Dewaji Vs. Ganpatlal [1968] INSC 179
(6 August 1968)
06/08/1968 SIKRI, S.M.
SIKRI, S.M.
BACHAWAT, R.S.
HEGDE, K.S.
CITATION: 1969 AIR 560 1969 SCR (1) 573
ACT:
Berar Regulation of Agricultural Leases Act
(24 of 1951), as amended by Amendment Act of 1953, ss. 16, 16A and 16B--If
applicable to appellate proceedings.
Letters Patent Appeal--Jurisdiction of Bench
to reopen interlocutory order by single Judge.
HEADNOTE:
The respondent leased his land to the
appellant on yearly lease for the year 1950-51. As the appellant did not vacate
at the end of the year the respondent filed a suit for his eviction. Pending
the suit, the Bera Regulation of Agricultural Leases Act, 1951, came into force
and the appellant contended that he continued to be a tenant for the year
1951-52, that he was a 'protected tenant', and that the civil court had no
jurisdiction to eject him. The trial court rejected the contentions. The
appellant appealed and while the appeal was pending the Act was amended by the
1953 Act. Sections 16A and 16B of the Act as amended provided, that whenever
any question as to whether a transaction between a landholder and a person
claiming to be his lessee was a lease, arose in any suit or proceeding, it
should be referred to the revenue officer that the revenue officer's decision
shall be accepted by the civil court; and that no civil court shall entertain
any suit to obtain a decision on a matter which the revenue officer was
empowered to determine. The appellant contended in the appellate court that the
determination of the question whether he was the respondent's tenant was a
matter entirely within the jurisdiction of the revenue courts only.
The appellate court held that the 1953-Act
did not affect pending proceedings, that the appellant was not the respondent's
tenant for the year 1951-52, and dismissed the appeal. In second appeal, a
single Judge of the High Court held that in view of the 1953 amendments, it was
for the revenue courts to decide whether the appellant was the respondent's
lessee for the year 1951-52 and referred the matter to the revenue courts. The
revenue courts held that the appellant was paying rent to the respondent for
the year 1951-52, and remitted the finding to the .High Court.
Another Single Judge of the High Court,
before whom the matter came up for final disposal, accepted the finding and
held that. the respondent was not entitled to eject the appellant. He also
rejected the respondent’s contentions that the 1953 amendments were not
applicable and that the matter should never have been referred to the revenue
courts. The respondent thereupon appealed under Letters Patent. The Bench held
that ss. 16, 16A and 16B of the Act were not intended to affect pending
proceedings, that the civil court could decide the question whether the
appellant was the respondent's tenant in 1951-52, and allowed the appeal
accepting the findings of the trial court and the first appellate court that
the appellant was not the respondent's tenant for the year 1951-52.
In appeal to this Court.
HELD: (1) It was open to the Letters Patent
Bench to decide all points decided by the single Judges even though no appeal
was filed against the order referring the matter to-the revenue courts, as that
order 574 was only an interlocutory one to which s. 105(2) C.P.C.;
was not applicable. [578H; 579A-B.]
Satyadhyan Ghosal v. Smt. Deorajin Devi, [1960] 3 S.C.R.
590, (2) The intention of the Legislature was
not to apply the 1953-Act to pending proceedings and therefore ss. 16, 16A and
16B did not bar the jurisdiction of the civil.courts in the present case.
The 1953-Act came into force after the trial
court decreed the suit and an appeal was pending in the first appellate Court.
The words 'suit or proceeding in s. 16A do not ordinarily, indicate appllate
proceedings and there is nothing in ss. 16, 16A or 16B which can lead to the
necessary inference that these provisions were intended to apply to appeals
pending when the 1953-Act came into force.
Further, the words used in s. 16B are
'entertain' and not 'entertain and try.'. If the intention was to affect
pending proceedings the word 'try.' would have been in the section along with
the word 'entertain'. [578 C-El
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1041 of 1965.
Appeal from the judgment and decree dated
August 9, 1962 of the Bombav High Court, Nagpur Bench, in Letters Patent Appeal
No. 12 of 1961.
S. V. Natu and A. G. Ratnaparkhi, for the
appellant.
S.N. Kherdekar and M.R.K..Pillai, for the
respondent.
The Judgment of the Court was delivered by
Sikri, J. This appeal by certificate granted under Art.-133 (1)(a) and (b) of
the Constitution is directed against the judgment of the High Court of
Judicature at Bombay, Nagpur Bench, in a Letters Patent appeal allowing the
appeal and restoring the decree made in favour of the plaintiff
Ganpatlal--respondent before us and hereinafter called the respondent by the
Trial Court as confirmed by the District Court.
The facts relevant for the determination of
the points raised before us are as follows: The respondent, Ganpatlal, was the
owner of Field Survey No. 56, measuring 25 acres 4 gunthas, in Yeotmal
District. It appears that the respondent used to lease the land to the
defendant Dewaji--appellant before us and hereillafter called the
appellant---on yearly lease. For the year 1950-51 he gave the land to the
appellant on the condition that at the end of the year the lease will stand
determined and the appellant will hand over possession. On May 7, 1951, the
respondent served a notice on the appellant requiting him to vacate the land in
suit. The appellant however, continued to remain in possession. Thereupon the
respondent filed a suit on September 17, 1951. praying for possession, damages
and mesne profits, On November 15, 1951, the Berar Regulation of Agricultural
575 Leases Act, 1951 (Madhya Pradesh No. XXIV of 1951)--hereinafter called the
1951 Act--came into force, s. 16 of which provides as follows:
"Except as otherwise provided in this
Act, no Civil Court shall entertain any suit instituted, or application made,
to obtain a decision or order on any matter which a Revenue Officer is by or
under this Act, empowered to determine, decide or dispose of." One of the
pleas which the appellant took was that he had been recorded as a 'protected
tenant' under the 1951 Act and that the Civil Courts had no jurisdiction to
eject him in view of 8 of that Act. The Trial Court held that the appellant was
not a protected tenant under s. 3(3) of the 1951 Act and the Civil Court had ,
jurisdiction.
The appellant then appealed to the District
Judge and the Additional District Judge held that the Civil Court had
jurisdiction. He observed that "there is nothing in this section (s. 16 of
the 1951 Act) to suggest that the powers of the Civil Court were in any way
curtailed in regard to the question whether a particular person was a tenant or
not under section 3 of the Act. Moreover, there is nothing in that Act to show
that it was intended to apply to suits which were pending at the date when this
Act came into force." By the time the appeal was heard by the Additional
District Judge, s. 16 of the 1951 Act had been substituted by ss. 16. I6-A and
16-B by the Berar Regulation of Agricultural Leases (Amendment) Act,
1953---hereinafter called the i953 Act. These. sections run as follows:
"16(1) Whenever any question arises
whether any transaction between a landholder and a person claiming to be his
lessee is a lease within the meaning of this Act, such question shall be
decided by the Revenue Officer.
(2) In deciding the question referred to in
subsection (1) the Revenue Officer shall, notwithstanding anything contained in
section 92 of the Indian Evidence Act, 1872, or in section 49 of the Indian Registration
Act, 1908. or in any other law for the time being in force, have power to
inquire into and determine the real nature of the transaction and shall be at
liberty, notwithstanding anything contained in any law as aforesaid to admit
evidence of any oral agreement or a statement or unregistered document with a
view to such determination.
(3) Any decision of the Revenue Officer under
this section shall be binding on the parties to the proceedings and persons
claiming through them.
576 16-A (1 ) Whenever any question as is
referred to in section 16 arises before a Civil Court in any suit or
proceeding, the Court shall, unless such question has already been determined
by a Revenue Officer, refer the question to the Revenue Officer for decision
and shall stay the suit or proceeding so far as it relates to the decision of
such question.
(2) The Civil Court shall accept the decision
of the Revenue Officer on the question and decide the suit or proceeding before
it accordingly.
16-B: Except as otherwise provided in this
Act, no Civil Court shah entertain any suit instituted, or application made, to
obtain a decision or order on any matter which a Revenue Officer is by or under
this Act, empowered to determine, decide or dispose of." Before the
Additional District Judge the appellant relied on these sections and asserted
that the determination of the question whether a person is a tenant or not was,
under the 1953 Act, a matter entirely within the jurisdiction of the Revenue
Courts and the jurisdiction of the Civil Courts had been ousted. The learned
Additional District Judge repelled the argument and held that the 1953 Act did
not affect pending proceedings. The learned Additional District Judge thereupon
dismissed the appeal.
The appellant then appealed to the High
Court. The appeal first came up for hearing before Vyas, J. By an order dated
August 21, 1957, he held that in view of the amendments made by the 1953 Act,
"it is not for the Civil Court to' decide but for the Revenue Officer to
determine whether in the year 1951-52 also the defendant was paying to his
landlord every week by way of rent one-third share in the produce of the garden
and was his lessee for that year also." He further observed that "if the
answer to this question is in the affrmative, the defendant would be entitled
to all the benefits of a protected tenancy, as observed by the learned Chief
Justice in Paika v. Rajeshwar(1).'' In the result he set aside the judgment and
decree passed by the learned Additional District Judge and directed "that
the record and proceedings in this case be sent to the Revenue Officer that is,
the Sub Divisional Officer, Yeotmal, and the said Revenue Officer is directed
to decide whether the defendant's averment is right or otherwise, namely, that
even after the expiry of the year 1950-51, that is, even after 31st March,
1951, the defendant used to pay to his landlord, the plaintiff, every week by
way of rent one-third share F in the produce of the garden.
The decision of the Revenue Officer (1)
[1957] Nag. L.J. 344.
577 shall be subject to the usual course of
appeal and revision, and. when the question which is referred to the Revenue
Officer by this judgment is finally decided by the highest Revenue Authority,
the finding shall be communicated to this Court. Until such time that this
Court receives a finding upon the question mentioned above from the highest
Revenue Authority, this appeal shall stand stayed. It shall be disposed of by
this Court after the finding of the highest Revenue Authority is received by
it." The Revenue Court then remitted the finding. The Commissioner, which
was the last Revenue Court, gave a finding confirming the one as given by the
Sub-Divisional Officer that the appellant was paying rent to the respondent for
the year 1951-52.
The appeal was then heard by Badkas, J. It
was argued before him that Vyas, J., should not have referred the issue to the
Revenue Officer for decision under s. 16 of the 1951 Act, but Badkas, J., held
that it would not be appropriate for him to sit in judgment over the decision
given by Vyas, J., and that the reference made by Vyas, J., under s. 16 of the
1951 Act had to be accepted. Accepting the finding of ,the Revenue Courts,
Badkas, J., held that the respondent was not entitled to eject the appellant.
He further held that it was not necessary to decide whether the 1951 Act was
retrospective or not as the 1951 Act came into force during the year in which
the defendant held survey numbers in question as lessee. He accordingly allowed
the appeal.
Having obtained leave, the respondent
appealed under the Letters Patent. It was urged before the Letters Patent Bench
on behalf of the appellant that the Bench could not deal with the question
whether the 1953 Act applied to pending proceedings on the ground that this
point had not been argued before the learned Single Judge. The Bench found no
substance in this contention as the point had been raised before the learned
Single Judges. The Bench further held that there was no bar to the question of
applicability of the 1953 Act being allowed to be raised.
Dealing with the merits, the Bench held that
"taking the scheme of the Act into account and the fact that there is no
section in the Act which makes the Act applicable to pending proceedings, it is
at once clear that it was not intended to affect pending proceedings. Pending
proceedings must continue unaffected by the provision of the Act and whatever
quest.ions arose in those proceedings must be decided by the Civil Courts."
The Bench then accepting the finding of the Civil Courts, held that there was
no defence to the suit and the suit must succeed. The Bench also repelled the
argument that it was not open to R to consider the entire merits of the Second
Appeal as the leave had 578 been given by Badkas, J., and not by Vyas, J. The
Bench observed that there was no substance in the contention since the judgment
of Vyas, J., was never open to the appeal it being an interlocutory judgment.
The learned counsel for the appellant
contends that ss.
16, 16A and 16B, as substituted by the 1953
Act, had clearly ousted the jurisdiction of the Civil Courts and Vyas, J, was
right in sending the case to Revenue Courts for decision on the question
whether the appellant was a tenant in the year 1951-52 or not. He stresses the
word "whenever" appearing in s. 16 and says that this is a wide word
and no limitation can be placed on it. In our view there is no substance in
this contention. The first point to be noticed in this connection is that the
1953 Act came into force after the Trial Court had decreed the suit and an
appeal was pending before the District Judge. It cannot be disputed that if the
Legislature intends to oust the jurisdiction of Civil Courts, it must say so
expressly or by necessary implication. We cannot find any words in ss. 16, 16A
and 16B which can lead to the necessary inference that these provisions were
intended to apply to appeals pending when the 1953 Act came into force. It is
true that the word "whenever" is wide but s. 16A uses the words
"suit or proceeding" and these words do not ordinarily indicate
appellate proceedings. Further, s. 16B uses the word "entertain" and
not the words "entertain or try any suit" as contained in s. 15 (2)
of the 1951 Act. If the intention was to affect pending proceedings, the word
"try" along with the word "entertain" would have been' used
in s. 16B of the 1953 Act. It seems to us that the intention was not to apply
the 1953 Act to pending appeals. If ss. 16A and 16B do not bar the jurisdiction
of the Civil Courts in this case the Letters Patent Bench was right in
accepting the findings given by the Trial Court and the District Court in
holding that the appellant was not a tenant for the year 1951-52.
The learned counsel then contends that it was
not open to the Letters Patent Bench to decide .this question of the
applicability of ss. 16, 16A and 16B because Vyas, J., had decided to the
contrary and had not given leave to appeal against his order. It seems to us
that the order of Vyas, J, was interlocutory and it was not necessary for the
respondent to obtain separate leave to appeal against this order. It was open
to the Letters Patent Bench to decide all points decided by Vyas, J., in the
interlocutory 'order dated August 21, 1957. At any rate the same point was
raised before Badkas, J. Further as held by this Court in Satyadhyan Ghosal v.
Sm. Deorajin Devi(1), "an interlocutory order which did not terminate the
proceedings and which had not been appealed from either because no appeal lay
or even though an appeal lay an appeal was not taken, could be challenged in an
appeal from (1) [1960] 3 S.C.R. 590.
579 the final decree or order." Section
105(2), C.P.C., does not apply in this case, and therefore, the Letters Patent
Bench was entitled to go into the validity of the order passed by Vyas, J.
The learned counsel then urges that this was
a new point and the Letters Patent Bench should not have allowed it to be
taken. But we agree with the Bench that the point had been raised before the learned
Single Judges.. In view of this it is not necessary to decide whether a new
point can be taken up in a Letters Patent appeal or not.
In the result the appeal fails and is
dismissed with costs.
V.P.S. Appeal dismissed.
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