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Ukkayummakutty Umma Vs. Choiyi Choyikutty and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberO.P. No. 456 of 1957
Judge
Reported inAIR1959Ker26
ActsTenancy Law; Malabar Tenancy Act, 1930 - Sections 3(3), 15, 15(1), 16 and 22
AppellantUkkayummakutty Umma
RespondentChoiyi Choyikutty and ors.
Appellant Advocate K. Muhammad Naha, Adv.
Respondent Advocate K.P. Ravunni Menon, Adv.
DispositionPetition dismissed
Cases ReferredBhawanji v. Prabhakar Sadashio
Excerpt:
.....- jurisdiction - tenancy law, sections 3 (3), 15, 15 (1), 16 and 22 of malabar tenancy act, 1930 - fair rent fixed by rent court constituted under section 15 at instance of respondents - order of rent court challenged on ground that rent court's jurisdiction to fix rent only under those circumstance where relationship of landlord and tenant admitted and not disputed - rent court has jurisdiction and duty to decide collateral facts to existence of relationship of landlord and tenant - rent court rightly passed order of fixation of rent. - - 2. the petitioner applied to the subordinate judge of south malbar, kozhikode, but without success. unless the rent court has jurisdiction to determine the improvements effected by the tenant it would be well-nigh impossible for it to function. '..........on that ground. the rent court repelled her contention and fixed a sum of rs. 60/- as the fair rent payable from the agricultural year 1954-55 as against the liability of rs. 185/- specified in ext. b.2. the petitioner applied to the subordinate judge of south malbar, kozhikode, but without success. the two points considered by the subordinate judge in his judgment are: (1) whether the respondents were in possession of the property as mortgagees or as tenants, and (2) whether the fair rent fixed was correct. regarding the first point the subordinate judge said:'i find that the appellant and their respondents are landlord and tenant'and regarding the second:'i do not think it is necessary to interfere with the finding arrived at by the rent court as regards the fair rent fixed in.....
Judgment:

M.S. Menon, J.

1. The respondents filed a petition for the fixation of fair rent in respect of R. S. Nos. 119/1, 119/2, 121/1 and 121/2 of Vazhur Amsom in the Emad Taluk before the Rent Court at Manjeri (R. C. No. 364/94-55). The petitioner before us contended before the Rent Court that Ext. B1 which is styled a panaya kychit does not spell a tenancy, that the respondents were not tenants within the meaning of that expression as defined in the Malabar Tenancy Act, 1929, and that the case should be dismissed on that ground. The Rent Court repelled her contention and fixed a sum of Rs. 60/- as the fair rent payable from the agricultural year 1954-55 as against the liability of Rs. 185/- specified in Ext. B.

2. The petitioner applied to the Subordinate Judge of South Malbar, Kozhikode, but without success. The two points considered by the Subordinate Judge in his judgment are: (1) Whether the respondents were in possession of the property as mortgagees or as tenants, and (2) Whether the fair rent fixed was correct. Regarding the first point the Subordinate Judge said:

'I find that the appellant and their respondents are landlord and tenant'

and regarding the second:

'I do not think it is necessary to interfere with the finding arrived at by the Rent Court as regards the fair rent fixed in this case.'

3. According to the petitioner the jurisdiction of a Rent Court to fix the fair rent is confined to those cases where it is either admitted that the relationship between the parties is one of landlord and tenant or it has already been held to be such by an ordinary court of competent jurisdiction. In this case the nature of the relationship created by Ext. Bl is still in controversy and if the petitioner's submission is correct the action of the Rent Court was without jurisdiction and its order which has been confirmed by the Subordinate Judge in C. M. A. No. 29 of 1956 has to be quashed by an appropriate writ or direction from this court.

4. It is of course for the legislature creating at new jurisdiction to sketch and define the ambit of the jurisdiction and when a question arises as to what exactly are the powers conferred in a given case the answer has naturally to be sought within the four corners of the statute itself.

5. In Secy, of State v. Mask and Co., AIR 1940 PC 105 (A) their Lordships had to consider the question as to whether the jurisdiction of the Civil Courts is excluded by an order of the Collector of Customs on appeal under Section 188 of the Sea Customs Act, 1878. Their Lordships said:

'The determination of this question must rest on the terms of the particular statute which is under consideration, and decisions on other statutory provisions are not of material assistance, except in so far as general principles of construction are laid down'.

6. Sub-section (1) of Section 15 of the Makbar Tenancy Act, 1929, deals with the constitution of Rent Courts. It reads as follows:

'The State Government may by notification in the Fort St. George Gazette, constitute for any area specified therein, a Rent Court which shall be presided over by an officer not below the rank of a Tahsildar for the purpose of performing the functions entrusted to the Rent Court by this Act'.

Sub-section (2) of that section provides:

'In hearing an application under this Act, the Rent Court shall, so far as may be, have the same powers as are vested in, and follow the same procedure as is followed by, a Court of Small Causes hearing a suit or other proceeding under the Provincial Small Cause Courts Act 1887, subject to the modification that the Rent Court shall have the power to depute any officer of the Revenue Department to make local enquiry and inspection and to collect data and the report and the records submitted by such officer may be read as evidence in the case'.

Sub-section (2) came up for consideration in Krishnan v. Mammu 1958 Ker LT 68 : (AIR 1959 Kerala 24) (B). A Division Bench of this court said:

'The provisions in Sub-section (2) of Section 15 related only to procedure and not to the jurisdiction of the court, for which we must look elsewhere in the Act.'

7. Section 16 of the Act under which the fair rent was fixed (omitting the proviso thereto which is not material) is in the following terms;

'If any dispute arises as to the amount of fair rent payable in respect of any land under the foregoing provisions of this Chapter, either the tenant, or, after the expiry of three years from the commencement of the Malabar Tenancy (Amendment) Act, 1954, the landlord may apply to the Rent Court for the determination of the fair rent; and on such application being made the fair rent shall be determined by the Rent Court.'

8. In the decision above-mentioned 1958 Ker LT 68: (AIR 1959 Kerala 24) (B) there was a controversy as to whether certain 'improvements' on the property belonged to the tenant or to the landlord and the question arose as to whether a Rent Court had jurisdiction to resolve such a controversy. The Division Bench answered the question in the affirmative. It said:

'Unless the Rent Court has jurisdiction to determine the improvements effected by the tenant it would be well-nigh impossible for it to function. It cannot be that when disputes arose before a Rent Court as to the quantum of improvements effected by the tenant, the legislature intended the dispute to be taken before the ordinary civil court for adjudication and that the Rent Court should afterwards fix fair rent on the basis of the civil court's adjudication'

and

'Whether there is dispute or not would normally be known only when an application for fixation of fair rent is filed before the Rent Court. If the argument is to prevail parties will have to go to the Rent Court first then to the Civil Court and afterwards back to the Rent Court. To our minds the legislature could never have intended that. What it wanted was to confer full jurisdiction on a Rent Court to decide all questions incidental to the fixation of fair rent and that expeditiously/'

9. In this case, as already stated, the relationship between the parties -- whether the relationship is one of landlord and tenant -- is itself in controversy. According to the petitioner such a question cannot be considered as a question incidental to the fixation of fair rent; it should be treated as different and fundamental.

10. Section 22 of the Act provides :

'(1) Notwithstanding anything in the Indian Evidence Act, 1872, or in any other law for the time being in force, any person interested in any land may plead, adduce evidence and prove that a transaction entered into on or after. 1-1-1916 and purporting to be a mortgage of that land is not in fact a mortgage, but ft transaction by way of kanam, kanam-kuzhikanam, kuzhikanam, verumpattom or other lease, under which the transferee is entitled to fixity of tenure in accordance with the provisions of Section 21.

(2) Where under the last foregoing sub-section the court holds that the transferee is entitled to fixity of tenure in accordance with the provisions of Sec. 21, it shall be lawful for the court to pass a decree containing directions regarding the application of the sum, if any, advanced to the landlord and making other suitable alterations in the terms recorded in the instrument executed by the parties.'

The court referred to in the section is apparently not a Rent Court constituted under Section 15 (1) of the Act but a court as defined in Section 3 (3) of the Act. The definition reads as follows :

''Court' means the Civil Court having jurisdiction under the Code of Civil Procedure 1908, to entertain a suit for the possession of the holding or part thereof to which any legal proceeding under this Act relates.'

11. Section 22, however, cannot be considered as abrogating the rights of a Rent Court to adjudicate upon an essentially collateral subject like the existence or otherwise of a tenancy as contended by the petitioner. As stated in Halsbury (3rd Edition, Volume 11, p. 59, paragraph 116) :

'The jurisdiction of an inferior tribunal may depend upon the fulfillment of some condition precedent (such as notice) or upon the existence of some particular fact, Such a fact is collateral to the actual matter which the inferior tribunal has to try, and the determination whether it exists or not is logically and temporarily prior to the determination of the actual question which the inferior tribunal has to try. The inferior tribunal must itself decide as to the collateral fact; when, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not.'

12. In Rarnan and Raman Ltd. v. State of Madras, (S) AIR 1956 SC 463 (C) the Supreme Court said :

'It appears from an examination of that paragraph (paragraph 116) and paragraph 117 at p. 60 of the same volume that there may be cases where the jurisdiction of an interior tribunal may depend upon the fulfillment of some condition precedent or upon the existence of some particular fact. Such a fact is collateral to the actual matter which the inferior tribunal has to try, and the determination of whether it exists or not is logically and in sequence prior to the determination of the actual question which the inferior tribunal has to try.'

13. In R. v. City of London etc. Rent Tribunal; Ex parte Honing. (1951) 1 All ER 195 (D) Lord Goddard, C. J., said :

'Unless the tribunal could first decide on the question of the existence of a tenancy they could only proceed in a case where both parties agreed that a contract was in existence and it would always be open to the landlord to dispute the existence of the tenancy. That would result in an action in the county court, and if the county court judge decided one way, the tenant would be able to go on with his reference, but if he decided the other way he would not. I cannot think that it was intended that that should take place in regard to proceedings, under this Act (Furnished Houses (Rent Control) Act, 1946). The principles on which such tribunals as these can act seems to me to be well established by decided cases. First, one has to consider whether the tribunal must, to enable itself to obtain jurisdiction, find that a certain state of affairs collateral to the main question exists. The question whether or not there is a contract seems to me clearly to be collateral to the main question which the tribunal has to decide, viz., what is a reasonable rent under the contract of tenancy?.'

14. In R. v. Fulham Etc., Rent Tribunal, (1951) 1 All E. R. 482 (E) -- a case under the Landlord and Tenant (Rent Control) Act, 1949 --Lord Goddard, C. J., said :

'In that case -- (1951) 1 All E. R. 195 (D) -- this court held that it was competent for the tribunal to inquire whether there was an existing tenancy because that was collateral to the question which the tribunal had to decide, namely, the reasonable rent under an existing tenancy. If there was no tenancy, there was nothing on which the tribunal could adjudicate. The law to he gathered, especially from R. v. Income-tax Special Purposes Commix. (1888) 21 QBD 313 (F) and R. v. Lincolnshire. Justices; Ex parte Brett. (1926) 2 K. B. 192 (G), is that, if a certain state of facts has to exist before an inferior tribunal has jurisdiction, it can inquire into the facts in order to decide whether or not it has jurisdiction, but it cannot give itself jurisdiction by a wrong decision on them, and this court may, by means of proceedings for certiorari, inquire into the correctness of the decision. The decision as to these facts is regarded as collateral because, though the existence of jurisdiction depends thereon, it is not the main question which the tribunal has to decide.'

15. Two decisions of the Calcutta High Court are directly in point. In Gorachand Mullick v. Shaik Kallo, AIR 1951 Cal 557 (H), Sinha, J., said:

'If the Rent Controller cannot even go into the question, collaterally as to whether the petitioner is a 'tenant' or not, then in most eases he cannot fix the standard rent at all. Whenever a tenant makes an application the landlord may say that he is not a 'tenant' as defined by the Act. If the law were that the Rent Controller would at once be 'functus officio,' then the whole Act should be rendered nugatory. The English Authorities are quite clear that an inferior tribunal can deal with such questions collaterally. In the case of 'In re Bailey' (1854) 3 El. and Bl. 607 (I), the question arose as to whether a person had absented himself from service. It was held that the question whether he was a 'servant' was a collateral question that can be gone into. In 'R. v. Manchester. JJ.', (1899) 1 QB 571 (J) on an application for a license to sell intoxicating liquors, to be granted to the real 'resident and occupier' the question as to whether a person was the real resident and occupier was held to be a collateral question which could be gone into. In 'R. v. Armagh Justice.' (1924) Sir. R. 55 (K), Justice having power to authories the entry on lands 'not being an orchard,' it was held that the question whether the land in question was an orchard was a collateral question which could be gone into,'

and in Sudhir Kumar v. Bibhuti Bhusan, AIR 1956 Cal 668 (L) Mookerjee, J., said :

'Before me Mr. Ghose, appearing for the tenant petitioner, raised a point of law that, once the relationship of landlord and tenant is denied, there can be no proceedings for ejectment before the Thika Tenancy Controller as the said authority was a Tribunal with limited jurisdiction and had no power to go into any disputed question of title. This is, indeed, a very broad submission and I am unable to accept it. If this submission is correct, there would practically be an end of all these special legislations, for example, the Calcutta Thika Tenancy Act, or the West Bengal Premises Rent Control Act. In all proceedings under these special Acts, the Special Tribunal has certainly jurisdiction to decide questions which are necessary for the purpose of giving or refusing relief under the particular statute. The Thika Tenancy Controller, it cannot be denied, has the power and authority under the law to order eviction of Thika tenants. For that purpose, it may be necessary for him to consider defences or objections, founded on a certain claim of status, or pleas of absence of relationship of landlord and tenant or denial of the landlord's title to the property. He is certainly entitled, in my opinion, to consider these questions so far as they are necessary for the performance of his duties under the statute which include passing of orders for ejectment.'

16. We entertain no doubt that a Rent Court constituted under Sec. 15 of the Malahar Tenancy! Act, 1929, and called upon to determine the fair! rent of any land under Section 16 of that Act has the jurisdiction, and the duty, to decide the collateral fact as to the existence or otherwise of the relationship of landlord and tenant. In the words of fethalal Bhawanji v. Prabhakar Sadashio AIR 1956 Nag 193 (FB) (M) :.

'a tribunal of limited jurisdiction has not onlythe power to deal with matters expressly broughtwithin its jurisdiction by the statute but has alsothe power and the obligation to adjudicate uponcollateral facts without which it cannot proceed todecide the very matters for the decision of whichit is called into existence by the statute.'

The tribunal cannot of course clothe itself with avalid jurisdiction by an erroneous decision on thesubject and any wrong assumption of jurisdictionwill certainly be open to correction in appropriateproceedings by the aggrieved party.

17. In the light of what is stated above thispetition has to be dismissed and we do so, thoughin the circumstances of the case without any orderas to costs.


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