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Bai Hajrabibi D/O. HuseIn Habib Vs. Shaikh Hamed Husein - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR483
AppellantBai Hajrabibi D/O. HuseIn Habib
RespondentShaikh Hamed Husein
Cases ReferredShivappa Satawappa v. Gajanan
Excerpt:
.....operative part so as to have the effect of cutting down the clear terms in which the operative part may be couched. in the latter event it would not be necessary to go into the question of title to the suit lands for even if the plaintiffs title to the suit lands be assumed the suit would be liable to fail......olpad. the plaintiff alleged that the defendant was a tenant of the plaintiff in respect of the suit lands and that since the defendant had denied the title of the plaintiff in respect of the suit lands the plaintiff was entitled to recover possession of the suit lands from the defendant. the defendant in his written statement denied that the plaintiff was the sole and exclusive owner of the suit lands and contended that the suit lands belonged to the plaintiff and the defendants wife and that the plaintiff was therefore not entitled to recover possession of the suit lands from the defendant. the defendant also contended that the suit lands were agricultural lands to which the provisions of the tenancy act applied and that being a tenant in respect of the suit lands from the plaintiff.....
Judgment:

P.N. Bhagwati, J.

1. This Revision Application is directed against an order passed by the Civil Judge Junior Division Olpad rejecting an application of the plaintiff for deleting issues Nos. 3 5 and 6 and not referring them to the Mamlatdar for his decision under the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act). The suit in which this order was made was filed by the plaintiff against the defendant for recovery of possession of certain lands situate within the jurisdiction of the Court of the Civil Judge Junior Division Olpad. The plaintiff alleged that the defendant was a tenant of the plaintiff in respect of the suit lands and that since the defendant had denied the title of the plaintiff in respect of the suit lands the plaintiff was entitled to recover possession of the suit lands from the defendant. The defendant in his written statement denied that the plaintiff was the sole and exclusive owner of the suit lands and contended that the suit lands belonged to the plaintiff and the defendants wife and that the plaintiff was therefore not entitled to recover possession of the suit lands from the defendant. The defendant also contended that the suit lands were agricultural lands to which the provisions of the Tenancy Act applied and that being a tenant in respect of the suit lands from the plaintiff and the defendants wife the defendant must be deemed to have become the owner of the suit lands from 1 April 1957 under the provisions of the Tenancy Act. The plaintiff of course denied that the suit lands were governed by the Tenancy Act and contended that the suit lands being grass lands the provisions of the Tenancy Act did not apply to the suit lands. On these pleadings between the parties various issues were raised by the learned trial Judge of which issues Nos. 3 5 and 6 were as follows:

3. Whether the suit lands are grass lands or agricultural lands?

5. Whether the defendant is the tenant of the suit lands?

6. Whether the Tenancy Act applied to the suit lands or not?

The plaintiff it appears was advised that it was entirely irrelevant to consider whether the suit lands were grass lands or agricultural lands since even if the suit lands were agricultural lands and the Tenancy Act therefore applied to the suit lands the defendant if he was proved to be a tenant of the plaintiff was liable to be evicted from the suit lands on the ground of denial of the plaintiffs title and the Civil Court had jurisdiction in such a case to order eviction of the defendant. The plaintiff therefore made an application to the learned trial Judge that the aforesaid three issues should be deleted and should not be referred to the Mamlatdar for his decision under the provisions of Section 70 of the Tenancy Act. The application was however rejected by the learned trial Judge and hence the present Revision Application?

2. Mr. I.C. Bhatt learned advocate appearing on behalf of the plaintiff con tended in regard to Issues Nos. 3 and 6 that it was not necessary to decide these two issues since even if the suit lands were agricultural lands and the Tenancy Act therefore applied to them the defendant having denied the plaintiffs title the tenancy of the defendant had come to an end and the plaintiff was therefore entitled to recover possession of the suit lands from the defendant and such claim for recovery of possession was within the jurisdiction of the Civil Court. These two issues should therefore argued Mr. I.C. Bhatt be deleted and should not be referred to the Mamlatdar for his decision. This contention of Mr. I.C. Bhatt was based on the premise that even in cases governed by the Tenancy Act the landlord can terminate the tenancy of the tenant on the ground of forfeiture by disclaimer of landlords title by the tenant and that the Civil Court has jurisdiction to entertain a claim for recovery of possession on such ground. Mr. I.C. Bhatt sought to support this contention by relying on two unreported decisions of the High Court of Bombay which it must be conceded lend considerable support to this contention. I shall presently examine these decisions but speaking for myself I must humbly confess that if the Tenancy Act applies to the suit lands I do not see how having regard to the provisions of Section 29 of the Tenancy Act any claim for recovery of possession of the suit lands can be maintained by the plaintiff against the defendant in the Civil Court whatever be the ground for termination of tenancy-whether it be denial of the plaintiffs title or any other ground. Of course if these decisions bind me I would have to take the view in favour of the contention of Mr. I.C. Bhatt but for reasons which follow I find that I am free to consider myself not bound by these decisions.

3. The first decision relied on by Mr. I.C. Bhatt was a decision of a Division Bench of the High Court of Bombay consisting of Shah & Vyas JJ. in Special Civil Application No. 2178 of 1955. In that case certain applications were filed by the landlord against the tenants before the Mamlatdar for recovering possession of lands in the possession of the tenants on the ground that the tenants had denied the landlords title. The tenants set up title in themselves and contended that the landlord was not the owner of the lands and there was no relationship of landlord and tenant between them. Some of the applications were heard by the Mamlatdar at Broach while the other applications were heard by the Mamlatdar at Ankleshwar. The Mamlatdar at Broach held that the tenancy Court had jurisdiction to hear the applications; but a contrary view was taken by the Mamlatdar at Ankleshwar. Appeals were thereupon preferred to the Deputy Collector Broach Division The Deputy Collector held that the question of ownership of the lands was in issue between the parties and to be decided before the effect of the denial of title upon the alleged tenancy could be considered. The Deputy Collector expressed an opinion that it was not within the competence of the Tenancy Court to go into complicated question of ownership of land and such questions had to be left to be decided by the Civil Court. Against the orders passed by the Deputy Collector Revision Applications were filed before the Revenue Tribunal The Revenue Tribunal agreed with the view of the Deputy Collector and observed that without deciding the question of ownership of the lands it could not be said that the landlord was the owner and that the tenants had denied his title and that the question of ownership of the lands should therefore be decided by the Civil Court. The landlord applied to the High Court under Article 227 of the Constitution against the orders passed by the Revenue Tribunal. The applications were heard by a Division Bench consisting of Shah and Vyas JJ. and by a judgment delivered on 16th July 1956 Shah J. as he then was held that the view taken by the Deputy Collector and the Revenue Tribunal was correct and that the proper procedure to be followed in cases of such a nature wherein claims made by persons alleging that they are landlords for recovery of possession against persons alleged to be tenants substantial issues of title to land have to be decided would be to stay the proceedings before the Mamlatdar and to send an issue to the Civil Court and after the issue is decided by the Civil Court to proceed to hear and dispose of the proceeding before the Mamlatdar. The learned Judge also held after considering the provisions of Sections 3 and 14 of the Tenancy Act and Section 111 of the Transfer of Property Act that even in cases where the tenancy Act applied the landlord would be entitled to recover possession of land from the tenant on the ground of denial of the landlords title as provided in Section 111(g) of the Transfer of Property Act and that Section 14 of the Tenancy Act would not stand in the way of termination of the tenancy on such ground. The learned Judge accordingly directed that the proceedings before the Mamlatdar should be stayed and that the Mamlatdar should raise an issue as regards the title to the lands and send the papers to the nearest competent Civil Court for adjudication of that issue and after the adjudication was received from the Civil Court the Mamlatdar should proceed to hear and decide the issues as to tenancy or protected tenancy. Mr. I.C. Bhatt strongly relied on this decision and contended that two propositions were laid down in this decision namely (1) that the denial by the tenant of the landlords title even in cases where the Tenancy Act applied afforded a ground for termination of the tenancy; and (2) that in cases where the tenant disputed the title of the landlord and the question of title was put in issue the Mamlatdar cannot decide the question of title but should refer that question for the determination of a Civil Court. Mr. I. C Bhatt agreed that this decision did not lay down the proposition that in a case where a landlord made a claim for recovery of possession against a tenant on the ground that the tenancy of the tenant had come to an end by reason of his denial of the landlords title such a claim could even where the Tenancy Act applied be taken cognizance of by the Civil Court. This position Mr. I.C. Bhatt had to concede because it was clear that even though the claim made by the landlord against the tenants in the case before Shah and Vyas JJ. was for recovery of possession on the ground of denial by the tenants of the landlords title and applications for recovery of possession were made before the Mamlatdar all that the learned Judges directed was that the proceedings before the Mamlatdar should be stayed until question of title was determined by the Civil Court and that the Mamlatdar should proceed further after the adjudication on the question of title was received from the Civil Court. This direction clearly postulated that the Mamlatdar had jurisdiction to entertain the applications and if the Mamlatdar had jurisdiction to entertain the applications it was obvious that the Civil Court had no such jurisdiction. This decision therefore did not go all the way the argument of Mr. I.C. Bhatt wished it to go though it went a part of the way.

4. Mr. I.C. Bhatt then relied on the second decision which was a decision of a Division Bench of the High Court of Bombay consisting of Shah and Gokhale JJ. in Special Civil Application No. 2553 of 1956. Mr. I.C. Bhatt contended that if the previous decision cited by him did not go all the way he wanted it to go and went only a part of the way this second decision relied on by him took him the rest of the way to the final conclusion pressed by him. In that case also an application was made by the landlords claiming possession of certain lands from the tenants. The ground on which possession was claimed was two-fold: first that there was default by the tenants in payment of rent and secondly that the tenants had denied the title of the landlords. Dealing with the second ground Shah J as he then was speaking on behalf of himself and Gokhale J. observed as follows:

Mr. G.A. Desai on behalf of the landlords contended that before the Mamlatdar the tenants had denied the title of the landlords. Assuming that the tenants had so denied the of the landlords the Tenancy Court was incompetent to pass a decree for possession on the ground of forfeiture resulting from derail of title. It has been held by this Court that the Civil Court is the only Court competent to entertain a suit for possession of agricultural lands where the tenancy has been forfeited for denial of the landlords title. If so advised the landlords may file a suit for possession of the lands relying upon the forfeiture alleged to have arisen out of the denial of their title by the tenants.

These observations argued Mr. I.C. Bhatt clearly supported his contention that the Civil Court was competent to entertain a suit for possession of lands even in case where the Tenancy Act applied where the ground for claiming possession was that the tenancy has been forfeited by reason of the denial by the tenant of the landlords title Mr. I.C. Bhatt is right in his contention that this decision lays down exactly the proposition for which he contended and if I am bound to follow this decision it is obvious that the plaintiff must succeed.

My attention was however drawn by Mr. J.B. Patel learned advocate appearing on behalf of the defendant to another decision of a Division Bench of the High Court of Bombay in Vithal Sakharam v. Gopal Gangaram (LIX Bombay Law Reporter 59 J. That decision was given by Bavdekar and Gokhale JJ. on 8th October 1956 i.e. about two months after the decision of Shah and Vyas JJ. in Special Civil Application No. 2178 of 1955 In that case the learned Judges took the view that in case of tenancies governed by the provisions of the Tenancy Act the landlord cannot terminate the tenancy on the ground of forfeiture by disclaimer of the landlords title by the tenant. The ground on which this view was founded was that Section 14 and 34 of the Tenancy Act between themselves cover all cases in which the landlord can terminate the tenancy of the tenant under the Tenancy Act. This decision it would be apparent is directly in conflict with the decision of Shah and Vyas JJ. in Special Civil Application No. 2178 of 1955. Since there are two conflicting decision of two Division Benches of the High Court of Bombay it is open to me to prefer to follow that decision which commends itself to my reason. It is necessary for me to prefer one decision to the other and to reach a conclusion whether the denial by the tenant of the landlords title is cases governed by the provisions of the Tenancy Act would afford a ground for eviction to the landlord against the tenant for the entire superstructure of the argument of Mr. I.C. Bhatt that the Civil Court has jurisdiction to entertain the suit even if the provision of the Tenancy Act apply to the suit lands since the ground on which possession is sought is denial by the defendant of the plaintiffs title to the suit lands it based on the premise that the denial by the tenant of the landlords title furnishes a ground for eviction even in cases governed by the provisions of the Tenancy Act. The observations of Shah J. to the same effect in Special Civil Application No. 2553 of 1956 on which the entire argument of Mr. I.C. Bhatt rested-are also founded on the view that even in cases where the provision of the Tenancy Act apply the landlord can terminate the tenancy of the tenant on the ground of forfeiture by disclaimer of landlords title by the tenant. Hence it is very much relevant to consider whether the disclaimer of the landlords title by the tenant can furnish a ground for eviction in cases governed by the Tenancy Act. Of course I must mention here that even if the disclaimer of the landlords title by the tenant could afford a ground for eviction to the landlord against the tenant in cases to which the provisions of the Tenancy Act apply I on my part do not think it possible to take the view that the Civil Court can entertain a suit for recovery of possession by the landlord against the tenant on the ground of denial by the tenant of the landlords title for any such view would be contrary to the plain dictate of the Legislature contained in Section 28 of the Tenancy Act. But since such view has been advocated be- fore me supported as it is by the observations of Shah J. in Special Civil Application No. 2553 of 1956 and it is based on the premise that even in cases governed by the provisions of the Tenancy Act the land- lord can terminate the tenancy of the tenant on the ground of forfeiture by disclaimer of the landlords title by the tenant it is necessary to decide whether such ground for eviction is available to the landlord against the tenant in cases to which the provisions of the Tenancy Act apply. In short the question resolves into a narrow one namely which of the two decisions I should follow: the decision of Shah and Vyas JJ. in Special Civil Application No. 2178 of 1955 or the decision of Bavdekar and Gokhale JJ. in Vithal Sakharam v. Gopala Gangaram (supra).

5. Having given my most anxious consideration to both the decisions am of the opinion that the decision of Bavdekar and Gokhale JJ. must be accepted as laying down the correct law in preference to the decision of Shah and Vyas JJ. The decision of Shah and Vyas JJ. is based almost entirely on the absence of the words any other law in the non-obstante clause occurring in Section 14. Now it is well-settled by several decisions of the Supreme Court that although there should be a close approximation between the non-obstante clause and the operative part of the enactment, the non-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms in which the operative part may be couched. If the words of the operative part are clear and capable of only one interpretation on a plain and grammatical construction the non-obstante clause cannot be permitted to cut down the construction and restrict the scope of its operation. The operative part of the enactment must be given its full force and effect irrespective of the non-obstante clause for the true function of the non-obstante clause is not to limit the operative part of the enactment but to provide by way of abundant caution that if there is any conflict between the operative part of the enactment and any other pro- vision referred to in the non-obstante clause the operative part of the enactment shall prevail. The operative part of the enactment in Section 14 of the Tenancy Act in terms clear and explicit provides that the tenancy of a tenant shall not be terminated except on certain specified grounds. The section therefore contains a positive mandate from the Legislature that the tenancy of a tenant shall be determined only on the grounds specified in the section and on no other grounds. Even if there is anything contrary to the mandate in any agreement usage decree or order of a Court the mandate must prevail. Equally must the mandate prevail even if under the ordinary law of landlord and tenant a landlord is entitled to terminate the tenancy of a tenant on other grounds for the mandate in terms excludes the other grounds as grounds on which the tenancy of a tenant can be terminated. This aspect of the matter if I may say so with the greatest respect appears to have been overlooked by the learned Judges deciding Special Civil Application No. 2178 of 1955. It is no doubt true that Section 3 of the Tenancy Act applies the provisions of Chapter V of the Transfer of Property Act which contains Section 111(g) to tenancies and leases of land to which the Tenancy Act applies. But that section makes it clear that the provisions of Chapter V of the Transfer of Property Act shall apply only in so far as they are not inconsistent with the provision of the Tenancy Act. Now if Section 14 of the Tenancy Act says that the tenancy of a tenant shall not be determined except on certain specified grounds the provision of Section 11 l(g) of the Transfer of Property Act which make forfeiture by disclaimer of landlords title by the tenant a ground for termination of tenancy is certainly inconsistent with Section 14 of the Tenancy Act and if it is inconsistent I do not see how it can apply to enable the landlord to terminate the tenancy of the tenant in cases governed by the Tenancy Act. For these reasons 1 prefer the view taken by Bavdekar and Gokhale JJ. to the view taken by Shah and Vyas JJ. and hold that the disclaimer of the landlords title by the tenant does not furnish a ground for termination of the tenancy of the tenant by the landlord in cases governed by the Tenancy Act and that the tenancy of the tenant can be determined only on the grounds specified in the Tenancy Act. This being the position it is clear that the question whether the provisions of the Tenancy Act apply to the suit lands must be decided first before the learned trial Judge can proceed with the suit. If the pro- visions of the Tenancy Act do not apply to the suit lands on the ground that the suit lands are grass lands and not agricultural lands the learned trial Judge would be entitled to proceed with the suit and to dispose it of on the other issues arising in the case. If however it is found that the suit lands are governed by the provisions of the Tenancy Act the suit would have to be dismissed in any event since firstly the denial by the defendant of the plaintiffs title to the suit lands would not confer any ground for eviction to the plaintiff and secondly the Civil Court would have no jurisdiction to decree a claim for recovery of possession of the suit lands. In the latter event it would not be necessary to go into the question of title to the suit lands for even if the plaintiffs title to the suit lands be assumed the suit would be liable to fail. It would therefore be desirable that the question as to whether the suit lands are governed by the provisions of the Tenancy Act should be first determined. On the question as to which is the authority entitled to determine this question there was no dispute having regard to the decision of the High Court of Bombay in Shivappa Satawappa v. Gajanan (LV Bombay Law Reporter 843 Mr. I.C. Bhatt faced with this decision had to concede that this question must go to the Mamlatdar for his decision. Issues Nos. 3 and 6 must therefore be referred to the Mamlatdar.

6. The only dispute which remains is with regard to issue No. 5. I am inclined to agree with the submission of Mr. I.C. Bhatt that this issue should not be referred to the Mamlatdar at the present moment since it would be futile to determine this issue if it is ultimately held that the provisions of the Tenancy Act apply to the suit lands. If on the other hand the provisions of the Tenancy Act do not apply to the suit lands it would be the Civil Court which would be competent to determine this issue. I am therefore of the opinion that this issue should not be referred to the Mamlatdar until it is decided whether the suit lands are governed by the provisions of the Tenancy Act.

In the result I dismiss the Revision Application and confirm the order made by the learned trial Judge with this modification that issue No. 5 shall not be referred to the Mamlatdar for his decision until after the decision of the Mamlatdar on issues Nos. and 6. There will be no order as to costs of the Revision Application.


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