.A DEWAJI v. GANPATLAL August 6, 1968 >B [S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.J 'E Berar Regulation of Agricultur"l Leases Act (24 of 1951), as amend- ed by Amendment Act of 1953, ss. 16, 16A and 16B-lf applicable to appellate proceedings.
Letter~ Patent Appeal-Jurisdiction of Bench to reapen interlocutory order by single Judge. The respondent leased his land to the appellant on yearly lease for die year 1950-51. As the appellant did not vacate at the end of the year 1he respondent filed a suit for his eviction.
Pending the suit, the Berar Regulation of Agricultural Leases Act, 1951, came into force and the appellant contended that he continued to he a tenant for the year 1951-52, that he was a 'protected tenant', and that the civil court had no jurisdic- non to eject him. The trial court rejected the contentions. The appellant appealed and while the appeal was pending the Act was amended by the 1953 Act. Sections 16A and 16B of the Act as amended provided, that whenever any question as to whether a transaction between a landholder and a person claiming to be bis lessee was a lease, arose in any suit or proceeding, it should be referred to the revenue officer; that the revenue officer's decision shall be accepted by the ci";1 court; and that no civil court shall entertain any suit to obtain a decision on a matter which the revenue officer was empowered to determine.
The appellant contended in the appellate court that the determination of the question whether he was the respondent's tenant was a matter entirely within the jurisdiction of the revenue courts only. The appellate court held that the 1953-Act did not affect pending proceedings, that the appellant was not the respondenrs tenant for the year 1951-52, and dismissed the appeal. In second appeal, a oingle Judge of the High Court held that in view of the 1953 amend- ments, it was for the revenue courts to decide whether the appellant was die respondent's leS&ee for the year 1951-52 and referred the matter to the revenue courts.
The revenue courts held that the appellant was paying rent to the respondent for the year 1951-52, and remitted the finding to the High Court. Another Single Judge of the Higb Court, before whom
die matter came up for final disposal, accepted the finding and held that the respondent was not entitled to eject the appellant. He also rejected 'the respondent's contentions that the 1953 amendments were not applicable anO that the matter should never have been referred to the revenue courts. The respondent thereupon appealed under Letters Patent.
The Bench held that ss. I 6, 16A and 16B of the Act were not intended to affect pending pr~ings, that the civil court could decide the question whethe.- tbe appellant was the respondent's tenant, in 1951·52, and allowed the appeal accepting the findings of the trial court
and the first appellate court that the appe11ant was not the respondent's tenant for the year 1951-52. In appeal to this Court, HELD : ( 1) It was open to the Letters Patent Bench to decide all points decided by the single Judges even though no appeal
was filed against the order referring the matter to the revenue courts, as that ordet SUPRE'.'dF. COURT RF.PORTS [1969] I S.C.R. was onlv an interlocutorv one to which s. 105(2) C.P.C.;
wa.< not applicable. [578H; 579A-B] Satyadlzyan Ghosa/ v. Smt. Deorajin Devi. [I 960] S.C.R. 590, followed. (2) The intention of the Legislature was not to anplv the 1953-Act to pendinq proceedin~s and therefore ~s. 16, 16A and 16B did not bar the juri~diction of the civi] courts in the present cas~.
The 1953-Act came into force a'(ter the trial court decreed the suit and an apocal 'vas pending in the first aoocllatc Court. The word!; 'suit or proceeding in s. I 6A do not ordinarily indic<1tc .-innella!c proceedings and there is nothing in ss. 16. I 6A or t 6R which can le:ld to the ncce,i.;ary inference that these prO\isions were intended to anp•v to appeals pendin~ when the 1953-Act came into force.
Further, the words used in s. 16B are 'cn'ertain' :incl not 'entenain and trv·. If the intention was to affect pendinl! p'rocccdin{!'; the \\'Ord 'trv' would have hccn in the section alODJ! with the word 'entertain'. [578 GE]
CIVIL APPELLATE JURISDICT!OS: Civil Appeal No. 1041 of 1965. Appeal from the judgment and decree dated Aui!Ust 9, 1962 of the Bombav High Court, Nagpur Bench, in Letters Patent Appeal No. 12 of 1961.
S. V. Natu and A. G. Ramaparkhi, for the arpelfant. S. N. Kherdekar and M. R. K. Pillai, for the respondent. The Judgment of the Court was deli~ered bv It Sikri, J. This appeal by certificate granted under Art. 133 (I) (a) and (b) of the Constitution is directed against the judg- ment of the Hi)!h Court of Judicature at Bombay. Nagpur Bench, in a Letters Patent appeal allowing the appeal and restoring the decree made in favour of the plaintiff Ganpatlal-respondent before us and hereinafter called the respondent-by the Trial Court as confinned by the Dislrict Court.
The facts relevant for the detennination of the points raised before us are as follows : The respondent. Ganoatlal, was the owner of Field Survey No. 56, measuring 25 ac.res 4 gunthas. in Ycotmal District.
It appears that the respondent used to lea~ the land to the defendant Dcwaji-appellant before us and here- inafter called the appellant–on ye..1rly lease. For the year 1950-51 he g~ve the land to the appellant on the condition that at the end of the year the lease will stand determined and the appellant will hand over possession.
On Mav 7, 1951, the res- pondent served a notice on the apoelfant requiring him to vacate the land in suit. The appellant however, continued to remain in possession. Thereupon the respondent filed a suit on September
17. 1951, praying for possession, damages and mesne profits. On November 15, 1951, the Berar Regulation of Agricultural .A ·G DEWAJI v. GANPATLAL (Sikri, J.) Leases Act, 1951 (Madhya Pradesh No. XXIV of 1951).-here-
inafter called the 1951 Act-came into force, s. 16 of which pro- vides as follows : "Except as otherwise provided in this Act, no Civil Court shall entertain any suit instituted, or application
made, to obtain a decision or order on any matter which a Revenue Officer is by or under this Act, empowered to determine, decide or dispose of." One of the pleas which the appellant took was that he had been recorded as a 'protected tenant' under the 1951 Act and that the Civil Courts had no jurisdiction to eject him in view of 8 of that Act. The Trial Court held that the appellant was not a protected tenant under s. 3(3) of the 1951 Act and the Civil Court had jurisdiction.
The appellant then appealed to the District Judge and the Additional District Judge held that the Civil Court had jurisdic- tion. He observed that "there is nothing in this section (s. 16 of the 1951 Act) to suggest that the powers of the Civil Court were in any way curtailed in regard to the question whether a particular person was a tenant or not under section 3 of the Act. Moreover, there is nothing in that Act to show that it was intended to apply to suits which were pending at the date when this Act came into force." By the time the appeal was heard by the Additional Dis- trict Judge, s. 16 of the 1951 Act had been substituted by ss. 16, 16-A and 16-B by the Berar Regulation of Agricultural Leases (Amendment) Act, 1953-hereinafter called the i953 Act. These sections run as foliows :
"16\1) Whenever any question arises whether any transacllon between a landholder and a person claiming to be his lessee is a lease within the meaning of this Act such question shall be decided by the Revenue Officer'.
( 2) In deciding the ques•tion referred to in sub- sectio?- (1) th~ Revenue Officer shall, notwithstanding anythmg contamed in section 92 of the Indian Evidence Act, 1872, or in section 49 of the Indian Registration
Act, 1908. or in any other law for the time being in force, have power to inquire into and determine the real nature of the transaction and shall be at liberty notwithstanding anything contained in any law as afore'.
said to admit evidence of any oral agreement or a state- ment or unregistered document with a view to such determination. (3) Any decision of the Revenue Officer under this section shall be binding on the parties to the proceedings and persons claiming through them.
SU?REMF. COURT REPORTS [1969] I S.C.R. 16-A (I) Whenever any question as is referred to in section 16 arises before a Civil Court in any suit or proceeding, tbc Court shall, unless such question ha'
already been determined by a Revenue Officer, refer the question to the Revenue Officer for decision and shall stay the suit or proceeding so far as it relates to the decision of such question.
. (2) The Civil Court shall accept the decision of the Revenue Officer on the question and decide the suit or proceeding before it accordingly. 16-B : Except as otherwise provided in this Act, no
Civil Court shall entertain any suit instituted. or appli- cation made. to obtain a decision or order on any matter which a Revenue Officer is by or under this Act, em- powered to dctenninc, decide or dispose of."
Before the Additional District Judge the appellant relied on these sections and asserted that the determination of the question whether a person is a tenant or not was, under the 1953 Act, a mauer entirely within the jurisdiction of the Revenue Courts and the jurisdiction of the Civil Courts had been ousted. The learned Additional District Judge repelled the argument and held that the 1953 Act did not affect pending proceedings.
The leame<l Additional District Judge thereupon dismissed the appeal. The appellant then appealed to the High Court. The appeal first came up for hearing before Vyas, J. By an order dated August 21, 1957, he held that in view of the amendments made by the 1953 Act, "it is not for the Civil Court to decide but for the Revenue Officer to detcm1ine whether in the year 1951-52
also the defendant was paying to his landlord every week by way of rent one-third share in the produce of the garden and was his lessee for that year also." He further observed that "if the an.,wer
to this question is in the affnnative, the defendant would he en- titled to all the benefits of a protected tenancy, as observed by the learned Chief Justice in Paika v. Rajeslzwar(')."
In the result he set aside the judgment and decree passed by the learned Addi- tional Di'11rict Judge and directed "that the rocord and proceed- ings in this case be sent to the Revenue Officer that is, the Sub- Dlv1sional Officer, Yeotmal, and the said Revenue Officer is direc- ted to decide whether the defendant's avennent is right or other- wise, namely, that even after the expiry of the year 1950-51, that is, even after 31st March, 1951, the defendant used to pay to his landlord, the plaintiff, every week by way of rent one-third share in the produce of the garden. The decision of the Revenue Officer —- ··- –
(I) [1957] Nag. LJ. 344. c c DEWAJI v. GANPATLAL (Sikri, I.) shall be subject to the usual course of appeal and revision, an~ when the question which is referred to the Revenue Officer by this judgment is finally decided by the hi~hest Revenue .Authority, .the finding shall be communicated to this Court.
Unt!J such . time that this Court receives a finding upon the quesuon mentmned above from the highest Revenue Authority, this appeal shall stand stayed. It shall be disposed of by this Court after the finding of the highest Revenue Authority is received by it"
The Revenue Court then remitted the finding. The Commis- sioner, which was the last Revenue Court, gave a finding confirm- ing the one as given by the Sub-Divisional Officer that the appel- lant was paying rent to the respondent for the year 1951-52. The appeal was then heard by Badkas, J. It was argued
'before him that Vyas, J., should not have referred the issue to the Revenue Officer for decision under s. 16 of the 1951 Act, but Badkas, J., held that it would not be apPropriate for him to sit in judgment over the decision given by Vyas, J., and that the refer- enee made by Vyas, J., under s. 16 of the 1951 Act had to be accepted.
Accepting the finding of the Revenue Courts, Badkas,. J., held that the ~espondent was not entitled to eject the appellant. He further held that i1 was not necessary to decide whether the 1951 Act was retrospective or not as the 1951 Act came into foree during the year in which the defendant held survey numbers in question as lessee. He accordingly allowed the appeal.
Having obtained leave, the respondent appealed under the Letters Patent. It was urged before the Letters Patent Bench on behalf of the appellant that the Bench could not deal with the question whether the 1953 Act applied to pending proceedings on the ground that this point had not been argued before the learned Single Judge. The Bench found no substance in this con- tention as the point had been raised before the learned Single Judges. The Bench further held that there was no bar to the question of applicability of the 1953 Act being allowed to be raised.
Dealing with fue merits, the Bench held that "taking the scheme of the Act into account and the fact that there is no section in the Act which makes the Act applicable to pending proceedings, it is at once clear that it was not intended to affect pending proceed- ings.
Pending proceedings must continue unaffected by the pro- vision of the Act and whatever questions arose in those proceed- ings must be decided by the Civil Courts." The Bench then accepting the finding of the Civil Courts, held that there was no defenee to the suit and the suit must succeed. The Bench also repelled the argument that it was not open to it to consider the entire merits of the Second Appeal as the leave had . 578
[1969] I S C.R . been given by Badkas, J., and not by Vyas, J. The Rench ob- served that 1here was no substance in the contention since the judgment of Vyas, J., was never open to the appeal it being an interlocutory judgment.
The learned counsel for the appellant contend' that ss. 16, i 6A and 16B, as substituted by the 1953 Act, had clearly ousted the jurisdiction of the Civil Courts and Vya<;, J ., was right in sending the case to Revenue Courts for decision on the question whether the appellant was a tenant in 1he year 1951-52 or not. He stresses the word "whenever" appearing in s. 16 and says that this is a wide word and no limitation can be placed on it.
In our view there is no substanee in this contention. The first point to be noticed in this connection is that the 1953 Act came into force after the Trial Court had decreed the suit and an appeal was pend- ing before the District Judge.
It cannot be disputed that if the Legisla·ture intends to oust the jurisdiction of Civil Courts, it must say so expressly or by necessary implication. We cannot find any words in ss. 16, l 6A and l 6B which can lead to the neces- sary inference that these provisions were intended to apply to ai>- peals pending when the 1953 Act came into force. It is true tha1 the word "whenever" is wide but s. I 6A uses the words "suit or proceeding" and these words do not ordinarily indicate appellate proceedings.
Further, s. l 6B uses the word "entertain" and not the words "entertain or try any suit" as contained in s. 15 (2) of the 195 ! Act. If the intention was to affect pending proceedings. the word "try" alongwith the word "entertain" would have been used in s. 16B of the 1953 Act. It seems to us that the intention was not to apply the 1953 Act to pending appeals. If ss. 16A and 16B do not bar the jurisdiction of the Civil Courts in ~his -case the Letters Patent Bench was ri~ht in accepting the findings given by the Trial Court and the District Court in holding that the appellant was not a tenant for the year 1951-52.
The learned counsel then contends that it was not open to the Letters Patent Bench to decide this question of the arplicability of ss. 16, 16A and 16B because Vyas, J., had decided to the contrary and had not given leave to appeal against his order.
It seems to us that the order of Vyas, J., was interlocutory and it was not necessary for the respondent to o~ain separate leave to appeal agai11st this order. It was open to the Letters Patent Bench to decide all points decided by Vyas. J., in the interlocutory order da1ed August 21, 1957. At any rate the same point was raised before Badkas, J. Further as held by this Court in Satyadhya11 Ghosa/ v. Sm. Deoraji11 Devi('), "an interlocutory order which did not terminate the proceedings and which had not been appeal- ed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from (I) [19601 J S.C.R. 590.
c II • ' – DEWAJI V. GANPATLAL (Sikri, J.) the final decree or order." Section 105(2), C.P.C., does not apply in this case, and therefore, the Letters Patent Bench was entitled to go into the validity of the order passed by Vyas, J. The learned counsel then urges that this was a new point and the Letters Patent Bench should not have allowed it to be taken. But we agree with the Bench that the poin1 had been raised before the learned Single Judges. In view of this it is not necessary to decide whether a new point can be taken up in a Letters Patent appeal or not.
In the result the appeal fails and is dismissed with costs. V.P.S. Appeal dismissed. L13Sup. C!./68-6