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Bhimaji Shanker Kulkarni Vs. Dundappa Vithappa Udapudi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC166; (1966)1MysLJ(SC)171; [1966]1SCR145
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 2(8), 2(10) 4, 4-A, 29, 29(2), 29(4) and 70
AppellantBhimaji Shanker Kulkarni
RespondentDundappa Vithappa Udapudi and anr.
Cases ReferredIn Mudugere Rangaiah v. Rangaiah I. L. R.
Excerpt:
.....29 (4) and 70 of bombay tenancy and agricultural lands act, 1948 - appellant plaintiff instituted suit for possession of properties on redemption of mortgage in court of second joint civil judge - defendants pleaded transaction was not mortgage but lease and they have protection as tenants within meaning of act - trial court passed order that document is composite comprising mortgage and lease and mortgage fully redeemed as nothing due to plaintiff - plaintiff can bring case in revenue court and half cost of suit be recovered from defendant - plaintiff filed appeal in court of assistant judge and defendant filed cross objection - appellate court held that trial court had no jurisdiction to determine status of defendant and passed order - appeal partly allowed - order as to document set..........stands fully redeemed. (b) the plaintiff is at libertyto seek his remedy for possession of the suit lands in the revenue courts. (c) the plaintiff shall recoverhalf the costs of the suit from the defendants and the defendants shall beartheir own.' 2. on april 15, 1953, the plaintiff filed an appeal in the court of theassistant judge at bijapur, and the defendants filed cross-objections. on july5, 1955, the first appellate court held that the civil court had nojurisdiction to determine whether defendant no. 1 was a mortgagee in possessionor a tenant, and passed the following decree : 'the appeal is partly allowed. the decree of thelearned trial judge that nothing is due by the plaintiff to the defendantsunder the transaction (exhibit 43) at the date of the suit and the plaintiff isat.....
Judgment:

Bachawat, J.

1. On April 19, 1951, the plaintiff-appellant instituted a suit in the Courtof the Second Joint Civil Judge, Junior Division at Bagalkot, for possession ofthe suit properties on redemption of a mortgage and the taking of accounts onthe allegation that defendant No. 1 was the usufructuary mortgagee under amortgage deed dated June 28, 1945 (Ex. 43). The defendants pleaded that thetransaction of June 28, 1945 was an advance lease and not a mortgage, and theywere 'protected' tenants within the meaning of the Bombay Tenancy andAgricultural Lands Act, 1948 (Bombay Act LXVII of 1948) hereinafter referred toas the Act. On March 4, 1953, the trial Court passed the following decree :

'10. (A) The deed Exhibit 43is a composite document comprising of a mortgage and a lease. On takingaccounts of the mortgage debt, it is found that plaintiff owed nothing to thedefendants on the date of suit. The mortgage stands fully redeemed.

(B) The plaintiff is at libertyto seek his remedy for possession of the suit lands in the Revenue Courts.

(C) The plaintiff shall recoverhalf the costs of the suit from the defendants and the defendants shall beartheir own.'

2. On April 15, 1953, the plaintiff filed an appeal in the Court of theAssistant Judge at Bijapur, and the defendants filed cross-objections. On July5, 1955, the first appellate Court held that the Civil Court had nojurisdiction to determine whether defendant No. 1 was a mortgagee in possessionor a tenant, and passed the following decree :

'The appeal is partly allowed. The decree of thelearned trial Judge that nothing is due by the plaintiff to the defendantsunder the transaction (Exhibit 43) at the date of the suit and the plaintiff isat liberty to seek his remedy for possession of the suit land in Revenue Courtis confirmed. The rest of the decree namely that the document (Exhibit 43) is acomposite document showing a mortgage and a lease and about costs is set aside.Instead it is directed that the record and proceedings should go back to theTrial Court who should give three months' time to the plaintiff after recordand proceedings reach it for filing proper proceedings in the Tenancy Court fordetermining as to whether defendant 1 is a tenant. If the plaintiff does notinstitute those proceedings within the time allowed by the Trial Court, thenthe suit of the plaintiff for possession etc., should be dismissed ordering theparties to bear their own costs. If the proceedings are instituted by theplaintiff in the Tenancy Court, then the Trial Court should await the finaldecision of the said Tribunal. In case it is held by the Tenancy Court that thedefendant 1 is not a tenant, then the Trial Court should proceed to pass adecree for possession of the suit lands from the defendants to the plaintiffand should order inquiry into mesne profits, from the date of suit untildelivery of possession and should reconsider the question of costs between theparties to the suit.'

3. On October 1, 1955, the plaintiff filed a second appeal in the High Courtof Mysore. On December 7, 1959, the High Court dismissed the second appeal. TheHigh Court held :

'The lower Appellate Court having come to theconclusion that it has got no jurisdiction to interpret this document, shouldnot have taken the accounts, treating the document as a mortgage. Therefore, Iset aside that finding of the Assistant Judge. I confirm the finding of theAssistant Judge that the Civil Court has got no jurisdiction to interpret thedocument, Ex. 43 as to whether it is a mortgage or a lease. It is, therefore,directed that the record should go back to the Trial Court who should refer theissue to the Mamlatdar as to whether the defendant is a lessee under Exhibit43, dated 28th June 1945 and in case it is held that the defendant is not atenant, then the Trial Court will proceed to decide the suit on merits. If itis held that the defendant is a lessee and therefore, a tenant, then the suitwill be dismissed. Consequently, the appeal fails and is dismissed withcosts.'

4. Subsequent petitions by the plaintiff for review of this decree and forleave to file a Letters Patent Appeal were dismissed on April 14, 1960. Theplaintiff now appeals to this Court by special leave.

5. On behalf of the appellant, Mr. Patwardhan contended that thejurisdiction of a Civil Court depends upon the allegations made in the plaint,the Civil Court has full jurisdiction to try a suit for recovery of possessionof agricultural lands on redemption of a mortgage and the Mamlatdar has nojurisdiction to try such a suit, the plea in the written statement that thedefendants were protected tenants did not oust the jurisdiction of the CivilCourt to try the suit and the Civil Court should have tried and decided theincidental issue whether the defendants were mortgagees or protected tenants,instead of referring the issue to the Mamlatdar. On behalf of the respondents,Mr. Gopalakrishnan disputed these contentions, and contended that the HighCourt rightly referred the issue for the decision of the Mamlatdar.

6. The suit lands are agricultural lands within the meaning of the BombayTenancy and Agricultural Lands Act, 1948. The Act was passed with a view toamend the law relating to tenancies of agricultural lands and to make certainother provisions in regard to those lands.'Land' as defined in s. 2(8) of theAct covers land used for agricultural purposes including the site of dwellinghouses occupied by agriculturists for the purposes inter alia of s. 29.Sections 2(10) (A), 4 and 4-A define 'permanent tenants','tenants' and 'protected tenants' respectively. Section29(2) provides that no landlord shall obtain possession of any land or dwellinghouse held by a tenant except under an order of the Mamlatdar, and forobtaining such order, he must make an application in the prescribed form withina certain time. By s. 29(4), the landlord taking possession of any land ordwelling house except in accordance with the provisions of sub-s (2), is liableto forfeiture of crops, penalties and costs. Section 70(b) provides that forthe purposes of the Act, one of the duties and functions to be performed by theMamlatdar is 'to decide whether a person is a tenant or a protected tenantor a permanent tenant.' Section 85(1) provides that no Civil Court shallhave jurisdiction to settle, decide or deal with any question which is by theAct required to be settled, decided or dealt with by the Mamlatdar. Section 85Areads :

'85A (1). If any suitinstituted in any Civil Court involves any issues which are required to besettled, decided or dealt with by any authority competent to settle, decide ordeal with such issues under this Act (hereinafter referred to as the 'competentauthority') the Civil Court shall stay the suit and refer such issues to suchcompetent authority for determination.

(2) On receipt of such referencefrom the Civil Court, the competent authority shall deal with and decide suchissues in accordance with the provisions of this Act and shall communicate itsdecision to the Civil Court and such Court shall thereupon dispose of the suitin accordance with the procedure applicable thereto.

Explanation. - For the purpose ofthis section a Civil Court shall include a Mamlatdar's Court constituted underthe Mamlatdars' Courts Act, 1906.'

7. With regard to suits and proceedings by a landowner for possession ofagricultural lands, the combined effect of Sections 29, 70, 85 and 85A of the Act isas follows : the Mamlatdar has exclusive jurisdiction to entertain anapplication by a landlord for possession of agricultural lands against atenant, and the Civil Court has no jurisdiction to entertain and try a suit bya landlord against a tenant for possession of agricultural lands. The Mamlatdarhas no jurisdiction to try a suit by a landowner for recovery of possession ofagricultural lands from a trespasser or from a mortgagee on redemption of a mortgage,and the Civil Court has jurisdiction to entertain such a suit; but if thedefendant to the suit pleads that he is a tenant or a protected tenant or apermanent tenant and an issue arises whether he is such a tenant, the Courtmust refer the issue to the Mamlatdar for determination, and must stay the suitpending such determination, and after the Mamlatdar has decided the issue, theCourt may dispose of the suit in the light of the decision of the Mamlatdar.

8. Section 85A was introduced by Bombay Act XIII of 1956, which came intoforce on March 23, 1956 during the pendency of the second appeal in this case.The suit out of which this appeal arises was governed by the law as it stoodbefore the introduction of s. 85A. But independently of s. 85A and before itcame into force, the Bombay High Court in Dhondi Tukaram v. Hari Dadu (1) held that the effect of Sections 70(b) and 85 read in the lightof the other provisions of the Act was that if in a suit filed against thedefendant on the footing that he is a trespasser he raises the plea that he isa tenant or a protected tenant the Civil Court had no jurisdiction to deal withthe plea, and the proper procedure was to refer the issue to the Mamlatdar forhis decision and not to dismiss the suit straightaway. The Court observed :

'Therefore, we hold that in a suit filed againstthe defendant on the footing that he is a trespasser if he raises the plea thathe is a tenant or a protected tenant, the Civil Court would have nojurisdiction to deal with that plea. ........ We would, however, like to addthat in all such cases where the Civil Court cannot entertain the plea andaccepts the objection that it has no jurisdiction to try it, it should not proceedto dismiss the suit straightaway. We think that the proper procedure to adoptin such cases would be to direct the party who raises such a plea to obtain adecision from the Mamlatdar within a reasonable time. If the decision of theMamlatdar is in favour of the party raising the plea, the suit for possessionwould have to be dismissed, because it would not be open to the Civil Court togive any relief to the landlord by way of possession of the agricultural land.If, on the other hand, the Mamlatdar rejects the plea raised under the TenancyAct, the Civil Court would be entitled to deal with the dispute on the footingthat the defendant is a trespasser.'

9. In Dhondi Tukaram's case , the Court expressedthe hope that the legislature would make suitable amendments in the Act. TheBombay Legislature approved of the decision, and gave effect to it byintroducing s. 85A by the amending Bombay Act XIII of 1956. Section 85Aproceeds upon the assumption that though the Civil Court has otherwisejurisdiction to try a suit, it will have no jurisdiction to try an issuearising in the suit, if the issue is required to be settled, decided or dealtwith by the Mamlatdar or other competent authority under the Act, and on thatassumption, s. 85A provides for suitable machinery for reference of the issueto the Mamlatdar for his decision. Now, the Mamlatdar has jurisdiction under s.70 to decide the several issues specified therein 'for the purposes ofthis Act', and before the introduction of s. 85A, it was a debatable pointwhether the expression 'for the purposes of this Act' meant that theMamlatdar had jurisdiction to decide those issues only in some proceedingbefore him under some specific provision of the Act, or whether he had jurisdictionto decide those issues even though they arose for decision in a suit properlycognisable by a Civil Court, so that the jurisdiction of the Civil Court to trythose issues in the suit was taken away by s. 85 read with s. 70, DhondlTukaram's case settled the point, and held thatthe Mamlatdar had exclusive jurisdiction to decide those issues even thoughthey arose for decision in a suit properly cognisable by a Civil Court. Theresult was somewhat startling, for normally the Civil Court has jurisdiction totry all the issues arising in a suit properly cognisable by it. But havingregard to the fact that the Bombay Legislature approved of Dhondi Tukaram'scaset and gave effect to it by introducing s. 85A,we must hold that the decision correctly interpreted the law as it stood beforethe enactment of s. 85A. It follows that independently of s. 85A and under thelaw as it stood before s. 85A came into force, the Courts below were bound torefer to the Mamlatdar the decision of the issue whether the defendant is atenant.

10. In Mudugere Rangaiah v. Rangaiah I. L. R. [1959] K.A.R.420 theplaintiff sued for a declaration that he is the kadim tenant in the suit landand prayed for a permanent injunction restraining the defendant frominterfering with his possession. Both the plaintiff and the defendant claimedto be tenants under the same landlord. The defendant contended that the suitwas not maintainable in a Civil Court in view of s. 46 of the Mysore TenancyAct (Mysore Act No. XIII of 1952). The Mysore High Court held that thejurisdiction of the Amildar is limited to cases arising by or under the MysoreTenancy Act, and the decisions that he is required to give under s. 32 of theAct were 'for the purposes of the Act' and the aforesaid suit did notarise under any of the provisions of the Act and the Civil Court had,therefore, the jurisdiction to decide all the points in dispute in the suitincluding the question of tenancy and no provision in the Act laid down that aCivil Court was not entitled to try civil proceedings involving thedetermination of any question falling within s. 32 of the Act, though theAmildar was the competent authority to settle, decide and deal with thosequestions, had they arisen in proceedings under the Act. Sections 32 and 46 ofthe Mysore Act are similar to Sections 70 and 85 ,of the Bombay Act, but there aremany points of distinction between the scheme and legislative history of theMysore Act and those of the Bombay Act. The Mysore High Court considered DhondiTuka-ram's case , and also noted some of the pointsof distinction between the two Acts. In the instant case, the question ofinterpretation of Sections 32, 46 and other provisions of the Mysore Act does notarise, and we express no opinion on it. We must not be taken to express anyopinion one way or the other on the correctness or otherwise of the decision inMudugere Rangaiah's case I. L. R. [1959] K.A.R 420

11. Mr. Patwardhan also contended that in the second appeal preferred by theplaintiff the High Court had no jurisdiction to set aside the finding of thefirst appellate Court given in favour of the appellant namely, the finding that'nothing is due by the plaintiff to the defendants under the transaction,Exhibit 43.' There is no substance in this contention. The first appellateCourt recorded inconsistent findings. Having held that the Civil Court had nojurisdiction to determine whether defendant No. 1 was a mortgagee in possessionor a tenant, the lower appellate Court should have stayed the suit pendingdecision of that question by the Mamlatdar, and until such a decision wasgiven, the Court could not proceed on the footing that the transactionevidenced by Ex. 43 was a mortgage and the defendant No. 1 was a mortgagee andhold that nothing was due by the plaintiff to the defendants under thetransaction. The High Court had ample power to correct this error and to setaside this inconsistent finding in an appeal filed by the plaintiff, though thedefendants had filed no appeal or cross-objections.

12. In the result, the appeal is dismissed with costs.

13. Appeal dismissed.


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