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Vasava Mohan Moti Vs. Indravadan Kuberdas Sampatram and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR387
AppellantVasava Mohan Moti
Respondentindravadan Kuberdas Sampatram and anr.
Cases ReferredDada Savla Yadav v. Vasant Anant Sultane
Excerpt:
- - shah the learned judge had in proceeding to decide this issue exceeded his jurisdiction and in refusing to stay the suit and referring this issue to the competent authorities had failed to exercise jurisdiction vested in him and that accordingly this order was liable to be revised. (1) no civil court shall hate jurisdiction to settle, decide or deal with any question which is by or under this act required to be settled decided or dealt with by the mamlatdar or tribunal a manager the collector or the gujarat revenue tribunal in appeal or revision or the state government in exercise of their powers of control. it was there held that section 85 had clearly provided that no civil court should have jurisdiction to settle decide or deal with any question which is by or under the act.....m.r. mody, j.1. the bombay tenancy and agricultural lands act, 1948, (hereinafter referred to as the act) is again the act which has given rise to these two civil revision applications. these two civil revisional applications have been filed by the respective petitioners against an order passed by the learned civil judge (junior division), sankheda on miscellaneous application no. 5 of 1960.in order to appreciate the points raised in this application it is necessary to mention a few facts and these facts are very simple. there is an immovable property bearing survey no. 274 in the village morakhala in kalol taluka of the panch mahals district. this immovable property consisted of agricultural lands. this agricultural land was owned by one kuberdas sampatram the father of the opponents.....
Judgment:

M.R. Mody, J.

1. The Bombay Tenancy and Agricultural Lands Act, 1948, (hereinafter referred to as the Act) is again the Act which has given rise to these two civil revision applications. These two civil revisional applications have been filed by the respective petitioners against an order passed by the learned Civil Judge (Junior Division), Sankheda on miscellaneous application No. 5 of 1960.

In order to appreciate the points raised in this application it is necessary to mention a few facts and these facts are very simple. There is an immovable property bearing survey No. 274 in the village Morakhala in Kalol Taluka of the Panch Mahals District. This immovable property consisted of agricultural lands. This agricultural land was owned by one Kuberdas Sampatram the father of the opponents before me.

Before the year 1939 Kuberdas Sampatram mortgaged these agricultural lands to one Tribhuvan Nathalal and Purshottam Gulab. In the year 1950 Kuberdas Sampatram filed a suit being regular civil suit No. 105 of 1950 in the Court of the Civil Judge at Kalol in Panch Mahals District against Tribhuvan Nathalal and Purshottam Gulab for redemption of these mortgaged lands and in this suit a decree for redemption was passed by the Trial Court which decree was confirmed in appeal by the District Judge at Godhra on appeal by the mortgagees being appeal No. 16 of 1951 The matter was further carried to the High Court in second appeal and on July 6 1956 a consent decree was obtained by the mortgagor Kuberdas Sampatram and the mortgagees whereby it was provided that on payment being made by Kuberdas Sampatram of the mortgage amount he should be allowed to redeem the properties and possession of these properties should be handed over to Kuberdas Sampatram. Kuberdas Sampatram thereafter filed a Darkhast being regular Darkhast No. 1 of 1957 for taking possession of these agricultural lands and the executing Court pleased to issue a warrant for possession. On June 23 1958 the respective petitioners in these two civil revision applications filed applications causing obstructions to the possession of these lands being handed over to Kuberdas Sampatram. In both these applications the petitioners claimed to be agriculturists and claimed to be tenants of these lands having become so from the mortgagees and claimed that these lands were agricultural lands. They claimed to be in actual possession of these lands. On July 14 1958 Kuberdas Sampatram filed two applications in the Court of the Civil Judge Kalol being applications Nos. 11 and 12 of 1958 against the respective petitioners in these two civil revision applications for removing the obstruction caused by them. On July 30 1959 Kuberdas Sampatram died leaving behind him surviving as his only heirs and legal representatives according to Hindu Law by which he was governed the two opponents before me. Opponent No. 1 is the son of the deceased Kuberdas Sampatram whereas opponent No. 2 is his married daughter. Opponent No. 1 alleges that he requested opponent No. 2 to agree to be brought on record of these applications filed by their father but that on opponent No. 2 having declined to do so he applied that he be impleaded in these applications as the applicant in place and stead of his deceased father and the opponent 2 should be joined in the applications as opponent No. 2 as the other heir of the deceased applicant. Accordingly opponent No. 1 was impleaded as the applicant whereas opponent No. 2 was impleaded as the opponent No. 2 in the original applications. The petitioners filed their respective replies to these respective applications against them. They claimed to by cultivating these agricultural lands and they claimed to be protected tenants and relied on an entry in the record of rights and in the tenancy list to such effect. The petitioners contended that the Civil Court had no jurisdiction to decide whether they were tenants or not and submitted that the issues regarding their alleged tenancies should be referred to the Tenancy Courts for decision.

On the village Morakhala having been thereafter included in the Sankheda Taluka these applications were transferred to the Court of the Civil Judge (Junior Division) Sankheda and were numbered miscellaneous applications Nos. 5 of 1960 and 6 of 1960 respectively. These applications were heard by the learned Civil Judge (Junior Division) Sankheda who passed an order holding against the petitioners on both the applications and ordering the removal of the obstruction caused by the petitioners. The learned Judge went on to discuss whether the claim of the petitioners that they were tenants was valid and held that They could not be called tenants within the meaning of the Act as they were tenants of mortgagees in possession. Dealing with the question of jurisdiction raised by the petitioners in their respective applications the learned Judge tersely observed that Section 85A of the Act had no application to the case before hit as Section 85A referred to suits only and suits did not include applications of the nature before him. Accordingly he held that there was no question of referring the matters to the Tenancy Courts. The learned Judge did not at all consider the effect of Section 85 of the Act on the proceedings before him. After this order was passed on these two applications the warrant for possession was executed and the possession of these lands was taken away from the two respective petitioners and handed over to opponent No. 1. Being aggrieved by this order passed by the learned Judge on the two applications the petitioners have filed these two civil revisional applications praying that the order passed by the learned Judge should be set aside and praying for restoration of possession of the disputed land to the petitioners.

2. At the hearing of this civil revision application Mr. M. C Shah for the petitioners in the two applications submitted that by reason of the provisions of Section 85 read with Section 70(b) of the Act the Civil courts had no jurisdiction to decide the issue of tenancy raised by the petitioners. He further submitted that under the provisions of Section 85A since this issue was involved which issue as required to be decided by the Mamlatdar under the provisions of the Act it was incumbent on the Civil Court to stay the proceedings and to refer these issues to the competent authority for determination. According to Mr. Shah the learned Judge had in proceeding to decide this issue exceeded his jurisdiction and in refusing to stay the suit and referring this issue to the competent authorities had failed to exercise jurisdiction vested in him and that accordingly this order was liable to be revised.

Sections 70(b) 85 and 85A of the Act have come in for consideration before the Courts in a number of decided cases but for the purpose of appreciating the arguments advanced in this case it will be necessary to set out the relevant provisions of these sections here. They are as follows:

70. Duties of the Mamlatdar, For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar

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

(b) to decide whether a person is a tenant or a protected tenant or a permanent tenant;

(c)... ... ...

XXX XXX XXX

85. Bar of jurisdiction. (1) No Civil Court shall hate jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled decided or dealt with by the Mamlatdar or Tribunal a Manager the Collector or the Gujarat Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.

(3) No order of the Mamlatdar the Tribunal the Collector or the Gujarat Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court

Explanation. For the purposes of this section a Civil Court shall include a Mamlatdars Court constituted under the Mamlatdars Courts Act 1906

85A (1) If any suit instituted in any Civil Court involves any issues which are required to be settled decided or dealt with by any authority competent to settle decide or deal with such issue under this Act thereinafter referred to as the competent authority) the Civil Court shall stay the suit and refer such issues to such competent authority for determination

(3)... ... ...

Explanation. For the purpose of this section a Civil Court shall include a Mamlatdars Court constituted under the Mamlatdars Courts Act 1906

On these sections Mr. M. G Shah submitted that the moment a party claims the status of a tenant protected tenant or a permanent tenant then the decision on that point has to be given by the Mamlatdar under Section 70 Once Section 70(b) applies the question becomes a question which is by or under the Act required to be decided by the Mamlatdar within the meaning of Section 85(1) and as soon as it becomes such a question Section 85(1) prohibits any Civil Court from entertaining any such question and bars its jurisdiction from settling deciding or dealing with any such question. It was common ground that right or wrong the status of a tenant was claimed by the petitioners in their replies to the respective applications. Section 85 is very wide in terms and it bars the Civil Courts from deciding any question which is by or under the Act required to be decided by a tenancy authority in any proceeding whatsoever. Section 85 is in terms not limited to suits and as the explanation to Section 85 itself suggests it also includes proceedings instituted in the Mamlatdars Courts under the Mamlatdars Courts Act 1906 It appears to me very clear on a mere reading of this section that the issue regarding tenancy raised for decision by the Civil Court could not be decided by the Civil Court as this issue was required by the provisions of Section 70(b) of the Act to be decided by the Mamlatdar. It is clear that a Civil Court could not have jurisdiction to decide this issue regarding the tenancies claimed by the petitioners. The nature of the exclusive jurisdiction of the Mamlatdar under Section 85 has time and again come up for consideration in the High Court of Bombay. In Dhondi Tukaram Mali v. Dadoo Piraji Adgale 55 B.L.R. 663 a Division Bench of the Bombay High Court considered the scheme of the Act and observed that the Act was passed to confer some special benefits on the tenants of agricultural lands. It was there held that Section 85 had clearly provided that no Civil Court should have jurisdiction to settle decide or deal with any question which is by or under the Act required to be settled decided or dealt with by the Mamlatdar or by the other tribunals or authorities mentioned in this Act and that therefore there was no doubt that Section 70 made the Mamlatdar the forum of exclusive jurisdiction for determination of questions mentioned in that section. It was observed: Therefore whenever parties are at issue on the question as to whether a person is a tenant or a protected tenant the only tribunal that can decide this question is the Mamlatdar and no other. In other words the Mamlatdars jurisdiction to deal with the questions mentioned in Section 70 is absolutely exclusive. In Shivaji Narayan Habbu v. Peeka Lokappa Ghadi 53 B.L.R. 864 the Division Bench was considering the effect of Section 85 on the jurisdiction of the Civil Court in respect of an application for eviction. It was held that under Section 70(c) of the Act it was the duty of the Mamlatdar to order possession and that therefore the Civil Court had no jurisdiction to entertain an application for possession. Again in Trimbak Sopana Girme v. Gangaram Mhatarba Yadav 55 B.L.R. 56 Chagla C.J. held that under the Act all questions with regard to the status of a party when the party claims the status of a protected tenant are left to be determined by the authorities mentioned in the Act and the jurisdiction of the Civil Court is ousted. He further held that when the Legislature had left it to the Mamlatdar to decide the issue whether the defendant was a protected tenant or not it implied that the Mamlatdar must decide that the defendant was not a trespasser in order to hold that he was a tenant or a protected tenant and he should also decide that he is a trespasser in order to determine that he is not a tenant or a protected tenant.

Mr. N.R. Shah for opponent No. 1 sought to distinguish these cases on the ground that they were all proceedings between a landlord and tenant which was not so in the present case and argued that the proceedings must necessarily be between a landlord and a tenant before Section 85 could bar the Civil Courts jurisdiction to decide the issue. He further submitted that the tenant must be a tenant under the Act and within the meaning of Section 2(18) thereof. According to Mr. N.R. Shah not only must he allege the necessary facts but he must prove these facts before the jurisdiction of the Civil Courts could be barred.

3. There is nothing to indicate in this section that the proceedings in which the Jurisdiction of the Civil Court is barred has got to be a proceeding between a landlord and a tenant. Section 85 speaks of any question which is by or under the Act required to be decided by a Mamlatdar and that question is not limited to a question arising between a landlord and a tenant only. The question can as well arise between other parties where one party takes up the contention that he is a tenant a protected tenant or a permanent tenant, as is the fact in the case before me, where, the question has arisen between a tenant from a mortgagee and the owner of the property. There is nothing to indicate in this section a saving of the bar in such a case. It is true that the above mentioned cases were cases in which the proceedings had arisen between alleged landlords and tenants. But the ratios of those judgments cannot be said to be limited to proceedings between landlords and tenants only. I am therefore of the view that Section 85 is not limited to proceedings between a landlord and a tenant only but is wide enough to cover any proceedings between any parties where any question is raised by a party which question is required by or under the Act to be settled decided or dealt with by the authorities mentioned in that section.

The other contention of Mr. N.R. Shah is also not tenable. Mr. Shah says that he must be a tenant under the Act on the facts alleged and proved. Now in Dhondi Tukaram's case (supra) Gajendragadkar J. observed that in considering the provisions of Section 70 it must be borne in mind that the jurisdiction conferred on the Mamlatdar is not confined to cases where the relationship of landlord and tenant is admitted. In fact observed Gajendragadkar J. it is only where the said relationship is alleged by one party and denied by the other that the question falls to be considered and the decision of the question is left exclusively to be determined by the Mamlatdar under the provisions of Sections 70 and 85 of the Act. It is likely that a trespasser would thereby able to prolong litigation between him and the owner of the property by frivolously raising a plea that he is a tenant or a protected tenant; but on the other hand a landlord may also frivolously allege that a tenant is a trespasser. We must therefore hold that the only forum that can deal with this plea is the Mamlatdar. These observations clearly indicate that once a contention is raised by a person that he is a tenant a protected tenant or a permanent tenant and allegations are made to that effect the jurisdiction of the Civil Courts is immediately barred. Once these facts are alleged it is not open to the Civil Court even to permit the tenant to prove prima facie or otherwise that he is a tenant or a protected tenant or a permanent tenant as claimed by him. The hands of the Civil Court are entirely and immediately tied in this matter. In Shivappa Satawappa Ashtekar v. Gajanan Chintaman Deshpande 55 B.L.R. 843 Shah J. Observed that a decision of the question whether a person is or is not a tenant within the meaning of the Act involved the determination of three questions: (i) whether he was an agriculturist (ii) whether he held land on lease and (iii) whether the land was agricultural land. It was there decided that the jurisdiction to decide all these three questions in determining the status of a person as a tenant must be deemed exclusively to be vested in the Mamlatdar under the Act. In that case the question arose whether it was open to the Civil Court to decide whether a particular land was agricultural land and it was held that it was wrong to hold that the jurisdiction to decide whether it was agricultural land remained vested in the Civil Court. These authorities clearly go to negative the contention raised by Mr. N.R. Shah that it was incumbent on the petitioners to prima facie prove their alleged status as tenants before the jurisdiction of the Civil Courts could be barred

Mr. N.R. Shah referred me to a judgment of Gokhale J. in Dada Savla Yadav v. Vasant Anant Sultane 62 B.L.R. 471 where it was held that under Section 70 of the Act the Mamlatdar was not empowered to decide the question whether a surrender which had been already accepted by him and in pursuance of which possession had been ordered to be delivered to the landlord was a nominal surrender never intended to be acted upon. He further held that once the landlord obtained possession of the lands from a tenant in pursuance of a surrender which was accepted by the Mamlatdar in accordance with the provisions of the Act the question whether such a surrender was a nominal or a sham surrender did not fall within the ambit of Section 70 and accordingly the jurisdiction of the Civil Court to decide that question could not therefore be ousted by virtue of Section 85 of the Act. It is to be noted that the facts of that case are different. In that case there was a surrender which was accepted by the Mamlatdar and that surrender having been accepted the contention was that that surrender was a nominal surrender. The fact that there was a surrender was admitted. On these facts Gokhale J. held that Section 70 which enumerates the duties and functions to be performed by the Mamlatdar did not empower the Mamlatdar to decide whether a surrender which has already been accepted by him and in pursuance of which possession had been ordered to be delivered to the landlord was a nominal surrender never intended to be acted upon. It was nobody's case that there was a fresh tenancy. Gokhale J. held that the jurisdiction to decide this fact when the surrender was admitted by both the parties was not ousted under Section 70. That case has therefore no application to the facts before me.

4. Mr. N.R. Shah relied on another judgment reported in the same volume at page 873 (Pandurang Hari Jadhav v. Shankar Maruti Todkar). The facts of that case were entirely different and it turned on the interpretation of the amending Act 33 of 1952 and Sections 43 and 89(2)(b)(ii) of the Act. Apart from the fact that that judgment is not binding on me. I find that that judgment is based on entirely different facts and cannot be of any assistance to me in determining the contention in the form it is raised before me.

There is still another case reported in the same volume at page 836 being the judgment of a Division Bench in Narayan Mahasing Patel v. Baliram Bhavdu Patil which was relied on by Mr. N.R. Shah. In that case a Division Bench of the High Court at Bombay was considering the effect of Section 70(me) of the Act. In that matter a suit filed by a landlord after August 1 1956 i.e. after the coming into force of the Amendment Act of 1956 (XIII of 1956) for recovering arrears of rent for the period prior to August 1 1956 and it was held that such a suit was maintainable in the Civil Court. In this connection Their Lordships considered the powers of the Mamlatdar under Section 70(me) whereby the Mamlatdar was empowered to direct the payment of rent determined under this Act or the arrears thereof Construing these words it was held that they meant the provisions of the Act as they stood at the time when the application was made to the Mamlatdar under that clause. They, therefore held that the Mamlatdar had power to direct the payment of rent due for the period subsequent to August 1 1956 and in that regard the jurisdiction of the Civil Court was barred under Section 85. But as regards rents prior to that date they held that there was nothing in the language of Section 70(me) to indicate a clear intention on the part of the Legislature to oust the jurisdiction of the Civil Court but that on the other hand there were provisions in the Act such as Section 13(3) and Section 72 which indicated to the contrary. They accordingly held that that was not a matter which was required to be decided by the Mamlatdar as contemplated by Section 85 so as to oust the jurisdiction of the Civil Court and held that the suit in so far as it claimed arrears prior to August 1 1956 was maintainable. Mr. Shah submitted that this authority supported the proposition that he was contending for viz. that if on the face of it the matter was outside the purview of the jurisdiction of the Mamlatdar then such an issue could be decided by the Civil Court. I do not agree with Mr. N.R. Shah. The stress in that case was on the amendment. Then again in that case there was a demand on the very face of the suit for rent for the prior period whereas in the case before me on the very allegation of the petitioners an issue arises which could only be decided by the Mamlatdar under Section 70(b) of the Act. The position that arose in that case was entirely different from the position which has arisen before me and I do not think that that case is an authority for the proposition that the Civil Court has jurisdiction to decide an issue which issue is required to be determined by the Mamlatdar under Section 70 even to find out whether such a contention is rightly or wrongly raised. In fact that is what is in terms covered by the Division Bench of the Bombay High Court in Dhondi Tukaram 's case at page 668.

5. The position appears to me to be clear that once a question required to be settled decided or dealt with by an authority mentioned in Section 85 is raised no Civil Court will have jurisdiction to decide that issue and it is not even open to the Civil Court to go into the issue or call upon the party making any such allegation to prima facie prove its case. The only forum that can deal with such a plea is the one or the other of the authorities mentioned in Section 85(J). Mr. N.R. Shah then submitted that in the instant case the question arose in a proceeding other than a suit and that on a true interpretation of Section 85 Section 85 could only refer to suits and to no other legal proceedings and this argument advanced by Mr. N.R. Shah turned this way: that since Section 85A referred only to suits and since that section according to Mr. N.R. Shah enabled the Civil Courts to refer the issues to the competent authorities only in suits Section 85 must be read in conjunction with Section 85A and must be read as having reference only to suits and not to all legal proceedings. The argument was that Section 85 was as he described it a negative section which declared the bar of jurisdiction on Civil Courts and its positive counterpart was to be found in Section 85A which provided for a reference of an issue involved in a suit required to be decided by or under the Act by the authorities mentioned in that section to the competent authorities. According to this submission these sections could only be read together as complementing each other and as Section 85A referred only to suits as such Section 85 could only apply to suits and to no other legal proceedings This indeed is a novel argument advanced in this mailer and so far as I am aware it has not been covered by any authorities so far.

6. In advancing this argument Mr. Shah appears to have lost sight of the history of Section 85A. The Act as originally enacted contained only Section 85. In other words the Act had originally only declared the bar of jurisdiction on the Civil Courts in the matters mentioned in Section 85(1). The effect of Section 85(1) therefore was that when any question of the nature indicated in Section 85(1) arose for determination in any Civil Court the Civil Court was incompetent to proceed to decide such a question. In a number of cases it happened that this question arose in the course of legal proceedings which involved a number of other questions which could only be tried by Civil Courts. The effect was that as soon as this question arose the Civil Court having had no jurisdiction it either had to stay the proceedings or dismiss the matter in the light of the facts of each case. This lacuna was pointed out by Gajendragadkar J. in Dhondi Tukaram's case and it was observed that it would have been much better if the Legislature had provided for the transfer of such cases as they had done in the Bombay Agricultural Debtors Relief Act and the attention of the Legislature was invited to this aspect of the matter and a hope was expressed that some suitable provision should be made in the Act to the effect. In that case they directed that the suits should not be dismissed straight away but the proper procedure to adopt in such cases would be to direct the parties to obtain a decision from the Mamlatdar on such a plea within a reasonable time and then proceed to dispose of the matter in the light of the decision of the Mamlatdar. It was in view of the observations which were made in this case that it appears that Section 85A was introduced in the Act by Section 46 of the amending Bombay Act XIII of 1956. In these circumstances the argument that Section 85 should be read in light of the provisions of Section 85A loses much of its force. Section 85 originally stood by itself and it could not have been that Section 8 should have been intended to apply only to suits and not to other legal proceedings. The word suit was used for the first time in the Amending Act of 1956 and it is not possible to judge the intention of the Legislature retrospectively in the manner in which it is argued it should be done. The argument that these sections are complementary to each other in the sense that since Section 85A mention suits Section 85 could only refer to suits also loses much of its substance and cannot be accepted. It could not have been the intention of the Legislature when enacting Section85 in the original Act to have intended to limit the bar of jurisdiction to questions arising in suits only. In my judgment the bar of jurisdiction under Section 85(1) is in all proceedings where a question of the nature indicated in that section arises.

Then again assuming that these sections ate complementary to each other as contended by Mr. N.R. Shah and further assuming that Section 85(1) should be limited to suits mentioned in Section 85A it will have to be considered whether the meaning to be attached to the word suit in Section 85A(1) should be limited only to suits instituted under the Civil Procedure Code as contended by Mr. N.R. Shah or whether it should include all legal proceedings including suits so instituted or otherwise started. What then is the correct scope of Section 85A? It is true that Section 85 in terms refers only to suits and provides for a reference of the issues of the nature indicated in that section to a competent authority when such issues arise in any suit.

Section 85A both historically and positional follows Section 85. Having in Section 85 provided for a complete bar on the Civil Court to settle decide or deal with any question arising in any proceeding (in my view whether such proceeding is a suit or not) which question is by or under the Act required to be settled by the authorities mentioned therein the Legislature in the next section which it introduced subsequently in the Act on the lacuna having been pointed out in the case of Dhondi Tukaram, went on to provide that when an issue required to be settled decided or dealt with by the authorities mentioned in Section 85A arose such an issue should be referred by the Civil Courts to the competent authority for determination. The words settle decide or deal with find a place both in Section 85(1) and 85A(1). The authorities who are to settle decide or deal with this issue are mentioned in Section 85(1). On the other hand Section 85A(1) describes the authorities as authorities competent to settle decide or deal with such issue under the Act. In effect both the sections refer to the same authorities. In facts Section 85A(1) follows upon Section 85 and provides for a procedure in connection with questions in which the jurisdiction of the Civil Courts has been barred. Mr. N.R. Shah is right in a way that Sections 85 and 85A are connected but the fallacy in Mr. N.R. Shahs argument is that he deems Section 85 as a section subsidiary to Section 85A(1) whereas the correct position is really otherwise

7. The explanations to Section 85 as well as Section 85A indicate that the Civil Court could include even Mamlatdars Courts constituted under the Mamlatdars Courts Act so that apart from suits within the meaning of the Code of Civil Procedure suits even under the Mamlatdars Courts Act are included in these sections. The key to the meaning of the word suit is to be found in these explanations. The word suit in Section 85 certainly could not have been intended to mean only suits which are instituted by the presentation of a plaint as contemplated in the Code of Civil Procedure and I see no warrant to interpret the word suit in that narrow sense particularly when the Civil Procedure Code is no where to be found in the pattern of tenancy legislation.

Now, if the word 'suit' is not confined to suits instituted under the Code of Civil Procedure we will have to turn elsewhere to find out that should be the meaning of the word suit. In the first instance turning to its dictionary meaning Chambers 20th Century Dictionary 1960 Edition at page 1904 defines it as an action at law or a process or act of suing. In Stroud's Judicial Dictionary 3 Edition it is stated that the word suit is a term of wider signification than action and may include proceedings on a petition. In Iyers Law Lexicon of British India suit has been defined as the prosecution or pursuit of some claim demand or request; the act of suing the process by which one endeavors to gain an end or object; attempt to attain a certain result;... the prosecution of some demand in a Court of Justice; any proceeding in a Court of Justice in which plaintiff pursues his remedy to recover a right or claim; the mode and manner adopted by law to redress Civil injuries; a proceeding in a Court of Justice for the enforcement of a right. It is further stated that the term suit is a very comprehensive one and is said to apply to any proceeding in a Court of Justice by which an individual would pursue that remedy which the law affords him.

In Vajeram Sakerram Dewam v. Purshotamdas Jamnadas 7 B.L.R. 138 B. Tyabji J. considered the meaning of the word to sue in Section 43 of the Civil Procedure Code 1882 and he held that to sue meant the making of any claim or taking any legal proceedings against any person and it did not necessarily mean to file a suit by means of a plaint such as was referred to in that Code He further held that taking of any legal proceedings in the matters of any kind would amount to suing

8. Thus according to both its dictionary meaning and the legal interpretation put on the word it is clear that the word suit may mean any legal proceeding whereby a right is claimed affirmed or sought in a Court of law. It may mean any action at law. It appears to me abundantly clear that in the context of the word suit in Section 85A the Legislature intended to mean not only a suit instituted by the presentation of a plaint as provided in the Civil Procedure Code but all other proceedings in which any right is claimed or any claim is made or prosecuted or attempted to be gained or a remedy pursued by a process in law. In other words it includes all legal proceedings.

Apart from the assumption mentioned above in my view the context clearly indicates the meaning indicated above. It surely could not have been the intention of the Legislature that having provided for a bar on the Civil Courts in regard to all questions arising in any proceedings whatsoever under Section 85 it intended that the question arising in matters other than the suits instituted under the Code of Civil Procedure should be left in the air without any provision or machinery for their decision settlement or determination. It could not have been the intention of the Legislature in introducing Section 85A to have limited its scope only to suits instituted under the Code.

Mr. N.R. Shah justifiably pointed out the difference in the language in Section 85A on the one hand and Sections 87 and 89 on the other. Section 87 provides that no suit or other legal proceeding would lie against any person in respect of anything which was done in good faith under the Act whereas Section 89(2)(b)(ii) does provide that nothing in the Act or any repeal effected thereby shall affect any legal proceeding in respect of any right title interest obligation or liability or anything done or suffered before the commencement of the Act. Mr. N.R. Shah submitted that the Legislature had clearly made a distinction between suit and legal proceedings and it used the word suit where it intended to refer to a suit and limited its meaning and it referred to a legal proceeding when it meant something other than a suit or something which included a suit and in particular he emphasized the Words no suit or other legal proceeding in Section 87.1 appreciate the force of Mr. N.R. Shahs argument. These sections existed in the Act as originally enacted. Section 85A was as already pointed out subsequently introduced. I have to read and to gather the meaning of the word suit as used in 85 in its context and though it is true that the legislature has used the words legal proceeding in Sections 87 and 89 but then the Court is entitled to see what the Legislature intended by the word suit in Section 85 To my mind there is no doubt that the word suit in Section 85A was intended to mean and include not only a suit as instituted under the Code but any proceeding whereby a claim or remedy is sought in a Court of law and the key to this is to be found in the explanation where the Mamlatdars Courts Act is specifically referred to in an inclusive definition of the Civil Court specially enacted for the purposes of those sections. This indeed is clear indication that what was intended by the word suit was not only a suit instituted by the presentation of a plaint under the Code of Civil Procedure.

9. Mr. N.R. Shah urged that the proceeding before me was a miscellaneous proceeding and not a suit and that on the interpretation he placed on the word suit in Section 85A(1) there was no jurisdiction in the Court to refer the issue of tenancy to the Mamlatdar. On the above interpretation of Section 85A(1) this argument is not tenable and accordingly I reject the same

Mr. N.R. Shah referred me to Section 51A of the Bombay Agricultural Debtors Relief Act 1947 This section provides that no Civil Court should entertain or proceed with any suit or proceeding in respect of any matter pending before the Court under that Act or the validity of any procedure or the legality of any award order or decision of the Board established under the prior Act or of the Court or of the recovery of any debt made payable under such award. Mr. N.R. Shah submitted that both these pieces of legislation were pieces of beneficial legislation for the debtors in one case and the tenants in the other. He submitted therefore that both these sections should be similarly construed. I agree with Mr. N.R. Shah that both these pieces of legislation are meant for the debtors on the one hand in the Bombay Agricultural Debtors Relief Act and for the tenants on the other under the Act but 1 fail to see the force of the submission that in construing a section dealing with the bar on the Civil Courts under the Act I should be guided by the provisions of a bar under the relevant section in the Bombay Agricultural Debtors Relief Act when the scheme of both the Acts is different and when the very contents of these relevant sections are entirely different.

Then Mr. N.R. Shah referred me to another section in the Bombay Agricultural Debtors Relief Act viz. Section 19(7) which provided that when any question arose regarding the validity of any transfer or retransfer under that section or if any question arose whether any issue was or was not entirely unconnected with the adjustment of debts the Court before which such question arose if it is not the District Court should refer that question for decision to the District Court. For the very reason that I am unable to find any guidance or derive any light from Section 51A of that Act in construing Sections 85 and 85A of this Act I do not find either any guidance or any light in the matter before me by referring to Section 19(7) of the Bombay Agricultural Debtors Relief Act. The argument advanced Mr. N.R. Shah on this aspect of interpretation I find of no substance at all.

10. In his submission Mr. M.C. Shah for the petitioners submitted that the learned Judge was entirely in error and failed to exercise jurisdiction vested in him under Section 85A in not referring this question regarding the alleged tenancy of the petitioners to the competent authority under Section 85A. Mr. N.R. Shah for the opponents once again argued that the question of the application of Section 85A would not arise unless the petitioners proved that they were tenants within the meaning of Section 2(18) and there could be no question of any reference being made of any issues to the competent authorities till this was proved. He said that the Civil Court should first determine whether he is a tenant and then proceed to refer these issues. As I have already indicated in dealing with this argument on Section 85 what the Civil Court has to see is whether there are allegations which raise issues determinable by the authorities in the Act and there are such allegations in these cases. Whether a tenant who claims to be a tenant from a mortgagee-in-possession is a tenant within the meaning of Section 2(18) or not will be a matter which the Mamlatdar has to determine. I therefore agree with Mr. M.C. Shah that the learned Judge failed to exercise his jurisdiction in refusing to refer these issues to the competent authorities.

In the course of arguments before me another interesting argument was also advanced by Mr. M.C. Shah and this was an argument in the alternative. Mr. M.C. Shah submitted that even assuming for the purpose of argument that the word suit in Section 85A (1) meant only a suit instituted under the Code of Civil Procedure even then the word suit in this case would include execution proceedings. A reference was made by Mr. M.C. Shah to the following cases: Muhammad Habib-Ullah v. Tikam Chand I.L.R. 47 (1925) Allahabad 57 Bhulji Bechar v. Bawaji Daji and Ors. I.L.R. 5 (1881) Bombay 448 and Gokul Kristo Chunder v. Aukhil Chunder Chatterjee I.L.R. 16 (1889) Calcutta 457. However in the view that I have taken of the matter it is not necessary for me to decide this submission made by Mr. M.C. Shah.

In the ultimate Mr. N.R. Shah referred me to a judgment of a Division Bench of the Bombay High Court in Jasin Tomu Damel v. Harischandra Pandurang Muranjan 61 B.L.R. 1112 and in the very words of the submission of Mr. N.R. Shah unless a party had changed his position relying on new procedure that party cannot get the right to the new procedure. I have referred to the case relied on by Mr. Shah as also another case reported in Dada Savla Yadav v. Vasant Anant Sultane 62 B.L.R. 471 cited by him. 1 fail altogether to appreciate the argument advanced by Mr. N.R. Shah. I do not see what is the change in the position or otherwise nor the new procedure nor the principle which is sought to be enunciated and I accordingly reject this argument

11. In the result therefore these two petitions succeed and the orders passed by the learned Judge on the applications filed by the respective petitioners in these two petitions are set aside. I send back both the matters to the learned Judge for framing the necessary issues in light of the observations made above with a direction that he should stay these applications and refer the issues to the competent authorities for their determination and on determination of these issues made by the competent authorities to proceed to deal with these applications in light of the findings of such authority. I further direct that the possession of these lands taken from the petitioners should be restored back to them while these proceedings are pending. The petitions will be made absolute with costs.


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