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Pandab Bissoyi and ors. Vs. Magiti Sasamal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 151 of 1951
Judge
Reported inAIR1957Ori17; 22(1956)CLT479
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 - Order 7, Rule 10; Tenancy Law; Orissa Tenants protection Act, 1948 - Sections 7(1)
AppellantPandab Bissoyi and ors.
RespondentMagiti Sasamal
Appellant AdvocateN.V. Ramdas, Adv.
Respondent AdvocateH. Mohapatra and ;R.N. Misra, Advs.
DispositionAppeal allowed
Cases ReferredJogeshwar Kuer v. Tilakdhari Singh
Excerpt:
.....birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - or (c) failure of the tenant to cultivate the land properly; or (d) failure of the tenant to deliver to the landlord the rent accrued due, within two months from the date on which it becomes payable to the landlord; the legislature clearly contemplated that after the coming into force of that act innumerable disputes would arise between landlords and tenants as to whether a tenant was in possession of a piece of land on 1-9-1947, so as to be entitled to the benefits under that act. tejpal singh, air 1933 all 664 (a) and reiterated in guruvayur devaswom, trustees kutti krishna menon 1956-1 mad lj 524 :(air 1956 mad 388) (b). it is true that the exclusion of the..........wanted to lay claim to the disputed lands as tenants taking advantages of the provisions of the orissa tenants protection act. in the plaint it was admitted that the defendants had served registered notice on the plaintiff intimating that they would cut and remove the crops on a date specified in the notice claiming themselves to be the tenants of the plaintiff.the plaintiff therefore apprehended that the defendants would forcibly remove the crops and brought the suit for a permanent injunction restraining the defendants from entering upon the suit lands and for consequential reliefs.3. the plaint was filed on 3-12-1948. the written statement of the defendants was filed on 20-12-1948 and therein they allege that they were the tenants in actual cultivation of the disputed lands and.....
Judgment:

Narasimham, C.J.

1. This is a defendants' appeal against the appellate judgment of the Additional District Judge of Berhampur reversing the judgment of the Additional Munsif of Berhampur and decreeing the plaintiff's suit for a permanent injunction against the appellants-defendants.

2. The plaintiff is the owner of about 18i acres of land in three villages, Phulta, Burukuddi and Dasapore, in Berhampur taluk. He alleged that the lands were all along in his personal cultivation and that the defendants had neither any right to those lands nor were they ever cultivating them as his tenants:

According to the plaintiff the defendants were mostly coolies, without any property, and being rowdies by nature they wanted to lay claim to the disputed lands as tenants taking advantages of the provisions of the Orissa Tenants Protection Act. In the plaint it was admitted that the defendants had served registered notice on the plaintiff intimating that they would cut and remove the crops on a date specified in the notice claiming themselves to be the tenants of the plaintiff.

The plaintiff therefore apprehended that the defendants would forcibly remove the crops and brought the suit for a permanent injunction restraining the defendants from entering upon the suit lands and for consequential reliefs.

3. The plaint was filed on 3-12-1948. The written statement of the defendants was filed on 20-12-1948 and therein they allege that they were the tenants in actual cultivation of the disputed lands and that the plaintiff was only a landlord entitled to realise rent as determined by law. They, further stated that every year they used to execute muchalikas in respect of the disputed lands but that the plaintiff had completely suppressed them. They also stated that they were in possession of the disputed lands, as tenants, long before 1-9-1947 and that they continued in possession even after that date and that, consequently, they were entitled to remain in possession under the provisions of the Orissa Tenants Protection Act.

In para 8 of the written statement it was further alleged that the defendants apprehended that the plaintiff would attempt to interfere with their possession and that on 1-11-1948 they applied to the Sub-Collector of Berhampur and also to the District Collector, at Chatrapur for redress and, as advised by those officers, they subsequently filed petitions under the Orissa Tenants Protection Act before the Sub-Collector of Berhampur.

In para 9 of the written statement it was further stated that the defendants were always ready and willing to pay Rajabhagam, as provided in that Act, to the plaintiff that they got the crops appraised by respectable people, after giving registered notice to the plaintiff on 28-11-1948. The jurisdiction of the Civil Court to entertain the suit was also challenged on the ground that in view of the provisions of the Orissa Tenants Protection Act the suit was cognizable only by the Revenue Court.

4. The Orissa Tenants Protection Act, 1948 (Orissa Act 3 of 1948), which is an important measure of tenancy reform, was brought in force on 14-2-1948. The main object of that enactment was to give temporary protection from eviction to actual tillers of the soil and the expression 'tenant' was therefore given a wide definition (See Section 2(g) of the Act) so as to include Bhagachassis who may be cultivating the lands even of a ryot as tenants.

Section 3(1) of that Act conferred freedom from eviction, on those persons who, on 1-9-1947, were cultivating any land as tenants. That section further stated that:

'it shall not be lawful for the landlord to evict such a tenant from his land or to interfere in any way with the tenant's cultivation of his land.'

For the purpose of this appeal it is unnecessary to consider why the Legislature fixed 1-9-1947 as the relevant date for conferring freedom from eviction on certain classes of tenants. Section 7 (1) of the Act conferred exclusive jurisdiction on the Collector to decide certain classes of disputes between a tenant and a landlord. That sub-section is as follows:

'7 (1) Any dispute between the tenant and the landlord as regards -

(a) the tenant's possession of the land on the 1st day of September 1947 and his rights to the benefits under this Act; or

(b) misuse of the land by the tenant; or

(c) failure of the tenant to cultivate the land properly; or

(d) failure of the tenant to deliver to the landlord the rent accrued due, within two months from the date on which it becomes payable to the landlord; or

(e) the quantity of produce payable to the landlord as rent

shall be decided by the Collector on the application of either of the parties.'

It will be noticed that the jurisdiction of the Collector arises on the application of either of theparties; that is, either the landlord or the tenantmay apply. The other sub-sections of Section 7 containdetailed provisions for granting relief to the applicants.

Sub-sections (6) and (7) of that section conferred power on the Collector to impose a penalty on the landlord who unlawfully interfered with the possession of such a tenant and to restore possession of the land to that tenant if he had been dispossessed by the landlord. Section 8(1) further provided that :

'subject to the provisions of Section 7 all disputes arising between a landlord and a tenant shall be cognizable by the Revenue Court and shall not be cognizable by the Civil Court.'

There was a provision for appeal against the decision of the Collector and also for revision against the decision of the appellate authority.

5. From the foregoing summary of the relevant provisions of the Orissa Tenants Protection Act, 1948, it will be clear that it is a piece of beneficial legislation meant to confer (1) immunity from eviction on those persons who actually cultivated lands as tenants on 1-9-1947 and (2) the consequential right to be restored to possession if subsequent to that date they were unlawfully evicted by the landlord.

The Legislature clearly contemplated that after the coming into force of that Act innumerable disputes would arise between landlords and tenants as to whether a tenant was in possession of a piece of land on 1-9-1947, so as to be entitled to the benefits under that Act. Hence, in Section 7(1) (a) it expressly conferred jurisdiction on the Collector to decide this class of disputes and also conferred similar powers on him to prevent unlawful eviction of those tenants by restoring them to possession and penalizing the guilty landlord.

The Legislature did not stop with merely conferring immunity from eviction on such classes of tenants, but went further and conferred jurisdiction on the Collector to decide disputes on the application, either of the tenant or of the landlord, as to whether a tenant was entitled to the benefits under that Act.

6. The main question for consideration at present is whether, in view of the aforesaid provisions of the Orissa Tenants Protection Act, the Civil Court had jurisdiction to decide the plaintiff's suit, or else whether It was within the exclusive jurisdiction of the Revenue Court. In fact the defendants had objected to the jurisdiction of the Civil Court in their written statement and one of the important issues raised in the suit was issue No. 5 on the Question of jurisdiction.

But the trial Court observed that this issue was not pressed, though from his judgment it appears that he believed the defendant's version that they were all along in possession of the lands as tenants prior to 1-9-1947, that they were entitled to the benefits of the Orissa Tenants Protection Act, and that consequently no injunction as prayed for by the plaintiff could issue.

Before the lower appellate Court the question of jurisdiction was not raised. The judgment of that Court is confined only to the limited question as to whether either party has established his claim to be in possession of the disputed plots.

7. During the hearing of this second appeal Mr. Ramdas, on behalf of the defendants, raised the question of jurisdiction and urged that notwithstanding the observation of the trial Court to the effect that this question was not pressed the defendants were entitled to reagitate the same inasmuch as no Court can assume jurisdiction, even if not objected to by the parties, if the law expressly bars its jurisdiction.

8. In my opinion the defendants' contention must prevail. It is true that the question of Jurisdiction is initially decided on the basis of the allegations contained in the plaint, but when the written statement is filed by the defendants challenging the jurisdiction of the Civil Court and when the pleadings of both parties are before the Civil Court, that Court should carefully examine the same with a view to ascertain what is real nature of the dispute between the parties and whether it has jurisdiction to decide that dispute.

The form and the dexterity shown in the drafting of the pleadings will not suffice, and the Court must, on a careful scrutiny of the pleadings ascertain what is the real nature of the controversy. This principle was especially emphasised in Het Kuar v. Tejpal Singh, AIR 1933 All 664 (A) and reiterated in Guruvayur Devaswom, Trustees Kutti Krishna Menon 1956-1 Mad LJ 524 : (AIR 1956 Mad 388) (B).

It is true that the exclusion of the jurisdiction of the civil Court should not be readily inferred but such exclusion must either be explicitly expressed or clearly implied.

But as pointed out in Babu Rao K. Pai v. Dalsukh M. Pancholi ( (S) AIR 1955 Bom 89) (C), where a Court is dealing with a special Act passed for the benefit of a special, class of persons, setting up a special tribunal to decide certain special classes of disputes, it is not difficult to appreciate the object of the Legislature in placing certain matters solely within the jurisdiction of the special tribunal so set up and preventing the Civil Courts from dealing with those matters.

I may also cite the following observations of Willis J., in Wolverhampton New Water Works Co. V. Howkesford (1859) 28 LJ CP 242 at p. 246 (D):

'There are three classes of cases in which a liability may be established by statute. There is that class where there is a liability, existing at common law, and which is only re-enacted by the statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law.

Then there is a second class, which consists of those cases in which a statute has created a liability but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third, class is where the statute creates a liability not existing at common law and gives also a particular remedy for enforcing it.

Now, it appears to me that the present case falls within such third class; and, as with respect to that class it has always been held that the party must adopt the form or remedy given by the statute, so I think the company are bound here to follow the form given by this statute which creates the right'.

9. In my opinion, the present case comes within the third class mentioned in Willis J.'s judgment. Under the ordinary tenancy law no special sanctity is attached to the possession of a piece of land by a tenant on a particular date and his immunity from eviction would depend on his status as a raiyat in accordance with the tenancy laws in force.

But the Orissa Tenants Protection Act for the first time fixed a particular date, namely, 1-9-1947, as the relevant date for deciding whether the actual tiller of the soil on that date as tenant was not liable to be evicted. That Act therefore created a liability for a landlord not existing from before, and also provided a remedy for enforcing that liability against the landlord. Hence the parties must adopt that form of remedy that is to say they must seek their redress in Revenue Court.

10. The plaint was filed within ten months after the coming into force of the Orissa Tenants Protection Act. It was expressly alleged in the plaint that the defendants wanted to take advantage of the provisions of that Act and that they had served the plaintiff a registered notice intimating that they would remove the crops on a certain date.

The plaintiff, however, wanted to make out a simple case of apprehended trespass from some coolies who were rowdies and scrupulously avoided the use of any language which might imply an admission that the defendants ever cultivated the lands as tenants. This was quite natural because no one who drafts a plaint for presentation in the Civil Court will admit the facts which would at once oust the jurisdiction of that Court and bring the jurisdiction of the Revenue Court.

In their written statement, however, the defendants claimed protection under the Orissa Tenants Protection Act alleging that they were in possession all along -- even prior to 1-9-1947 -- as tenants. They further averred that on 1-11-1948 they had filed applications before the Sub-Collector of Berhampur and the District Collector at Chatrapur requesting them to prevent the plaintiff from forcibly interfering with their possession and that, as advised by the Revenue authorities, they subsequently filed applications under the Orissa Tenants Protection Act.

Hence, if the plaint and the written statement are carefully scrutinised, there can be no doubt that the real dispute between the parties was as to whether the defendants cultivated the lands, as tenants, on 1-9-1947, and whether they were entitled to the, benefits under the Orissa Tenants Protection Act,

In fact, this will be the most important issue which will be framed by any Court on the pleadings of the parties. Section 7 (1) (a) of the Act expressly says that such an issue can be decided only by the Collector. Hence, on the pleadings, read with the relevant provisions of the Orissa Tenants Protection Act, it seems obvious that the Civil Court's jurisdiction to decide this dispute is taken away. The cleverness and dexterity shown in the drafting of the plaint cannot conceal the real nature of the dispute.

11. Mr. Mohapatra, on behalf of the plaintiff-respondent, however, urged that the Revenue Court's exclusive jurisdiction under Clause (a) of Sub-section (1) of Section 7 of the Act would arise only when no relationship of landlord and tenant between the parties is admitted and when the only issue in controversy is as to whether the tenant was in possession oft 1-9-1947. This argument, however, is based on a narrow construction of that section.

It is immaterial whether, on the date of application to the Collector for relief under the Orissa Tenants Protection Act, the existence of the relationship of landlord and tenant was admitted by both parties. The Very fact that Sub-sections (6) and (7) of Section 7 envisage a situation where the tenants may be out of possession by having been unlawfully evicted by the landlord and may have to be restored to possession, shows that on the date of application to the revenue officers the existence of the relationship of landlord and tenant need not be admitted by both parties.

A person was entitled to the benefits of the Orissa Tenants Protection Act if, on 1-9-1947, he 'was in possession of the land as a tenant; and it is immaterial if on any subsequent date he ceasedto be in possession of lands as a tenant, He could not be evicted by the landlord without taking recourse to the special procedure prescribed in that Act, and if he was unlawfully evicted the Collector was bound to restore the land to the tenant on his application, even though on the date of application the relationship of landlord and tenant did not exist.

Any other construction as urged by Mr. Mohapatra would have the effect of depriving a large number of tenants of their benefits under the Act which was clearly not the intention of the Legislature. The expressions 'landlord' and 'tenant' in the opening words of Section 7(1) would, therefore, include 'ex-landlord' and 'ex-tenant' as the case may be according to the allegations contained in the pleadings.

It is true that there may be a dispute between the parties as to whether a particular person was in possession as a tenant on 1-9-1947, and it is that dispute (which may be raised by either of the parties) that the Collector was required to decide under Section 7 (I) (a). Once it is clear, on the pleadings of both parties, that such a dispute exists, the Civil Court's jurisdiction is ousted. As pointed out in the Bombay decision (C) mentioned above:

'In setting up a tribunal, the legislature may follow one of two methods. It may provide that a tribunal shall have jurisdiction provided certain conditions exist and these conditions would be jurisdictional conditions, going to the very jurisdiction of the tribunal.

It would not then be for the tribunal to decide whether those conditions exist or not, because the very existence of the tribunal, its very authority, depends upon those conditions existing. Or, the Legislature may set up a tribunal and confer upon that tribunal jurisdiction to decide all questions which arise in respect of the particular subject-matter for which the tribunal has been set up'.

In my opinion, the Collector's jurisdiction to decide disputes under Section 7, Orissa Tenants Protection Act comes under the latter class. The Legislature not only set up the tribunal (the Collector) but conferred power on that tribunal to decide disputes which, may arise as to whether a particular person was entitled to the benefits under the Orissa Tenants Protection Act. The dispute may be raised either in the plaint or in the written statement.

12. Mr. Mohapatra, however, relied on a Pull Bench decision of the Allahabad High Court reported in Mt. Ananti v. Channu AIR 1930 All 193 (E) and urged that in considering the relative jurisdiction of the Civil Court and the Revenue Court, the allegations contained in the plaint alone should be primarily looked into and that the Civil Court's jurisdiction will not be taken away until it is found by the Court, on trying judicially the facts alleged, that the plaintiff's allegations are false.

That decision, however, is distinguishable. There the statute for construction was Section 99, Agra Tenancy Act of 1926 whose language was quite different from that of Section 7(1), Orissa Tenants Protection Act. It would come under the first of the two methods described in Bombay decision, which I have quoted above.

Moreover, as pointed out in the later Allahabad decision AIR 1933 All 564 (A) it is too fundamental that in considering the question of jurisdiction not only the plaint but also the written statement must be looked into and the real nature of the dispute between the parties ascertained. Here, I do not think there can be any doubt about the real nature of the dispute.

The appellants-defendants (as stated by them) had approached the revenue officers more than amonth before the filing of the plaint and had been advised to seek relief under the Orissa Tenants Protection Act. They had also served registered notice on the plaintiff for appraisement of crop on the allegation that they were tenants. The plaintiff immediately rushed to the Civil Court and brought the present suit for a permanent injunction.

It is not denied that the defendants also applied to the Revenue Authorities for protection under the Tenants. Protection Act. The jurisdiction of the Revenue Court or the Civil Court cannot be made to depend on the agility or resource of either party in seeking redress, from either of those Courts.

It is not the race against time or the depth of the purse that decides such matters, but the real nature of the dispute as disclosed by the entire pleadings. Any other construction will lead to impossible situations. For instance, suppose on a particular date the landlord files a civil suit in the Munsif's Court as against the tenants alleging that they were mere trespassers and on the very same date the tenants also file an application before the Collector under the provisions of the Orissa Tenants Protection Act, alleging that they were tenants entitled to protection under that Act.

In the civil Court the tenants would naturally file their written statements supporting the allegations made in their application before the Collector. Similarly, in the Tenants Protection Act case the landlord would file a counter application denying that there was any relationship of landlord and tenant between him and the applicants, and saying that it was a purely civil dispute outside the jurisdiction of the Collector.

It cannot be said that in the Civil Court the allegations in the plaint alone should be looked into or else that in the Revenue Court, the allegations contained in the application of the tenants alone should be looked into, and both the Courts should completely ignore the written statement and the counter-application filed by the other side, and proceed to dispose of the plaint or the application, as the case may be, according to law.

Such a view would lead to two Courts of original jurisdiction hearing the same dispute and perhaps giving contradictory decisions. Such a situation would, however, be avoided if the Court before whom the pleadings are filed examines them in their entirety, ascertains the real nature of the dispute and then decides which Court has jurisdiction, bearing in mind the statutory provisions regarding the tribunal which is required to decide that dispute.

Judged by these principles, there can be no doubt that the litigation in the Civil Court, in the present case, was entirely misconceived. The parties should have been left to fight out the matter before the Collector under the Orissa Tenants Protection Act.

13. For the aforesaid reasons I would allow this appeal and direct that the plaintiff's suit be dismissed with costs throughout. The question of return of the plaint for presentation before the proper Court does not arise as pointed out in-- 'Jogeshwar Kuer v. Tilakdhari Singh', AIR 1924 Pat 267 (F).

Das, J.

14. I agree.


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