Smt. Kazi
Najmunissa Begum Vs. Yusuf Khan & Ors [1989] INSC 284 (21 September 1989)
Saikia,
K.N. (J) Saikia, K.N. (J) Dutt, M.M. (J)
CITATION:
1989 AIR 2289 1989 SCR Supl. (1) 217 1989 SCC Supl. (2) 568 JT 1989 (3) 717
1989 SCALE (2)607
ACT:
Hyderabad Tenancy and Agricultural Lands Act,
1950:
Sections
2(r), (u), (v), 31, 32, 34-37, 87-95--Exclusive jurisdiction of the Tenancy
Authorities under the Act--Competent Authority to decide issue on merits.
HEAD NOTE:
The
appellant/plaintiff instituted a suit for declaration of title, possession and mesne
profits of the suit property. The respondents/ defendants 1 and 2 resisted the
suit mainly on the ground that they were tenants of one Sirajuddin who had
allegedly acquired title to the suit property on the basis of a gift in favour
of his wife. The Trial Court decreed the suit holding that Sirajuddin had no
right or title and that the defendants were trespassers. The High Court
rejected the defendants' appeal and the special leave therefrom was rejected by
this Court.
The
decree-holder moved an Execution Petition for possession. The respondents
objected to the execution on the ground that they were tenants and could not,
therefore, be dispossessed in execution of the decree of the Civil Court.
The
objection was rejected and the High Court rejected the appeal therefrom.
Thereafter,
when the Execution Petition was set down for proceeding further, once again the
respondents raised the plea of tenancy, and this time the Executing Court raised an issue of tenancy and
referred the same to the Tenancy Court for determination. The appellant
appealed to the High Court.
The
High Court observed that there could be no question of creation of tenancy
interest by those who themselves had no title; that the judgment debtors'
earlier objection to execution on the ground of their claim of tenancy was also
rejected; and it was not open to the judgment debtors to once again raise an
issue of tenancy before the Executing Court which ought to have rejected the
same contention. Even so, the High Court having noted that judgment debtor No.
2 had already filed an independent proceeding under the Hyderabad Tenancy and
Agricultural Lands Act, 1950 for declaration of his tenancy rights observed
that, if that was so, then the Competent 218 Authority under the Tenancy Act
would have to decide the issue on its own merits and in accordance with law
irrespective of and regardless of all observations, if any, touching upon such
a claim of tenancy in the civil proceedings between the parties. The High Court
also observed that the question of tenancy was not directly in issue between
the parties in the civil proceedings and the judgment debtor No. 2 was not
debarred from instituting proceedings under the Tenancy Act before the
Competent Authority. The High court allowed the revision petition, set aside
the order of the Executing
Court referring the
issue of tenancy, and directed the Executing Court to proceed further with the Execution Petition.
Before
this Court it was contended that the High Court committed a serious error while
setting aside the order of the Executing Court referring the issue of tenancy
to the Tehsildar, at the same time allowing the proceedings under the Tenancy
Act before the Tehsildar proceed in the face of the fact that the judgment
debtors' objection on the basis of their tenancy was already rejected by the
Executing Court, and in holding that the competent authority should decide the
issue of tenancy in accordance with law irrespective of and regardless of all
observations made in the suit and the appeal.
Disposing
of the appeal, this Court,
HELD:
(1) The Tenancy Act had amended the law regulating the relations of
land-holders and tenants of agricultural land and the alienation of such land.
[221B]
(2)
Though it could he said that when the person who inducted the tenants on the
land was found to be a trespasser on the date of the induction, the tenants
could not continue to have a right to be on the land against the will of the
true owner, yet, taking into consideration the exclusive nature of jurisdiction
of the Tenancy authorities under the Tenancy Act, and the fact that the
appellant has already preferred an appeal from the order of the competent
authority, the Court was not inclined to interfere with the order of the High
Court appealed against. [222D-E] Latchaiah v. Subrahmanyam, [1967] 3 SCR 712,
referred to.
(3) It
will now be open to the appellant to place the decisions rendered in her favour
by the Civil Courts before the competent authority hearing the appeal and to
proceed in accordance with the provisions of the Tenancy Act. [222F] 219
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 4003 of 1989.
From
the Judgment and Order dated 17.12. 1986 of the Bombay High Court in Civil Revision A. No. 270 of 1983.
R.S. Hegde
and N. Ganpathy for the Appellant.
The
Judgment of the Court was delivered by K.N. SAIKIA, J. Leave granted. Heard
learned counsel for the appellant. None appears for the respondents.
The
appellant as plaintiff instituted suit No. 32 of 1964 in the Court of Civil
Judge (Senior Division), Aurangabad for declaration of title,
possession and mesne profits of the suit property. The respondents 1 and 2 as
defendants 1 and 2 resisted the suit mainly on the ground that they were
inducted as tenants by Sirajuddin who allegedly acquired title to the suit
property by a deed of gift executed by Hasmuddin in favour of his wife Waliunnissa
from whom it was inherited by Sirajuddin. The trial court decreed the suit
holding that Sirajuddin had no right or title and the defendants were
trespassers. In the appeal therefrom by the defendants 1 and 2 before a
Division Bench of the Bombay High court the same plea of tenancy was raised and
rejected; and it was held that the gift of the suit property by Hasmuddin in favour
of Waliunnissa was not proved. Their application for leave to appeal therefrom
to the Supreme Court was also rejected.
The
decree-holder moved the execution petition being Special Darkhast No. 20 of
1967 for delivery of possession.
The respondent
Nos. 1 & 2 (who were judgment debtor Nos. 1 & 2) objected to the
execution on the ground that they were tenants and could not, therefore, be
dispossessed in execution of the decree of the Civil Court. The Executing
Court rejected this
objection and directed the Darkhast to proceed. The defendants' Civil Appeal
No. 264 of 1977 therefrom was also rejected by the High Court. Thereafter when
the aforesaid Darkhast No. 20 of 1967 was set down for proceeding further, once
again the same judgment debtor Nos. 1 & 2 raised the plea of tenancy; and
this time the Executing
Court raised an issue
of tenancy and referred the same to the Tenancy Court for determination. The
appellant moved the High Court in Civil Revision Application No. 270 of 1983
and the High Court observed, inter alia, that the Executing Court was not
justified in raising an issue of tenancy, as such an issue did not arise 220 at
all the Court having found on evidence that Waliunnissa had no title to the
suit property and her son Sirajuddin could not have inherited it as an heir of Waliunnissa,
and as such there could be no question of creation of tenancy interest by those
who themselves had no title; that the judgment debtors' earlier objection to
execution on the ground of their claim of tenancy was also rejected; and it was
not open to the judgment debtor Nos. 1 & 2 to once again raise an issue of
tenancy before the Executing Court which ought to have rejected the same
contention. Even so, the High Court having noted that judgment debtor No. 2 had
already filed an independent proceeding under the Hyderabad Tenancy and
Agricultural Lands Act, 1950 (hereinafter referred to as 'the Tenancy Act') for
declaration of his tenancy rights in the suit land observed that, if that was
so, then the competent authority under the Tenancy Act would have to decide the
issue "on its own merits and in accordance with law irrespective of and
regardless of all observations, if any, touching upon such a claim of tenancy
in the civil proceedings between the parties, viz. Special Suit No. 32 of 1964
and Appeal No. 824 of 1967". The High Court also observed that the
question of tenancy was not directly in issue between the parties in the
aforesaid civil proceedings and the judgment debtor No. 2 was not, therefore,
debarred from instituting proceedings under the Tenancy Act before the
competent authority. The High Court further observed that as the execution
proceedings had been pending since the year 1967 it was expected that the
competent authority would decide the proceedings expeditiously. Accordingly the
High Court allowed the revision and set aside the impugned order dated April
28, 1983 passed by the Executing Court in the said Special Darkhast No. 20 of
1967 to the extent it referred issue No. 1 to the Tenancy Tahsildar or Mamlatdar
under Section 99(a) of the Tenancy Act and the Executing Court was directed to
proceed further with the Special Darkhast No. 20 of 1967 in the light of those
observations.
In
this appeal the appellant assails the Judgment of the High Court on the grounds,
inter alia, that the High Court committed a serious error, while setting aside
the order of the Executing Court referring the issue of tenancy to the Tahsildar,
at the same time allowing the proceedings under the Tenancy Act before the Tahsildar
to proceed in the face of the fact that the judgment debtors' objection on the
basis of their tenancy was already rejected by the Executing Court; and in
holding that the competent authority should decide the issue of tenancy in
accordance with law irrespective of and regardless of all observations made in
the suit and the appeal.
221 In
course of arguments, the learned counsel for the appellant has stated that the
competent authority under the Tenancy Act, during the pendency of this special
leave petition, has already passed an order in favour of judgment debtor No. 2
and the appellant has also since filed an appeal therefrom before the appellate
authority. In view of this subsequent development we have to examine the legal
position qua the Tenancy Act.
The
Tenancy Act had amended the law regulating the relations of land-holders and
tenants of agricultural land and the alienation of such land.
"Tenancy" as defined in s. 2(u) of the Tenancy Act, means the
relationship of landholder and tenant. "Tenant" as defined in s. 2(v)
means an assami shikmi who holde land on lease and includes a person who is
deemed to be a tenant under the provisions of the Tenancy Act. As defined in s.
2(r) "protected tenant" means a person who is deemed to be a
protected tenant under the provisions of ss. 34 to 37. Under s. 31 of the
Tenancy Act no interest of a tenant in any land held by him as a tenant shall
be liable to be attached or sold in execution of a decree or order of a Civil Court. Section 32 of the Tenancy Act
deals with procedure of taking possession. Under subsection (1) thereof, a
tenant or an agricultural labourer or artisan entitled to possession of any
land or dwelling house under any of the provisions of this Act may apply to the
Tahsildar in writing in the prescribed form for such possession. Under
sub-section (2) thereof, no land-holder shall obtain possession of any land or
dwelling house held by a tenant except under an order of the Tahsildar, for
which he shall apply in the prescribed form. Under sub-section (3), on receipt
of an application under sub-section (1) or subsection (2) the Tahsildar shall,
after holding an enquiry, pass such order thereon as he deems fit. Section 33
provides that the Tenancy Act is not to affect the rights, privileges of tenant
under any other law. Save as provided in subsection (1) of section 30, nothing
contained in this Act shall be construed to limit or abridge the rights or
privileges of any tenant under any usage or law for the time being in force or
arising 'out of any contract, grant, decree or order of a court or otherwise
howsoever. Chapter IV in ss. 34 to 46 deals with rights of protected tenants.
Chapter IX of the Tenancy Act in ss. 87 to 95 deals with Constitution of
Tribunal; Procedure and Powers of Authorities; Appeals etc. Chapter XI contains
the Miscellaneous provisions.
Section
99, dealing with Bar of Jurisdiction provides: "(1) Save as provided in
this Act 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 Tahsildar, Tribunal or Collector or by the Board of 222
Revenue or Government. (2) No order of the Tahsildar, Tribunal of Collector or
of the Board of Revenue or Government made.under this Act, shall be questioned
in any Civil or Criminal Court." Section 104 enjoins the Act to prevail
over other enactments and says: "This Act and any rule, order or
notification made or issued thereunder shall have effect notwithstanding
anything inconsistent therewith contained in any other enactment with respect
to matters enumerated in List II in the Seventh Schedule to the Constitution of
India or in any instrument having effect by virtue of any such other
enactment." The Tenancy Act was inserted in the Ninth Schedule to the
Constitution at Entry 36. Article 3 lB of the Constitution of India gives full
protection to the Tenancy Act and its provisions in the Schedule against any
challenge on the ground of inconsistency with or abridging of any of the rights
conferred by Part III of the Constitution and it would be so notwithstanding
any judgment, decree or order of any court or Tribunal to the contrary.
Though
after the decree of the civil court, on the authority of Latchaiah v. Subrahmanyarn,
[1967] 3 SCR 712, it could be said that when the person who inducted the
tenants on the land was found to be a trespasser on the date of the induction,
the tenants could not continue to have a right to be on the land against the
will of the true owner, yet, taking into consideration the exclusive nature of
jurisdiction of the Tenancy authorities under the Tenancy Act, the above
provisions, and the fact that the appellant has already preferred an appeal
from the order of the competent authority, we are not inclined to interfere
with the impugned order, as it will now be open to the appellant to place the
decisions rendered in her favour by the Civil Courts before the competent
authority hearing the appeal and to proceed in accordance with the provisions
of the Tenancy Act. If ultimately the judgment debtor No. 2 is held to have
been or not to have been a tenant, it will be open for the appellant to proceed
accordingly further in the Special Darkhast No. 20 of 1967 as directed by the
High Court. This appeal is disposed of as above, with no order as to costs.
R.S.S.
Appeal disposed of.
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