Full Judgment Text
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PETITIONER:
ISHVERLAL THAKORELAL ALMAULA
Vs.
RESPONDENT:
MOTIBHAI NAGJIBHAI
DATE OF JUDGMENT:
10/08/1965
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
WANCHOO, K.N.
MUDHOLKAR, J.R.
CITATION:
1966 AIR 459 1966 SCR (1) 367
CITATOR INFO :
RF 1977 SC 915 (8)
RF 1979 SC 653 (15)
R 1985 SC 582 (31)
RF 1989 SC 558 (11)
R 1989 SC2240 (12)
ACT:
Bombay Tenancy and Agricultural Lands Act 67 of 1948-Proviso
to s. 43C-Introduced by Bombay Act 13 of 1956-Whether
protects tenants in suits filed after enactment of Bombay
Act 33 of 1952--ss. 70 and 85-jurisdiction of Civil Courts-
Scope of-Proviso-If a substantive provision.
HEADNOTE:
In June 1939, the appellant granted tenancy of certain lands
for agricultural purposes, at first to the respondent’s
father, and later to the respondent. The tenancy was
continued from year to year under fresh agreements. After
serving a notice on the respondent in November 1955 to
deliver vacant possession of the lands in March 31, 1956,
the appellant filed a suit for ejectment. The trial court
decreed the. appellant’s claim, but in appeal the District
Judge reversed this decision -on the ground that under the
proviso to s. 43C, of the Bombay Tenancy and Agricultural
Lands Act 67 of 1948, the respondent was a protected tenant
within the meaning of that Act, read with the Bombay Tenancy
Act, 1939; and that the civil court had no jurisdiction to
grant a decree for possession of the land in dispute. An
appeal to the High Court was dismissed.
In the appeal to this Court,
HELD : (per Shah and Wanchoo, JJ.)
(i) The proviso to s. 43C efforts protection to the tenant
if the tenant had the protection of the Act of 1948 as
originally enacted, notwithstanding that the protection was
taken away by the Bombay Tenancy and Agricultural Lands
(Amendment) Act, 1952. Protection of the proviso to s. 43C
must be given to the tenant even in cases where it is
claimed in a suit filed before the amending Act of 1956 was
enacted, if the suit is not finally disposed of. [376 G-H]
Patel Maganbhai Jethabhai v. Somabhai Sursang, (1958) 60
Bom. L.R. 1383, approved.
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The proper function of a proviso is to except or qualify
something enacted in the substantive clause, which but for
the proviso would be within that clause. But the question
is one of interpretation of the proviso; there is no rule
that the proviso must always be restricted to the ambit of
the main enactment and it may at times amount to a
substantive provision. [373 F, G]
(ii) The order passed by the District Judge dismissing the
suit could not be sustained.
Under s. 85A, introduced into Act 67 of 1948 by Act 13 of
1956, even in a suit properly instituted in the civil court,
if any issue arises which is required to be decided by the
revenue court, such issue shall be referred for trial to
that court, and the suit shall be disposed of in the light
of that decision. The District Judge should have referred
the questions relating to the tenancy and its determination
which arose in the suit, to be
3 68
tried by the Mamlatdar as a revenue court and should not
have proceeded to dispose of the suit. [378 C-D, H]
Pandurang Hari v. Shanker Maruti, 62 Bom. L.R. 873 and
Kalicharan Bhajanlal Bhayya v. Rai Mahalaxmi and Anr., 4
Guj. L.R. 145, considered.
(per Mudholkar, J. dissenting) The benefit of the proviso to
s. 43C would be available only to a person who is or claims
to be a tenant or protected tenant under the Act. Under s.
70, the question whether or not a person is a protected
tenant is to be determined by the Mamlatdar acting as a
revenue court and by virtue of s. 85(1) no civil court has
jurisdiction to consider such a claim. No sooner such a
claim is made before a civil court, it must stay its hands
and refer the question to the Mamlatdar, who has exclusive
jurisdiction ;Io adjudicate on the facts in issue between
the parties as well as to determine the effect of the
various provisions of law bearing on the point. [379 F-380
C]
It is not open to this court to examine for itself the
various enactments, construe the provisions, and state its
conclusions as to their applicability to the present case.
The jurisdiction to do any of these things in an appeal of
this kind is barred by the combined operation of ss. 70(b)
and 85(1). [381 C]
Paika Dasaru Bhangle v. Rajeshwar Balaji Awari, (1958) Bom.
L.R. 8 (F.B.), referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 210 of 1963.
Appeal by special leave from the judgment and order dated
April 30, 1959 of the Bombay High Court in second appeal No.
439 of 1959.
S. T. Desai, S. N. Andley, Mohinder Narain, Rameshwar Nath
and P. L. Vohra, for the appellants.
S. S. Shukla, for the respondent.
The Judgment of Wanchoo and Shah, JJ. was delivered by Shah,
J. Mudholkar, J. delivered a dissenting Opinion.
Shah, J. On June 18, 1939, Ishverlal Almaula-hereinafter
called ’the appellant’--granted for agricultural purposes
tenancy rights in land bearing Survey Nos. 52 & 158 at
Kanbivaga in the town of Broach to Nagjibhai, father of the
respondent, and since that date the land continued to remain
in the possession of Nagjibhai and after his death of his
son Motibhai By letter dated November 2, 1955 the appellant
terminated the tenancy and called upon the respondent to
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deliver vacant possession of the land on March 31, 1956, and
filed on April 4, 1956 Suit No. 180 of 1956 in the Court of
the Civil Judge, Senior Division, at Broach for a decree in
ejectment against the respondent and for mesne profits. The
Civil Judge decreed the appellant’s claim. In appeal the
District Judge, Broach reversed the decree of the Trial
Court and dismissed the suit. He held that in view of the
369
proviso to s. 43C incorporated in the Bombay Tenancy and
Agricultural Lands Act 67 of 1948 by Bombay Act 13 on 1956,
the respondent continued by virtue of the amendment by Act
13 of 1956 to remain a tenant, and the Civil Court had no
jurisdiction to grant a decree for possession of the land in
dispute. In reaching that conclusion the learned Judge
followed the decision of the Bombay High Court in Patel
Maganbhai Jethrbhai v. Sonzabhai Sursang.(1) A second appeal
to the High Court of Bombay was dismissed summarily. With
special leave, the appellant has appealed to this Court.
Counsel for the appellant raised two contentions in suport
of the appeal :
(1) That the rights of the respondent in the
land conferred or recognised by virtue of
Bombay Act 67 of 1948 were extinguished on the
enactment of Bombay Act 33 of 1952, and by the
amendments made by Act 13 of 1956 (which was
brought into force during the pendency of the
suit) those rights were not restored to the
respondent so as to prejudice the appellant’s
claim to evict him; and
(2) that the Civil Court was competent in
the suit filed by the appellant, to grant a
decree for possession of the land held by the
respondent.
Facts which have a bearing on the question raised in this
appeal and the relevant statutory provisions may be briefly
set out. The land in dispute is situate within the limits
of the Broach Borough Municipality. Nagjibhai-father of the
respondent and after his death the respondent were tenants
of the land since June 1939., the tenancy being continued
year after year under fresh agreements. Notice calling upon
the respondent to vacate and deliver possession of the land
on March 31, 1956 was given in terms of s. 84 of the Bombay
Land Revenue Code, 1879. The Bombay Tenancy Act 29 of 1939
was applied on April 11, 1946 to the area in which the land
is situate, and the name of Nagjibhai was entered in the
Record of Rights as a protected tenant under the Bombay
Tenancy Act 29 of 1939 as amended by Bombay Act 26 of 1946.
By the Bombay Tenancy and Agricultural Lands Act 67 of 1948,
which was brought into force on December 28, 1948, the
Bombay Tenancy Act 29 of 1939 stood repealed, subject to the
-reservation that ss. 3, 3A and 4 of the
(1) (1958) 60 Bom. L. R. 1383.
370
repealed Act as modified by the Schedule to the repealing
Act remained operative. The status of the respondent under
the Bombay Tenancy Act 29 of 1939 remained, even after the
repeal of that Act, protected by virtue of s. 31 of Act 67
of 1948 as originally enacted.
A tenant was defined in Act 67 of 1948 as meaning an
agriculturist who holds land on lease and includes a person
who is deemed to be a tenant under the provisions of the Act
[s. 2(18)]. "Land" was defined by s. 2(8) as "land which is
used for agricultural purposes, and includes" amongst others
sites of farm buildings and sites of dwelling houses
occupied by agriculturists. Section 5 of the Act provided
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that no tenancy of any land shall be for a period of less
than ten years, and that no tenancy shall be terminated
before the expiry of the period of ten years except on the
grounds mentioned in s. 14. Section 14 provided that :
"(1) Notwithstanding any agreement, usage,
decree or order of a Court of law, the tenancy
of any land held by a tenant shall not be
terminated unless such tenant"
has done acts or committed defaults specified in cls. (a) to
(e). It may be sufficient to state that under s. 14 a
notice calling upon the tenant to vacate and deliver
possession of the land demised on the expiry of the
contractual period of the annual tenancy does not operate to
determine the tenancy. By sub-s. (2) of s. 29 it was
enacted that a landlord shall not obtain possession of land
held by a tenant except under an order of the Mamlatdar.
Chapter III dealt with the special rights and privileges of
protected tenants. By s. 32 it was provided that
notwithstanding anything (to the) contrary in any law, usage
or contract, a protected tenant shall at any time be
entitled to purchase from the landlord the land held by him
as a protected tenant. Section 34 prescribed certain other
restrictions upon the landlord’s right to determine a
protected tenancy. The first sub-section gave liberty to a
landlord to determine a protected tenancy notwithstanding
anything contained in s. 14, by giving one year’s notice in
writing, if the landlord bona fide required the land, (1)
for cultivating personally, or (2) for any non-agricultural
use of his own purpose. The Act also provided a special
forum for determination of questions required to be settled,
decided or dealt with by the Act.
371
By s. 70 the duties of the Mamlatdar were specified. The
section, in so far as it is material, provided :
"For the purposes of thus Act, the following
shall In be the duties and functions to be
performed by the Mamlatdar-
(a)
(b) to decide whether a person is a tenant
or a protected tenant;"
Section 85 provided by its first subsection
"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 Collec-
tor or the Bombay Revenue Tribunal in appeal
or revision or the Provincial Government in
exercise of their powers of control,"
and for the purpose of this section, a civil court includes
a Mamlatdar’s Court constituted under the Mamlatdars’ Courts
Act, 1906. Therefore, by Act 67 of 1948 the rights of
protected tenants acquired under the Bombay Tenancy Act,
1939, were, notwithstanding the repeal of that Act,
preserved, a tenancy agreement was to be for a period of not
less than ten years, and the tenancy could not be determined
before the expiry of the period otherwise than for reasons
set out in s. 14, and possession of land demised to a tenant
could not be obtained otherwise than by an order of the
Revenue Court under s. 29 (2). A landlord could determine a
protected tenancy on the grounds mentioned in s. 34, but a
protected tenant had a right to purchase the land occupied
by him. The jurisdiction of the Civil Court "to deal with
or decide any question which is by or under the Act required
-to be dealt with, settled or decided by" the Revenue Court
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was excluded and the Revenue Courts were invested with
exclusive jurisdiction for the purpose of the Act to decide
several questions including the question whether a person
was a tenant or a protected tenant.
When Bombay Act 67 of 1948 was brought into force in the
town of Broach, the respondent acquired rights which a
tenant could claim under that Act and his rights flowing
from the status of a protected tenant remained expressly
preserved. But the legislature thereafter enacted Bombay
Act 33 of 1952 with effect from January 12, 1953 and by the
amendment to s. 88 (which
372
excluded lands in certain areas and of specified
descriptions from the operation of ss. 1 to 87 of the Bombay
Act 67 of 1948) lands situ-ate within all municipal boroughs
constituted under Act 18 of 1925 ceased to be governed by
Act 67 of 1948. Taking advantage of the amendment by Bombay
Act 33 of 1952 the appellant purported to terminate as from
March 31, 1956 the tenancy by a notice in accordance with s.
84 of the Bombay Land Revenue Code, 1879, and commenced an
action in the Civil Court for a decree for possession.
During the pendency of the action, S. 88 was again amended
by Act 13 of 1956. The Legislature by that Act repealed cl.
(c) of S. 88 as it stood modified by Act 33 of 1952 and
restricted the exemption from the operation of the Act to
lands belonging to the Government and certain other lands.
The effect of the amendment was to restore to tenants of
lands within certain municipal boroughs (such lands not
falling within the description of lands described in s. 88
as amended and ss. 88A to 88C as inserted) the protection of
the Bombay Tenancy and Agricultural Lands Act 67 of 1948 as
originally enacted. It is common ground that the land with
which we are concerned in this appeal is not of the
description in ss. 88 and 88A to 88C of the Act as amended
by Act 13 of 1956.
The Legislature also enacted by Act 13 of 1956 s. 43C which
by the proviso sought to restore with retrospective effect
the rights which had been previously acquired under the
Bombay Tenancy and Agricultural Lands Act 67 of 1948 on or
after December 28, 1948, notwithstanding that the Bombay Act
33 of 1952 had been made applicable to the area in which the
land is situate. Section 43C provided:
"Nothing in sections 32 to 32R (both
inclusive) and 43 shall apply to lands in the
areas within the limits of-
(a) Greater Bombay,
(b) a municipal corporation constituted
under the Bombay Provincial Municipal
Corporation Act, 1949,
(c) a municipal borough constituted under
the Bombay Municipal Boroughs Act, 1925,
(d) a municipal district constituted under
the Bombay District Municipal Act, 1901,
(e) a cantonment, or
373
.lm15
(f) any area included in a Town Planning Schedule under the
Bombay Town Planning Act, 1954 :
Provided ’that if any person has acquired any right as a
tenant under this Act on or after the 28th December, 1948,
the said right shall not be deemed to have been affected by
the Bombay Tenancy and Agricultural Lands (Amendment) Act,
1952, or (save as expressly provided in section 43D), by the
Amending Act, 1955, notwithstanding the fact that either of
the said Act has been made applicable to the area in which
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such land is situate."
The decision in this appeal must primarily depend upon the
meaning and effect of the proviso to s. 43C. The enactment
of the proviso, it may be observed, illustrates how clumsy
drafting obscures the meaning of a statute. The proviso
appears to be entirely out of place in the scheme of the
substantive part of s. 43C, which excludes from the
operation of ss. 32 to 32R and 43, lands in the areas
specified in cls. (a) to (f), and cl. (c) specifies one of
such areas as "a municipal borough constituted under the
Bombay Municipal Boroughs Act, 1925". Sections 32 to 32R as
inserted by Act 13 of 1956 deal with the purchase of lands
held by tenants on April 11, 1957, and to related matters
and s. 43 imposes restrictions on the transfer of lands
purchased by virtue of the right reserved under ss. 32, 32F
or 32-0 or sold under ss. 32-P or 64 of the Act.
The proper function of a proviso is to except or qualify
something enacted in the substantive clause, which but for
the proviso would be within that clause. It may ordinarily
be presumed in construing a proviso that it was intended
that the enacting part of the section would have included
the subject-matter of the proviso. But the question is one
of interpretation of the proviso : and there is no rule that
the proviso must always be restricted to the ambit of the
main enactment. Occasionally in a statute a proviso is
unrelated to the subject-matter of the preceding section, or
contains matters extraneous to that section, and it may have
then to be interpreted as a substantive provision, dealing
independently with the matter specified therein, and not as
qualifying the main or the preceding section.
By the substantive clause of s. 43C the tenants do not
acquire in respect of lands described therein rights
conferred by ss. 32 to 32R : that part of s. 43C is
therefore in the nature of a qualification or an exception,
and functions as a proviso to ss. 32 to
37 4
32R. The proviso to s. 43C goes on, not to carve out an
exception or to impose a qualification to the exclusion
prescribed by the main enactment, but deals with a matter
which is unrelated thereto. In tern-is it seeks to protect
rights acquired or arising not under ss. 32 to 32R (which
were added by Act 13 of 1956) but under the principal Act 67
of 1948 on or after December 281, 1948, and those rights are
protected not from the operation of the substantive part of
s. 43C, but from the operation of Act 33 of 1952, or of "the
Amending Act of 1955". It may be recalled that by Act 33 of
1952, the Act ceased to apply to land within the municipal
boroughs, but the intention disclosed by the proviso to s.
43C was to declare that all rights acquired by persons as
tenants under the principal Act were to continue to remain
available to them in respect of lands within the Municipal
Boroughs as if Act 33 of 1952 were never enacted. The
"Amending Act of 1955" is no other than Act 13 of 1956 [see
the definition of "permanent tenant" in s. 2 (10A) added to
the principal Act and s. 1(1) of Act 13 of 1956]. The
Legislature has by referring to the "Amending Act of 1955
sought also to protect, save as expressly provided in s.
43D, the rights acquired under Act 67 of 1948,
notwithstanding the amendments made by Act 13 of 1956. By
s. 48 of Act 13 of 1956, the scheme of exemption from the
operation of the Act of certain provisions thereof was
extensively amended in respect of different classes of land.
Section 88 of Act 67 of 1948 as originally enacted
substituted by ss. 88, 88A, 88B, 88C & 88D. But this
modified scheme of exemption and other provisions of the Act
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were by virtue of the proviso to s. 43C not to affect the
rights of tenants acquired on or after December 281. 1948
under Act 67 of 1948, same as expressly provided by s. 43D.
Counsel for the appellant, however urged that even if the
proviso to s. 43C be read as dealing substantively with
matters specified therein, it does not come to the aid of
the respondent, because at the date when Act 13 of 1956 was
enacted, the tenancy of the respondent stood determined
according to law, as it then applied to the land, and the
respondent had ceased to be a tenant. In the absence of
express enactment to the contrary, said counsel, the rights
of the appellant to obtain possession of the land according
to the law prevailing, from a person who was at the date of
the suit not a tenant, could not be deemed to be restricted
by the enactment of Act 13 of 1956. In support of this
contention, counsel strongly relied upon s. 89(2)(b) of Act
67 of 1948 which provided:
375
"But nothing in this Act or any repeal
effected thereby-
(a)
(b) shall save as expressly provided in this
Act, affect or be deemed to affect,
(i) any right, title, interest, obligation
or liability already acquired, accrued or
incurred before the commencement of this Act,
or
(ii) any legal proceeding or remedy in
respect of any such right, title, interest,
obligation or liability or anything done or
suffered before the commencement of this
Act,and any such proceedings shall be
continued and disposed of, as if this Act was
not passed."
In our view sub-s. (2) of s. 89 which incorporates, with
some variations, the provisions found in s. 7 of the Bombay
General Clauses Act 1 of 1904, relating to the operation of
provisions which repeal statutes, has no relevance in
considering the effect of the amendments made by Act 13 of
1956. Sub-section (2) of s. 89 in terms protects (save as
expressly provided in the Act) right, title, interest,
obligation or liability acquired, accrued or incurred
"before the commencement of this Act" i.e. Act 67 of 1948,
and it also protects legal proceedings or remedies in res-
pect of any such right, title, interest, obligation or
liability or anything done or suffered "before the
commencement of this Act". The appellant does not seek to
enforce a right acquired before the Act 67 of 1948 was
enacted, and a suit instituted for a decree for possession
of lands pursuant to a determination of tenancy by a notice
in 1956 is not a suit in respect of a right or title
acquired or accrued "before the commencement of this Act"
within the meaning of s. 89(2). The argument of counsel if
based on the assumption that the expression commencement of
this Act means commencement of Act 13 of 1956, but for that
assumption there is no warrant in the language of the
statute.
The alternative contention of counsel for the appellant that
by virtue of s. 7 of the Bombay General Clauses Act 1 of
1904 also legal proceedings to enforce rights acquired
before Act 13 of 1956 was passed were saved, has no force.
By s. 7 of the General Clauses Act the repeal of an
enactment shall not inter alia affect any right, privilege,
or liability acquired, accrued or incurred under any
enactment so repealed or affect any investigation. legal
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proceeding or remedy in respect of any such right,
376
privilege, obligation, liability etc. and any such
investigation, legal proceeding or remedy may be instituted
or continued or enforced as if the repealing Act had not
been passed. Act 13 of 1956 may in so far as it seeks to
substitute the new sections 88 and 88A to 88D for the old
section 88 be regarded as a repealing enactment. Section 7
of the Bombay General Clauses Act, however, applies only if
a different intention does not appear, and a different
intention clearly appears from the terms of the proviso to
s. 43C which state that the rights acquired by a person as a
tenant under Act 67 of 1948 on or after December 28, 1948
are not to be deemed affected by Act 33 of 1952. The
proviso therefore by express enactment saves the rights
acquired under Act 67 of 1948 before Act 33 of 1952 was
enacted.
The respondent became on the enactment of Act 67 of 1948
entitled as a tenant to the diverse rights conferred by that
Act. The right to claim that every contractual tenancy is
statutorily extended for a period of ten years, the right to
claim that the tenancy may not be determined otherwise than
in circumstances mentioned in s. 14, and in case of
protected tenants subject to restrict jobs imposed by s. 34,
the right not to be deprived of possession otherwise than by
an order under s. 29(2), were some of those rights vested in
the respondent before Act 33 of 1952 was enacted. These and
other rights were restored to the tenants retrospectively
from the. date on which Act 33 of 1952 was enacted by virtue
of the express provision contained in the proviso to s. 43C.
The Legislature having restored the rights originally
granted under Act 67 of 1948 with retrospective operation
from the date on which Act 33 of 1952 was. enacted, a person
sued, before Act 13 of 1956 was brought into force, could in
a pending suit set up the defence that he is entitled to the
rights of a re. ant or a protected tenant.
In Patel Maganbhai lethabhat"s case(x) the Bombay High
Court held that the proviso to s. 43C affords protection to
the tenant if the tenant had the protection of the Act of
1948 as originally enacted, notwithstanding that the
protection was taken away by the Bombay Tenancy and
Agricultural Lands (Amendments) Act, 1952. The Bombay High
Court also held that the protection of the proviso to s. 43C
must be given to the tenant even in cases where it is
claimed in a suit filed before the amendment was enacted, if
the suit is not finally disposed of. We agree with the
Bombay High Court on both the questions decided in Patel
Maganbhai Jethabhai’s case. (1).
(1) (1958) 60 Born. L.R. 1383.
37 7
But the order passed by the District Judge dismissing the
suit, cannot be sustained. The learned District Judge
passed the order of dismissal of the suit, presumably
because a similar order was passed in Patel Maganbhai
Jethabhai’s case.(1) It was assumed in patel Maganbliai
Jethabhai’s case(1) that the Mamlatdar in whose Court the
suit was instituted was competent to decide the various
issues relating to the rights claimed by the tenant. It is
not clear from the judgment in Patel Maganbhai Jethabhai’s
case(1) whether the suit was instituted in the Court of the
Mamlatdar exercising his power under s. 5 of the Mamlatdars’
Courts Act 2 of 1906. By s. 85 of Act 67 of 1948 a
Mamlatdar’s Court constituted under Act 2 of 1906 is a Civil
Court, whereas a Mamlatdar exercising powers under s. 29(2)
is a Revenue Court. In the present case, the suit was
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properly entertained by the Civil Court but since the
enactment of Act 13 of 1956 the Civil Court could not try
certain issues arising therein, because those issues were
triable by virtue of s. 70 of Act 67 of 1948 exclusively by
the Revenue Court. There is, however, nothing in Act 67 of
1948 which prevents continuation of the suit already
instituted. In such a suit the issues exclusively triable
by the Revenue Court by the combined operation of ss. 70 &
85 will have to be tried by the Manilatdar as a Revenue
Court, and a decree in ejectment against a tenant may, since
the enactment of Act 13 of 1956, not be made by the Civil
Court. The proper procedure in such a case is that the
Civil Court should refer to the Revenue Court all such
issues as are triable exclusively by that Court by virtue of
the combined operation of ss. 70 & 85. The Civil Court may
then pass such decree or order as is consistent with the
adjudication of the Revenue Court. If the Revenue Court is
of the view that the relation of landlord and tenant
subsisted and the tenancy had been duly determined in the
manner provided by s. 14 or by s. 34 if the tenant is a
protected tenant, it may be necessary to obtain from the
Revenue Court in an appropriate proceeding an order under s.
29(2).
It may be pertinent in this connection to refer to s. 85A
which was added by Act 13 of 1956, The section, insofar as
it is material, provided :
"(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
(1) [1958] 60 Bom. L.R. 1383.
3 7 8
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 purpose of this section a
Civil Court shall include any Mamlatdar’s
Court constituted under the Mamlatdars’ Courts
Act, 1906."
Whatever may have been the position before Act 13 of 1956,
the Legislature has clearly expressed its intention that
even in a suit property instituted in the Civil Court, if
any issue arises which is required to be decided by the
Revenue Court, the issue shall be referred for trial to that
Court, and the suit shall be disposed of in the light of
that decision. The Legislature has therefore clearly
expressed itself that issues required under Act 6 7 of 1948
to be decided by a Revenue Court, even if arising in a civil
suit must be decided by the Revenue Court and not by the
Civil Court. The view expressed by the Bombay High Court in
Pandurang Hari v. Shanker Maruti(1) and by the Gujarat High
Court in Kalicharan Bhaianlal Bhayya v. Bai Mahalaxmi widow
of Trikamlal & Another, (2) that a suit properly instituted
in the Civil Court before Act 13 of 1956 is not liable to be
dismissed merely because the rights acquired by tenants
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under Act 67 of 1948 are retrospectively restored is
correct, but we are unable to agree with the Bombay and the
Gujarat High Courts that the Civil Court is competent to
adjudicate upon the issues which are by Act 67 of 1948
required to be decided by the Revenue Court.
The finding recorded by the District Judge that the Civil
Court had no jurisdiction to hear the suit and the ultimate
order passed by him dismissing the plaintiff’s suit are
therefore not strictly accurate. If the appellant desired
that the questions relating to the tenancy and its
determination, which arose in the suit be tried by the
Mamlatdar as a Revenue Court, which that authority alone was
competent to decide, the District Judge should have referred
to the Revenue Court those questions for determination and
should not have proceeded to dispose of the suit. We ac-
cordingly set aside the decree passed by the High Court and
the
(1) 62 Bom. L. R. 873.
(2) 4 Guj, L. R. 145.
37 9
District Court and direct that the District Court do restore
the appeal to its original number and do proceed according
to law.
It appears that before the District Court the appellant had
conceded that the suit may in view of the judgment of the
Bombay High Court in Patel Maganbhai jethabhai’s case(1) be
dismissed, and he requested the District Court not to pass
an order for costs against him. In the circumstances of the
case, we direct the appellant’s legal representatives to pay
the costs of this appeal to the respondent. The costs in
the District Court will abide the event.
Mudholkar, J. The facts as well as the two points raised in
the argument before us appear in the judgment prepared by my
brother Shah and need not be repeated. I agree with him
that the District Court was in error in allowing the appeal
and dismissing the present appellant’s suit for possession
of the land in suit. in that suit the appehant’s case was
that he had terminated the respondent’s tenancy by giving
him an appropriate notice to quit. The substantial plea of
the respondent was that his tenancy was governed by the
Bombay Tenancy and Agricultural Lands Act, 1948 as it stood
on the date of suit and that the combined effect of ss. 70
and 85 of that Act was to deprive the civil court of its
jurisdiction to entertain the suit.
In the arguments before us reliance was placed on his behalf
in particular on the proviso to s. 43C which was added by
amendment Act 13 of 1956. The learned counsel on the other
side had claimed the benefit of the provisions of s.
89(2)(h) of the Act which seeks to preserve certain rights,
titles etc., and exempts them from the operation of the Act.
The benefit of the proviso to s. 43C of the Act would be
available only to a person who is or claims to be a tenant
or protected tenant under the Act. That in turn would
depend upon the effect of the various amendments to the Act
made after its enactment in 1948 till the date of suit,
including the effect of s. 89(2)(h) of the Act. Section 70
of the Act, however, provides that one of the duties to be
performed by the Mamlatdar (who acts as a revenue court) is
to decide whether a person is a tenant or a protected
tenant. Obviously this must mean a claim to be a tenant or
a protected tenant under the Act. Section 85 (1 provides :
"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
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(1)[1958] 60 Bom. L.R. 1383.
380
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."
It would be seen from the two aforesaid provisions that no
sooner such a claim is made before a Civil Court it must
stay its hands and refer that question to the Mamlatdar,
acting as a revenue court for his decision [see Paika Dasaru
Bhonglee v. Rajeshwar Balaji Awari(1)]. In order to answer
it, the Mamlatdar will have to adjudicate on the facts in
issue between the parties as well as to determine the effect
of the various provisions of law bearing on the point. He
gets exclusive jurisdiction to do so by the combined
operation of the two provisions aforesaid in view of the
fact that a person claims to be a tenant or protected
tenant. If the Mamlatdar finds that he is a tenant or a
protected tenant he has to send his finding to the Civil
Court which has to decide the suit in the light of that
finding. If, on the other hand, his finding is to the
contrary, the civil court will have to decide the suit on
the basis that the person does not possess the status
claimed by him. Initially, therefore, the matter has to be
decided by the Mamlatdar and subject to the result of any
appeal or revision under the Act his decision will be final.
I would, however, make it clear that when I say this I am
not considering whether finality attaches to a decision of
the Mamlatdar as to a jurisdictional fact.
The question required by the Act to be decided by the Mam-
latdar may be one of fact only or as is the case in the
appeal before us, a mixed question of fact and law. The
civil court before which the suit was brought raised the
following issues bearing upon it
(2) Whether the provisions of Bombay Tenancy
and Agricultural Lands Act would be applicable
to the suit Survey Numbers ?
(3) Whether this Court has no jurisdiction
to entertain suit in view of section 85 of the
Bombay Tenancy and Agricultural Lands Act ?
(5) Whether defendant proves that he is a
permanent tenant of the suit land
(1) [1958] Bom. L.R. 8(F.B.)
381
The first and third of these had to be decided by the
Mamlatdar and the second by the Civil Court in the light of
the findings of the Mamlatdar on the other two issues. The
limitations placed on the jurisdiction of the Civil Court
would necessarily extend to the entire hierarchy of courts,
including this Court before which the decision of the Civil
Court can be challenged in appeal. It is in the light of
this legal position that I hold that the District Court
could not dismiss the appellant’s suit. What this Court
can, however, do is only to set aside the judgment of the
District Court and remand the suit to the Civil Court with
the direction that issues Nos. 2 and 5 be remitted to the
Mamlatdar for his findings. It is not open to this Court to
examine for itself the various enactments, construe the
provisions and state its conclusions as to their
applicability to the case before us. The jurisdiction to do
any of these things in an appeal of the kind before us is,
in my view, barred by the combined operation of ss. 70(b)
and 85(1) of the Act.
I would, therefore, allow the appeal, set aside the judgment
of all the courts below and remit the suit to the court of
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first instance with the direction that it should remit
issues 2 and 5 to the Mamlatdar for decision and upon
receiving his findings, decide the suit on the basis of his
findings. I would further direct that costs so far incurred
shall be costs in the suit and shall abide the final
decision of the lis.
ORDER
In accordance with the opinion of the majority the decree
passed by the High Court and the District Court is set aside
and the appeal remanded to the District Court with the
direction that it do restore the appeal to its original
number and do proceed according to law. Appellant’s legal
representatives will pay the costs of this appeal to the
respondent. Costs in the District Court will abide the
event.
Sup.CI/65---10
382