on a rent of two kottahs of paddy per year. On the respondent herein, defaulting in the payment of rent for pisanam 1134 and denying the title of the petitioner herein the petitioner initiated proceedings (Madras Cultivating Tenants, Petition No. 21 of 1959) under the Madras Cultivating Tenants Protection Act (hereinafter referred to as the Act) for eviction of the respondent from the land. Before the Revenue Court in that proceeding, the respondent contended that the petitioner was not the lessor. He produced a lease deed from one Ganapathi Iyer, and, on a summary enquiry holding that the relationship of landlord and tenant had not been established between the petitioner and the respondent, the Revenue Court dismissed the petition. Upon this dismissal finding against his title, the petitioner instituted original suit, Original Suit No. 607 of 1960, on the file of the District Munsif, Tirunelveli, for a declaration of his title to the property, possession and for past profits against the respondent herein. The respondent raised against the question of title. Various issues of law and fact arose, and, on an exhaustive consideration on the materials placed before the Court, the learned District Munsif found that there could be no denial of the petitioner's title or possession by the Samudayamdars of the village whose title and possession was put forward by the respondent. The learned District Munsif held that the plaintiff (the petitioner) was entitled to be in possession of the property, the same having been secured to him under the decree in Original Suit No. 93 of 1947, on the file of the District Munsif, Tirunelveli. The petitioner's right to possession from the defendant (the respondent herein) subject to the provisions of the Cultivating Tenants Protection Act was also upheld. As, however the civil Court had no jurisdiction to order eviction and as it was found that the respondent was cultivating tenant under the petitioner, the respondent having become the lessee of the land only from the agent of the petitioner, the suit was transferred to the Revenue Divisional Officer for disposal under the provisions of the Act.
2. When the matter came up before the Revenue Divisional Officer, Tirunelveli, he persuaded himself to the view that as a final decision had been previously given by the Revenue Court in Madras Cultivating Tenants, Petition No. 21 of 1959 that the petitioner was not a landlord entitled to claim the benefits under Section 3(4)(b) of the Act and to seek the easy relief of getting the eviction of the tenant, the question cannot be reopened once again. It is the correctness of this view, as a result of which the petitioner is denied relief by the Revenue Court after having been sent to that Court for relief that is now challenged before me. The Revenue Court is of the view that the petitioner must have agitated the correctness of the earlier decision of the Revenue Court in revision in this Court, and, having failed to do so, the decision earlier given of the absence of the relationship of landlord and tenant between the parties was a final decision. The Revenue Court no doubt notes that the civil Court has in the subsequent Original Suit No. 607 of 1960, given a decision in favour of the petitioner supporting his title. But it is observed that it would be necessary for the Revenue Court to decide whether the respondent was a cultivating tenant and this had been the subject of prior decision by that Court against the petitioner. The Revenue Divisional Officer reasons that even if the tenancy relationship had been proved it could not be a valid tenancy agreement, such agreement being valid only with the person competent to enter into agreement. I fail to see the purpose of this discussion. The learned District Munsif has gone in extenso into the title put forward. The Samudayamdars' right to possession of the property and their leasing it to the respondent in their own right as contended by the tenant has been categorically found against. The civil Court, the competent Court to adjudicate on questions of title, has found that the tenancy of the respondent is under the petitioner, and, in fact, he had measured rents earlier to the petitioner himself. The mere fact that on an earlier occasion the Revenue Court which was holding a summary enquiry into the matter had found against the relationship of landlord and tenant between the parties, is of absolutely no consequence in the present case as there is no finality to such a finding. The Revenue Divisional Officer has failed to notice that it was to get over that finding given in a Summary adjudication that the petitioner had to seek relief in the civil Court and get his title established before approaching the Revenue Court again for eviction.
3. I am unable to see how any question of res judicata can arise in this case, or it will be a case of the Revenue Court grabbing jurisdiction and re-opening the question, once finally decided between the same parties as apprehended by the Revenue Divisional Officer. There is no finality to the decision of the Revenue Divisional Officer on matters not in his exclusive jurisdiction. It is a jurisdictional question, whether the respondent was a tenant and the petitioner was his landlord. This, the Revenue Court no doubt has to enquire into and cannot shirk a decision when required; but there can be no finality to such adjudication, the decision giving the jurisdiction to the Court. The landlord, as defined in the Act, in relation to a holding or part thereof is the person entitled to evict the cultivating tenant from such holding or part. On the decision of the civil Court that the petitioner is the owner of the property in possession and that he is entitled to possession of the property from the tenant, it follows that the petitioner satisfies the requirements of the Act as to his being landlord. Equally there is and there can be no dispute that the respondent is a person who is carrying on personal cultivation of the land in question under a tenancy agreement, express or implied, and had continued in possession after determination of the tenancy agreement. On the finding of the civil Courts, the property had been leased to the respondent by D.W. 3 as agent of the petitioner, the petitioner will be the landlord, under the Act. The civil Court is barred from granting any relief to the petitioner for the simple reason that the respondent vis-a-vis the petitioner is not a trespasser, but a person holding under a tenancy agreement for personal cultivation. If in fact the finding had been that the petitioner was a person entitled to possession of the land and there was no anterior contract of tenancy, between the petitioner and the respondent, the civil Court itself could have granted a decree for possession and mesne profits as claimed. It is by reason only of the finding that the respondent is a tenant, there having been privity of an estate in tenancy, that the civil Court could not proceed further into the matter and had to take action under Section 6-A of the Act.
4. If the view of the Revenue Divisional Officer is to prevail, the anomaly of the situation is obvious. The civil Court will not as it cannot grant relief even though the petitioner has shown his right to the same. The Revenue Court would not take up the matter as it had earlier decided that the petitioner is not entitled to relief. Passing it may be noticed that the Act itself does not as is found in Section 19 of the Madras Buildings (Lease and Rent Control) Act, 1960, make the prior proceeding a bar. The Revenue Divisional Officer has failed to note that the revisional jurisdiction of the High Court is discretionary and is confined to questions of jurisdiction only. The failure of the petitioner to go up in revision to the High Court on the earlier occasion when a finding had been given in the summary proceeding as to the title, cannot confer on that decision of title a finality. Whereas under the Rent Control Act above referred to, on denial of title of the landlord, if the denial is found bona fide, the landlord is left to seek his remedy in a civil Court, the civil Court being empowered to pass a decree for eviction on any of the grounds mentioned in the Rent Control Act itself, under the Act now in consideration there is no such provision and the civil Court is precluded under Section 6 of the Act from exercising jurisdiction in respect of any matter the Revenue Divisional Officer is empowered under the Act to determine.
5. The doctrine of res judicata which has been invoked in this case to reject the petitioner's application in limine, cannot apply in the circumstances of the case. The Court competent to pronounce finally on the title of the parties has, subsequent to the summary finding by the Revenue Court, given its decision and under the provision of Section 6-A has transmitted the matter to the Revenue Court for disposal holding, as noticed by the Revenue Court, that the respondent is a cultivating tenant entitled to the benefits of the Act. A Court getting seizin of the case by transfer under Section 6-A of the Act, must dispose of it as an application under the Act. The Court is bound in such circumstances by the findings given by the civil Court that the respondent is a cultivating tenant. It cannot go behind it: vide Ramachandra v. Kuppuswamy I.L.R. (1961) Mad. 672. To hold otherwise would be to toss the litigants from Court to Court. The general principles of res judicata which alone may be invoked in this case are founded on the opinion of the Judges expressed in the Duchess of Kington's case (1776) 2 Smith's L.C. 13th Ed. 644, thus:
From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: first, that judgment of a Court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another Court; secondly that the judgment of a Court of exclusive jurisdiction, directly upon the point, conclusive upon the same matter, is, in like manner, between the same parties, coming incidentally in question in another Court, for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which cause collaterally in question, though Within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.
In the present case, the determination of title in the earlier proceedings was only incidental to the exercise of jurisdiction. Subsequently the civil Court has adjudicated on the title. No doubt, if, without going to the civil Court, the petitioner went back to the Revenue Court, then the earlier incidental decision would constitute res judicata in the latter proceeding on the question of title, provided that there was no change in the situation or relationship of the parties in the meanwhile. But that is not the position here. The decision given has been practically, so to say, reversed by the competent Court and the Revenue Court is asked to deal with the matter in the light of the findings given, that is, the incidental question which gives jurisdiction to the Revenue Court has been determined already by a competent Court and the Revenue Court is asked to determine and exercise its jurisdiction in the matter within its exclusive jurisdiction. The order of the Revenue Court in the circumstances refusing to proceed further into the matter before it, is a clear case of declining to exercise the jurisdiction which is vested in it, and, therefore, cannot be sustained.
6. Learned Counsel for the respondent contends that there is no specific finding by the learned District Munsif that the tenant is entitled to the benefits of the Act, and reference is made to the decision of a Division Bench of this Court in Ramachandra v. Kuppuswami1. I am not able to follow the argument of learned Counsel for the respondent. For one thing no plea was taken in the lower Court that the order of transfer was bad. Certainly I do not expect the tenant to plead that the transfer of the matter to the Revenue Court is against his interest or would prejudice him. I do not understand learned Counsel for the respondent as admitting that his client is not entitled to the benefits of the Act. If the respondent is not entitled to the benefits of the Act or forfeited his right to claim benefits under the Act, the Civil Court itself could straightway order eviction. The decision in question relied upon arises in different circumstances. That is a case where the plaintiff-landlord sought injunction restraining the defendant-tenant from interfering with the plaintiff's possession. The plaintiff pleaded that the tenant had voluntarily surrendered the land. It was held by this Court that a transfer of the suit in the circumstances to the Revenue Court merely on the finding that the defendant was a cultivating tenant was bad. It was observed that, as the lower Court had failed to determine the question whether there was a voluntary surrender of possession of the suit lands by the defendant in favour of the plaintiff, the finding that the defendant was a cultivating tenant at the time when the amending Act XIV of 1956 came into force was not correct. A tenant out of possession seeking restoration under the Act has to make his application within the prescribed period. Secondly, Section 4(2) of the Act imposes a further restriction that when the holding in the possession of the tenant exceeds a particular extent, he is not entitled to apply for restoration of possession; it is in those circumstances it was observed in the above case that firstly, before Section 6-A can operate it must be found that the defendant is a cultivating tenant, secondly, that he is entitled to the benefits of the Act, and thirdly, that he must on a transfer of the proceeding to the Revenue Divisional Officer be in a position to obtain one or other of the statutory reliefs provided for in his favour under the Act. If he is not entitled to the benefits of the Act having lost his right to restoration of possession either by reason of the fact that the period provided had expired or he was disentitled by reason of the operation of Section 4(2) of the Act no purpose would be served by directing transfer.
7. But it is quite a different thing when the suit is one for recovery of possession of a land in which the tenant is a cultivating tenant. There can be no eviction of the cultivating tenant except in due conformity with the provisions of the Act. The jurisdiction to order eviction is vested only in the Revenue Divisional Officer and the civil Court's jurisdiction is excluded. It will be seen that in such an action when the tenant is in possession and the claim is made by the landlord for possession, once it is found that the tenant is a cultivating tenant, automatically certain benefits flow to him. Even if he is in arrears, the Revenue Court could give him time. The Act places a general embargo on the eviction of cultivating tenants except in accordance with and under the provisions of the Act. The very decision above referred to Ramachandra V. Kuppuswami I.L.R (1961) Mad. 672. 31, points out the distinction between suits for eviction and suits for injunction, where the tenant is out of possession. As observed by Ramachandra Ayyar, J., (as he then was) in Md. Karimuddin Saheb v. Mohambara Naicker City Civil Court Appeal No. 149 of 1955 and Civil Revision Petition No. 464 of 1959.
therefore before an order for transfer is made the Court should find that it is incompetent to give the reliefs sought by reason of the Act.
8. I do not think that the decision in Ramachandra v. Kuppuswami I.L.R. (1961) Mad. 672, requires a prior specific determination in every kind of suit of the particular benefit to which a tenant is entitled. In a suit for eviction, once it is held that the defendant is a cultivating tenant, it follows he can claim certain benefits under the Act, as already pointed out. But in the aforesaid decision the relief which the tenant could get under the Act was so related with his status as a cultivating tenant that even for determination of the question whether he is a cultivating tenant the Court will have to find out whether he could claim the relief of restoration. It is observed in Ramachandra v. Kuppuswami I.L.R. (1961) Mad. 672:
The learned District Munsif is wrong in holding that the defendant is a cultivating tenant because he was in possession of the suit lands as a waramdar for the fasli year 1955-56 overlooking the plea of the plaintiff that there was an actual surrender of possession of the lands in favour by the defendant some time in February, 1956.
* * * *The question which the learned District Munsif had to determine Was whether the defendant was a cultivating tenant entitled to the benefits of Madras Act XXV of 1955 on 29th September, 1956., the date on which he, the tenant in Tanjore district, obtained the benefit of Madras Act XXV of 1955 by reason of the amending Act XIV of 1956.
* * * *The learned District Munsif has also failed to determine the question Whether there was in fact a voluntary surrender of possession of the suit lands by the defendant in favour of the plaintiff. The determination of this question has a great bearing On the issue whether the defendant was a cultivating tenant or not When the Amending Act XIV of 1956 came into force.
9. As noticed by Rajagopalan, O.C.J., sitting with Basheer Ahmed Sayeed, J., in. Ratnasami Mudaliar v. Ponnammal : (1958)1MLJ427 , under Section 6-A of the Act if the civil Court finds that the claim put forward by the person in possession that he is a cultivating tenant is correct, then the Court shall not proceed with the trial but shall transfer the proceeding to the Revenue Divisional Officer to be dealt with according to the provisions of the Act. For ordering the transfer in a suit for eviction in my view, the civil Court must find the existence of relationship of landlord and cultivating tenant as defined in the Act between the plaintiff and the defendant and secondly on the proceedings being transferred it must be possible for the Revenue Divisional Officer to order one or other of the reliefs specified in the Act. The conditions are fulfilled in this case. It may be that the Revenue Court finds on. enquiry that the cultivating tenant is not on the merits entitled to any of the benefits of the Act.
10. The order of the Revenue Divisional Officer is, therefore, set aside and the matter is remitted back for fresh disposal. The Revenue Divisional Officer will take the case on file and dispose of it in the light of the observations made above and in accordance with the provisions of Act XXV of 1955. The revision is allowed accordingly. No costs.