Full Judgment Text
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PETITIONER:
PATHAN MURTAZAKHAN DADAMKHAN AND ORS.
Vs.
RESPONDENT:
PATHAN PIRKHAN AMDUMIYAN (DEAD) BY LRS.
DATE OF JUDGMENT23/03/1993
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
SAHAI, R.M. (J)
CITATION:
1993 AIR 1750 1993 SCR (2) 578
1993 SCC Supl. (2) 518 JT 1993 (3) 615
1993 SCALE (2)399
ACT:
Code of Civil Procedure, 1908.
Section 100-Second appeal-Raising of fresh plea during-
Permissibility of.
Section 9-Civil Courts-Bar of jurisdiction.
Bombay Tenancy Act, 1939. Sections 24, 85-A.
HEADNOTE:
The 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, 1939.
It was 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.
Rejecting 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 Court.
Dismissing the appeal, this Court,
HELD: 1. The 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.
Therefore, 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.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1890 of 1974.
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From the Judgment and Order dated 6.8.1973 of the Gujarat
High Court in Second Appeal No.98 of 1973.
M.V. Goswami for the Appellants.
S.K. Dholakia and P. Narasimhan for the Respondents.
The following Order of the Court was delivered:
This 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.
In the 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.
It was 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 Court
for 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.
A new 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
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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.
T.N.A. Appeal dismissed.
581