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K.S. Sathyapala Vs. Alice D'Souza and Anr. (25.08.1972 - KARHC) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 29 of 1970
Judge
Reported inAIR1973Kant34; AIR1973Mys34
ActsMysore Land Reforms Act, 1962 - Sections 4, 112, 132 and 133(2); Mysore Land Reforms (Amendment) Act, 1970 - Sections 12 and 33(1)
AppellantK.S. Sathyapala
RespondentAlice D'Souza and Anr.
Appellant AdvocateA.C. Nanjappa and ;S.R. Ramanathan, Advs.
Respondent AdvocateM. Gopalakrishna Shetty, Adv.
DispositionAppeal allowed
Excerpt:
.....authorised person under section 55 of the act to lodge the complaint. hence, proceedings were quashed. - (11 all proceedings taken and decrees and orders passed be-fore the commencement of this act by a tribunal exercising or purporting to exercise jurisdiction to decide whether a person is a tenant or not shall notwithstanding any judgment, decree or order of any court, be deemed to be as good and valid in law as if the tribunal exercising or purporting to exercise such jurisdiction had been duly conferred with such jurisdiction by the principal act......act 6 of 1970) (hereinafter referred to as the amendment act) the jurisdiction of civil courts to decide the question whether a person is a tenant, has been taken away with retrospective effect and that consequently the courts below must be deemed to have had no jurisdiction to decide whether the plaintiff was the tenant of the suit land.5. on the other hand, mr. m. gopalakrishna shetty. learned counsel for respondent 1. contended that at the time when the learned civil judge decided the suit and the learned district judge decided the appeal therefrom. civil courts had jurisdiction to decide such question, and that the amendment act cannot be construed as invalidating the decisions rendered by civil courts prior to the amendment act when they had undoubted jurisdiction.6. to appropriate.....
Judgment:

Chandrashekhar, J.

1. This second appeal had come up for hearing, in the first instance, before one of us (Sadanandaswamy. J.) and has been referred to a Division Bench under the proviso to Section 6 of the Mysore High Court Act, 1961 on the ground that the question of law involved in this appeal is an important one and that the decision thereon affects a large number of cases which have already been decided by Subordinate Courts.

2. The appellant is defendant 1 respondent 1 is the plaintiff and respondent 2 is defendant 2 in the suit which was tried by the Civil Judge at Chikmagalur. The plaintiff's case is that he was the tenant of the suit land under defendant 1 who purported to sell it to defendant 2 without giving him (the plaintiff) the first option to purchase it as required by Section 22 of the Mysore Tenancy Act. 1952 and that defendant 2 was trying to dispossess him (the plaintiff) from the suit land. He sought for a declaration that he was the tenant of the suit land (sic) for a permanent injunction restraining defendant 2 from Interfering with, his lawful possession thereof.

3. The first issue in the suit is whether the plaintiff is the tenant of the suit land. Both the Courts below concurrently held that issue in favour of the plaintiff and decreed the suit.

4. In this appeal, it was contended for the appellant that by virtue of Section 12 of the Mysore Land Reforms (Amendment) Act. 1970. (Mysore Act 6 of 1970) (hereinafter referred to as the Amendment Act) the jurisdiction of Civil Courts to decide the question whether a person is a tenant, has been taken away with retrospective effect and that consequently the Courts below must be deemed to have had no jurisdiction to decide whether the plaintiff was the tenant of the suit land.

5. On the other hand, Mr. M. Gopalakrishna Shetty. learned counsel for respondent 1. contended that at the time when the learned Civil Judge decided the suit and the learned District Judge decided the appeal therefrom. Civil Courts had jurisdiction to decide such question, and that the Amendment Act cannot be construed as invalidating the decisions rendered by Civil Courts prior to the Amendment Act when they had undoubted jurisdiction.

6. To appropriate the rival contentions of the parties, it is necessary to set out certain provisions of the Mysore Land Reforms Act. 1961. (hereinafter referred to as the Principal Act) and the Amendment Act.

7. The Principal Act came into force on 2-10-1965.

8. Section 2-A (34) of the Principal Act has denned the word 'tenant' so as to include a person who is deemed to be a tenant under Section 4 of that Act.

9. Section 4 of the Principal Act provides that a person who is lawfully cultivating any land belonging to another person, shall be deemed to be a tenant in certain circumstances set out in that Section.

10. Section 112 of the Principal Act sets out the duties of Tribunals constituted under Section 111 of that Act.

11. The relevant part of Section 112. as it stood before it was amended by the Amendment Act read as follows:--

'112. Duties of Tribunal: For the purposes of this Act the following shall be the duties and functions to be performed by the Tribunal, namely.--

(a)*****

(b) to decide whether a person is a tenant or not under Section 4 and make declaration accordingly;

(c) *** ***

12. Sub-section (1) of Section 132 of the Principal Act bars the jurisdiction inter alia, of Civil Courts to settle, decide or deal with any question which by or under that Act is required to be settled, decided or dealt with by the Tribunal.

13. Section 133 of the Principal Act before it was amended by Section 28 of the Amendment Act provided that if any suit instituted in any Civil Court involved issues which were required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under that Act, the Civil Court should stay the suit and refer such issues for determination by the authority competent to settle, decide or deal with such issues under that Act and after such authority decided such issues and communicated its decision to the Civil Court, such court should thereupon dispose of the suit.

14. In C. Thimmayya v. Thim-mayya. (1968 (2) Mys LJ 207), this Court held that the only power conferred on the Land Tribunal under Section 112 (b) of the Principal Act was the power to decide whether a person was a deemed tenant under Section 4 of that Act that there was no provision in that Act authorising an adjudication, by the Land Tribunal on the question whether a person was a tenant otherwise than under Section 4 of that Act and that the power to decide whether a person was a tenant otherwise than under Section 4 of that Act still resided In the Civil Court. This Court pointed out the incongruity in the provisions of the Principal Act which authorised the Land Tribunals to decide the limited question whether a person was a deemed tenant while the jurisdiction of the Civil Court to make an adjudication on the question whether a person was a tenant of any other description, remained unaffected.

15. The above Incongruity was removed retrospectively by the Amendment Act which came into force on 15-1-1970.

16. By Section 12 (1) of the Amendment Act, the words and figure 'under Section 4 and make declaration accordingly' occurring at the end of Clause (b) of Section 112 of the Principal Act,' have been deleted with retrospective effect as if these words and figure never existed in the Principal Act. After such amendment, the relevant part of Section 112 of the Principal Act should be deemed always to have read as follows:--

112. Duties of the Tribunal: For the purposes of this Act the following shall be the duties and functions to be performed by the Tribunal namely:--

(a) ***

(b) to decide whether a person is a tenant or not.

17. Section 2 of the Amendment Act inserted in Section 2-A of the Principal Act a new clause. Clause (9a), which defines the word 'Court' as the Court of the Munsiff within the local limits of whose jurisdiction the land is situate.

18. Section 3 of the Amendment Act has substituted in several Sections of the Principal Act including Section 112, the word 'Court' for the word 'Tribunal'.

19. Sub-section (2) of new Section 133 of the Principal Act (substituted by Section 28 of the Amendment Act) provides that if any suit instituted in any Civil Court other than the Court, involves any issues which are required to be settled, decided or dealt with by the Court, then the Civil Court shall stay the suit and refer such issues to the Court for decision and that the court shall decide such issues in accordance with the provisions of that Act and shall communicate its decision to the Civil Court which has made such reference.

20. Section 33 of the Amendment Act validates the decrees and orders made by the Tribunal constituted under Section 111 of the Act. Sub-section (1) of that section reads:--

33. Validation. (11 All proceedings taken and decrees and orders passed be-fore the commencement of this Act by a Tribunal exercising or purporting to exercise jurisdiction to decide whether a person is a tenant or not shall notwithstanding any judgment, decree or order of any court, be deemed to be as good and valid in law as if the Tribunal exercising or purporting to exercise such jurisdiction had been duly conferred with such jurisdiction by the Principal Act.

Explanation:-- For purposes of this section 'tenant' shall have the meaning assigned to it in the Principal Act.

21. The effect of retrospective amendment of Clause (b) of Section 112 of the Principal Act by Section 12 (i) of the Amendment Act is that the Tribunal constituted under Section 111 of the Principal Act, should be deemed to have had jurisdiction to decide whether a person is a tenant and not only the question whether a person is a deemed tenant as defined under Section 4 of the Principal Act. The validating provision in Sub-section (1) of Section 33 of the Amendment Act puts the matter beyond doubt that all decisions of the Tribunal on the question whether a person is a tenant, shall be valid in law as if the Tribunal had always been conferred jurisdiction to decide such question.

22. Mr. Gopalkrishna Shetty did not dispute that in view of amendment of Clause (b) of Section 112 of the Principal Act and Section 33 of the Amendment Act all decisions rendered by Tribunals before the Amendment Act came into force, on the question whether any persons are tenants and not merely deemed tenants under Section 4 of the Principal Act, should be deemed to be valid decisions. However. Mr. Gopal Krishna Shetty submitted that prior to the Amendment Act the Civil Court had undoubtedly jurisdiction to decide whether a person was a tenant other than a deemed tenant and that the Amendment Act should not be construed as invalidating decisions of Civil Courts on such question, which were valid when they (such decisions) were rendered.

Mr. Gopal Krishna Shetty also pointed out that while there is an express provision validating decisions of Tribunals on such question, there is no express provision in the Amendment Act invalidating decisions of Civil Courts on such question, rendered prior to the Amendment Act. Mr. Gopal Krishna Shetty urged that a statute should not be construed as having such degree of retrospective effect as would invalidate acts or decisions validly done or made prior to enactment of such statute.

23. It is true that the Amendment Act does not contain any express provision declaring as invalid decisions of Civil Courts on the question whether a person is a tenant other than a deemed tenant, rendered prior to the Amendment Act. But even in the absence of such an express provision in the Amendment Act, such consequence will, in our opinion, follow by necessary implication from retrospective conferment of jurisdiction on the Tribunal to decide such question. Section 132 of the Principal Act excludes the jurisdiction of Civil Courts in respect of matters which should be decided by the Tribunal. Hence, both Civil Courts and the Tribunal cannot be regarded as having jurisdiction at the same time to decide the same matter. If the Tribunal is deemed to have had jurisdiction to decide the question whether a person is a tenant and not merely a deemed tenant, it necessarily follows that Civil Courts should be deemed to have had no jurisdiction to decide such question at any time.

24. Though the Courts below had jurisdiction to decide whether the plaintiff was the tenant of the suit land, their decision on that question has been subsequently rendered invalid and without jurisdiction in view of the provisions of the Amendment Act. Consequently, the decrees made by the Courts below, based on their finding on Issue No. 1, should be set aside.

25. In the result, we allow this appeal, set aside the judgments and decrees of the Courts below and remit the case to the learned Civil Judge with a direction to refer under amended Section 133 of the Principal Act to the Court the question whether the plaintiff is the tenant of the suit land. After receiving the finding of the Court on that question, the learned Civil Judge shall dispose of the suit afresh.

26. As we have remanded the case to the trial Court, she appellant will be entitled to refund of the court-fee paid on the memorandum of appeal presented in this Court.

27. In the circumstances of this case, we direct the parties to bear their own costs in this appeal.

28. Appeal allowed and case remanded.


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