IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 26652 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BHIKHUMIYA GURUMIYA Petitioner(s)
Versus
USMANKHAN MISRIKHAN PATHAN. SINCE DECD.THRO LEGAL
HEIRS Respondent(s)
========================================== ================= Appearance:
MR JIGAR P RAVAL, ADVOCATE for the Petitioner(s) No. 1 MR LIYAKAT I MEHTA, ADVOCATE for the Respondent(s) No. 1.1 - 1.5 MS FARHANA Y MANSURI, ADVOCATE for the Respondent(s) No. 1.1 - 1.5 ========================================== ================= CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date :10/12/2012
CAV JUDGEMENT
By filing the present petition, the petitioner herein prayed to set aside order dated 07.01.2006 below Exh.152 passed by learned 9th Addl. Senior Civil Judge in Civil Suit No.193 of 1993 as well as order dated 15.11.2006 below Exh.161. It was prayed to direct the trial court to remit the matter to the competent authority under the Bombay Tenancy and Agricultural Lands Act, 1948 to decide Issue No.2A framed in the Suit.
2. Petitioner Bikhumiya Gurumiya was original defendant in the Civil Suit No. 193 of 1993 instituted in April 1993 by the respondent herein before the Court of Civil Judge (S.D.), Nadiad. The Suit was for redemption of mortgage and it was prayed by the plaintiff that the defendant be directed to execute re-conveyance deed and handover possession of the agricultural field in question on redeeming the mortgage thereof. It was pleaded in the plaint that the agricultural fields bearing Survey No.238/3 admeasuring 19 gunthas and Survey No.238/5 admeasuring 31 gunthas situated in the sim of village Chaklasi, Taluka Nadiad, were mortgaged with the defendant on 28.04.1978 for Rs.16,000/- by executing a deed which was a mortgage with condition of sale. It was pleaded that the mortgage had become redeemable on 28.04.1993 and the plaintiff was accordingly entitled to redeem the same and to get back the possession of the mortgage property.
2.1. In the written statement filed by the present petitioner – original defendant he denied the case of the plaintiff and raised a contention inter alia that the deed dated 28.04.1978 was essentially a sale executed in his favour. It was alternatively contended that even prior to the said transaction, since 1954, he was cultivating the lands since the time of his forefathers and that he was a tenant of the land having acquired such status under the Bombay Tenancy and Agricultural Lands Act, 1948. It was contended that in capacity of tenant he was entitled to purchase the land and accordingly the land was sold in 1978.
2.2 After the trial court framed the issues, petitioner-defendant submitted an application at Exh.17 for additional issue in respect of tenancy rights, which was rejected by the learned Judge on 20.10.1995. Another application at Exh.24 was submitted by the petitioner for review of the said orders, which too was rejected on 15.03.1996. Thereafter an application Exh..39, the petitioner- defendant prayed for framing a proper issue as to whether the plaintiff was entitled to recover the possession in the event the defendant providing that he was the tenant of the land before 29.04.1978. By order dated 04.10.1997 the trial court rejected the prayer of framing the said issue by dismissing application exh.39 on the ground inter alia that the defendant was unable to produce any prima facie evidence about his claim of tenancy. That order below Exh.39 came to be challenged before this court in Special Civil Application No.7155 of 2006 and cognate petitions. This court by order dated 17.03.2005 quashed the said order below Exh.39 and directed the trial court to add issue more particularly Issue No.4 referred to in the application below Exh.39. Thus, the issue relating to the assertion of tenancy right by the defendant was inserted.
2.3 Thereafter, the defendant filed application below Exh.151 on 18.08.2005 making prayer for stay of the Suit and for referring the issue to the Mamlatdar and Agricultural Lands Tribunal in view of the provisions of section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as `the Bombay Tenancy Act' for sake of brevity), which was dismissed by order dated 07.01.2006. A review application below Exh.161 was filed against the said order which too came to be rejected by the trial court by order dated 15.11.2006. Both the rejections were mainly on the ground that the application was filed with a view to delay the Suit proceedings and to while away time. It was also reasoned by the trial court that since the defendant was party in those proceedings and did not raise any plea regarding his tenancy rights, the contention taken now in the written statement in the present Suit was not liable to be countenanced and though the issue was framed, the same was not required to be referred to, to the competent authority under the Bombay Tenancy Act. Yet another reason adopted by the trial court while dismissing applications below Exh.151 and Exh. 162 was that the High Court had required time-bound completion of the Civil Suit as per its order dated 04.08.2006 passed in Special Civil Application No.14511 of 2006. It may be mentioned that the said petition was at the instance of plaintiff and the direction for expeditious disposal of the suit was passed by the Court as per his prayer without notice to the petitioner defendant.
3. Learned advocate Mr. Jigar Rawal for the petitioner submitted that once the additional issue in respect of tenancy right claimed by the petitioner defendant was framed, it was obligatory on the part of trial court to refer the same to the competent Tribunal under the Bombay Tenancy Act. He relied on the provisions of sections 85 and 85A of the Bombay Tenancy Act and submitted that by virtue of section 85, the jurisdiction of a civil court is barred to decide or dealt with any question, which is about determination of tenancy right under the said law. It was submitted that section 85A requires the court to refer the additional issue to the competent authority. He submitted that the issue was framed pursuant to the order of this court in the writ petition, and it arises out of pleadings. Once the tenancy aspect is required to be determined, the trial court has no other option to refer the issue to the competent authority under the Bombay Tenancy Act for its decision, it was submitted.
3.1. In support of his contentions learned advocate for the petitioner relied on decisions by the Supreme Court in Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi (AIR 1979 SC 653), and in Parmar Kanaksinh Bhagwansinh (dead) by Lrs. v. Makwana Shanabhai Bhikhabhai [(1995) 2 SCC 1409]. He placed further reliance on the decision of this court in Maganbhai Madhavbhai Patel v. Patel Dhulabhai Chunibhai (1979 GLR 114) and Gandabhai Jinabhai v. Dalpatbhai Ramubhai [(1982) 1 GLR 531].
3.2 On the other hand, learned advocate Ms. Farhan Mansuri submitted that even though the issue is framed with reference to tenancy right, the court need not refer it automatically to the competent authority. According to her, it would be a futile exercise because there is no evidence worth the name showing the semblance of tenancy right of the defendants except bare statements in the pleading. It was submitted that the court has to prima facie consider whether there is any substance in the claim of the defendant before entertaining prayer for referring it for determination under the Bombay Tenancy Act.
4. In the facts of the present case on record, as noted above, the defendant asserts his right as a tenant claiming that he was in cultivation on the tillers day and further contends with reference to the provisions of the Bombay Tenancy Act that he is entitled to purchase the land.
5. The case of the defendant-petitioner while contesting the plaintiff’s suit is that he was a tenant under cultivation on the tillers day and was entitled to purchase the land under the provisions of the Bombay Tenancy Act. It is undoubtedly a claim of tenancy arising with reference to the relevant provisions contained under the Bombay Tenancy Act. In view of the defence raised, Issue No.2A is framed in the suit which reads as under:
“Whether the defendant proved that they are doing the agriculture work on the suit land i.e. Survey No. 238/3 admeasuring 0-19 Guntha and S.No. 238/5 admeasuring 0-31 Guntha of Village Chaklasi as the tenant before the date of the deed dated 28-4-78 and on the date of the tillers day and therefore, they are entitled to purchase the land as per the Bombay Tenancy Act.”
5.1. Adverting to section 85 and 85-A of the Bombay Tenancy Act, section 85 contains bar of jurisdiction on the civil courts, which reads as under:
“85.Bar of jurisdiction. - (1) No civil court shall have jurisdiction to settle, decide or deal with any question (including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him) 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 Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra 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 Mamlatdar's Court constituted under the Mamlatdars' Courts Act, 1906.”
85A. Suits involving issues required to be decided under this Act.
(1) If any suit instituted, whether before or after the specified date, 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 dealt with such issues under this Act (hereinafter referred to as the `competent authority’) the Civil Court shall stay the suit and refer such issues to such competent authority for determination.
(2) ON receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto. Explanation.- For the purposes of this section a Civil Court shall include a Mamlatdar’s court constituted under the Mamlatdar’s Courts Act, 1906.”
5.2 In Sau. Saraswatibai Trimbak Gaikwad v. Damodhar D. Motiwale [(2002) 4 SCC 481], the defendant, who was a woman, was granted to her by her brother in lieu of maintenance for life time, her authority to lease out the land which was challenged in a suit for recovery. The suit was decreed on the basis of previous admission on her part that she could not lease out the land. In the meantime, the appellants, who were her lessees had applied under the Bombay Tenancy Act claiming a status of deemed tenants and were granted certificate to that effect. The contention about bar of jurisdiction of civil court in view of the said certificate of tenancy status was raised in the proceedings of execution of decree which was finally passed in the suit. The court negatived the contention that as appellants were earlier declared to be tresspassers of the land and therefore they were precluded from claiming rights as tenants. It was observed that the conclusion that the appellant was a trespasser is de hors the rights of the appellant under the Bombay Tenancy Act. In the context of such factual background, the Apex Court observed:
“It is clear from Section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948, that a civil court does not have jurisdiction to decide matters which are required to be dealt with by the Tribunal under the said Act. Thus it is only the Tribunal which can decide whether a person is deemed to be a tenant and whether he is entitled to purchase the land held by him. The civil court has no jurisdiction to decide such a question. Even if such a question was to be raised in a proceeding before it, the civil court would have to refer the issue to the authority under the said Act. The suit would then have to be disposed of in purchase price and issues a certificate then that certificate would be conclusive proof of purchase. The civil court would then be bound to give effect tot he certificate and cannot ignore it.”
5.3. In Parmar Kanaksinh Bhagwansinh (supra) it was reiterated that if any question of tenancy of present or past is involved in any suit before the civil court, the same would have to receive consideration by the competent authority and the provisions of Bombay Tenancy Act give no scope or room to them that the plea of tenancy if raised by the defendants in a civil suit the same could be decided by civil court.
5.4 In Maganbhai Madhavbhai Patel (supra) it was held that in view of mandate of section 17(b) and 85A the civil court cannot try any issue regarding past tenancy, but after mandate section governing the pending suits and decree under the appeal passed earlier would be considered to have been passed without jurisdiction. This only shows the rigour of the mandate under the Bombay Tenancy Act requiring the question of tenancy to be decided under that law only.
5.5 In Gundaji (supra), the suit was for specific purpose of contract which was resisted by the defendant contending that the land which was subject matter of contract was covered by the provisions of Bombay Tenancy Act and as the intending purchaser, the plaintiff was prohibited from purchasing the land. The Supreme Court observed that combined effect of section 70, 85 and 85A of the Act is that where in a suit properly constituted and congnizable by the civil court, upon a contest and issue arises which is required to be decided or dealt with by a competent authority under the Bombay Tenancy Act, the jurisdiction of the civil court to settle, decide or deal with the same is not only ousted, but the civil court is under a statutory obligation to refer the issue to the competent authority under the Tenancy Act to decide the same and upon reference is being answered back to dispose of the suit in accordance with the decision of the competent authority under the Tenancy Act.
5.6 In Bhimaji Shankar Kulkarni v. Dundappa Vithappa Udapudi (AIR 1966 SC 166) the Supreme Court was beset with nearly identical facts and held as under:
“4. With regard to suits and proceedings by a landowner for possession of agricultural lands, the combined effect of Ss. 29, 70, 85 and 85A of the Act is as follows: The Mamlatdar has exclusive jurisdiction to entertain an application by a landlord for possession of agricultural lands against a tenant, and the Civil Court has no jurisdiction to entertain and try a suit by a landlord against a tenant for possession of agricultural lands. The Mamlatdar has no jurisdiction to try a suit by a landowner for recovery of possession of agricultural lands from a trespasser or from a mortgagee on redemption of a mortgage, and the Civil Court has jurisdiction to entertain such a suit; but if the defendant to the suit pleads that he is a tenant or a protected tenant or a permanent tenant and an issue arises whether he is such a tenant, the Court must refer the issue to the Mamlatdar for determination, and must stay the suit pending such determination, and after the Mamlatdar has decided the issue, the Court may dispose of the suit in the light of the decision of the Mamlatdar.
5. Section 85A was introduced by Bombay Act XIII of 1956, which came into force on March 23, 1956 during the pendency of the second appeal in this case. The suit out of which this appeal arises was governed by the law as it stood before the introduction of S. 85A. But independently of S. 85A and before it came into force, the Bombay High Court in Dhondi Tukaram v. Hari Dadu, ILR (1953) Bom 969: (AIR 1954 Bom 100), held that the effect of Ss. 70 (b) and 85 read in the light of the other provisions of the Act was that if in a suit filed against the defendant on the footing that he is a trespasser he raises the plea that he is a tenant or a protected tenant the Civil Court had no jurisdiction to deal with the plea, and the proper procedure was to refer the issue to the Mamlatdar for his decision and not to dismiss the suit straightway.”
5.7 The contention that the defendant has to show a prima facie right as tenant and only thereupon the civil court would be justified in referring the issue to the competent authority, cannot be countenanced. Once the issue is framed about the tenancy on the basis of pleadings of the case, it is the mandate flowing from section 85 read with section 85A of the Bombay Tenancy Act that the trial court shall refer the issue to the authority under the Bombay Tenancy Act for his decision. In Joshi Chaganlal Garbaddas v. Raising Khodasing [(1996) 1 GLR 69] it was observed by this court that civil court has to refer the issue regarding tenancy and court cannot insist that party must first establish a prima facie case in support of its plea. The following observations in the decision is a direct answer of contention raised by learned advocate for the respondent In this regard.
“Moreover, the question regarding prima facie case of tenancy does not arise for consideration of the civil court. If an issue arises, which is required to be decided by a tenancy court, the civil court has no jurisdiction to decide the same even in going into that question.”
6. As noted above, the facts of the present case on record shows that the defendant has asserted his right as a tenant claiming that he was in cultivation on the tillers’ day and he further contends with reference to the provisions of the Bombay Tenancy Act that he is entitled to purchase the land in question. In the background of such plea and pleadings, the issue about tenancy is inserted subsequent to order of this court in the writ petition mentioned above. The reasoning of the learned trial Judge for rejection of Exh.151 application is that earlier proceedings under section 70(b) of the Bombay Tenancy Act had taken place before the Mamlatdar and A.L.T., wherein the present petitioner did not claim tenancy. This cannot be accepted as a valid ground to reject the prayer of the petitioner-defendant in the present proceedings. The said earlier proceedings were at the instance of a third party, and in that, the petitioner could not have got his right as tenant determined, hence, was not expected to pursue his case in those proceedings. Whether the petitioner is a tenant or not is an issue arises in the proceedings of suit instituted by the respondent herein. When tenancy is asserted in the suit proceedings and when an issue is framed in that regard, it is obligatory for the civil court to refer the issue to the competent authority under the Bombay Tenancy Act. Another reason supplied by the court below for rejecting the application Exh. 151 is that the application is made to delay the proceedings, which reason is stated to be rejected in asmuchas the petitioner-defendant would make the application in question as of right in light of the provisions contained in the Bombay Tenancy Act. Therefore, the order of the court below proceeded on an erroneous reasoning all along.
7. For the for foregoing reasons, the order dated 07.01.2006 passed by the 9th Additional Senior Civil Judge, Nadiad, below application Exh.152 in Civil Suit No.193 of 1993 as well as order below application Exh. 161 dated 15.11.2006 passed by the learned 7th Additional Senior Civil Judge in Civil Suit No. 193 of 1993 are set aside. As a consequence of setting aside those orders, the application below Exh.152 stands allowed in terms of the prayer made in that application. Rule is made absolute.
sndevu
(N.V.ANJARIA, J.)