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Mohmad Khan Jamiyatkhan Vs. Dadamiyan Mohmadmiyan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 843 of 1969
Judge
Reported inAIR1971Guj77; (1970)GLR595
ActsCode of Civil Procedure (CPC), 1908 - Sections 9; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 70, 84 and 85-A
AppellantMohmad Khan Jamiyatkhan
RespondentDadamiyan Mohmadmiyan
Appellant Advocate A.M. Peerzada, Adv.
Respondent Advocate B.R. Shah, Adv.
Cases ReferredNivrutti Laxman v. Shivdayal
Excerpt:
.....passed by revenue tribunal challenged - mamlatdar under section 70 (b) can decide issue whether person concerned tenant or not - prant officer dealing with application under section 84 must direct party concerned to apply to mamlatdar and obtain decision - competent civil court must refer issue under section 70 to mamlatdar - revenue tribunal committed jurisdictional error by deciding question whether petitioner tenant or not - mandamus issued directing prant officer to stay matter and time given to concerned respondent to obtain decision of competent mamlatdar under section 70 (b). - - the tribunal further stated that the law is well established that in a case in which summary eviction of a person is prayed for and if that person raises plea that he is a tenant, the authority..........this petition against the order of the revenue tribunal. 2. it appears that before the revenue tribunal a decision of my learned brother divan, j., in special civil appln. no. 702 of 1963, d/-15-10-1963 (guj), which proceeded upon an earlier decision of the division bench in shivnarayan motilal v. fakira bala rohem in special civil appln. no.529 of 1958 (bom) by chainani and tarkunde, jj., on 23-4-1958, had been cited. my learned brother divan, j., in terms held that in an application under section 84 if a question was raised whether a person concerned was a tenant or not of the land in question, it is only the mamlatdar under section 70(b) who can decide the question whether a person is or is not a tenant and the prant officer dealing with an application under section 84 must direct.....
Judgment:
ORDER

1. The petitioner, who claims to be the tenant of three Survey Numbers 463/2, 467 and 479 at village Sonasan, Taluka Prantij, challenges in this petition the order of Revenue Tribunal dated March 17, 1969, by which the Tribunal has dismissed the revision application confirming the order of the Prant Officer dated November 5, 1965, ordering summary eviction of the petitioner from all these lands under Section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as 'The Act'. These three lands were purchased by Respondent No. 1 in May, 1946. It appears that the petitioner's brother had surrendered these lands on March 25, 1957, and this surrender was verified by the order of the Mamlatdar under Section 15(2) of the Act on April 2, 1957, and was confirmed by the Collector or May 12, 1958. Thereafter respondent No. 1 applied in 1958 in the Mamlatdar's Court for injunction in respect of Survey No. 463/2. The petitioner was found to be in possession of the Survey number and so the suit for injunction under the Mamlatdars' Court Act was dismissed and this order was confirmed by the Prant Officer. In 1958 even the petitioner had applied for entering his name in Survey No. 463/2 but his name was not entered and he was directed to apply under Section 70(b) of the Act. Respondent No. 1, however, applied before the Prant Officer, under Section 84 on February 10, 1967 and March 20, 1967 for getting possession of these three lands from the petitioner on the ground that he was trespasser as the real tenant was his brother, who has surrendered his tenancy. The petitioner raised a contention before the Prant Officer that he was a tenant of all these three lands. The Prant Officer had negatived this contention and held the petitioner to be a trespasser and had ordered his eviction. This order having been confirmed by the Revenue Tribunal, the petitioner has filed this petition against the order of the Revenue Tribunal.

2. It appears that before the Revenue Tribunal a decision of my learned Brother Divan, J., in Special Civil Appln. No. 702 of 1963, D/-15-10-1963 (Guj), which proceeded upon an earlier decision of the Division Bench in Shivnarayan Motilal v. Fakira Bala Rohem in Special Civil Appln. No.529 of 1958 (Bom) by Chainani and Tarkunde, JJ., on 23-4-1958, had been cited. My learned Brother Divan, J., in terms held that in an application under Section 84 if a question was raised whether a person concerned was a tenant or not of the land in question, it is only the Mamlatdar under Section 70(b) who can decide the question whether a person is or is not a tenant and the Prant Officer dealing with an application under Section 84 must direct the party concerned to apply to the Mamlatdar and obtain a decision from him, whether the person concerned was a tenant or not. My learned brother in terms held that the principle which emerged from the decision of the Division Bench was that the Prant Officer has no jurisdiction to decide under Section 84 of the Act whether the person concerned was a tenant of the land in dispute and since that contention was urged before him the Prant Officer should have stayed his hands so far as the proceeding under Section 84 was concerned and asked the party concerned to approach the Mamlatdar under Section 70(b) for a proper decision on that particular point. In spite of this categorical pronouncement of this Court the Revenue Tribunal surprisedly summarily brushed off this decision by observing that when the plea is raised that a person is a tenant before the Authority under Section 84, it is not the law in this State that the Authority is bound to take his hands off and that the question whether that person was or was not a tenant must be left to be decided by the Mamlatdar. The Revenue Tribunal has further observed that such is not the law and such is not the dictum laid down by the Gujarat High Court, and that for that purpose it was not necessary to cite several judgments of the Tribunal and the Gujarat High Court in which this judgment of the Gujarat High Court had been discussed. The Tribunal further stated that the law is well established that in a case in which summary eviction of a person is prayed for and if that person raises plea that he is a tenant, the Authority must be satisfied about the prima facie case as to the tenability of the plea and if the plea is untenable the Authority can go into the question and direct eviction. The Revenue Tribunal without indicating any other decision of this Court thus refused to follow the binding decision of this Court, ignoring the basic principle of justice and rule of law that every Court and Tribunal in the State is bound to follow the law laid down by the highest Court in the State. It is only a concurrent Court which can distinguish a decision on the ground that it is obiter or per incuriam or that it is distinguishable on facts. A Superior Court's decision, however, can never be distinguished on these grounds, as otherwise the whole administration of law through such hierarchy of subordinate Courts and tribunals would come to an end. Therefore, the very fact that the Revenue Tribunal refused to follow the binding decision of this Court would amount to denial of justice and would justify reversal of the decision of the Revenue Tribunal, especially as even to-day after an elaborate research by Shri Shah no other decision of this Court is pointed out taking any other view than the one taken by my learned brother Divan, J. Even if any other decision was available to the Revenue Tribunal it should have elaborately pointed out such decision and it should not have in this cavalier fashion refused to follow a binding decision of this Court.

3. Mr. Shah has, however, after an exhaustive research tried to point out some other earlier Bombay High Court decision and he has vehemently argued that on the basis of those decisions the Revenue Tribunal's order could be supported by him. In fact the whole controversy now stands resolved by the law declared by the Supreme Court, and my learned Brother Divan J.'s decision is in conformity with that settled legal position. In Bhimaji v. Dundappa, AIR 1966 SC 166, their Lordships laid down the combined effect of Ss. 29, 70, 85 and 85A of the Act in the following words:-

'The Mamlat has exclusive jurisdiction to entertain an application by a landlord for possession of agricultural lands against a tenant, and the Civil Court has no jurisdiction to entertain and try a suit by a landlord against a tenant for possession of agricultural lands. The Mamlatdar has no jurisdiction to try a suit by a land owner for recovery of possession of agricultural 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 the defendant to the suit pleads that he is tenant or a protected tenant or a permanent tenant and an issue arises whether he is such a tenant, the Court must refer the issue to the Mamlatdar for determination, and must stay the suit pending such determination, and after the Mamlatdar has decided the issue, the Court may dispose of the suit in the light of the decision of the Mamlatdar'.

Their Lordships thereafter pointed out the history of this legislation as a result of which Section 85A was introduced by Bombay Act XIII of 1956 from March 23, 1956. Their Lordships in terms pointed out that even prior to the introduction of Section 85A, the Bombay High Court in Dhondi Tukaram v. Dadoo Piraji, AIR 1954 Bom 100, held that the effect of Sections 70(b) and 85 read in the light of the other provisions of the Act was that if in a suit filed against the defendant on the footing that he is a trespasser he raises the plea that he is a tenant or a protected tenant the Civil Court has no jurisdiction to deal with the plea, and the proper procedure was to refer the issue to the Mamlatdar for his decision and not to dismiss the suit straightway. As the High Court at that time had expressed the view that the Legislature would make suitable changes, the Bombay Legislature approved of this decision, and gave effect to it by enacting Section 85A, which proceeds on the assumption that though the Civil Court has otherwise jurisdiction to try a suit, it would have no jurisdiction to try an issue arising in the suit, if the issue was required to be settled, decided or dealt with the Mamlatdar under the Act. On that assumption, Section 85A provides for suitable machinery for reference of the issue to the Mamlatdar for his decision. Further proceeding at page 189. Their Lordships pointed out that this result was somewhat startling, for normally the Civil Court has jurisdiction to try all the issues arising in a suit properly cognisable by it. But having regard to the fact that the Bombay Legislature approved of Dhondi Tukaram's case, AIR 1954 Bom 100 by introducing Section 85A, it must be held that the decision correctly interpreted the law as it stood before the enactment of Section 85A. It follows that independently of Section 85A and under the law as it stood before Section 85A came into force, the Courts below was bound to refer to the Mamlatdar the decision of the issue whether the defendant is a tenant. Their Lordships thereafter referred to a decision of Mysore High Court where on the identical scheme a view was taken that the jurisdiction of the Authority being limited to cases arising by or under the Act by the words 'for the purposes of the Act', the jurisdiction of the Civil court to decide all the points in dispute in an otherwise competent suit was not excluded by the mere plea of the defendant. Their Lordships in terms pointed out that it was not necessary to express any opinion one way or the other on the correctness or otherwise of the Mysore decision in view of some points of distinction between that scheme and legislative history of Mysore Act and those of the Bombay Act. Therefore, however startling the legal position appears to us at first sight, so far as the scheme of the Tenancy Act is concerned the settled legal position is that because the tenancy authorities have exclusive jurisdiction to decide this question under Section 70(b) , whether a person is a tenant or not, even a plea raised by the defendant excludes the jurisdiction even of a competent Civil Court, which is otherwise competent to decide the suit, as it would have no jurisdiction to decide this issue. Therefore, even a competent Civil Court must refer the issue under Section 70 of the Tenancy Act to the Mamlatdar, and if the competent authority decides that a person was not a tenant but a trespasser, it would be open to the Civil Court thereafter when the plea of the tenancy was rejected by the Mamlatdar under Section 70(b), to deal with the dispute on the footing that the defendant was not a tenant but a trespasser. Mr. Shah tried to distinguish this decision on the ground that this decision would apply to its own facts as it only held that the jurisdiction of the Civil Court is barred. It cannot be urged before this Court that the decision of the Supreme Court is distinguishable on the facts. It is the law declared by the highest Court in the land which binds this Court. The law declared is in categorical terms that not only the jurisdiction of the Civil Court is excluded but that the Act creates an exclusive jurisdiction only in the competent Mamlatdar under Section 70(b) to decide a question whether a person is a tenant or not. Once this ratio is given effect to, Mr. Shah's contention can never be accepted, that this decision proceeded on its own facts and that only Civil Court's jurisdiction is barred by the decision, when it is held that the only authority in the State to decide the question whether a person is a tenant or not of this agricultural land is the Mamlatdar under Section 70(b), subject to an appeal and revision as per the hierarchy created under the Bombay Tenancy Act. In that view of the matter even the Prant Officer under Section 84 would have no jurisdiction to decide this issue which was raised before him that the petitioner was a tenant or not.

4. Mr. Shah also argued that Section 84 is a provision of the very Act and, therefore, in this remedy of summary eviction that Prant Officer can incidentally decide this question. Once we hold that the authority under Section 70(b) has exclusive jurisdiction as per the settled legal position, there is no escape from the conclusion that no other authority under the Tenancy Act even incidentally could go into this question and this issue wherever raised before any authority, must be referred to the Mamlatdar under Section 70(b) who alone had jurisdiction to decide this issue and who can give a finding on this question. In fact the Division Bench of this Court consisting of Shelat, C.J., (as he then was), and Shah, J., in Abdul v. State, (1965) 6 Guj LR 730, took the same view as regards the competency of the Agricultural Lands Tribunal to decide this question. At page 739, it was pointed out that under Section 32 Government, the Agricultural Lands Tribunal has to go through various stages necessitating the making of different orders before passing an order as to the purchase price. After notices have been issued under Section 32(1) if the landlord challenges that a particular person claiming to be his tenant is not his tenant and, therefore, not entitled to be treated as a deemed purchaser, in that event, the Lands Tribunal would have to direct such a landlord to obtain the necessary decision from the Mamlatdar under Section 70 and pass the necessary order when such a decision is obtained. Therefore, even this independent authority viz., Agricultural Lands Tribunal cannot go into this incidental question before it determines purchase price without getting a decision of competent Mamlatdar under Section 70(b) as to the question whether the person concerned is a tenant or not.

5. Mr. Shah, however, vehemently relied upon the decision of the Division Bench consisting of Gajendragadkar, J., (as he then was), and Gokhale, J., D/-10-4-1956 in Special Civil Appln. No. 278 of 1956 (Bom) in Siddappa v. Mallappa. In that case the petitioner was summarily evicted as he was found to be not entitled to use and occupation of land under the provisions of the Act and because the provisions of the Act did not provide for eviction under Section 29. It is true that the decision of the Division Bench in terms held that in such a case where the application cannot be made against the trespasser either by the tenant or the landlord under Section 29(1) and (2), there would be no occasion for the Mamlatdar to consider as to whether a person like the petitioner is a trespasser or not, and therefore, the question as to whether the petitioner was a trespasser would not have fallen within the jurisdiction of the Mamlatdar under Section 70(b) of the Act. The Division Bench in fact proceeded on the footing that it is only a application made under Section 29 that the status of the petitioner would fall to be examined by the Mamlatdar under Section 70(b). This decision of the Division Bench was followed again by the Division Bench in Special Civil Appln. No.3207 of 1958 (Bom) by Mudholkar, J., (as he then was), and Patel, J., on 10-2-1959, in Smt. Anjalibai v. Shankar Bala Patil. These two authorities are in direct conflict with the aforesaid decision of the Supreme Court. These two Division Bench rulings proceed on the footing that even an authority under Section 84 which was the only competent authority under the Act before whom such a proceeding for eviction on the allegation that the person was a trespasser could be maintained could go into the question and decide this issue whether a person was a tenant or a trespasser and eviction could be ordered by the Prant Officer under Section 84 if ultimately it was found that he was a trespasser. The Supreme Court has in terms held that exclusive jurisdiction to determine this issue is only of the Mamlatdar under Section 70(b), whether a person is a tenant or not, and even a competent Civil Courts' jurisdiction would be excluded to determine this issue once this plea was raised before it. Once the jurisdiction of the Mamlatdar under Section 70(b) is held to be exclusive jurisdiction, no other authority under the Act or even the Civil Court or a Mamlatdar's Court would have jurisdiction to decide this issue and they would have to direct the parties to obtain the decision of the competent Mamlatdar on this question when such an issue arises in a proceeding otherwise competent before them. In view of the decision of the Supreme Court the aforesaid two decisions of the Division Bench must be held clearly overruled and should no longer be treated as good law. It appears that the Division Bench could not accept this startling proposition that a bare plea about the tenancy excluded the jurisdiction of a Court or an authority which is otherwise competent to entertain proceedings for eviction on the allegation of the petitioner or the plaintiff to the effect that the opponent or the defendant was a trespasser. Their Lordships of the Supreme Court, however have in terms held that historical reasons justify this view howsoever startling it is. In view of the exclusive jurisdiction of the Mamlatdar under Section 70(b) to decide this question it must be held that no Court or any other authority under the Act, except the Mamlatdar under Section 70 would have jurisdiction to decide this question whether a person is a tenant or not. That is why in Suleman Hasham v. Kashiram Bhau, (1958) 60 Bom LR 1119, the Division Bench consisting of Chainani and Tarkunde JJ. distinguished the decision in Shiddappa Bhimanna Ullagadi v. Mallappa Mennappa at page 1120 by pointing out that the judgment shows that the attention of the learned Judges was not invited to the words 'under the said provisions' contained in Clause (c) of Section 84 of the Act, and on facts, also the case was clearly distinguishable. This Division Bench, therefore, in terms held that the Collector had no jurisdiction to decide a question of title as to whether a person is a protected tenant or not in a proceeding under Section 84. Even the Full Bench decision in Nivrutti Laxman v. Shivdayal, by Chainani C.J., Mudholkar, J. and Patel, J., in 61 Bom LR 957 = (AIR 1960 Bom 56) (FB), has in terms held at page 959 (of Bom LR) = (at p. 57) of AIR) that the Mamlatdar can decide a question under Section 70(b) whether a person was a tenant or not even if such a question arises in a Civil Court in a proceeding other that a proceeding under the Tenancy Act. He would also have jurisdiction to decide it before it arises in the Civil Court. The Full Bench in terms followed the decision in Dhondi Tukaram's case, AIR 1954 Bom 100 which was relied upon by the Supreme Court for the purpose of legislative history which led their Lordships to hold that the Mamlatdar under Section 70(b) has exclusive jurisdiction to determine this question whether a person was a tenant or not, that is to say whether a person was a tenant or a trespasser.

6. In view of the settled legal position Mr. Shah's contention can never be accepted that the observations made by my learned brother Divan, J., were merely obiter. It was the considered opinion of my learned brother Divan, J., after interpreting the Division Bench ruling cited before him and even the decisions which are now relied upon by Mr. Shah do not require me to take a different view from my learned brother Divan, J., especially when now the whole question has been finally decided by the Supreme Court. The Revenue Tribunal had, therefore, committed a jurisdictional error by deciding the question whether the petitioner is a tenant or not as it should have left this question for decision of the competent Mamlatdar. In the result this petition is allowed and a certiorari is issued quashing the order of the Revenue Tribunal, as well as the order of the Prant Officer evicting the petitioner. A Mandamus is issued directing the Prant Officer to stay the matter and give time to the concerned respondent to obtain a decision of the competent Mamlatdar under Section 70(b) of the Act on the question whether the petitioner is a tenant or not and thereafter when the final decision of the Mamlatdar is received that the petitioner is not a tenant, if the proceedings are found competent under Section 84, to dispose of the application in accordance with law. Rule is accordingly made absolute with costs.

7. Mr. Shah made a request to stay the operation of the order of mandamus issued against the Prant Officer in order that the respondent-landlord can file an appeal before the Supreme Court. Mr. Shah undertakes not to disturb the possession of the petitioner, and, therefore, the remand order is stayed for a period of two months from today.

8. Petition allowed.


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