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Shivaji Narayan Vs. Peeka Lokappa - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 164 of 1951
Judge
Reported inAIR1952Bom174; (1951)53BOMLR864; ILR1952Bom181
ActsTenancy Law; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 7, 29, 29(1), 29(2), 29(3), 39, 70, 71, 72, 73(2), 74(1) and 85; Mamlatdars' Courts Act, 1906 - Sections 21
AppellantShivaji Narayan
RespondentPeeka Lokappa
Appellant AdvocateN.M. Shanbhag, Adv.
Respondent AdvocateG.N. Vaidya, Adv.
Excerpt:
.....to mamlatdar under section 29(2) --such application whether in nature of suit --construction--mamlatdars' courts act (bom. ii of 1906).; the application which a landlord has to make to a mamlatdar under section 29(2) of the bombay tenancy and agricultural lands act, 1948, is an application of the nature of a suit seeking to evict the tenant, and it is the duty of the mamlatdar under section 70(o) of the act to decide that application and give the landlord an order of possession or refuse the application. the jurisdiction of the civil court to entertain such a suit is barred under section 85 of the act. - - ' if this application is an application of the nature of a suit stating the reasons for which the landlord claims that he is entitled to evict the tenant notwithstanding the..........for giving the mamlatdar when dealing with among others an application for possession made by the landlords powers which he would have, if he was dealing with a matter he was entitled to deal with, under the provisions of the mamlatdars' courts act. they are powers of treating informal petitions as plaints, examination of plaintiffs on oath, power to issue summons to witnesses, power to add parties and power to decide the points which arise at the bearing. in an application for execution it is not likely that there would arise a question which has got to be determined after recording evidence. it is true that section 71 has application to proceedings other than applications under section 29, and an argument cannot be based upon the powers conferred by section 72 alone. but, if there is.....
Judgment:

Bavdekar, J.

[1] This is a second appeal arising out of a suit filed by the appellant for the recovery of possession of land from the respondent upon the ground that he wanted the land for personal cultivation. The tenant was protected by the present Tenancy Act and that was why the landlord filed a suit giving a reason which would enable him to obtain possession of the property from the tenant after the expiration of the contractual tenancy. The only contention taken up at the trial, which it is necessary to state for the purpose of the present appeal, is whether the Court had jurisdiction to try the suit. The objection was based upon Section 85, Bombay Tenancy and Agricultural Lands Act, 1948. That section says:

'No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be fettled, decided or dealt with by the Mamlatdar or Tribunal a Manager, the Collector or the Bombay Revenue Tribunal in appeal or revision or the Provincial Government in exercise of their powers of control'

The words from this section which are relied upon were, 'required to be... decided .. by the Mamlatdar.' The contention of the respondent was that the Mamlatdar was required by or under the Act to decide the question as to whether the appellant was entitled to order evicting the respondent under the provisions of the Act-

[2] Sub-section (2) of Section 29, Bombay Tenancy and Agricultural Lands Act, 1948, provides that

''No landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar, For obtaining such order ho shall make an application in the prescribed form.'

If this application is an application of the nature of a suit stating the reasons for which the landlord claims that he is entitled to evict the tenant notwithstanding the provisions of the Tenancy Act, then the appeal must fail. The reason is that under Section 70 of the Act, there are certain duties planed upon the Mamlatdar. One of the duties is as mentioned in Clause (o) to decide such other matters as may be referred to him by or under this Act. If the application which a landlord is to make to a Mamlatdar under Section 29, Sub-section (2), is an application of the nature of a suit seeking to evict the tenant, then in that case it is the duty of the Mamlatdar under Section 70, Sub-Section (o), to decide that application and give the landlord an order of possession or refuse the application. And in that; case under Section 85 of the Act the jurisdiction of the civil Court to entertain the suit will be barred.

[3] If, on the other hand, Section 29, Sub-section (2), means that a landlord has, before going to the Mamlatdar, to sue in the civil Court and obtain a decree for possession and then make an application to the Mamlatdar in the prescribed form under Section 29 (2) with a view to obtaining execution of the decree, then in that case the civil Court will have jurisdiction.

[4] Now, the opening words of Section 29, Sub-section (2) are undoubtedly vague. They are capable of the interpretations sought to be placed on them by the appellant, that is, that the application which the landlord has got to make to the Mamlatdar is an application of the nature of an execution application. In this country, cases are not unknown in which after the civil Court has given a decree for possession, proceedings have got to be sent to a Revenue Officer for actual execution of the decree. But if we look at the other words of the same sub-section and other sections of the Act, the meaning sought to be placed by the appellant upon the words cannot be accepted. In the first instance for obtaining such an order he has got to make an application in the prescribed form. That the application has to be in a pre-scribed form may not by itself be determinative of the nature of the application which a landlord has to make. But the form which has been prescribed after mentioning certain matters of a technical nature requires a landlord to state the circumstances in which he is entitled to possession. The Tenancy Act provides that notwithstanding any provisions of the general law, the landlord will not be entitled to secure possession from the tenant except under certain circumstances. And the circumstances which are referred to in toe prescribed form have obvious reference to the circumstances in which the landlord says that he is entitled to the possession under the provisions of the Tenancy Act, because certain conditions requisite for obtaining possession have been fulfilled. For example, in the present ease the condition is that the landlord wanted the land for personal cultivation. The same provision is to be found in Section 71. That section refers not only to applications under Section 29 but to all sorts of applications which may be made either to the Mamlatdar or to the Tribunal. Clause (c) of that section says however that an application to the Mamlatdar must contain the circumstances out of which the cause of action arose. Then we-come to the provisions of Section 29 (3). It fays :

'On receipt of application under Sub-section (1) or (2) the Mamlatdar shall, after holding an enquiry, pass such order thereon as he deems fit.' The Mamalatctar has, therefore, got to hold an enquiry, and speaking generally, if the question is of executing a decree obtained from a civil Court, the only subject matter of enquiry would be whether without the landlord coming to the Court possession has been restored by the tenant to the landlord.

[5] Then we come to the provisions of Section 72. It is to the following effect:

'IN all enquiries and proceedings commenced on the presentation of applications under Section 71 the Mamlatdar or the Tribunal shall exercise the some powers as the Mamlatdar's Court under the Mamlatdars' Courts Act, 1906, and shall follow the provisions of the said Act, as if the Mamlatdar or the Tribunal were a Mamlatdar's Court under the said Act and the application presented was a plaint presented under Section 7 of the said Act. In regard to matters which are not provided for is the said Act, the Mamlatdar or the Tribunal shall follow the procedure as may be prescribed by the Provincial Government. Every decision Of the Mamlatdar or the Tribunal shall be recorded in the form of an order which shall state reasons for such decision.'

It would appear, therefore, that a provision is made by Section 72. Bombay Tenancy and Agricultural Lands Act, 1948, for giving the Mamlatdar when dealing with among others an application for possession made by the landlords powers which he would have, if he was dealing with a matter he was entitled to deal with, under the provisions of the Mamlatdars' Courts Act. They are powers of treating informal petitions as plaints, examination of plaintiffs on oath, power to issue summons to witnesses, power to add parties and power to decide the points which arise at the bearing. In an application for execution it is not likely that there would arise a question which has got to be determined after recording evidence. It is true that Section 71 has application to proceedings other than applications under Section 29, and an argument cannot be based upon the powers conferred by Section 72 alone. But, if there is any further doubt in the matter, it is found to be cleared in the provisions of Section 73, Sub-section (2) of the Act. That section provides that an order of the Mamlatdar or the Tribunal awarding possession or restoring the possession or use of any land shall be executed in the manner provided in Section 21, Mamlatdars' Courts Act, 1906, as if it was the decision of the Mamlatdar under the said Act. If the Mamlatdar was himself merely executing the decree which Section 29 contemplated was to be obtained first, then there would be no necessity for providing that the order of the Mamlatdar in, awarding possession shall be executed in the manner provided in Section 21, Mamlatdars' Courts Act as if it was the decision of the Mamlatdar under the said Act. The learned advocate, who appears on behalf of the appellant, says that Section 73, Sub-section (2), merely deals with the manner in which the order was to be executed. He says that in case Section 29 is dealing with merely an application for execution, a provision would still be necessary for the manner in which the Mamlatdar has to deal with that application, and it is to provide for the manner in which execution was to be conducted that Section 73 (2) was enacted But this ignores certain words of Section 73 (2) In the first instance, the section refers to an order of the Mamlatdar awarding possession. There are further words in that section with regard to restoring the possession having reference to Section 39. But the words 'awarding possession' have obviously reference to cases where possession is awarded for the first time to the party applying for it, and if we hold that Section 29 does not empower the Mamlatdar to entertain an application for ejectment, there is no other provision to which a reference can be made to show that the Mamlatdar has got any power to award possession. What the Mamlatdar does under Section 29 therefore is that he awards possession, which words are inappropriate when he merely executes a decree of a civil Court, Nor is it clear why if Section 73 (2) was intended only to provide for the manner in which an execution application to the Mamlatdar was to be executed, it was felt necessary to add the words 'as if it was the decision of the Mamlatdar under the said Act.' The words, 'as if it was the decision of the Mamlatdar under the said Act' seem to put an order which the Mamlatdar makes under Section 29 on a par with an order which is made by the Mamlatdar under the Mamlatdars' Courts Act, and that order is the order passed after the usual trial of a suit awarding possession to the party who applies for it. Of course there are other orders of the Mamlatdar which can be made under the Mamlatdars' Courts Act. But here the reference being to the order for awarding possession, it would not be out of place to ignore the other orders which can be made under the Mamlatdars' Courts Act and to hold that the order awarding possession, made under the Tenancy Act is to be executed like an order awarding possession made by the Mamlatdar under the Mamlatdars' Courts Act.

[6] Some force is given to this conclusion by the fact that Section 74, Sub-section (1) of (m). provides for an appeal against an order under Section 29 though by itself this fact would not be of much importance.

[7] The learned advocate, who appears on be-half of the appellant, says that it can be seen from Section 70 (n) that the order which Section 29 contemplates that the Mamlatdar should make is really an order of execution. He says that Section 70 defines the various duties and functions of the Mamlatdar. Sometimes the section has reference to previous sections which provide that certain things have got to be done, for example, the value of the crop has got to be determined under Section 6. Section 6 itself, however, does not provide who is to, determine the value, and sometimes Section 70, therefore, has to deal with the question which is the authority for doing certain things which previous sections contemplate should be done. But Section 70 is not exclusively concerned with these cases. Sometimes, even when the previous section states that a certain thing is to be done and provides that it is the duty of the Mamlatdar to do it, Section 70 repeats when enumerating the duties of the Mamlatdar that it would be the duty of the Mamlatdar to do that particular thing. Tbat may be conceded. The learned advocate then points out that under Section 70 (n) it is the duty of the Mamlatdar to take measures for putting the tenant or landlord into possession of the land or dwelling house under this Act. We are not prepared to accept the contention that this has necessarily a reference to Section 29, or that if it has a reference to it, it controls the meaning to be given to the words in that section. One possibility obviously is that the Legislature did not mention the duties of the Mamlatdar under Section 29 specifically in Section 70 because it his at the end a general clause, namely, 'to decide such other matters as may be referred to him by or under this Act.' Another possibility is that the words 'to take measures for putting the tenant or landlord or agricultural labourer or artisan into the possession of the land or dwelling house under this Act' have reference not only to applications under Section 29 but also to subsequent execution proceedings.

[8] Mr. Shanbhag has further argued that under Section 72 of the Act the Mamlatdar in an enquiry under Section 29 has got the same powers as the Mamlatdars' Court under the Mamlatdars' Courts Act, 1906 He says that the powers necessarily connote jurisdiction and the only jurisdiction of the Mamlatdar under Section 29 is to do what the Mamlatdar's Court is entitled to do under the Mamlatdars' Courts Act, tinder the Mamlatdars' Courts Act, the Mamlatdars' Court has got power to pub certain persons into possession, including of course the landlords and tenants, when they are entitled to possession. He says that under the provisions of the Bombay Tenancy and Agricultural. Lands Act, 1948, the landlord is not entitled to possession unless in the first instance he shows certain circumstances, for example like, his wanting the land for personal cultivation for himself or the tenant having either sub-let the land or committed certain breaches of the tenancy agreement. He says that the Mamlatdars' Court under the Mamlatdars' Courts Act has no powers to go into the question, for example, whether the landlord requires the land himself for personal cultivation. And inasmuch as the powers of the Mamlatdar under the Tenancy Act are confined to the powers of the Mamlatdar's Court under the Mamlatdars' Courts Act, it could not have bean contemplated that under the powers given to the Mamlatdar under Section 29 he should dispose of the question whether the landlord, for example, required the land for his own purpose. That shows, according to him, that Section 29 is concerned merely with applications for execution. But even though it is correct to say that when-over the question is whether a thing is within the power of a particular Court or tribunal a question of jurisdiction is involved, we do not think that when the word 'powers' is used in Section 29, it has reference to these powers which give jurisdiction but has a reference to the powers which have got to be exercised by the Mamlatdar's Court in actually conducting an inquiry. It hag reference not to the subject matter of what the Mamlatdar's Court had power to deal with, but has a reference to the powers which the Mamlatdar's Court is entitled to exercise in dealing with the subject matter. I have already enumerated what these powers are, and there is no substance, therefore, in the contention that the powers of the Mamlatdars are the same as the Mamlatdar's Court under the Mamlatdars' Courts Act, that he could deal only with what he could deal with under the Mamlatdars' Courts Act, that while dealing with an application of the landlord ho has no power to decide whether a landlord required the land for personal cultivation and that Section 29 has reference, therefore, to an application for execution.

[9] For the same reason there is no force in the contention that the Mamlatdar's Court under the Mamlatdars' Courts Act has got power to say that he would not decide the question. Mr. Shanbhag says that because of the provisions of Section 72 the Mamlatdar in dealing with an application under Section 29 may say that he would not decide an application between the landlord and the tenant, and if he were to say that and this Court holds that the jurisdiction of the civil Court is ousted, then there is nobody to whom the landlord can go in order to obtain the eviction of the tenant. Bat the obvious reply to that is that the Mamlatdar when dealing with an application under Section 29 has got no power to say that he would not decide the question. It is his duty to decide it under the provisions of Section 70 and he cannot say that he would not decide it because the reference to powers has got reference not to the subject matter of the proceedings before the Mamlatdar under the Mamlatdars' Courts Act nor to the powers of the Mamlatdar to award possession or to refuse to award possession or refer the parties to the civil Court. Reference to the powers in Section 72 has a reference to the powers required for conducting the proceedings.

[10] The appeal must, therefore, be dismissed with costs.

[11] Appeal dismissed.


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