Magiti Sasamal Vs. Pandab Bissoi
 INSC 276 (20 September 1961)
SINHA, BHUVNESHWAR P.(CJ) DAYAL, RAGHUBAR
CITATION: 1962 AIR 547 1962 SCR Supl. (3) 673
CITATOR INFO :
R 1963 SC 361 (4,6) RF 1987 SC2205 (10,11) R
1991 SC1094 (9)
Landlord and Tenant-Relationship in
dispute-Civil Court Jurisdiction of Orissa Tenants Protection Act, 1948 (Act
III of 1948), s. 7(1).
The appellant filed in the Civil Court a suit
for permanent injunction restraining the respondents from entering the lands in
suit on the allegation that the lands belonged to him and were in his
cultivatory possession for many years and that the respondents had no right or
title to them and had never cultivated them. The respondents contended that
they were tenants of portions of the said lands and were in cultivating
possession of the same as tenants. The question which arose for decision was
whether having regard to the provisions of S. 7(1) of the Orissa Tenants Protection
Act, 1948, the Civil Court had jurisdiction to entertain the suit which
involved a dispute as to the relationship of landlord and tenant between the
Held, that even on a liberal construction of
s. 7(1) of the Act it cannot be held that disputes as regards the existence of
the relationship of landlord and tenant fall to be determined by the Collector
under that section. Disputes which are entrusted to the Collector under s. 7(1)
are the simple disputes specified therein in the five categories and do not
include a serious dispute as to the relationship between the parties as
landlord and tenant. In the present case the suit was therefore within the
jurisdiction of the Civil Court.
Secretary of State v. Mask & Co. (1940)
L.R. 67 I.A. 222, referred to.
Civil APPELLATE JURISDICTION: Civil Appeal
No. 92 of 59.
Appeal from the judgment and order dated
August 31, 1956, of the Orissa High Court in second appeal No. 1.5.1 of 1951.
A. V. Viswanatha Sastri and T. V. R.
Tatachari, for the appellant.
M. S. K. Sastri, for respondents.
674 1961. September 20. The Judgment of the
Court was delivered by GAJENDRAGADKAR, J.-This is an appeal by a certificate
granted by the High Court of Orissa and it raises a short question about the
scope and effect of the provisions of s. 7 (1) of the Orissa Tenants Protection
Act, 1948 (Act III of 1948) (hereafter called the Act). The appellant Magiti
Sasamal sued the respondents Pandab Bissoi and others in the Court of the
District Munsiff, Berhampur, for a permanent injunction restraining them from
entering the suit lands belonging to the appellant. The appellants case was
that the suit lands belonged to him and were in his personal cultivation for
many years. In the year of the suit the appellant had cultivated the said lands
as usual, manured and raised paddy crop thereon after spending a large amount
in that behalf According to the appellant the respondents had no manner of
right or title to the said lands and had never cultivated them. From the notice
given by them to the appellant, however, it appeared that the respondents
wanted to enter upon the lands forcibly and to remove the standing crop
therefrom. This they desired to do by setting up a false claim that they were
the tenants of the lands and as such were entitled to the protection of the
Act. The appellant alleged that the respondents were local rowdies and were
known for their high-handed action in the neighbourhood. On these allegations
the appellant claimed a permanent injunction against the respondents.
The respondents admitted the title of the
appellant to the lands in suit but pleaded that they were the tenants in
respect of separate portions of the said lands. Their version was that they had
cultivated their holdings and raised the paddy crop thereon in the year in
According to them they had been in
cultivating possession of their respective holdings as tenants long before
September 1, 1947, and so they were entitled to remain in possession as such
tenants under the 675 they had filed petitions under the Act before the SubCollector,
Berhampur, claiming appropriate relief against the appellant. They urged that
they were ever ready and willing to pay the Rajabhag as provided by the Act and
they contended that the Suit was not maintainable in a civil court.
On these pleadings the learned trial judge
framed appropriate issues. Three issues of law had been framed by him on the
pleas raised by the respondents. These issues were, however, not pressed at the
hearing, One of them, namely issue 5, refers to the jurisdiction of the Court
to try the suit in view of the provisions of the Act. Thus, it if; clear that
the issue of jurisdiction was not pressed by the respondents at the trial. On
the merits the learned trial judge considered the evidence and held that though
the appellant was the owner of the property the respondents had proved that
they were the tenants in possession of their respective holdings and that their
possession was long before September 1, 1947. On these findings the learned
judge came to the conclusion that the appellant was not entitled to claim an
injunction against the respondents and so he dismissed his suit.
The matter was then taken by the appellant
before the District Judge, Ganjam, Nayagarh. The learned District Judge considered
the evidence led by the parties and reversed the conclusions of the trial
court. He held that the onus was on the respondents to prove their possession
of their respective holdings as tenants on or before the specified date, and
according to him they had failed to discharge that onus. The question of
jurisdiction was not raised before the appellate court by the respondents.
Having held against the respondents on the
merits the learned District Judge allowed the appeal, set aside the decree
passed by the trial court and directed that an injunction should be issued
against the respondents as claimed by the appellant.
676 The respondents then moved the High Court
by second appeal ;
and the main point which they urged before
the High Court was that the learned trial judge had no jurisdiction to
entertain the suit having regard to the provisions of s. 7 (1) of the Act. The
appellant pointed out to the High Court that this question of jurisdiction bad
not been pressed before the trial court and had not been raised before the
lower appellate court. Even so the High Court allowed the point to be raised
and decided it in favour of the respondents. As a result of the finding that
the civil court bad no jurisdiction to entertain the suit the second appeal preferred
by the respondents has been allowed and the appellant's suit dismissed with
costs throughout. It is against this decree that the appellant has come to this
Court with the certificate granted by the High Court; and the short point which
has been raised before us on his behalf by Mr. Viswanatha Sastri is that in
holding that the present suit is outside the jurisdiction of the civil court
the High Court has misconstrued the scope and effect of the Provisions of s.
7(1) of the Act.
The Act received the assent of the Governor
General on February 5, 1948 and was published on February 14,194S. It is a
temporary Act and by s.1(4) it has been provided that it shall cease to have
effect on April 15, 1949 except is respects things done or omitted to be done before
the expiration thereof. It has been passed in order to provide for temporary
protection to certain classes of tenants in the Province of Orissa. Legislature
thought that the said tenants deserved protection and so as a beneficent
measure the Act has been passed. Section 2(c) of the Act defines landlord and
s. 2(g) defines a tenant. The main operative provision of the Act is contained
in s. 3. This Section provides that not withstanding anything contained in any
other law for the time being in force, or any express or implied agreement to
the contrary, but subject to the provisions of this Act, 677 a person who, on
the first day of September 1947, was cultivating any land as a tenant shall
continue to have the right to cultivate such land and it shall not be lawful
for the landlord to evict the tenant from the land or interfere in any way with
the cultivation of such land by the tenant.
It would thus be seen that the Act purports
to provide protection to tenants who were in possession of lands on the appointed
day which is September 1, 1947. The other subsections of s. 3 make material and
subsidiary provisions in regard to the said protection. Section 7(1) reads
"'Any dispute between the tenant and the
landlord as regards, (a) tenant's possession of the land on the 1st day of
September, 1947 and his right to the benefits under this Act. or (b) misuse of
the land by the tenant, or (c) failure of the tenant to cultivate the land
properly, or (d) failure of the tenant to deliver to the landlord the rent
accrued due within two months from the date on which it becomes payable, or (e)
the quantity of the produce payable to the landlord as rent, shall be decided
by the Collector on the application of either of the parties".
The appellant contends that s. 7(1) covers
disputes between landlords and tenants which are specified under cls. (a) to
(e) but it does not cover a dispute between the parties as to whether the
relationship of landlord and tenant 'exists between them. It is only where such
a relationship is either admitted or established in a civil court that the
specified disputes fall within the exclusive jurisdiction of the Collector on
the other hand the respondents' case is that the dispute as to the status of
the tenant is also included under s. 7(1). The High Court has upheld the
respondents' interpretation, and Mr. Viswanatha Sastri contends that this
interpretation is based on a misconstruction of the section.
It is true that having regard to the
beneficent object which the Legislature had in view in passing the Act its
material provisions should be liberally 678 construed. The Legislature intends
that the 'disputes contemplated by the said material provisions should be tried
not by ordinary civil courts but by tribunals specially designated by it, and
so in dealing with the scope and effect of the jurisdiction of such tribunals
the relevant words used in the section should receive not a narrow but a
While bearing this principle in mind we must
have regard to another important principle of construction, and that is that if
a statute purports to exclude the ordinary jurisdiction of civil courts it must
do so either by express terms or by the use of such terms as would necessarily
lead to the inference of such exclusion. As the Privy Council has observed in
Secretary of State v. Mask & Co., (1) "it is settled law that the
exclusion of the jurisdiction of the civil courts is not to be readily
inferred, but that such exclusion must either be explicitly expressed or clearly
implied". There can be no doubt that ordinarily a dispute in regard to the
relationship between the parties such as that between a landlord and a tenant
would be a dispute of a civil nature and would fall within the competence of
the civil court. If the respondents contend that the jurisdiction of the civil
court to deal with such a civil dispute has been taken away by s. 7 (1) we must
enquire whether s. 7(1) expressly takes away the said jurisdiction or whether
the material words used in the section lead to such an inference or the scheme
of the Act inescapably establishes such an inference. The relevance and
materiality of both these principles are not in dispute.
Let us then revert to s. 7. It would be
noticed that a. 7(1) has expressly and specifically provided for five
categories of disputes which are within the jurisdiction of the Collector and
which must therefore be taken to be excluded from the jurisdiction of the civil
court. On a reasonable construction of s. 7(1) a dispute specified by s.
7(1)(a) would be a dispute between a tenant and a landlord in regard (1) (1940)
L. R. 67 1. A. 222, 236.
679 to the former's possession of the land on
September 1, 1947.
It is clear that the dispute to which s.
7(1)(a) refers is a narrow dispute as to the possession of the tenant on a
specific date and his consequential right to the benefits of the Act. The same
is the position with regard to the other categories of the dispute specified by
s. 7(1). In none of the said categories is a dispute contemplated as to the relationship
of the parties itself. In other words s. 7(1) postulates the relationship of
tenant and landlord between the parties and proceeds to provide for the
exclusive jurisdiction of the Collector to try the five categories of disputes
that may arise between the landlord and the tenant.
The disputes which are the subject-matter of
s. 7(1) must be in regard to the five categories. That is the plain and obvious
construction of the words "any dispute as regards".
On this construction it would be unreasonable
to hold that a dispute about the status of the tenant also falls within the
purview of the said section. The scheme of s. 7(1) is unambiguous and clear. It
refers to the tenant and landlord as such and it contemplates disputes of the
specified character arising between them. Therefore, in our opinion, even on a
liberal construction of s. 7(1) it would be difficult to uphold the argument
that a dispute as regards the existence of the relationship of landlord and
tenant falls to be determined by the Collector under s. 7(1).
In this connection it would be relevant to
take into consideration the provisions of s. 7(2). This clause provides that
the Collector may, after making such enquiries as he may deem necessary, order
the tenant, by a notice served in the prescribed manner and specifying the
grounds on which the order is made, to cease to cultivate the land.
It is significant that the making of the
enquiry and its mode are left to the discretion of the Collector. If a serious
dispute as to the existence of the relationship of landlord and tenant between
the parties had been covered by s. 7(1) it is difficult to imagine that the 680
Legislature would have left the decision of such an important issue to the
Collector giving him full freedom to make such enquiries as he may, deem
necessary. As is well known, a dispute as to the existence of the relationship
of landlord and tenant raises serious questions of fact for decision, and if
such a serious dispute was intended to be tried by the Collector the Legislature
would have provided for an appropriate enquiry in that behalf and would have
made the provisions of the Code of Civil Procedure applicable to such an
enquiry. Section 7(2) can be easily explained on the basis that the
relationship between the parties is outside s. 7(1) and so the disputes that
are covered by s. 7(1) are not of such a nature as would Justify a formal
enquiry in that behalf The provisions of sub-ss.
(3), (6) and (7) also indicate that the
relationship between the parties is not, and cannot be, disputed before the
Collector. The parties arrayed before him are landlord and tenant or vice
versa, and it is on the basis of such relationship between them that he
proceeds to deal with the disputes entrusted to him by s. 7(1).
It is true that when the relationship of
landlord and tenant is proved or admitted the disputes falling within the five
categories enumerated in s. 7(1) will have to be tried by the Collector. Let us
take the present case itself to illustrate how s. 7(1) will operate. In the
suit filed by the appellant against the respondents the issue about the status
of the respondents was framed and so it had to be tried by the civil court. In
such a suit if the civil court holds that the relationship between the landlord
and the tenant had not been established it may proceed to deal with the suit on
the merits. If, however, it holds that the said relationship is established
then the civil court cannot deal with the dispute between the parties if it
falls within any one of the categories specified by s. 7(1). In such a case,
having made the finding about the relationship between the parties the civil
court will either dismiss the suit on the ground that it can give no relief to
681 the landlord, or may, if it is permissible to do so, return the plaint for
presentation to the Collector. What course should be adopted in such a case it
is unnecessary for us to decide in the present appeal. All that we wish to
emphasise is that the initial dispute between the parties about the
relationship subsisting between them will still continue to be tried by the
civil court and is outside the purview of s.
In support of the argument that a dispute as
to the existence of relationship as landlord and tenant should be taken to be
included under s. 7(1) reliance is placed on the provisions of s. 8(1) of the
Act. Section 8(1) provides that subject to the provisions of s. 7 all disputes
arising between landlord and tenant shall be cogniscible by the revenue court
and shall not be cogniscible by the civil court. It must be pointed out that we
are really not concerned with s. 8(1) in the present appeal because even
according to the respondents the present dispute between the parties attracted
s. 7(1.) and should have been tried by the Collector and not by 'the civil
court. However, the question about the construction of s. 8(1) has been
incidentally raised before us. In appreciating the scope and effect of s. 8(1)
it is necessary to bear in mind the provisions of s. 13 of the Act. The said
section provides that the Act shall, as far as may be, read and construed.
as forming part of the Madras Estates Land
Act, 1908, or as the case may be, of the Orissa tenancy Act, 1913. Therefore
reading the provisions of s. 8(1) and s. 13 tog-other it follows that all that
s. 8 (1) provides is that except for the disputes covered by s. 7 (1) all
disputes arising between landlord and tenant shall be cogniscible by the
revenue court and to the trial of such disputes by the revenue court the
relevant provisions of the Orissa Tenancy Act, 1913 would apply. It is true
that disputes to which s.
8(1) applies are entrusted to the exclusive
jurisdiction of the revenue courts and are excluded from the jurisdiction of
civil courts, but the effect of this 682 the other relevant provisions of the
parent Act of which this temporary Act forms a part. Now, if we turn to some of
the relevant provisions of the, parent Act it would be clear that when the
revenue courts are given jurisdiction to try the disputes the enquiry held by
them purports to be a formal enquiry to which the provisions of the Code of
Civil Procedure may apply (Vide: s. 192 of the Orissa Tenancy Act, 1913).
Similarly, the provisions of s. 204(1) which provides for appeals contemplate
appeals to the District Court and the High Court where questions of title are
involved. These provisions illustrate the point that where serious disputes
about title are entrusted to special tribunals usually the Legislature
contemplates a formal enquiry and makes the provisions of the Code of Civil
Procedure applicable to such an enquiry and provides for appropriate appeals.
Now, in regard to the order passed by the Collector under s. 7(1) the only
provision about appeals is that made by s. 11 which provides that an appeal
shall lie to the prescribed superior revenue authority whose decision shall be
final, and shall not be subject to any further appeal or revision. Departure
made by the Legislature in providing only one appeal and that too in every case
to the prescribed superior revenue authority clearly brings out that the
disputes which are entrusted to the Collector under S. 7(1) axe the simple
disputes specified in the five categories and do not include a serious dispute
like that of the relation,ship between the parties as landlord and tenant., If
such a dispute had been intended to be tried by the Collector the Legislature
would have provided for a formal enquiry and would have prescribed appropriate
appeals on the lines of ss. 192 and 204 of the parent Act.
In this connection we may in passing refer to
the provisions of s. 126 of the parent Act. This section deals with the
jurisdiction of civil courts in matters relating to rent.
Section 126(3) provides for the institution
of suits in civil courts on the 683 grounds specified by cls. (a) to (g).
Clause (c) deals with the ground that the relationship of landlord and tenant
does not exist. This clause shows that if a dispute arose between the parties
as to the existence of the relationship of landlord and tenant a suit in a
civil court a.% contemplated is prescribed by s. 126(3) (c). That also has some
bearing on the construction of s. 7(1); and it is for that limited purpose that
we have referred to it.
Therefore, we are satisfied that the High
Court was in error in holding that under a. 7(1) of the Act it was competent to
the Collector to try the issue between the appellant and the respondents
whether or not the Respondents were the tenants of the appellant and that the
civil court had no jurisdiction to entertain the said dispute.
In the result, the appeal must be allowed,
the order passed by the High Court set aside and that of the District Court
restored with. costs throughout.