Bhimaji Shanker Kulkarni Vs. Dundappa
Vithappa Udapudi & ANR [1965] INSC 129 (5 May 1965)
05/05/1965 BACHAWAT, R.S.
BACHAWAT, R.S.
SUBBARAO, K.
DAYAL, RAGHUBAR
CITATION: 1966 AIR 166 1966 SCR (1) 145
CITATOR INFO:
D 1978 SC1217 (2,5,34,35) E&R 1979 SC 653
(13,15,16,17,17A) R 1989 SC2240 (9,12)
ACT:
Bombay Tenancy and Agricultural Lands Act,
1948 (Bom. Act LXVII of 1948), s. 85(1)Civil Court's jurisdiction barred in
respect of matters to be dealt with by mamlatdar--Claim of being a 'protected
tenant' under the Act-To be decided under s. 70(b) by mamlatdar-Suit where such
a claim made in defendant's written statement whether barred under s. 85(1).
HEADNOTE:
The plaintiff-appellant instituted a suit in
the civil court for the possession of suit properties on redemption of a
mortgage and the taking of accounts on the allegation that defendant No. 1 was
the usufructuary mortgagee under a mortgage deed. The defendants pleaded that
the transaction in question was an advance lease and not a mortgage and that
they were "protected" tenants within the meaning of the Bombay
Tenancy and Agricultural Lands Act, 1948. Under s. 70(b) of the Act it was one
of the duties of the Mamlatdar to decide whether a person was a 'protected'
tenant. Under s. 85(1) of the Act the jurisdiction of the civil court %-as
barred in respect of matters which fell to be decided by the mamlatdar. The
trial court held that the document in question was a composite document
comprising of a mortgage and a lease, that the mortgage debt having been paid
the mortgage stood redeemed, and that the plaintiff was at liberty to seek his
remedy of possession in the revenue court-. The first appellate court held that
the civil court had no jurisdiction to determine whether defendant No. 1 was a
mortgagee in possession or a tenant, but confirmed the trial courts finding
that the mortgage debt stood redeemed.
The High Court in plaintiffs second appeal
held that the lower appellate court having correctly held that the civil court
had no jurisdiction to interpret the document executed between the parties
ought not to have taken the accounts treating the document as a mortgage. It
asked the trial court to refer the issue as to the nature of the transaction to
the mamlatdar. The plaintiff filed a Letters Patent Appeal and that also having
failed, he appealed to the Supreme Court, by special It was contended on behalf
of the appellant that the jurisdiction of a civil court depends on the
allegations made in the plaint and the plea in the written statement that the
defend-ants were 'protected' tenants did not oust jurisdiction of the civil
court.
HELD : (i) The Mamlatdar has exclusive
jurisdiction under the Act to entertain an application by a landlord for
possession of agricultural lands against a tenant, and the civil court has no
jurisdiction to entertain and try a suit by a landlord against a tenant for
possession of agricultural lands. The Mamlatdar has no jurisdiction to try a
suit by a landowner for recovering of possession of agricultural lands from a trespasser
or from a mortgage on -redemption of a mortgage, and the civil court has no
jurisdiction to entertain such a suit; but if the defendant to the suit pleads
that he is a tenant and an issue arises whether he is such a tenant, the Court
must refer the issue to the Mamlatdar for determination and must stay the suit
pending such determination, and after the Mamlatdar has decided the issue, the
court may dispose of the suit in the light of the decision of the Mamlatdar.
[149 E-H] 146 Dhondi Tukaram v. Hari Dadu, I.L.R. 1953 Bom. 969, approved.
Mudugere Rangaiah v. M. Rangaiah, I.L.R. 1959
Mysore, 420, distinguished.
(ii) The High Court had jurisdiction to set
aside the finding of the trial court that nothing was due by the plaintiff to
the defendants. The first appellate court had given inconsistent findings. The
High Court had ample power to correct the error arising therefrom. [152 D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 270 of 1963.
Appeal by special leave from the judgment and
decree dated December 7, 1959 of the Mysore High Court in Second Appeal (B) No.
184 of 1956.
S. G. Patwardhan, S. N. Prasad, J. B.
Dadachanji, for the appellant.
R. Gopalakrishnan, for the respondents.
The Judgment of the Court was delivered by
Bachawat, J. On April 19, 1951, the plaintiff-appellant instituted a suit in
the Court of the Second Joint Civil Judge, Junior Division at Bagalkot, for
possession of the suit properties on redemption of a mortgage and the taking of
accounts on the allegation that defendant No. 1 was the usufructuary mortgagee
under a mortgage deed dated June 28, 1945 (Ex. 43). The defendants pleaded that
the transaction of June 28, 1945 was an advance lease and not a mortgage, and
they were 'protected' tenants within the meaning of the Bombay Tenancy and
Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) hereinafter referred to
as the Act. On March 4, 1953, the trial Court passed the following decree:
" 10. (A) The deed Exhibit 43 is a
composite document comprising of a mortgage and a lease.
On taking accounts of the mortgage debt, it
is found that plaintiff owed nothing to the defendants on the date of suit. The
mortgage stands fully redeemed.
(B) The plaintiff is at liberty to seek his
remedy for possession of the suit lands in the Revenue Courts.
(C) The plaintiff shall recover half the
costs of the suit from the defendants and the defendants shall bear their
own." On April 15, 1953, the plaintiff filed an appeal in the Court of the
Assistant Judge at Bijapur, and the defendants filed cross objections. On July
5, 1955, the first appellate Court held that the Civil Court had no
jurisdiction to determine whether defendant 147 No. 1 was a mortgagee in
possession or a tenant, and passed the following decree:
"The appeal is partly allowed. The
decree of the learned trial Judge that nothing is due by the plaintiff to the
defendants under the transaction (Exhibit 43) at the date of the suit and the
plaintiff is at liberty to seek his remedy for possession of the suit land in
Revenue Court is confirmed. The rest of the decree namely that the document
(Exhibit 43) is a composite document showing a mortgage and a lease and about
costs is set aside. Instead it is directed that the record and proceedings
should go back to the Trial Court who should give three months' time to the
plaintiff after record and proceedings reach it for filing proper proceedings
in the Tenancy Court for determining as to whether defendant I is a tenant. If
the plaintiff does not institute those proceedings within the time allowed by
the Trial Court, then the suit of the plaintiff for possession etc., should be
dismissed ordering the parties to bear their own costs. If the proceedings are
instituted by the plaintiff in the Tenancy Court, then the Trial Court should
await the final decision of the said Tribunal. In case it is held by the
Tenancy Court that the defendant I is not a tenant, then the Trial Court should
proceed to pass a decree for possession of the suit lands from the defendants
to the plaintiff and should order inquiry into mesne profits, from the date of
suit until delivery of possession and should reconsider the question of costs
between the parties to the suit." On October 1, 1955, the plaintiff filed
a second appeal in the High Court of Mysore. On December 7, 1959, the High
Court dismissed the second appeal. The High Court held :
"The lower Appellate Court having come
to the conclusion that it has got no jurisdiction to interpret this document,
should not have taken the accounts, treating the document as a mortgage.
Therefore, I set aside that finding of the Assistant Judge. I confirm the
finding of the Assistant Judge that the Civil Court has got no jurisdiction to
interpret the document, Ex. 43 as to whether it is a mortgage or a lease. It
is, therefore, directed that the record should go back to the Trial Court who
should refer the issue to the Mamlatdar as to whether the defendant is a lessee
under Exhibit 43, dated 28th 148 June 1945 and in case it is held that the
defendant is not a tenant, then the Trial Court will proceed to decide the suit
on merits. If it is held that the defendant is a lessee and therefore, a
tenant, then the suit will be dismissed.
Consequently, the appeal fails and is
dismissed with costs.
Subsequent petitions by the plaintiff for
review of this decree and for leave to file a Letters Patent Appeal were
dismissed on April 14, 1960. The plaintiff now appeals to this Court by special
leave.
On behalf of the appellant, Mr. Patwardhan
contended that the jurisdiction of a Civil Court depends upon the allegations
made in the plaint, the Civil Court has full jurisdiction to try a suit for
recovery of possession of agricultural lands on redemption of a mortgage and
the Mamlatdar has no jurisdiction to try such a suit, the plea in the written
statement that the defendants were protected tenants did not oust the
jurisdiction of the Civil Court. to try the suit and the Civil Court should
have tried and decided the incidental issue whether the defendants were
mortgagees or protected tenants, instead of referring the issue to the
Mamlatdar. On behalf of the respondents, Mr. Gopalakrishnan disputed these
contentions, and contended that the High Court rightly referred the issue for
the decision of the Mamlatdar.
The suit lands are agricultural lands within
the meaning of the Bombay Tenancy and Agricultural Lands Act, 1948. The Act was
passed with a view to amend the law relating to tenancies of agricultural lands
and to make certain other provisions in regard to those lands. 'Land' as defined
in s. 2(8) of the Act covers land used for agricultural purposes including the
site of dwelling houses occupied by agriculturists for the purposes inter alia
of s. 29.
Sections 2(1 O) (A), 4 and 4-A define
"permanent tenants", "tenants" and "protected tenants"
respectively. Section 29(2) provides that no landlord shall obtain possession
of any land or dwelling house held by a tenant except under an order of the
Mamlatdar, and for obtaining such order, he must make an application in the.
prescribed form within a certain time. By s. 29(4), the landlord taking
possession of any land or dwelling house except in accordance with the
provisions of sub-s(2), is liable to forfeiture of crops, penalties and costs.
Section 70(b) provides that for the purposes of the Act, one of the duties and
functions to be performed by the Mamlatdar is "to decide whether a person
is a tenant or a protected tenant or a permanent tenant." Section 85(1)
provides that no Civil Court shall have jurisdiction to settle, decide or deal
with any 149 question which is by the Act required to be settled, decided or
dealt with by the Mamlatdar. Section 85A reads :
"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 such 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
Mamlatdars' Courts Act, 1906." With regard to suits and proceedings by a
landowner for possession of agricultural lands, the combined effect of ss.
29, 70, 85 and 85A of the Act is as follows:
The Mamlatdar has exclusive jurisdiction to entertain an application by a
landlord for possession of agricultural lands against a tenant, and the Civil
Court has no, jurisdiction to entertain and try a suit by a landlord against a
tenant for possession of agricultural lands. The Mamlatdar has no jurisdiction
to try a suit by a landowner for recovery of possession of agricultural lands
from a trespasser or from a mortgagee on redemption of a mortgage, and the
Civil Court has jurisdiction to entertain such a suit; but if the defendant to
the suit pleads that he is a tenant or a protected tenant or a permanent tenant
and an issue arises whether he is such a tenant, the Court must refer the issue
to the Mamlatdar for determination, and must stay the suit pending such
determination, and after the Mamlatdar has decided the issue, the Court may
dispose of the suit in the light of the decision of the Mamlatdar.
Section 85A was introduced by Bombay Act XIII
of 1956, which came into force on March 23, 1956 during the pendency of' the
second appeal in this case. The suit out of which this appeal arises was
governed by the law as it stood before the introduction of s. 85A. But
independently of s. 85A and before it came into 150 force, the Bombay High
Court in Dhondi Tukarain v. Hari Dadu(1) held that the effect of ss. 70(b) and
85 read in the light of the other provisions of the Act was that if in a suit
filed against the defendant on the footing that he is a trespasser he raises
the plea that he is a tenant or a protected tenant the Civil Court had no
jurisdiction to deal with the plea, and the proper procedure was to refer the
issue to the Mamlatdar for his decision and not to ,,dismiss the suit
straightaway. The Court observed:
"Therefore, we hold that in a suit filed
against the defendant on the footing that he is a trespasser if he raises the
plea that he is a tenant or a protected tenant, the Civil Court would have no
jurisdiction to deal with that plea. ..... We would, however, like to add that
in all such cases where the Civil Court cannot entertain the plea and accepts
the objection that it has no jurisdiction to try it should not proceed to
dismiss the suit straightaway. We think that the proper procedure to adopt in
such cases would be to direct the party who raises such a plea to obtain a
decision from the Mamlatdar within a reasonable time. If the decision of the
Mamlatdar is in favour of the party raising the plea, the suit for possession
would have to be dismissed, because it would not be open to the Civil Court to
give any relief to the landlord by way of possession of the agricultural land.
If, on the other hand, the Mamlatdar rejects
the plea raised under the Tenancy Act, the Civil Court would be entitled to
deal with the dispute on the footing that the defendant is a trespasser."
In Dhondi Tukaram's case1'), the Court expressed the hope that the legislature
would make suitable amendments in the Act. The Bombay Legislature approved of
the decision, and gave effect to it by introducing s. 85A by the amending
Bombay Act XIII of 1956. Section 85A proceeds upon the assumption that though
the Civil Court has otherwise jurisdiction to try a suit, it will have no
jurisdiction to try an issue arising in the suit, if the issue is required to
be settled, decided or dealt with by the Mamlatdar or other competent authority
under the Act, and on that assumption, s. 85A provides for suitable machinery
for reference of the issue to the Mamlatdar for his decision. Now, the
Mamlatdar has jurisdiction under s. 70 to decide the several issues specified
therein "for the purposes of this Act", and before the introduction
of (1) I.L.R. [1953] Dom. 969.
151 s. 85A, it was a debatable point whether
the expression "for the, purposes of this Act" meant that the
Mamlatdar had jurisdiction to decide those issues only in some proceeding
before him under some specific provision of the Act, or whether he had
jurisdiction to decide those issues even though they arose for decision in a
suit properly cognisable by a Civil Court, so that the jurisdiction of the
Civil Court to try those issues in the suit was taken away by s. 85 read with
s. 70, Dhondi Tukaram's case(1) settled the point, and held that the Mamlatdar
had exclusive jurisdiction to decide those issues even though they arose for
decision in a suit properly cognisable by a Civil Court.
The result was somewhat startling, for
normally the Civil Court has jurisdiction to try all the issues arising in a
suit properly cognisable by it. But having regard to the fact that the Bombay
Legislature approved of Dhondi Tukaram's case(1) and gave effect to it by
introducing s. 85A, we must hold that the decision correctly interpreted the
law as it stood before the enactment of s. 85A. It follows that independently
of s. 85A and under the law as it stood before s. 85A came into force, the
Courts below were bound to refer to the Mamlatdar the decision of the issue
whether the defendant is a tenant.
In Mudugere Rangaiah v. M. Rangaiah(2), the
plaintiff sued for a declaration that he is the kadim tenant in the suit land
and prayed for a permanent injunction restraining the defendant from
interfering with his possession. Both the plaintiff and the defendant claimed
to be tenants under the same landlord. The defendant contended that the suit
was not maintainable in a Civil Court in view of s. 46 of the Mysore Tenancy
Act (Mysore Act. No. XIII of 1952). The Mysore High Court held that the jurisdiction
of the Amildar is limited to cases arising by or under the Mysore Tenancy Act,
and the decisions that he is required to give under s. 32 of the Act were
"for the purposes of the Act" and the aforesaid suit did not arise
under any of the provisions of the Act and the Civil Court had, therefore, the
jurisdiction to decide all the points in dispute in the suit including the
question of tenancy and no provision in the Act laid down that a Civil Court
was not entitled to try civil proceedings involving the determination of any
question falling within s. 32 of the Act, though the Amildar was the competent
authority to settle, decide and deal with those questions, had they arisen in
proceedings under the Act.
Sections 32 and 46 of the Mysore Act are
similar to ss. 70 and 85 of the Bombay Act, but there are many points of
distinction between the scheme and legislative history of the Mysore Act and
those of the (2) I.L.R. [1959] Mysore 420.
(1) I.L.R. [1953] Bom. 969.
152 Bombay Act. The Mysore High Court considered
Dhondi Tukarams case(1), and also noted some of the points of distinction
,between the two Acts. In the instant case, the question of interpretation of
ss. 32, 46 and other provisions of the Mysore Act does not arise, and we
express no opinion on it. We must not be taken to express any opinion one way
or the other on the correctness or otherwise of the decision in Mudugere
Rangaiah's case(2).
Mr. Patwardhan also contended that in the
second appeal preferred by the plaintiff the High Court had no jurisdiction to
set aside the finding of the first appellate Court given in favour of the
appellant namely, the finding that "nothing is due by the plaintiff to the
defendants under the transaction, Exhibit 43." There is no .substance in
this contention. The first appellate Court recorded inconsistent findings.
Having held that the Civil Court had no jurisdiction to determine whether
defendant No. 1 was a mortgagee in possession or a tenant, the lower appellate
Court should have stayed the suit pending decision of that question by the
Mamlatdar, and until such a decision was given, the Court could not proceed on
the footing that the transaction evidenced by Ex. 43 was a mortgage and the
defendant No. 1 was a mortgagee and hold that nothing was due by the plaintiff
to the defendants under the transaction. The High Court had ample power to
correct this error and to set aside this inconsistent finding in an appeal
filed by the plaintiff, though the defendants had filed no appeal or cross objections.
In the result, the appeal is dismissed with
costs.
Appeal dismissed.
(1) I.L.R. [1953] Bom. 969.
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