Murtazakhan Dadamkhan & Ors Vs. Pathan Pirkhan Amdumiyan  INSC 146 (23 March 1993)
K. Ramaswamy, K. Sahai, R.M. (J)
1993 AIR 1750 1993 SCR (2) 578 1993 SCC Supl. (2) 518 JT 1993 (3) 615 1993
of Civil Procedure, 1908.
100-Second appeal-Raising of fresh plea during- Permissibility of. Section
9-Civil Courts-Bar of jurisdiction.
Bombay Tenancy Act, 1939. Sections 24,
appellants' predecessor was inducted as an usufructuary mortgagee of certain
fields. On the expiry of redemption period the respondents filed a suit for
redemption which was decreed subject to payment of damages for improvements. On
appeal, the District Court confirmed the redemption decree but set aside the
decree for damages. In second appeal, the appellants raised a new plea: that
they were deemed tenants by operation of Section 2-A of the Bombay Tenancy Act,
also contended on their behalf that Section 85-A of the Act ousted the
jurisdiction of the Civil
Court to decide the
dispute of tenancy rights In pending suit.
both the contentions the High Court confirmed the decree of the appellate
court. Against the judgment of the High Court an appeal was flied in this
the appeal, this Court,
plea based on Section 2-A was sought to be raised for the first time in second
appeal before the High Court. It was neither raised in the pleadings nor argued
either before the trial Court or the appellate court.
the High Court rightly did not permit the appellants to raise the plea of a
deemed tenancy as the said claim needs investigation based on factual
foundation which was lacking. Consequently, the question whether under Section
85-A the Civil Court had jurisdiction or not need not be gone into. [580 D-E,
579 F] 579 Salman Raje v. Madhavsang Benesang I.L.R. 1963 Guj. 722, cited.
APPELLATE JURISDICTION: Civil Appeal No. 1890 of 1974.
the Judgment and Order dated 6.8.1973 of the Gujarat High Court in Second
Appeal No.98 of 1973.
for the Appellants.
and P. Narasimhan for the Respondents.
following Order of the Court was delivered:
appeal under Article 136 is against the judgment of the High Court of Gujarat
in Second Appeal No.98 of 1973 dated August 6, 1973. The appellants' predecessor was
inducted in Field Nos.439 and 676 as, an usufructuary mortgagee in the year
1945. On expiry of the period of redemption prescribed therein, that is, 25
years, the suit for redemption was filed in 1970 by the respondents. The trial
court decreed the suit subject to payment of damages for improvements. On
appeal, the District Court confirmed the decree for redemption but set aside
the decree for damages. In second appeal, the High Court confirmed the decree
of the appellate court. Thus this appeal.
High Court, the appellants sought two contentions, namely, by operation of
Section 2-A which was brought by way of amendment of Section 48 to the Bombay
Tenancy Act, 1939, the mortgagee became a deemed tenant. It was not permitted
to argue as is not a pure question of law but is a mixed question of law and
fact which need investigation of facts.
neither raised in the pleadings nor argued either before the trial court or the
appellate court. Therefore, the question raised in the second appeal for the
first time was disallowed. The second question namely, the jurisdiction of the
civil court to declare the tenancy rights by operation of the Amendment Act
5/73 which brought Section 85-A on statute with retrospective effect. It ousted
the jurisdiction of the civil court to decide the dispute of tenancy rights in
pending suit. This contention too was negatived as when the Amendment Act came
into force, the second appeal was pending and therefore the High Court held
that the civil court was not ousted to exercise the jurisdiction and to refer
the matter to the Revenue
jurisdiction for adjudication whether the appellants 580 were or were not
deemed tenants. The same contention was reiterated before us. Placing reliance
on a Division Bench judgment of the Gujarat High Court in Salman Raje v. Madhavsang
Benesang, reported in ILR 1963 Guj.722, Shri M.V. Goswami, the learned counsel
for the appellants contended that by operation of Section 2-A, the appellants
are deemed tenants. Once the appellants are deemed tenants, the Revenue Court has to decide that issue. The
second appeal is a continuation on the suit and therefore, the High Court is
not right in rejecting the claims of the appellants. It is not necessary to
express any opinion on the correctness of the judgment of the Division Bench of
the Gujarat High Court. Suffice it to say that the appellants had not
specifically pleaded that the appellants are deemed tenants by operation of
Section 2-A of the Act. What was pleaded in the written statement was that
initially the appellants' predecessor was continuing as cultivating tenant. But
by virtue of the mortgage, their tenancy right merged in the right as usufructuary
mortgagee. On redemption pre-existing tenancy rights get revived. But that plea
was not pursued.
plea based on Section 2-A was sought to be raised for the first time in the
High Court. The High Court rightly did not permit the appellants to raise the plea
of a deemed tenancy as the said claim needs investigation based on factual
foundation which was lacking. Once the right of tenancy is not permitted to be
raised, the question of construction of Section 85-A whether the Civil Court had jurisdiction or not is an
academic issue. Accordingly, we are not going into that question. The learned
counsel for the appellants also contended that the appellants are entitled to
the improvements. The High Court did not go into that question as the same was
not canvassed and the decree of the appellate court is quite right. We cannot
go into that question which is accordingly rejected. The appeal, is accordingly
dismissed but in the circumstances without costs.