Mussamiya Imam Halder Bax Razvi Vs.
Rabari Govindhai Ratnabhai & Ors [1968] INSC 202 (21 August 1968)
21/08/1968 RAMASWAMI, V.
RAMASWAMI, V.
SHAH, J.C.
GROVER, A.N.
CITATION: 1969 AIR 439 1969 SCR (1) 785
CITATOR INFO:
E&R 1978 SC1217 (5,11,12,36,39) D 1979 SC
653 (17,17A) R 1989 SC2240 (10,12)
ACT:
Bombay Tenancy and Agricultural Lands Act
(Bom. 67 of 1948), as amended by Bombay Amendment Act 13 of 1956, ss. 32, 70,
85 and 88-Suit land under management of Court of Wards- Tenancy created during
such management-Tenant if became statutory owner on "tillers'
day"-Jurisdiction of civil court to decide if tenancy subsisted on
relevant dates-If barred.
HEADNOTE:
The appellant succeeded to the estate
consisting of the suit lands when he was a minor. The State Government assumed
management of the estate under the Bombay Court of Wards Act, 1905 and
appointed the Collector as the manager of the estate. While the estate was
under the management of the Court of Wards on July 25, 1956. the first respondent wrote to the Collector that the respondents were forming a cooperative
society. for carrying on agriculture, and that the suit lands were required for
that purpose. The Collector passed an order on July 28, 1956. The kabuliyat was
executed on August 24, 1956 by the respondents, though no cooperative society
was formed. The lease was therefore created on August 24, 1956 and according to
the kabuliyat, expired on 31st May, 1957. The Court of Wards withdrew its
superintendence on May 11, 1958.
Under s. 32 of the Bombay Tenancy and
Agricultural Lands Act, 1948 every tenant shall be deemed to have become a
statutory owner of the land on 1st April, 1957 known as the "tillers'
day".' The Act was amended by Amending Act 13 of 1956 which came into
force on August 1, 1956. The effect of the amendment was that ss. 1 to 87A were
not applicable to an estate or land taken under the management of the Court of
Wards. Under s. 88 of the Act, after cessation of the management by the Court
of Wards, the provisions of the Act would apply to such estate. Therefore, ss.
1 to 87A of the Act were not applicable to the suit lands from August 1, 19'56
to May 11, 1958.
The appellant filed a suit on July 11, 1958
for recovery of possession of the suit lands and mesne profits on the ground
that the lease was fraudulently obtained by the respondents. The respondents
contended that they became statutory owners under s. 32 or s. 88 of the Act and
that the civil court had no jurisdiction to hear the suit.
The trial court decreed the suit. On appeal,
the High Court held: (1) that the appellant had failed to establish that the
lease was vitiated by fraud; (2) that the respondents had failed to establish
that they had become statutory owners of the suit lands on or before the date
of suit; (3) that the civil court had jurisdiction to decide whether the respondents
were tenants on the relevant dates namely July 28, 19'56 or May 11, 1958,
before the suit was filed, and whether they had become statutory owners, (4)
but that the civil court had no jurisdiction to deal with the question as to
whether the defendants were or were not tenants on the date of the suit that
such question could only be decided by the Revenue authorities and that the
question should be referred to the Mamlatdar accordingly.
786 In appeal to this Court,
HELD: (1) On the evidence adduced, the High
Court was right in its view that the lease in favour of the respondents was not
vitiated by fraud. The evidence showed 'that the lease was granted with the
knowledge that there was no cooperative society. [795 A-C] (2) (a) As during
the period August 1, 1956 to May 11, 1958 sections 1 to 87A of the Act were not
applicable to the suit lands, s. 32 was not applicable, and therefore, the
respondents could not have become statutory owners on the "tillers'
day", mentioned in s. 32. [795 G; 796 A] (b) As provided by the Kabuliyat
itself the tenancy expired on May 31, 1957. That is, there was no subsisting
lease on May 11, 1958 which was the date of cessation of the management by the
Court of Wards. If there was no subsisting lease on May 11, 1958 the
respondents were not tenants, and the High Court was right in its view that the
respondents had failed to establish that they had become statutory owners of
the land under s. 32 by virtue of the first proviso to s. 88. [796 s -E] (3)
Section 70(b) of the Act imposes a duty on the Mamlatdar to decide whether a
person is a tenant and not to decide whether a person was or was not a tenant
in the past.
In the present case, the contention of
statutory ownership of the respondeats was based on the question whether the
respondents were tenants on July 28, 1956 or on May 11, 1958 and not whether
they were tenants on July 11, 1958 the date of the suit. The question would be
therefore whether they were or were not tenants in the past. Further, the
question. was put forward by the respondents not as an independent question but
as a reason for substantiating their plea of statutory ownership. Therefore,
the plea of tenancy on the past two dates was a subsidiary plea and the main
plea was of statutory ownership and the jurisdiction of the civil court cannot
be held to be barred by virtue of the provisions of ss. 70 and 85, as there is
no exclusion, expressly or by necessary implication, of the jurisdiction of the
civil court to decide the question whether the respondents had acquired title
as statutory owners. Nor is the jurisdiction of the civil court barred for
considering the question whether the provisions of the Act are or are not
applicable to the suit land during a particular period.
[796 H; 797 A-E; G-H] Secretary of State v.
Mask & Co., 67 I.A. 222, 236, referred to.
(4) In the written statement, the only plea
set up on behalf of the respondents Was the plea of tenancy on July 28, 1956
which was the basis of statutory ownership. The High Court found that the
tenancy was created on August 24, 1956 and that the tenancy did not subsist on
May 11. 1958 when-there was a cessation of the management by the Court of
Wards.
There was no plea of any intervening act or
transaction between May 11, 1958 and July 11, 1958, the date of suit, under
which a fresh tenancy was created and which was subsisting on the date of the
suit. There was thus no issue which survived for the decision of the Mamlatdar
under s. 85A of the Act. Therefore, the High Court should have decreed the suit
and was in error in referring the issue whether the respondents were tenants of
the land on the date of suit to the Mamlatdar. [798 A-G]
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 312 and 313 of 1966.- 787 Appeals by special leave from the judgment and
decree dated February 5, 1963 of the Gujarat High Court in Appeal No.
1009 of 1960 from original decree.
S.T. Desai, G. L. Sanghi, B.R. Agarwala and
M. 1. Patel, for the appellant (in C.A. No. 312 of 1966) and the respondent (in
C.A. No. 313 of 1966).
K.L. Hathi, for respondents Nos. 1 to 8 (in
C.A. No. 312 of 1966) and the appellants (in C.A. No. 313 of 1966).
N.S. Bindra and S.P. Nayar, for respondent
No,. 9 (in C.A. No. 312 of 1966).
The Judgment of the Court was delivered by
Ramaswami, J. These appeals are brought, by special leave, from the judgment of
the High Court of Gujarat dated February 5, 1963 in appeal No. 1009 of 1960
arising out of Civil Suit No. 64 of 1958 filed by Mussamiya Imam Haider Bax
Razvi, appellant in Civil Appeal No. 312 of 1966 (hereinafter referred to as
the plaintiff) against the respondents in Civil Appeal No. 312 of 1966 and the
appellants (excepting the Charity Commissioner) in Civil Appeal No. 313 of 1966
(hereinafter referred to as the defendants).
The lands in dispute are located in the
village Isanpur and form part of a 'Devasthan' inam. The 'Sanads' were created
in the name of the ancestors of the plaintiff as the Sarjudanashi of the estate
of Shah Alam which was an estate consisting of 'Roza', a mosque, a grave-yard
and several other properties. The estate was last held by the father of the
plaintiff who expired on or about March 9, 1948 leaving behind him the
plaintiff who was then a minor as his only heir. On August 26, 1948 the
Collector of Ahmadabad was appointed as the guardian of the properties of the
plaintiff by an order of the District Court, Ahmadabad. Subsequently, on or
about January 15, 1953, the then Bombay Government assumed management of the
estate under the Court of Wards Act, 1905 (Bombay Act No: 1 of 1905) and
appointed the Collector of Ahmadabad as the manager of the same. The case of
the plaintiff is that the defendants fraudulently entered into a conspiracy
with the Collector's subordinate staff for getting possession of the disputed
lands. In this connection the first defendant wrote to the District Collector, Ahmadabad
on July 25, 1956 representing that certain persons formed or will form a
Co-operative Society for carrying on agriculture and therefore required the
lands for that purpose. Defendants 1, 2, 3 and 5 also made applications for
that purpose alleging that they were Rabari, kept cattle and were residents of Ahmadabad
but none of them had any agricultural land. On account of the fraud of the
defendants the Collector was prevailed upon to make an order 788 dated July 28,
1956 in breach of the provisions of ss. 63 and 64 of the Bombay Tenancy and
Agricultural Lands Act (Bombay Act 67 of 1948), hereinafter referred to as the
'Act', and the Rules made there under granting possession of the lands to the
defendants who were neither carrying on agriculture on cooperative basis nor
ever formed a Co- operative Society. It was contended on behalf of the
plaintiff that the lease granted to the defendants was void and the plaintiff
was entitled to a decree for recovery of possession of the lands from the
defendants and also for a sum of' Rs. 10,000 for damages for use and occupation
of the land prior to the date of the suit and ,for future mesne profits at the
rate of Rs. 500 per month. The main written statement was filed by the first
defendant and his contention was that the Civil Court had no jurisdiction to
hear the suit. It was said that valid lease had been created in favour of the defendants
and as a result of the coming into force of the Amending Act (Bombay Act No. 13
of 1956) the defendants had become statutory owners of the lands in question.
The suit came up for hearing before the 5th Joint Civil Judge, Senior Division
at Ahmadabad who by his judgment dated July 30, 1960, held that the Civil Court
had jurisdiction to hear the suit and the provisions of the Act did not apply
to the suit lands and therefore the defendants were trespassers. The learned
Judge accordingly granted a decree in favour of the plaintiff for recovery of
possession of the lands from defendants 1 to 8. He also granted the plaintiff a
decree for a sum of Rs. 10,000 as damages for use and occupation of the lands
with interest at 6 per cent p.a. from August 1, 1956 till the date of the suit
i.e., July 11, 1958. The learned Judge further ordered that the plaintiff was
entitled to recover mesne profits to be determined under O.20, r. 12, Civil
Procedure Code. Defendants 1 to 8 took the matter in appeal to the High Court
of Gujarat, being First Appeal No. 1009 of 1960.
The High Court held: (1 ) that the defendants
had failed to establish that they had become statutory owners of the suit lands
on or before the date of the suit, (2) that the plaintiff had failed to establish
that the lease created either on July 28, 1956 or on August 24, 1956 was
vitiated by fraud, and (3) that the Civil Court had no jurisdiction to deal
with the question as to whether the defendants were or were not tenants from
the date of the suit and this question could only be decided by the Revenue
Authorities.
For these reasons the High Court directed
that under s.
85A of the' Act the following issue should be
referred to the Mamlatdar having jurisdiction in the matter for his decision
and that the officer shall communicate his decision, or, if there are appeals
from the decision, the final decision, to the High Court as soon as possible.
The issue was as follows: "Do the defendants prove that they are tenants
of the lands in suit?" The High Court further directed that the hearing of
the appeal 789 should stand adjourned until after the relevant communication
was received from the Revenue Authorities.
It is necessary at this stage to set out the
relevant provisions of the Act as it stood at the material time.
Section 2(18) states:
"2. In this Act, unless there is
anything repugnant in the subject or context,-- (18) 'tenant' means a person
who holds land on lease and include--- (a) a person who is deemed to be a
tenant under section 4;
(b) a person who is a protected tenant; and
(c) a person who is a permanent tenant; and the word 'landlord' shall be
construed accordingly;" Section 32(1) is to the following effect:
"32.(1). On the first day of April 1957
(hereinafter referred to as 'the tillers' day") every tenant shall,
subject to the other provisions of this section and the provisions of the next
succeeding sections be deemed to have purchased from his landlord, free of all
encumbrances subsisting thereon on the said day, the land held by him as tenant,
if (a) such tenant is a permanent tenant thereof and cultivates land
personally;
(b) such tenant is not a permanent tenant but
cultivates the land leased personally; and (i) the landlord has not given
notice of termination of his tenancy under section 31;
or (ii) notice has been given under section
31, but the landlord has not applied to the Mamlatdar on or before the 31st day
of March 1957 under section 29 for obtaining possession of the land, or (iii)
the landlord has not terminated the tenancy on any of the grounds specified in
section 14, or has so terminated the tenancy but has not applied to the
Mamlatdar on or before the 31st day of March 1957 under section 29 for
obtaining possession of the lands.
Provided that if an application made by the
landlord under section 29 for obtain- Sup. C.1.-69-4 790 ing possession of the
land has been rejected by the Mamlatdar or by the Collector in appeal or in
revision by the Gujarat Revenue Tribunal under the provisions of the Act, the
tenant shall be deemed to have purchased the land on the date on which the
final order of rejection is passed. The date on which the final order of
rejection is passed is hereinafter referred to as 'the postponed date'.
Provided further that the tenant of a
landlord who is entitled to the benefit of the proviso to sub-section (3) of
section 31 shall be deemed to have purchased the land on the 1st day of April
1958, if no separation of his share has been effected before the date mentioned
in that proviso." Section 32-F reads as follows:
(1) Notwithstanding anything contained in the
preceding sections,- (a) where the landlord is a minor, or a widow or a person
subject to any mental or physical disability or a serving member of the armed
forces the tenant shall have the right to purchase such land under section 32
within one year from the expiry of the period during which such landlord is
entitled to terminate the tenancy under section 31.
Provided that where a person of such category
is a member of a joint family, the provisions of this sub-section shall not
apply if at least one member of the joint family is outside the categories
mentioned in this sub-section unless before the 31st day. of March 1958 the
share of such person in the joint family has been separated by metes and bounds
and the Mamlatdar on inquiry is satisfied that the share of such person in the
land is separated, having regard to the area, assessment, classification and
value of the land in the same proportion as the share of that person in the
entire joint family property and not in a larger proportion.
(b) Where the tenant is a minor or a widow or
a person subject to any mental or physical disability or a serving member of
the armed forces, then subject to the provisions of clause 791 (a) the right to
purchase land under section 32 may be exercised- ( i ) by the minor within one
year from the date on which he attains majority;
(ii) by the successor-in-title of the widow
within one year from the date on which her interest in the land ceases to
exist;
Provided that where a person of such category
is a member of a joint family, the provisions of this sub-section shall not
apply if at least one member of the joint family is outside the categories
mentioned in this sub- section unless before the 31st day of March 1958 the
share of such person in the joint family has been separated by metes and bounds
and the Mamlatdar on inquiry is satisfied that the share of such person in the
land is separated, having regard to the area, assessment, classification and
value of the land, in the same proportion as the share of that person in the
entire joint family property, and not, in a larger proportion.
Section 63 (1) reads thus "63. (1 ) Save
as provided in this Act,- (a) no sale ,(including sales in execution of a
decree of a Civil Court or for recovery of arrears of land revenue or for sums
recoverable as arrears of land revenue), gift, exchange or lease of any land or
interest therein, or (b) no mortgage of any land or interest therein, in which
the possession of the mortgaged property is delivered to the mortgagee, shall
be valid in favour of a person who is not an agriculturist (or who being an
agriculturist will, after such sale, gift, exchange, lease or mortgage, hold
land exceeding two-thirds of the ceiling area determined under the Maharashtra
Agricultural Lands (Ceiling on Holdings Act, 1961, or who is not an
agricultural labourer ):
Provided that the Collector or an officer
authorised by the State Government in this behalf may grant permission for such
sale, gift, exchange, lease or mortgage, on such conditions as may be
prescribed.
Explanation.-For the purpose of this sub-
section the expression 'agriculturist' includes any person who as 792 a result
of the acquisition of his land for any public purpose has been rendered
landless, for a period not exceeding tea years from the date possession of his
land is taken for such acquisition.
Section 70 is to the following effect:
"70. For the purposes of this Act the
following shall be the duties and functions to be performed by the Mamlatdar-
(a) to decide whether a person is an agriculturist;
(b) to decide whether a person is a tenant or
a protected tenant (or a permanent tenant);
(c) to decide such other matters as may be
referred to him by or under this Act." Section 85 states:
"(1) No Civil Court shall have
jurisdiction to settle, decide or deal with any question which is by or under
this Act required to be settled, decided or dealt with by the Mamlatdar or
Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in
appeal or revision or the State Government in exercise of their powers of
control.
(2) No order of the Mamlatdar, the Tribunal,
the Collector or the Maharashtra Revenue Tribunal or the State Government made
under this Act shall be questioned in any Civil or Criminal Court.
Explanation. For the purposes of this section
a Civil Court shall include a Mamlatdar's Court constituted under the
Mamlatdars' Courts Act., 1906." Section 85A provides as follows:
"( 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 shah communicate ifs decision to
the Civil Court and such court shall thereupon dispose of the suit in
accordance with the procedure applicable there- Explanation.-For the purpose of
this section a Civil Court shall include a Mamlatdar's Court constituted under
the Mamlatdars' Courts Act, 1906." Section 88 reads "(1) Save as
otherwise provided in sub-section (2), nothing in the foregoing provisions of
this Act shall apply- (a) to lands belonging to, or held on 'lease from, the
Government;
(b) to any area which the State Government
may, from time to time, by notification in the Official Gazette, specific as
being reserved for nonagricultural or industrial development;
(c) to an estate or land taken ...........
under the management of the Court of Wards or
of a Government Officer appointed in his official capacity as a guardian under
the Guardians and Wards Act, 1890;
(d) to an estate or land taken under
management by the State Government under Chapter IV or section 65 except as
provided in the said Chapter IV or section 65, as the case may be, and in
sections 66, 80A, 82, 83, 84, 85, 86 and 87:
Provided that from the date on which the land
is released from management, all the foregoing provisions of this Act shall
apply there-to; but subject to the modification that in the case of a tenancy,
not being a permanent tenancy, which on that date subsists in the land- (a) the
landlord shall be entitled to.
terminate the tenancy under section 31 or
under section 33B in the case of a certificated land' lord within one year from
such date; and (b) within one year from the expiry of the period during which
the landlord or certificated landlord is entitled to terminate the tenancy as
aforesaid, the tenant shall have the right to purchase the land under section
32 (or under section 33C in the case of an excluded tenant); and 794 Rule 36 of
the Bombay Tenancy and Agricultural Lands Rules, 1956 is to the following
effect:
"Conditions on which permission for sale
etc.
of land. under section 63 may be granted-- (
1 ) The Collector or other officer authorized under the proviso to sub-section
(1 ) of section 63 shall not grant permission for the sale, gift, exchange,
lease or mortgage of any land in favour of a person who is not either an
agriculturist or an agricultural laboratory or who, being an agriculturist,
cultivates personally land not less than the ceiling area whether as owner or
tenant or partly as owner and partly as tenant unless any of the following
conditions are satisfied :- (a) such a person bona fide requires the land for a
non-agricultural purpose; or (b) the land is required for the benefit of an
industrial or commercial undertaking or an educational or charitable
institution; or (c) such land being mortgaged, the mortgagee has obtained from
the Collector a certificate that he intends to take the profession of an
agriculturist and agrees to cultivate ,he land personally; or (d) the land is
required by a Co-operative Society; or The first question to be considered in
this case is whether the High Court was right in taking the view that the
plaintiff failed to establish that the lease created on August 24, 1956 was
vitiated by fraud. It was contended by Mr. S.T. Desai on behalf of the
plaintiff that the trial court had reached the finding that there was a
conspiracy between the defendants and the Collectables staff and the Collector
was induced by fraud and misrepresentation to grant lease in favour of the
defendants. It was argued that there was no justification for the High Court to
interfere with the finding of the trial Judge on this point.
Mr. S.T. Desai took us through the relevant
documentary evidence on this issue but having perused that evidence, we are
satisfied that the High Court was right in holding that the plaintiff had not
established that there was any fraud or misrepresentation made to the Collector
or that there was a conspiracy between the defendants and the City Deputy
Collector or his subordinates. In this connection, the High Court has referred
to the circumstance that the offer made by the Collector in his letter, Ex. 51
embodies 795 the conditions which are capable of being explained on the ground
that the Collector was aware of the fact that there was no Co-operative Society
in existence and that the defendants were not members of any! Co-operative
Society.
The High Court also referred to the
application, Ex. 5 3 which contains an endorsement of the City Deputy Collector
that the defendants were given the lands for cultivation on co-operative basis.
The High Court also referred to the circumstance that neither the plaintiff nor
his personal guardian had appeared in the witness box to support the allegation
of fraud. We are accordingly of the opinion that the High Court was right in expressing
the view that the lease in favour of the defendants was not vitiated by fraud
and Counsel on behalf of the plaintiff has been unable to make good his
submission on this aspect of the case We pass on to consider the next question
arising in this case, namely, whether the defendants had become statutory
owners of the suit lands because of the provisions of s. 32, s. 32-F or s.
88(1) of the Act. It is necessary to state at the outset that the Amending Act
No. 13 of 1956 came into force on August 1, 1956. It is not disputed by the
parties that the Act as it stood before the Amending Act 13 of 1956, applied to
the suit land. One of the sections which was amended by the Amending Act 13 of
1956 was section 88. One of the effects of the amendment of s. 88 was that ss.
1 to 87A were not applicable to "an estate or land taken under the
management of the Court of Wards". So, it is not in dispute that after
August 1, 1956 the provisions contained in ss. 1 to 87A of the Act did not
apply to the suit lands.
It is also admitted that after the cessation
of the management by the Court of Wards the provisions of the Act again became
applicable to the suit lands. It has been found by the High Court upon
examination of the evidence that the Court of Wards withdrew its superintendence
on May 11, 1958 when the order for the release of the management was actually
passed and not on May 11, 1957 when the plaintiff attained majority. It is
evident therefore that the Act applied to the suit lands before August 1, 1956,
that ss. 1 to 87A did not apply during the period between August 1, 1956 and
May 11, 1958 which was the date on which the management of the estate by the
Court of Wards ceased, and that the provisions of the Act again applied to the
suit lands after the cessation of such management. On behalf of the defendants
the argument was presented that there was a valid lease granted on July 28,
1956 and the defendants were tenants on April 1, 1957 i.e., the date of 'the
tillers day' under s. 32 of the Act and accordingly the defendants became
statutory owners of the lands in suit under that section. Mr. Hathi on behalf
of the defendants challenged the finding of the High Court that there was no
valid lease created on July 28, 1956, but having gone through the relevant
documentary 796 and oral evidence, we are satisfied that the defendants have
not substantiated their case that there was any valid lease of the lands on
July 28, 1956 and the High Court was right in taking the view that the lease
was created only on the execution of the' 'Kabuliyat' dated August 24, 1956. It
follows from this finding that the defendants were not tenants on the 'tillers'
day' mentioned in s. 32 of the Act. The other question which arises in! this
connection is whether the defendants became statutory owners because of the
provisions contained in the first proviso to s. 88 of the amended Act. The High
Court has found that the defendants were not subsisting tenants on May 11, 1958
which was the date on which there was a cessation of the management. The reason
was that the 'Kabuliyat' dated August 24, 1956 was a period of. one year and
having regard to the fact that the Act was not applicable to the plaintiff's
estate from August 1, 1956 to May 11, 1958, the tenancy would expire on May 31,
1957 as provided for in the 'Kabuliyat' itself. The High Court therefore found
that on the basis that the tenancy was created by the 'Kabuliyat' dated August
24, 1956, the tenancy came to an end on May 31, 1957, so that there was no
subsisting tenancy on the date of the cessation of the management. If there
wag. no subsisting lease on May 11, 1958, the High Court was right in taking
the view that the defendants had failed to establish that they had become
statutory owners of the land by virtue of the first proviso to s. 88 of the new
Act.
We proceed to consider the next question
arising in this case, namely, whether the Civil Court had jurisdiction to
decide the question whether the defendants were tenants of the suit lands on
July 28, 1956 or on May 11, 1958 and whether the lease was created in favour of
the defendants on July 28, 1956 as claimed by them or on August 24, 1956 as
claimed by the plaintiff. Mr. Hathi addressed the argument that the question
whether the defendants were tenants with effect from July 28, 1956 or
thereafter was an issue which was expressly friable by a Revenue Court under s.
70 of the Act and the jurisdiction of the Civil Court was barred. It was argued
that the issue of ownership was not the primary issue before the High Court and
the main question was whether the defendants were or were not the tenants of
the suit lands on the material date, namely, July 28, 1956 or on May 11, 1958
and such a question lay within the scope of the jurisdiction of the Revenue
Authorities. In other words, it was argued that the determination of the
question whether the lease was created which subsisted after August 1, 1956 or
which subsisted also on May 11, 1958 was not a matter within the scope of the
jurisdiction of the High Court. We are unable to accept the argument put
forward by Mr. Hathi as correct. Section 70 (b) of the Act imposes a duty on
the Mamlatdar to decide whether a person is a tenant, but the sub-section 797
does not cast a duty upon him to decide whether a person was or was not a
tenant in the past-whether recent or remote.
The main question in the present case was the
claim of the defendants that they had become statutory owners of the disputed
lands because they were tenants either on the 'tillers' day' or on the date of
the release of the management by the Court of Wards. In either case, the
question for decision will be not whether the defendants were tenants on the
date of the suit but the question would be whether they were or were not
tenants in the past. The question whether the defendants were tenants on July
28, 1956 or on May 11, 1958 was not an independent question but it was put
forward by the defendants as a reason for substantiating their plea of
statutory ownership. In other words, the plea of tenancy on the two past dates
was a subsidiary plea and the main plea was of statutory ownership and the
jurisdiction of the Civil Court cannot therefore be held to be barred in this
case by virtue of the provisions of s. 70 of the Act read with the provisions
of s. 85 of the Act.
We are accordingly of the opinion that s. 85
read with s. 70 of the Act does not bar the jurisdiction of the Civil Court to
examine and decide the question whether the defendants had acquired the title
of statutory owners to the disputed lands under the new Act. In this context,
it is necessary to bear in mind the important principle of construction which
is that if a statute purports to exclude the ordinary jurisdiction of a Civil
Court 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 Judicial
Committee 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." In our opinion, there is nothing in the
language or context of s. 70 or s. 85 of the Act to suggest that the
jurisdiction of the Civil Court is expressly or by necessary implication barred
with regard to the question whether the defendants had become statutory owners
of the land and to decide in that connection whether the defendants had been in
the past tenants in relation to the land on particular past dates. We are also
of the opinion that the jurisdiction of the Civil Court is not barred in
considering the question whether the provisions of the Act are applicable or
not applicable to the disputed land during a particular period.
We accordingly reject the argument of Mr.
Hathi on this aspect of the case.
(1) 67 I.A. 222, 236.
798 The next contention on behalf of the
plaintiff is that the High Court was in error in referring to the Mamlatdar
under s. 85A of the Act, the issue whether "the defendants were tenants of
the land in suit". It was pointed out by Mr. S.T. Desai that the High
Court had rejected the contention of the defendants that the tenancy was
created on July 28, 1956 but the defendants were tenants only with effect from
August 24, 1956. The High Court has further found that there was no subsisting
tenancy on May 11, 1958 when there was a cessation of the management of the
Court of Wards. The suit was brought by the plaintiff on July 11, 1958 and the
argument put forward on behalf of the plaintiff is that there was no plea on
behalf of the defendants that there was any intervening act, event or
transaction between May 11, 1958 and July 11, 1958 under which a fresh tenancy
was created. In other words, the argument on behalf of the plaintiff was that
the only plea set up on behalf of the defendants was the plea of tenancy on
July 28, 1956 which was the basis of the plea of statutory ownership. It was
said that there was no other plea of tenancy set up by the defendants
subsequent to May 11, 1958 when the management of the Court of Wards ceased.
In our opinion, the argument is well-founded
and must be accepted as correct. On behalf of the defendants Mr. Hathi referred
to paragraphs 4 and 6 of the written statement of the first defendant dated
September 18, 1958, but, in our opinion, both these paragraphs must be read
together and the plea of tenancy in para 4 is based upon the: claim of the
defendants that they were "lawful' tenants of the suit lands and they got
this right before August 1, 1956". The plea of tenancy is therefore based
upon the alleged lease of July 28, 1956 which is rolled up in the plea of
substantive claim of statutory ownership. On a proper interpretation of the
language of paragraphs 4. and 6 of the written statement we are satisfied that
there is no independent plea of tenancy set up by the defendants as subsisting
on' the date of the suit and there was no issue which survived for being
referred for the decision of the Mamlatdar under s. 85A of the Act. We are
accordingly of the opinion that the High Court was in error in referring any
fresh issue to the Mamlatdar but instead should have granted a decree to the
plaintiff for recovery of possession the lands and also as to damages and mesne
profits as decreed by the trial court.
For the reasons expressed we hold that Civil
Appeal No. 312 of 1966 must be allowed and the judgment of the High Court dated
February 5, 1963 should be set aside and the decree of the 5th Joint Civil
Judge, Senior Division at Ahmadabad dated July 30. 1960 should be restored.
Civil Appeal No. 313 of 1966 is dismissed. The plaintiff will be entitled to
the costs of 799 this Court (one set of hearing fees) but we do not propose to
make any order with regard to the costs incurred by the parties in the High
Court.
The application filed by the defendants for
leave to produce additional evidence in this Court is rejected.
C.A. 312 of 1966 allowed.
V.P.S. C.A. 313 of 1966 dismissed.
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