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Gopinath Jiew Thakur and ors. Vs. Dambarudhar Pal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 135 of 1958
Judge
Reported inAIR1961Ori156; 26(1960)CLT468
ActsTenancy Law; Orissa Tenants Relief Act, 1955 - Sections 10(1); Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantGopinath Jiew Thakur and ors.
RespondentDambarudhar Pal
Appellant AdvocateG.G. Das, Adv.
Respondent AdvocateL.K. Dasgupta, Adv.
DispositionAppeal dismissed
Excerpt:
.....first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v 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]. - subject to the provisions of section 9, all disputes arising between a landlord and a tenant shall be cognizable by the revenue court and shall not be cognizable by a civil court''in my opinion, the point is bound to fail. all suits, proceedings in execution of decrees or orders and other proceedings for the eviction of tenants from their lands, which are pending at the date of the passing of this act in any court or which may..........of title and for recovery of possession. the plaintiff happens to be a sikimi tenant under the orissa tenancy act and claims his rights to be hereditary rights. the cause of action for the suit is that he was dispossessed on 17th june 1955 by the defendants. defendant no. 1 is the deity, indeed the superior landlord, and the other defendants are marfatdars. it is to be noted, there was a previous-suit inter partes (title suit no. 44 of 1930) in which the appellate judgment (ex. 10} was delivered on 22nd january, 1931 where the hereditary rights of the plaintiff's father were declared and possession restored.2. the defence was that the plaintiff's father was a mere jaigirdar under the deity; he had surrendered the jaigiri lands in the year 1951, and as such, the suit is not.....
Judgment:

S.P. Mohapatra, J.

1. This second appeal has been filed by the defendants arising out of a suit for declaration of title and for recovery of possession. The plaintiff happens to be a Sikimi Tenant under the Orissa Tenancy Act and claims his rights to be hereditary rights. The cause of action for the suit is that he was dispossessed on 17th June 1955 by the defendants. Defendant No. 1 is the deity, indeed the superior landlord, and the other defendants are Marfatdars. It is to be noted, there was a previous-suit inter partes (Title Suit No. 44 of 1930) in which the appellate judgment (Ex. 10} was delivered on 22nd January, 1931 where the hereditary rights of the plaintiff's father were declared and possession restored.

2. The defence was that the plaintiff's father was a mere Jaigirdar under the deity; he had surrendered the jaigiri lands in the year 1951, and as such, the suit is not maintainable.

3. The Courts below have decreed the plaintiffs suit. It is manifest, the defence plea that the plaintiffs father was a mere jaigirdar under the deity and therefore he had surrendered has been rightly negatived by the Courts below, particularly in the face of the judgment Ext. 10 where the plaintiff's hereditary rights of an under-raiyat were declared.

4. Mr. G.G. Das, appearing on behalf of the defendant-appellants, has taken up the point that this suit is not cognizable by the Civil Court and is hit by the provisions of Sub-section (1) of Section 10 of the Orissa Tenants Relief Act, 1955 (hereinafter called the Act) which run to the effect:

'Subject to the provisions of Section 9, all disputes arising between a landlord and a tenant shall be cognizable by the Revenue Court and shall not be cognizable by a Civil Court''.

In my opinion, the point is bound to fail. It is, manifest from the provisions of the Act that this statute was intended primarily for the benefit of the tenants who might not have abiding rights under the ordinary law of the country. I may refer to Section 3 and Mr. Das relies upon Sub-section (1), Clause (a) of the Act which, runs thus:

'3. (1) Notwithstanding anything in any law, contract or usage or in any decree or order of any court but subject to the provisions of this Act-

(a) No tenant in lawful cultivation of any land on the 1st day of July 1954 or at any time thereafter shall be liable to be evicted from such land by the landlord'.

This is just an item in support of my view that it was primarily for protecting the interests of the tenants in lawful cultivation of the land on a particular date who might not be protected under the provisions of the Orissa Tenancy Act. The provisions of the Orissa Tenancy Act remain intact. If a tenant has abiding rights under the provisions of the Orissa Tenancy Act, he may not take recourse to the provisions of the Act at all and he will be absolutely entitled to seek protection o the competent Court who can give him relief and not the Special Tribunal constituted by the provisions of the Act. Section 7 of the Act confirms my view as aforesaid. Section 7, Sub-clause (1) runs as follows:

'All suits, proceedings in execution of decrees or orders and other proceedings for the eviction of tenants from their lands, which are pending at the date of the passing of this Act in any Court or which may thereafter be instituted in any revenue Court shall be stayed subject to the following sub-sections'.

Thus in spite of a tenant having failed in the ordinary Courts, he will be entitled to the protection of the Act. As I have indicated above, Section 10 of the Act makes a reference to Section 9 of the Act and Section 10 is made subject to the provisions of Section 9. It will fee relevant to consider the different clauses in Section 9.

'Any dispute between the tenant and the landlord as regards tenant's possession of the land on the first day of July 1954 or at any time thereafter and his right to the benefits under this Act''-

this Clause (a) goes to show that if a tenant is entitled to the benefits under the Act then he has got the right to make an application invoking the jurisdiction of the Collector who has been constituted as the special Tribunal under the Act. This indeed is an additional right given by the provisions of the Act. The other Clauses (b), (c) (d) and (e) mainly refer to other matters and on a perusal of these clauses I feel still more convinced that the question that arises in the present suit is not one of the questions which are involved in any of the other clauses.

5. Mr. Dasgupta, appearing on behalf of the respondent, has also drawn my attention to another point relying upon the proviso to Section 9, Sub-section (1) of the Act which provides that application invoking summary jurisdiction of the Collector is to be filed within sixty days from the date of the passing of the Act, whichever is later. Mr. Dasgupta contends that if a tenant does not avail of this remedy, it cannot be argued for a moment that he loses all his rights.

It is clear to me that non-availing of the special remedy cannot wipe out the rights of a tenant conferred upon him by the ordinary laws of the land which are embodied in the provisions of the Orissa Tenancy Act. Here, in this case, the plaintiff relies upon his rights under the ordinary laws of the land and does not rely upon the special rights under the Orissa Tenants Relief Act, and as such, it is crystal clear to me that the Civil Court has absolute jurisdiction to try and give relief.

6. The appeal therefore fails and is dismissedwith costs. Leave to appeal prayed for by Mr. G.G. Das is refused.


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