J. P. DESAI, J. ( 1 ) (HIS Lordships after Stating the facts of the Case further of served ). ( 2 ) ( 3 ) ( 4 ) THE main bone of contention between the parties is se regards the request by the defendants to amend the Written Statement after the preliminary decree was passed by the trial Court and confirmed by the High Court and after the preliminary decree had become final. The defendants submitted application Ex. 239 before the trial Court and requested the trial Court to permit them to amend the Written Statement by raising a contention that the defendants were tenants of the suit lands prior to the suit transaction and they were in possession of the suit lands as tenants and the tenancy was revived on the Court passing a preliminary decree and therefore possession cannot be awarded to the plain tiffs as they had become deemed purchase of the land under the provisions of the Tenancy Act. This application was opposed by the plaintiffs. The learned trial Judge passed a speaking order below this application on 30-11-1977 and rejected the same. The defendants appellants have contended before this Court in this appeal that the trial Court should have allowed the amendment sought for by the defendants to amend the Written Statement as the proceedings for passing final decree were continuation of the original suit. ( 5 ) WE now come to the question whether the defendants mere entitled to pray for amendment of the Written Statement as prayed for by them vide application Ex. 232 in view of the fact that no such contention was raised at any time before the passing of the preliminary decree. ( 6 ) NOW Decree is defined by sec. 2 (2) of the Code of Civil Procedure as follows :-"decree means the formal expression of an (adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within sec. 44 but shall not include- (a) any adjudication from which an appeal lies as an appeal from an (b) any order of dismissal for default. It shall be deemed to include the rejection of a plaint and the determination of any question within sec. 44 but shall not include- (a) any adjudication from which an appeal lies as an appeal from an (b) any order of dismissal for default. Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposed of the suit. It may be partly preliminary and partly final. Sec. 97 of the Code reads as follows:-"where any party aggrieved by a preliminary decree passed after the commencement of this Cede does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree". The definition of Decree shows that it may be either preliminary or final. It does not make any distinction between a preliminary decree and a final decree. Reading the provisions of sec. 2 (2) with sec. 97 of the Code the position is very clear that the defendants having not raised a contention at any stage before the passing of the preliminary decree that they were tenants with regard to the suit lands they cannot raise that contention in the proceedings taken out for passing a final decree. This position is made very clear in some decisions which I shall refer to hereafter. ( 7 ) IN the case of Venkata Reddy v. Pethi Reddy. A. I. R. 1963 S. C. 992 after referring to the provisions of sec. 2 (2) and sec. 97 of the Code it is held as follows:-"a decision is said to be final when so far as the Court renlering it is concerned it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal modification or amendment. Similarly a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modifiedor reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed whether it is in a. mortgage suit or a. partition suit is not a tentative decree but must in so far as the matters dealt with by it are concerned be regarded as conclusive. A preliminary decree passed whether it is in a. mortgage suit or a. partition suit is not a tentative decree but must in so far as the matters dealt with by it are concerned be regarded as conclusive. No Doubt in suits which contemplate the making of two decrees a preliminary decree and a final decree the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only Master a final decree is-made the decision of the Court arrived at the earlier stage also has a finality attached to it. S. 97 Civil P. C. clearly indicates that as to the matters covered by it a preliminary decree is regarded as embodying the final decision of the Court passing that decree". The ratio of the above decision of the Supreme Court is a complete answer to the contention of the learned Advocate for-the appellants-that the appellants were entitled to mend the Written Statement even-at the stage of passing of the final decree even though they had not raised a contention about they being tenants at any stage before the passing of the preliminary decree. In the case of case of Gyarsi Bai v. Dhansukh Lal A. I. R. 1965 S. C. 1055 it is held that it is settled law that though a mortgage suit would be pending till a final-decree is made the matters decided or which ought to have been decided by the preliminary decree are final. It is further held therein that it is indisputable that in a mortgage suit there with be two decrees namely preliminary decree and final decree and that ordinarily the preliminary decree settles the rights of the parties and the final-decree weeks out those rights. This decision of the Supreme Court is also a complete answer to the contention of the learned Advocate for the appellants. ( 8 ) IN the case of Raman Chandra Acharya v. Balaram Acharya A. I. R. 1966 Orissa 160. it appears that a preliminary decree was passed in a partition suit and an application was given thereafter to implead co-sharers as patties to the suit. ( 8 ) IN the case of Raman Chandra Acharya v. Balaram Acharya A. I. R. 1966 Orissa 160. it appears that a preliminary decree was passed in a partition suit and an application was given thereafter to implead co-sharers as patties to the suit. It was held relying upon the decision of the Supreme Court in the case of Venkata Reddy v. Pethi Reddy (supra) that addition of parties at that stage cannot he allowed as it would affect determination in preliminary decree which has become final. ( 9 ) IN the case of Satyadhyan Ghosal v. Smt. Deorajin Debi and another. A. I. R. 1960 S. C. 941 the position is still made very clear with regard to the application of the principle of res judicata as between the two stages in the same litigation. The pertinent observations of the Supreme Court in this regard will be found at paras 7 and 8 which are as follows:-"the principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata it shall not be adjudicated again. Primarily it applies as between past litigation and further litigation. Won a matter whether on a question of fact or a question of law-has been decided between two parties in one suit or proceeding and the decision is final. either because no appeal was taken to a higher court or because the appeal was dismissed. or no appeal lies neither party will be allowed in a future suit of proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in sec. 11 of the Code of Civil Procedure but even where sec. 11 does not apply. The principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this this that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was contract". 11 does not apply. The principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this this that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was contract". The principle of res judicata applies also as between two stages in the same litigation to this extent that a court whether the trial Court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie a higher court cannot at matter stage of the same litigation consider the matter again ? The ratio of this decision of the Supreme Court is a complete answer to the contention raised by the appellant that they are entitled to amend the Written Statement at the second stage of the legation by raising a contention that they were grants of that suit lands even though they had not raised such a contention at act to before the passing of the preliminary decree. ( 10 ) THE learned Advocate Mr. Shelat for the appellants draw my attention to some decisions in support of his submission. The first decision raffled upon by Mr. Shah is restored ore K. P. Rangaiah v. K. Krishnaiah A. I. R. 1974 Andhra Pradesh 201. It is observed in that decision that a suit still contiunes even after the primarily decree and if is only after the final decree that the suit can be said to be terminated and. Therefore it is order to the courts to amend the plaint and decree schedules at any staff before the pass is of the final decree. These observations leave to be read in the that in of the from its of that case. In that case the question was whether and factory and clerical errors which may be crept in the plaint and as a consequence in the decree as well could be rectified at arty time even after a filial decree. Procedure the answer was naturally in the affirmative. In that case the question was whether and factory and clerical errors which may be crept in the plaint and as a consequence in the decree as well could be rectified at arty time even after a filial decree. Procedure the answer was naturally in the affirmative. The Andhra Pradesh High Count was examining that question in the light of Sec. 152 of the Code of Civil procedure and therefore it was will respect richly has that such errors can be certificate at any stage. It is observed in this very judgment relied upon by Mr. Shelat that where the terror related to a mistaken identity of the property but not a misdescription thereof. proceedings under sec. 152 of the C. P. C. cannot be restored to. This decision of the Andhra Pradesh High Court thus does not advance the contention of Mr. Shelat any further. ( 11 ) MR. Shelat also relied upon another decision of the Andhra Pradesh High Court reported in S. Burrayya v. S. Atchayyamma A. I. R. 1959 Andhra Pradesh 26. The question which arose for consideration of the Division Bench of the Andhra Pradesh with Court in that case was whether a forum had jurisdiction to allow an amendment of the plaint schedule on the grounds of mistake after preliminary decree is passed in a partition suit. The Division Bench of the High Court has observed that the question is to be determined With reference to sec. 153 and Order 6 Rule 17. Sec. 153 C. P. C. empowers the Court to amend any defect or error in any proceeding in a suit at any time. The section says that all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. It appears from the facts. of that case that a preliminary decree for partition was passing in the suit and obstruction was offered so far has one item of the property carried by the decree was concerned. The plaintiff filed a peti tion for substituting another item of property. This was opposed on the ground that section was overhauled and the application was allowed. This order was challenged before the Andhra Pradesh High Court. Reliance was placed upon Order 20 Rule 3. The plaintiff filed a peti tion for substituting another item of property. This was opposed on the ground that section was overhauled and the application was allowed. This order was challenged before the Andhra Pradesh High Court. Reliance was placed upon Order 20 Rule 3. C. P. C. but the Division Bench stated that the said provision had no bearing on the bearing and the question was required to be answered in the light of the provisions of sec 153 and order 6 Rule in C. P. C. After reproducing the relevant provisions or the Code the Division Bench observed that if the suit is not concluded by the passing of the final decree and is only at the stage of the preliminary decrees it is competent to the Court to allow amendment of the pleadings. The Division Bench later on observed that whether an amendment should be allowed in a particular case or not is to be decided by the Court having regard to the facts and circumstances of that case. The Division Bench observed that it may be that in some cases the rights of third parties would be infringed by allowing such an amendment and these are all matters which have to be considered by the Court at the time of the hearing of an application for amendment. The trial Court was accordingly directed to consider the question of amendment on merits. This judgment of course says that amendment can be made at any stage even after the passing of the preliminary decree in view of the provisions of sec. 153 and Order 6 Rule 17 C. P. C. But the question as to whether an amendment which would introduce a ground of attack or defence which ought to have been raised before the passing of the preliminary decree but not raised could be permitted or not was not even argued before the Court in that case. In other words the question as regards the application of principle of res Judicata in the light of sect 97 and sec. 11 of the C. P. Code was not at all raised in that case. It cannot therefore be said that this decision lays down that even if an amendment of pleadings is sought for after the passing of the preliminary decree it is permissible even if the same violates the provisions of sec. 11 of the C. P. Code was not at all raised in that case. It cannot therefore be said that this decision lays down that even if an amendment of pleadings is sought for after the passing of the preliminary decree it is permissible even if the same violates the provisions of sec. 97 of the C. P. Code or the principle of res judicata underlying sec. 11 of the Code. This decision is thus not of any assistance to Mr. Shelat. ( 12 ) MR. Shelat also relied upon a decision of the Patna High Court reported in Awadhendra Prasad v. Raghubansmani Prasad A. I. R. 1979 Patna 50 The ratio of this decision of the Patna High court is the same as than of the Andhra Pradesh High Court referred to just above. I fail to understand how this decision can at all advance the case of the appellants any further 60 far as the question of amendment is concerned. ( 13 ) THE learned Advocate Mr. Shelat also relied upon some other authorities but in my opinion they have no bearing on the question whether such an amendment of the Written Statement is permissible after the passing of the preliminary decree when the contention which ought to have been raised at the earlier stage before the passing of the preliminary decree is not raised. I would however discuss them also in brief. ( 14 ) THE decision of the Gujarat High Court reported in Patel Atmaram Nathudas v. Patel Babubhai Keshavlal 16 G. L. R. 509 pertains to the question with regard to the application of the provisions of Order 6 Rules 13 and 17 C P. C. at the stage of second appeal from a preliminary decree. It appears from the facts of that case decided by this Court that a preliminary decree was passed by the trial Court and there was an appeal to the District Court against that preliminary decree and subsequently the matter was carried in appeal before this Court in Second Appeal from the appellate decree. The preliminary decree had thus not become final because second Appeal was filed and pending before the High Court. The decision rendered in this case by this Court cannot therefore advance the case of the appellants any further so far as this aspect is concerned. The preliminary decree had thus not become final because second Appeal was filed and pending before the High Court. The decision rendered in this case by this Court cannot therefore advance the case of the appellants any further so far as this aspect is concerned. It appears from the facts of that case that the defendant took up a contention in the suit filed by the plaintiff for redemption of the suit property from mortgage that the transaction was not a mortgage but an outright sale. That contention was reiterated by the defendant even before the District Court and it was only in the High Court that the defendant abandoned the plea that it was an outright sale and contended that the transaction was a mortgage. It appears that the plaintiffs case from the very beginning was that the transaction was a mortgage and the defendant was denying that contention but ultimately wisdom prevailed upon the defendant and he came forward with a contention in the Second Appeal before this Court that he accepted the contention that the transaction was a mortgage and not a sale and that contention was allowed to be taken in the peculiar facts and circumstances of that case. The preliminary decree having not become final in that case whatever is held in the above case has no bearing on the question with which we are concerned because the preliminary decree has become final in the. present case. the appeal having been dismissed by the High Court with only a slight modification with regard to the date from which mesne profits were to be ascertained and the Supreme Court having refused to grant special leave to appeal. ( 15 ) THE discussion made above will go to show What the defendants were no entitled to seek an amendment in the Written Statement at any stage alter the passing of the preliminary decree that they were tenants of the suit lands and. therefore they were protected from being evicted looking to the provisions of the Bombay Tenancy and Agricultural Lands Act. The learned Advocate Mr. Shelat drew my attention to a decision of the Supreme Court reported in Bhimaji Shankar v. Dundappa Vithappa A. I. R. 1966 S. C. 166 where in it is held that the issue whether the defendant is a tenant must be referred to Mamlatdar for decision looking to the provisions of secs. The learned Advocate Mr. Shelat drew my attention to a decision of the Supreme Court reported in Bhimaji Shankar v. Dundappa Vithappa A. I. R. 1966 S. C. 166 where in it is held that the issue whether the defendant is a tenant must be referred to Mamlatdar for decision looking to the provisions of secs. 70 85 and 85 of the Bombay Tenancy and Agricultural Lands Act. When the defendants are not entitled to raise this contention at this stage such a question does not arise for consideration. If they were entitled and were permitted to raise such a contention then certainly there cannot be any dispute that the issue will he required to be referred to the Mamlatdar for his decision. ( 16 ) THY discussion made above will go to show that the defendants appellants were not entitled after the passing of the preliminary decree to raise the contention that they were tenants of the suit lands and therefore not liable to be evicted from the same. In view of this the question whether the amendment should have been allowed in the present case on merits does not arise for consideration. But I would like to say that even on merits the amendment deserves to be rejected. While referring to the contention raised by the defendants in the Written Statement at Ex. 12 and application Ex. 19 for amendment of the Written Statement I have pointed cut that the defendants did not raise a contention that they were tenants. They Only contended that the plaintiffs were not agriculturists and therefore the transaction was hit by the provisions of sec. 63 of the Bombay Tenancy Act. Issue No. 9a was raised in this regard as pointed out by me earlier and thereafter an application Ex. 32 was submitted that the defendants were tenants and therefore the issue in that regard may be framed and the same may be referred to the Mamlatdar for his decision. The learned trial Judge while dismissing the application Ex. 32 by passing a speaking order observed that no such contention was taken either in the Written Statement as originally filed or even by way of amendment and therefore. such a question did not arise for consideration. Inspite of this the defendants did not at any stage thereafter make an application to amend the Written Statement by raising such a contention. such a question did not arise for consideration. Inspite of this the defendants did not at any stage thereafter make an application to amend the Written Statement by raising such a contention. I may also observe here that pears from the judgment delivered. by this Court on 20-9-1974 in First Appeal No. 539 of 1970 filed against the preliminary decree that it was contended during the hearing of the appeal that the dependents were cultivating the lands as tenants prior to the suit transaction and therefore the rights of the defendants would revive under sec. 25a of the Tenancy Act and hence the plaintiff were entitled to a decree only for symbolic possession. The Division Bench after referring to this contention advanced by the learned advocate for the present appellants in that appeal pointed out that no such contention was raised either in the written Statement originally liked or in the amended Written Statement that the defendants were tenants prior to the mortgage and therefore the learned trial Justice has rightly held that no such question arose in than case and consequently the plaintiffs were entitled to get actual possession of the properties on redemption. The Division Bench after discussing this aspect at Pages 24 95 and 96 ultimately held that the defendants submission that the plaintiffs would be entitled to only a decree for symbolic possession was not well-founded. It is pertinent to note that even though it was pointed out to the learned advocate for the appellants in that appeal that no such contention about tenancy was raised no request was made even at that stage that the defendants may he permitted to amend the Written Statement and permitted to raise the contention that they were tenants prior to the suit transaction and were therefore. protected by sec. 25a of the Tenancy Act. The fact that the defendants had not raised such a contention was pointed out to them at least on two occasions one at the time of rejecting their application Ex. 32 by the trial Court and on the other occasion when the First Appeal was heard by the High Court as stated above. Inspite of this. they did not thing of amending the Written Statement and raise such contention. 32 by the trial Court and on the other occasion when the First Appeal was heard by the High Court as stated above. Inspite of this. they did not thing of amending the Written Statement and raise such contention. In view of this the amendment did not deserve to be allowed even on merits assuming that they were entitled to apply for amendment of the Written Statement after the passing of the preliminary decree which was confirmed subject to slight modification by the High Court. I would like to mention here that it by be permissible to amend the pleadings in a given case even after the passing of the preliminary decree But that would be subject to the principle underlying the application of the principle of res judicata between the two stages of the same litigation as observed by the Supreme Court in the case of Satyadhyan Ghosal v. Smt. Deorajin Debi (supra ). ( 17 ) THE learned advocate Mr. Shelat relying upon the decision of this Court in Patel Atmaram Nathudas v. Babubhai Keshavlal (supra ). It was submitted that the tenancy would remain in abeyance during the period of mortgage and it would revive on redemption and therefore the tenants will be entitled to seek protection under the provisions of the Tenancy Act. There cannot be any dispute with this proposition of law. But when the defendant does not raise a contention that he was a tenant the question of riving protection to him under the provisions of the Tenancy Act does not arise for consideration. The question of even referring the question to the Mamlatdar under sec. 85a of the Tenancy Act does not arise for consideration then such a question is not raised. In the case of Patel Atmaram Nathudas v. Patel Babubhai Keshavlal (supra) it appears that a decree for symbolic possession was ordered to be passed by the High Court in Second Appeal without giving directions to make a reference to to Mamlatdar under sec. 85a of the Tenancy Act. It appears from the discussion made in the judgment under report that in fact. the plaintiff had given a notice that the defendant was a tenant and in that view of the matter the High Court proceeded on the assumption that the defendant was a tenant. 85a of the Tenancy Act. It appears from the discussion made in the judgment under report that in fact. the plaintiff had given a notice that the defendant was a tenant and in that view of the matter the High Court proceeded on the assumption that the defendant was a tenant. But anyway we are not concerned with any such question in the present case when they had not raised any such contention about tenancy and when they were not entitled to raise such a contention by way of amendment as discussed earlier. ( 18 ) THE defendants had raised a contention in the present suit that the plaintiffs were not agriculturists and therefore. the transaction was barred by sec. 63 of the Tenancy Act. An issue to this effect was also raised as issue No. 9a. Such an issue would be required to be referred to the Mamlatdar under sec. 85a of the Tenancy Act and That there cannot be any dispute about the same. The Supreme Court has also held to that effect in the case of Gundaji v. Ramchandra A. I. R. 1979 S. C. 653 but this question did not survive for consideration because the trial Court held that this was a mortgage and therefore the plaintiff was entitled to redeem the property from mortgage and the said finding of the trial Court was confirmed by this Court in appeal. When it is held that the transaction was a mortgage the question of passing decree for specific performance prayed in the alternative did not survive and therefore the question whether the plaintiffs were agriculturists or not also did not survive. In view of this the question of referring this issue did not survive in the above circumstances. A request was made to the trial Court earlier to refer this question to the Mamlatdar before the passing of the decree but that was negatively by the trial Court and the Service on application filed against that order was also dismissed by this Court as stated in the beginning while narrating the facts of the case. The observations made by this Court while disposing of that revision only indicated that if necessary the question may be referred to the Mamlatdar but such occasion did not arise because the Court held that this was a mortgage transaction and not a sale. The observations made by this Court while disposing of that revision only indicated that if necessary the question may be referred to the Mamlatdar but such occasion did not arise because the Court held that this was a mortgage transaction and not a sale. The question of referring this issue 9a to the Mamlatdar would have arisen if it was held that the transaction was net a mortgage. In that case it would be necessary to consider the question of passing a decree for specific performance and far that purpose it would have been necessary to decide whether the plaintiffs were agriculturists. The question however. did not survive in the present case in these circumstances at any state after it was held that the transaction was a mortgage ( 19 ) THE learned advocate Mr. S. R. Shah for the respondents (original plaintiffs) submitted that even if it was assumed for the sake of argument that thee defendents were tenants prior to the suit transaction then also they will not be entitled to the benefit of sec. 25a of the Tenancy Act because the benefit will be available only in case of a usufructury mortgage and this being a mortgage by conditional sale. that benefit would not be available to the appellants defendants even if they were tenants prior to the suit transaction. There is such substance in this submission of Mr. Shah but the same need not detain us any more in view of the fact that the defendants have not been permitted to raise the contention that they were tenants. ( 20 ) THE discussion made above will go to show that the request for amendment of the Written Statement by filing application Ex. 239 has been rightly rejected by the trial Court and therefore 4 the question whether the defendants were tenants of the suit property prior to the suit transaction dos not arise for consideration. The plaintiffs-respondents are therefore entitled to actual physical possession of the suit property and not only symbolic possession as contended by the defendants. . ( 21 ) THE learned advocate Mr. Shelat relying upon the discussion made at para. The plaintiffs-respondents are therefore entitled to actual physical possession of the suit property and not only symbolic possession as contended by the defendants. . ( 21 ) THE learned advocate Mr. Shelat relying upon the discussion made at para. 10 of the judgment in Gundaji v. Ramchandra (supra) contended that it was not necessary that the contention about tenancy should be raised in the Written Statement and that when there was a contest between the parties on this question it was required to be referred to the Mamlatdar under sec. 85a of the Tenancy Act. On carefully going through para. 10 of the judgment of the Supreme Court in the above case I do not find any observation therein which would support the contention of Mr. Shelat. It appears that in that case the High Court took the view that the jurisdiction of the Civil Court to settle decide or deal with any question which arises under the Tenancy Act and which is required to be settled decided or dealt with by the competent authority under the Tenancy Act would alone be barred under sec. 85 but if an issue arises in a properly constituted civil suit which the Civil Court is competent to entertain. an incidental or subsidiary issues which may arise with reference to provisions of the Tenancy Act the jurisdiction of the Civil Court to decide the same would not be ousted because the issue is not required to be decided or dealt with under the Tenancy Act. While discussing the view of the High Court the Supreme Court observed that when upon contest any such issue arises even in a properly constituted civil suit it is required to be referred to the Mamlatdar. It is difficult to read the observations of the Supreme Court at para. 10 that even though any such question which is required to be decided or dealt with by an authority under the Tenancy Act is not raised in the pleadings then also the question will be required to be referred to the competent authority under the said Act the moment such a question is raised before the Court. The observations made by the Supreme Court at para. 10 are made on the footing that issue arises between the parties upon contest between them. The observations made by the Supreme Court at para. 10 are made on the footing that issue arises between the parties upon contest between them. In a civil suit issue would arise only out of pleadings and when there is no contention raised in the pleadings the issue does not arise and therefore the question of referring the same also does not arise. In view of this I am not inclined to accept this submission of Mr. Shelat. (Rest of the judgment is not material for the reports.) appeal dismissed .