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Patni Ali HusseIn and anr. Vs. Mustafamiyan Ajammiya and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSecond Appeal Nos. 739 and 740 of 1962
Judge
Reported inAIR1971Guj247; (1970)11GLR930
ActsSaurashtra Barkhali Abolition Act, 1951 - Sections 39(1); Saurashtra Prohibition of Leases of Agricultural Lands Act, 1953 - Sections 17(1)
AppellantPatni Ali HusseIn and anr.
RespondentMustafamiyan Ajammiya and anr.
Appellant Advocate K.M. Chhaya, Adv. in S.A. Nos. 739 and 740
Respondent Advocate J.R. Nanavaty, Adv.
Excerpt:
.....evidence while adjudicating matter - matter reverted back to district court for fresh hearing. - - the plaintiff, therefore, instituted proceedings before the mamlatdar under the saurashtra barkhali abolition act, 1951 but he failed to recover possession of the suit lands in those proceedings. he also instituted proceedings before the deputy collector under section 38 of the saurashtra barkhali abolition act, 1951 in order to recover possession of the suit lands but he also failed in that attempt of his......came to an end. out of the plaintiff's lands which the defendants had been holding as tenants the suit lands were allotted to the plaintiff as gharkhed land on 22nd march 1953. thereafter, for some time the defendants cultivated these lands but ultimately they refused to hand over possession of the suit lands to the plaintiff. the plaintiff, therefore, instituted proceedings before the mamlatdar under the saurashtra barkhali abolition act, 1951 but he failed to recover possession of the suit lands in those proceedings. he also instituted proceedings before the deputy collector under section 38 of the saurashtra barkhali abolition act, 1951 in order to recover possession of the suit lands but he also failed in that attempt of his. thereafter he instituted the present suits for recovery.....
Judgment:

1. These two appeals arise out of the judgments and decrees in Regular Civil Appeals Nos. 41 and 42 of 1960 decided by Mr. K.R. Marjadi, learned Extra Assistant Judge, Junagadh.

2. The facts of the case, briefly stated, are as under Kali Mustafamiya Ajammiya is the common plaintiff in both the suits. Civil Suit No. 182 of 1958 against. Patni Ali Hussein of Patan and Patni Karim Hussein of Patan and Regular Civil Suit No. 183 of 1958 against Ghanchi Hasan Abhram of Patod were filed by the plaintiff for recovering possession of agricultural lands, more particularly mentioned in the plaint, which had been allotted to him as Gharkhed lands under the Saurashtra Barkhali Abolition Act. The admitted facts are that the plaintiff was the Barkhalidar and the defendants were his tenants. With the enforcement of the provisions of the Saurashtra Barkhali Abolition Act, 1951 the relationship of the Barkhalidar and the tenants which had been subsisting between the plaintiff on one hand and the defendant on the other hand came to an end. Out of the plaintiff's lands which the defendants had been holding as tenants the suit lands were allotted to the plaintiff as Gharkhed land on 22nd March 1953. Thereafter, for some time the defendants cultivated these lands but ultimately they refused to hand over possession of the suit lands to the plaintiff. The plaintiff, therefore, instituted proceedings before the Mamlatdar under the Saurashtra Barkhali Abolition Act, 1951 but he failed to recover possession of the suit lands in those proceedings. He also instituted proceedings before the Deputy Collector under Section 38 of the Saurashtra Barkhali Abolition Act, 1951 in order to recover possession of the suit lands but he also failed in that attempt of his. Thereafter he instituted the present suits for recovery of possession of the suit lands from the defendants. The material allegation which the plaintiff made in the plaint was that after the allotment orders were made in his favour in respect of the suit lands under the Saurashtra Barkhali Abolition Act, 1951 he had inducted the defendants on the lands as agricultural labourers for cultivating them for a period of two years. On the expiry of the said period they had refused to deliver possession of the lands to him. Therefore, he filed the present suits.

3. The defendants resisted the suits on the ground that the plaintiff had created permanent leases in their favour and had leased out the lands to them. Therefore, the plaintiff was not entitled to decrees for possession against them.

4. The learned Trial Judge, after raising the issues and recording the evidence, arrived at the finding that the plaintiff had not executed any leases of the suit lands in favour of the defendants but he had allowed them to cultivate them as agricultural labourers. A plea was taken before the learned Trial Judge that in case the plaintiff had created leases in respect of the suit lands in favour of the defendants they were hit by Section 4 of the Saurashtra Prohibition of Leases Act, 1953 and that, therefore, the defendants could not set up any claim on the strength of those leases. For the reasons stated in his judgments the learned Trial Judge negatived that plea. In the view which he took the learned Trial Judge passed in favour of the plaintiff decrees for possession in both the suits.

5. The defendants went in appeal to the District Court at Junagadh.

6. The learned Extra Assistant Judge who heard the appeals recorded his findings on several questions. He dissented from some of the findings recorded by the learned Trial Judge but he did not decide the question whether the plaintiff had created tenancies in favour of the defendants after the allotment orders were made in favour of the plaintiff. He, however, came to the conclusion that the Saurashtra Prohibition of Leases Act hit any leases which the plaintiff might have created in favour of the defendants. In that view of the matter, for different reasons he dismissed the appeals.

7. It is against those appellate judgments and decrees that the defendants have filed the present Second Appeals in this Court.

8. On going through the merits of the case and having examined the provisions of law bearing on the subject I am constrained to state that the judgments of the learned Extra Assistant Judge suffer from total misconception of law and otherwise appear to be a result on non-application of mind. It appears to me that he did not perceive the points which arose in the appeals and on superficial considerations he dismissed the appeals of the defendants.

9. The first finding which the learned Extra Assistant Judge has recorded is that the jurisdiction of the Civil Court is barred under Section 39 of the Saurashtra Barkhali Abolition Act, 1951 and that, therefore, the Civil Court cannot inquire into the question whether the defendants are the tenants of the plaintiff. For the reasons which I am presently stating this finding recorded by the Lower Appellate Court is entirely erroneous and misconceived.

10. Section 39 of the Saurashtra Barkhali Abolition Act bars the jurisdiction of the Civil Court in respect of questions which are required to be settled, decided or dealt with by the Mamlatdar, the Collector or the Tribunal or by the Government in exercise of their powers or control and which are required to be so settled, decided or dealt with by or under the said Act. It is, therefore, clear that the bar of jurisdiction under Section 39 operates only against those questions which arise under the Act and which are required to be settled, decided or dealt with by the special forum provided by the said Act. Now Section 21 of the said Act prescribed the duties and functions which the Mamlatdar has to perform under the Act. Clause (a) of Section 21 confers upon him the power to decide the question whether a person is a tenant or not. Read with Section 39, Section 21(a) makes it quite clear that if a question arises whether a person is a tenant or not, within the meaning of the said Act, the Mamlatdar has the exclusive jurisdiction to decide that question and the Civil Court cannot decide it. Section 21 opens with the words 'For the purposes of this Act'. This expression limits the exclusive jurisdiction of the Mamlatdar to the questions of tenancies arising under the said Act. Section 21(a), therefore, confers upon the Mamlatdar the exclusive jurisdiction to decide for the purposes of the said Act whether a person is a tenant or not. Let us now turn to the definition of the word 'tenant' given in Section 2(iv). 'Tenant' is defined so as to mean 'an agriculturist who holds land on lease from a Barkhalidar or a person claiming through him and includes a person who is deemed to be a tenant under the provisions of this Act'. Within the meaning of this definition, therefore, a tenant must be a tenant of a Barkhalidar or a person claiming through him and holding agricultural land on lease from such a person. Let us now see the definition of the word 'Barkhalidar'. Barkhalidar has been defined by S. 2(i) so as to mean 'a person who holds a tenure as Barkhalidar. Jivaidar, Chakariyat, Kherati or Dharmada' and then the definition proceeds to include certain other kinds of persons within the defintition of 'Barkhalidar'. The inclusive part of the definition of the term 'Barkhalidar' is not important for the purposes of this case. In light of the provisions contained in Section 39(1). Section 2(iv) and Section 2(i) it is clear that the exclusive jurisdiction of the Mamlatdar to decide whether a person is a tenant or not is confined to persons who claim to be the tenants of the Barkhalidars and to persons claiming through them. By no process of construction this exclusive jurisdiction of the Mamlatdar under the Saurashtra Barkhali Abolition Act can be extended to any other kinds of tenancies. Now, 'Barkhalidar' means a person who holds a tenure as Barkhalidar, Jivaidar, Chakariyat, Kherati or Dharmada but does not include a person who held a tenure in any one of those capacities. In order, therefore, to attract the bar of jurisdiction under Section 39(1) of the said Act it must first be shown that the tenure of the Barkhalidar has been subsisting and that there has been a subsisting relationship of a Barkhalidar and a tenant. If it is not shown then the bar of jurisdiction under Section 39(1) of the said Act does not operate. Section 5 of the said Act abolished the Barkhali tenure with effect from 1st September 1951 which was notified under Section 1(3) for the purposes of the commencement of the said Act. Within the meaning of Sec. 5, therefore, the Barkhali tenure in this case was abolished long before the present suits were filed. With effect from that date, therefore, the relationship or the Barkhalidar and the tenant between the plaintiff on the hand and the defendants on the other hand ceased to exist and a direct relationship between the State on one hand and the defendants on the other hand came into existence and the suit lands vested in the State Government free from all encumbrances under Section 5 of the said Act. Under Section 8 of the said Act it is not in dispute before me that allotment orders were made in respect of the suit lands by the Mamlatdar in favour of the plaintiff. Naturally, therefore, the plaintiff became entitled to hold the suit lands for his Gharkhed purposes. The allotment of lands to the plaintiff for Gharkhed necessarily presupposes that the defendants must have been made occupants of the rest of the lands within the meaning of Section 10, 11 and 12 of the said Act. It is, therefore, clear that, on account of the implementation of the provisions of the said Act, in respect of the suit lands the plaintiff became full-fledged occupant and in respect of the remaining lands the defendants became the full-fledged occupants. The relationship of Barkhalidar and tenants between them was abolished with effect from 1st September 1951. So far as the suit lands are concerned, with the making of the allotment orders both in favour of the plaintiff and in favour of the defendants, the applicability and implementation of the provisions of the said Act in respect of the suit lands were exhausted except for the purpose of issuing occupancy certificates in favour of the plaintiff which, it is contended, were not granted to the plaintiff until the institution of the present suits and which are not on record.

11. Mr. Chhaya, appearing for the defendants, has contended that as long as the occupancy certificates in favour of the plaintiff in respect of the suit lands are not granted under Section 3 of the said Act the relationship of Barkhalidar and tenants between the parties continues. I am unable to accept this contention of his in view of the clear and unambiguous provisions of Section 5 of the said Act. Section 5 abolished the Barkhali tenure and, therefore, the effect of that section is to abolish the relationship of Barkhalidar and tenant with effect from the date on which the said section came into force or otherwise became applicable. In this case it is not in dispute that the said section becomes applicable to the suit lands on 1st September 1951. The contention raised by Mr. Chhaya that the relationship of the Barkhalidar and the tenants continued between the plaintiff and the defendants between the dates of the allotment orders in favour of the plaintiff (22nd March 1953) and of the grant of occupancy certificates to him is, in my opinion, therefore, untenable, Section 5 of the said Act makes a clean sweep by abolishing all relationships between Barkhalidar and tenants. What follows thereafter is the working out of the rights and obligations of the parties in respect of the lands of which they ultimately become the occupants. In this view of the matter, by no process of reasoning or by no stretch of imagination it can be said that the controversy between the parties in the present suit was governed by the provisions of the Saurashtra Barkhali Abolition Act, 1951, and that, therefore, there was a bar to the jurisdiction of the Civil Court under S. 39(1) of the said Act. I am, therefore, unable to agree with the learned Extra Assistant Judge in the finding of this point which he has recorded. I, therefore, set it aside.

12. The second finding which he has recorded is based upon sub-section (2) which is consequential and follows closely upon the heels of sub-s. (1). Its object is to maked sub-section (1) more effective and exclusive. I have already held that Section 39(1) has no application to the present case. Therefore, it must necessarily follow that sub-section (2) thereof has also no application so far as the facts of the present case are concerned. The finding recorded by the learned Extra Assistant Judge on the basis of sub-section (2) of Section 39 loses force and cannot be sustained. I, therefore, set it aside.

13. The next finding which the learned Extra Assistant Judge has recorded is based upon Section 38 of the Saurashtra Barkhali Abolition Act which provides for summary eviction of persons in unauthorised occupation or wrongful possession of any land or dwelling house. It is a special remedy provided by the said Act. Since I have held that the provisions of the Saurashtra Barkhali Abolition Act, 1951 have no application to the present case. Section 38 of the said Act cannot be invoked for any purpose in the present suits. The finding which the learned Extra Assistant Judge has recorded is, however, strange and curious. His finding is that the plaintiff by instituting proceedings against the defendants under Section 38 of the said Act for the summary eviction had tacitly and by necessary implication accepted the finding of the Deputy Collector in the earlier litigation between the parties where the Deputy Collector in appeal had held that the defendants were the tenants. Firstly, the proceedings which were instituted between the parties under the Saurashtra Barkhali Abolition Act after the allotment orders were made in favour of the plaintiff were void and without jurisdiction because the applicability of the provisions of the said Act was exhausted so far as the suit lands were concerned except for the purpose of issuing the occupancy certificates to the plaintiff. The Mamlatdar or the Deputy Collector, therefore, did not have nay jurisdiction to decide any question between the parties as there was no subsisting relationship of Barkhalidar and tenants between them. Any finding, therefore, which the Mamlatdar or the Deputy Collector recorded was totally worthless and of no consequence whatsoever. To say that such a finding was accepted by the plaintiff and then to hold that he was bound by it is really strange and ludicrous. Such a finding can never be binding upon the plaintiff. It appears that the learned Extra Assistant Judge was invoking the doctrine of estoppel against the plaintiff without realizing the circumstances under which the said doctrine can come into play. In any case of instituting proceedings for summary eviction under Section 38 of the Saurashtra Barkhali Abolition Act the plaintiff can never be said to have accepted any finding recorded against him in the earlier proceedings which were without jurisdiction. The finding, therefore, recorded by the learned Extra Assistant Judge against the plaintiff in paragraph 9 of his judgment cannot in that view of the matter be sustained. I, therefore, set it aside.

14. The next finding which has been recorded by the learned Extra Assistant Judge is based upon the provisions of the Saurashtra Prohibition of Leases Act, 1953. That finding also proceeds on a total misconception of law. I have already held that the provisions of the Saurashtra Barkhali Abolition Act, 1951 do not apply to the present case. Therefore, if any leases were created by the plaintiff in favour of the defendants, as the defendants allege, after the allotment orders were made in favour of the plaintiff those leases would be governed by any other law if there is one to govern them but not by the provisions of the Saurashtra Barkhali Abolition Act, 1951. The provisions of the Transfer of Property Act also do not come into play in these cases because S. 117 of the said Act exempts leases for agricultural purposes from the provisions of Chapter V of the said Act. Therefore, if the plaintiff had created any leases in favour of the defendants they would have to be decided according to law which applies to them. Since the provisions of the Transfer of Property Act do not apply to the leases in question by virtue of the provisions of S. 117 of the said Act, the further question which arises is whether the said leases are hit by the provisions of the Saurashtra Prohibition of Leases Act, 1953. The said Act was enacted, in order to provide for situations arising out of the abolition of Girasdari and Barkhali systems in Saurashtra and out of the abolition of intermediate interests as between the State and the cultivators. The said Act makes twofold provisions. Section 4 provides for registration of leases which were created before the said Act came into force on 19th October 1953. Section 5 in chapter 2 of the said Act prohibits the creation of leases after the said date. It also prohibits the renewal of earlier lease after the said date. In these cases the allegation of the defendants is that the leases in their favour were created by the plaintiff on 22nd March 1953, that is to say, prior to the coming into force of the said Act. Section 4, in so far as the registration of the said leases is concerned, may have some bearing but Section 20 provides for a limited non-application of the provisions of the Act to certain cases. Clause (c) of sub-section (1) of S. 20 is material, is reads as under.

'Nothing in this Act shall apply -

(a) ...... ....... ...... ........ ........

(b) ...... ....... ...... ........ ........

(c) to any land reserved as Gharkhed by, or allotted for personal cultivation to, a Girasdar or a Barkhalidar under the provisions of the Saurashtra Land Reforms Act, 1951, or the Saurashtra Barkhali Abolition Act, 1951, upto the Akhatrij of Samvat Year 2012.'

Akhatrij of Samvat Year 2012 corresponds to 13th May 1956. By virtue of these provisions, therefore, neither S. 4 nor S. 5 had any application to the alleged leases until 13th May 1956. The learned Extra Assistant Judge has completely ignored the provisions of S. 20(1)(c) and has proceeded as if Section 4 hit the alleged leases absolutely. In my opinion, that finding of the learned Extra Assistant Judge is entirely erroneous and it must be set aside.

15. For the reasons stated above I am unable to sustain any of the findings recorded by the learned Extra Assistant Judge. The present cases, therefore, have got to be considered defendants novo.

16. The learned Trial Judge has held that the plaintiff had inducted the defendants on the suit lands as agricultural labourers. The Lower Appellate Court has not examined evidence and has, therefore, neither confirmed nor set aside that finding of the learned Trial Judge. It appears that there is considerable evidence on record. Mr. Nanavaty, appearing for the plaintiff, has inter alia invited my attention to the depositions of Ali Hussein-defendant in Civil Suit No. 182 of 1958 and of Hasam Abhram defendant in Civil Suit No. 183 of 1958. Since the Lower Appellate Court has not examined the question whether the defendants are the tenants which, for the reasons stated in this judgment, is necessary to be decided, or whether they are agricultural labourers, it becomes necessary for me to remand the appeals to the District Court, upon remand, to consider the questions arising out of the pleadings independently of any decision of the Mamlatdar or any decision of the Deputy Collector on them. It shall have to decide strictly in light of the evidence on record and on the merits of the case because, in my opinion, there is no bar of jurisdiction which operates in this case.

17. I shall try to indicate in brief the questions which the lower Appellate Court shall have to decide upon remand. Firstly, it shall have to decide whether the plaintiff proves that he inducted the defendants upon the suit lands only for two years as agricultural labourers. If this question is decided by the lower Appellate Court in the affirmative, it will not be necessary for it to decide any other question but it will have to pass decrees for possession in favour of the plaintiff. If, however, upon evidence the Lower Appellate Court decides that the plaintiff did not induct the defendants on the suit lands as agricultural labourers, then it shall have to decide whether the plaintiff inducted them as tenants or as permanent tenants (in accordance with the pleas raised by them in their written statements) and whether the plaintiff created any new leases in favour of the defendants after the allotment orders were made in his favour on 22nd March 1953. If the lower Appellate Court answers the second question in the affirmative and if it becomes necessary for it to do so, then it will consider what effect the provisions of Saurashtra Prohibition of Leases Act, 1953 had upon those leases or upon the renewals, if any are proved, after 13th May 1956. After answering the questions which I have raised in this judgment it shall decide the appeals on merits and in accordance with law and in light of the observations made in this judgment. I may, however, add that so far as the Saurashtra Prohibition of Leases Act, 1953 is concerned, there is no bar to the jurisdiction of the Civil Court against deciding any of the aforesaid questions. Section 17 which provides for bar of jurisdiction bars it in respect of questions which a Mamlatdar, a Collector or the Tribunal or the Government has to settle, decide or deal with and which arise under the said Act. It is not as if the jurisdiction of the Civil Court is barred in respect of all questions which arise under the said Act. The bar of jurisdiction is limited only to the express provisions contained in Section 17(1). When Section 17(1) is read in light of Sections 10 to 16 in Chapter III of the said Act, it is very clear that the exclusive original jurisdiction of the Mamlatdar is confined only to determination of the question whether any person has contravened the provisions of the said Act and if he has done so, then his power to make an inquiry into such contravention under Section 11 only for the purposes of Section 6 can be invoked. In case of any contravention of the provisions of the said Act under Section 11 he can make an inquiry after following the procedure and, within the meaning of Section 11 of the said Act, only for the purpose of imposing penalty contemplated by Section 6. Therefore, when Section 17(1) is read in light of Sections 10, 11 and 6 of the said Act, it is clear that the exclusive jurisdiction of the Mamlatdar is confined only to the cases of contravention of the provisions of the said Act for the purpose of imposing penalty under Section 6 and not for any other purpose. If any lease is rendered void on account of the statutory provisions contained in the said section the jurisdiction of the Civil Court to inquire into the legal effect and legal consequences of such a lease is not barred under the said Act. In this view of the matter it will not be necessary for the Lower Appellate Court to go into the question of bar of jurisdiction under the said Act if it answers the second and the third questions, which I have raised, in the affirmative.

18. In the result, I set aside the decrees passed by the lower Appellate Court in both the appeals and, for the reasons stated above, I remand the appeals to the District Court for a fresh hearing and for deciding the questions which I have raised in this judgment and for finally disposing of the appeals. So far as the costs of these appeals are concerned, I think in the circumstances of the case they shall abide by the result of the appeals in the District Court.

19. Order accordingly.


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