Full Judgment Text
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PETITIONER:
MUSSAMIYA IMAM HAlDER BAX RAZVI
Vs.
RESPONDENT:
RABARI GOVINDHAI RATNABHAI & ORS.
DATE OF JUDGMENT:
21/08/1968
BENCH:
RAMASWAMI, V.
BENCH:
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.
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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
resportdents 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 respondeats 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
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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]
JUDGMENT:
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 Ahmedabad was
appointed as the guardian of the properties of the plaintiff
by an order of the District Court, Ahmedabad. 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 Ahmedabad 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, Ahmedabad on July 25, 1956 representing that
certain persons formed or will form a Co-operative Society
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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 Ahmedabad 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 thereunder 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 Ahmedabad 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
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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
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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
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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
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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
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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,
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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 triable 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
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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
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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 Ahmedabad
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.
800