# GUNDAJI SATWAJI SHINDE v. RAMCHANDRA BHIKAJI JOSHI

- **Citation:** [1979] 2 S.C.R. 586
- **Court:** Supreme Court of India
- **Decided:** 1978-12-05
- **Bench:** P. N. Siunghal, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gundaji-satwaji-shinde-v-ramchandra-bhikaji-joshi-7615
- **Pages:** 19

## Headnote

Bombay Tenancy and Agricultural Lands Act, 1948 (Born. Act LXVII of
1948)-&. 63, 70, 85 & 85A-S. 70 made Mamlatdar authority to decide whe·
ther a person ·was an agriculturist-s. SSA barred jurisdiction of civil court in
questions arising under s. 70--Suit for specific perfonnance of sale of agricul·
tural land in civil court-Civil court lvhcthcr ·cotnpetent to decide incidental
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question if vendee is an agriculturist.
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Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 prohi·
bits the sale of agricultural land to a person who is not an agriculturist.
One
of the duties of the Mamlatdar, under s. 70. of the Act, is to decide whether a
person is an agriculturist and "\ivhether a transfer or acquisition of land i5 invalid
being in contravention of the Act.
Section 85 bars the jurisdiction of a civil
court to settle, decide or deal with any question which is by or under the Act
i3 required to be settled, decided or dealt with by the Mamlatdar, or the authority 1nentioned in the section.
The Bombay High Court in a case coming before it on the interpretation
of 1. 85 held that \\'here in a suit in a civil court an issue arises which has to
be decided under the provisions of s. 70, the civil court should refer the parties
to the competent authority under the Tenancy Act to get the question decided
~nJ such c;ecision \vculd be binding on the civil court. Taking note of this decision s. S5i\. \\'as added to the Tenancy Act, enabling the civil court to iefer the
issue to fi:1e competent authority to decide which the jurisdiction of the civil
court iR- barred under s. 85.
The plaintiff's ~uit for ~pecific performance of a contract for sale of land
w~ re~istcd by the defendant alleging that since he (the plaintiff), was not an
a~riculturist, he was prohibited by s. 63 of the Tenancy Act from purchasing
agricultural 1and and the contract being contrary to the provisions o! the Act
is not capable of being specifically enforced.
The trial court dismissed the plaintiff's suit on the ground that he 'vas not
an agriculturist. It held that the issue \Vhethcr or not the plaintiff was an agriculturist being: incidental in a suit for specific performance of a contract the
civil court had jurisdiction to decide such incidental issues. On app~ul the High
Court held that the civil court which had jurisdiction to entertain a :>uit for
specific performance, it would have jurisdiction to decide the incidental issue
whether the plaintiff was an agriculturist or not.
The question before the Supreme Court was where in a suit for specific performance, an issue arose whether the plaintiff was an agriculturist or not on
the date of agreement whether the civil court would have jurisdiction to decide
the issue or it is required to refer it to the ~famlatdar under s. 70 read with
s. SSA.
Allowing the appeal and remitting the case to the trial court for·
disposal.
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G. S. SIITNDE V. R, B. JOSHI
587
HELD : 1. The Legislature having expressly ousted the juri:i;diction of the civil
court to settle, decide or deal with any question \1.rhich is by or under the Tenancy
Act required to be settled, decided or dealt with by any of the authorities therein
mentioned the authority to decide the issue whether the vendee was an agriculturist would be the Mamlatdar as provided in s. 70(a). [592 G]
2. Th,~ expression "any issues which are required to be settled, decided or
dealt \\'ith by any authority competent to settle, decide or deal with such issues
under this Act" in s. 85A would only mean that, if upon contest an issue which
is required To be settled, dec;dcd and dealt with by the competent authority under
the Tenancy ,\ct o.rfr.;es, notwithstanding the fact that such an issue arises in a
properly constitulcd civil suit cognizable by the civil court, it would have to
b'c referred to the competent authority under the Tenancy Act.
[594H-595 Bl
3. Ii.Jere because jurisdiction is conferred on the Mamlatdar to decide whether a person is an agriculturi

## Text

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586
A
GUNDAJI SATWAJI SHINDE
v.
RAMCHANDRA BHIKAJI JOSHI
December 5, 1978
B
[P. N. SIUNGHAL AND D. A. DESAI, JJ.]
Bombay Tenancy and Agricultural Lands Act, 1948 (Born. Act LXVII of
1948)-&. 63, 70, 85 & 85A-S. 70 made Mamlatdar authority to decide whe·
ther a person ·was an agriculturist-s. SSA barred jurisdiction of civil court in
questions arising under s. 70--Suit for specific perfonnance of sale of agricul·
tural land in civil court-Civil court lvhcthcr ·cotnpetent to decide incidental
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question if vendee is an agriculturist.
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B
Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 prohi·
bits the sale of agricultural land to a person who is not an agriculturist.
One
of the duties of the Mamlatdar, under s. 70. of the Act, is to decide whether a
person is an agriculturist and "\ivhether a transfer or acquisition of land i5 invalid
being in contravention of the Act.
Section 85 bars the jurisdiction of a civil
court to settle, decide or deal with any question which is by or under the Act
i3 required to be settled, decided or dealt with by the Mamlatdar, or the authority 1nentioned in the section.
The Bombay High Court in a case coming before it on the interpretation
of 1. 85 held that \\'here in a suit in a civil court an issue arises which has to
be decided under the provisions of s. 70, the civil court should refer the parties
to the competent authority under the Tenancy Act to get the question decided
~nJ such c;ecision \vculd be binding on the civil court. Taking note of this decision s. S5i\. \\'as added to the Tenancy Act, enabling the civil court to iefer the
issue to fi:1e competent authority to decide which the jurisdiction of the civil
court iR- barred under s. 85.
The plaintiff's ~uit for ~pecific performance of a contract for sale of land
w~ re~istcd by the defendant alleging that since he (the plaintiff), was not an
a~riculturist, he was prohibited by s. 63 of the Tenancy Act from purchasing
agricultural 1and and the contract being contrary to the provisions o! the Act
is not capable of being specifically enforced.
The trial court dismissed the plaintiff's suit on the ground that he 'vas not
an agriculturist. It held that the issue \Vhethcr or not the plaintiff was an agriculturist being: incidental in a suit for specific performance of a contract the
civil court had jurisdiction to decide such incidental issues. On app~ul the High
Court held that the civil court which had jurisdiction to entertain a :>uit for
specific performance, it would have jurisdiction to decide the incidental issue
whether the plaintiff was an agriculturist or not.
The question before the Supreme Court was where in a suit for specific performance, an issue arose whether the plaintiff was an agriculturist or not on
the date of agreement whether the civil court would have jurisdiction to decide
the issue or it is required to refer it to the ~famlatdar under s. 70 read with
s. SSA.
Allowing the appeal and remitting the case to the trial court for·
disposal.
•
•
G. S. SIITNDE V. R, B. JOSHI
587
HELD : 1. The Legislature having expressly ousted the juri:i;diction of the civil
court to settle, decide or deal with any question \1.rhich is by or under the Tenancy
Act required to be settled, decided or dealt with by any of the authorities therein
mentioned the authority to decide the issue whether the vendee was an agriculturist would be the Mamlatdar as provided in s. 70(a). [592 G]
2. Th,~ expression "any issues which are required to be settled, decided or
dealt \\'ith by any authority competent to settle, decide or deal with such issues
under this Act" in s. 85A would only mean that, if upon contest an issue which
is required To be settled, dec;dcd and dealt with by the competent authority under
the Tenancy ,\ct o.rfr.;es, notwithstanding the fact that such an issue arises in a
properly constitulcd civil suit cognizable by the civil court, it would have to
b'c referred to the competent authority under the Tenancy Act.
[594H-595 Bl
3. Ii.Jere because jurisdiction is conferred on the Mamlatdar to decide whether a person is an agriculturist within the meaning of the Tenancy Act, it does
not ipso facto oust the jurisdiction of the civil conrt to decide that i'lsue if it
arises b<:fore it in a civil suit. Unless the },1amla~dar is const~~utcd an exclusive
forum to dc·.::de the question, conf~rn1cnt of su::h juri~dtction \\.Ould not oust
the juri~,diction of the civil court. It is settled la\V that exclusion of jurisdiction
of the civil court is not to be readily inferred but that such exclus:on must either
be explicity expressed or clearly implied. [592 D-EJ
Secreftay of State v. Mask, 67 IA 222: referred to.
4. The finding of the competent authority under the Ten;:;,ncy Act is D:1ade
binding on the civil court.
The jurisdiction of the civ] court to 'lettlc, decide
or deal \Vith any issue \Vhich is required to be settled, decided or dealt with by
any competent authority under the Act is totally oustc:d.
TI1i<> would lead to
the condusion th:tt the Mamlatdar while perfonn:ng the function and discharging his duties conferred on hin1 by s. 70 \.\·oultl con'ltilutc an exclusive fo~u1n.
Section 70(a) requires the ~farnlatdar to dC"c.de \\'hcthcr a pcr<;on is an agricuiturist.
Therefore, if an issue arises in a ci•il 1:ourt whether a per-,on ::.; an agriculturist \.vithin the meaning of the Tenan~y Act, the l\farnlatdar ;_!lane \\Ou!d
have exdusiYc jurisdiction under the Act to dcc:dc the s:i.r.1e and the juri!:,di('.Jio:-i
of the civil court is ousted. The civil ccurt, as required b'll s. SSA, 1viil b~,ve to
fran1e ;:in
i~c·n.: and refer it to the 11amlntd2r and on the
refcrcn~c hcing
answered back, io dispose of the suit in accordance v,rith the decis:on rc:ordEd by
the c~_i1n;:;e'crit ai1thc::·it:,r.
[593(1,
59~. CJ
Dhondi Tukal'(/!t! ltiali v. Dadoo Piraji Adf:alc, 55 Born. LR 663, Tritnhak
Sopana Ginne v. Gangaran1 Mhataraba Ylidav, 55 Born. LR 56; approYcd.
Mu;·,;,1rniya ln1an1 Haider Bax Razi·i v. Rabari (Jovindbhai 1?.atnab.liai &
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Ors. 11969] l S.C.R. 785. rxphined.
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Bhin1aji Shanker Kulkarni v. Dundappa Vi1happa Udapudf & Anr., [1966] 1
SCR 145 at 150: !shrrrlal Thakorelal Alnu~ula v. Motibhai ]\ia~jihhai, [1966] 1
SCR 367; Jambu Rao Satappa Kocheri v. Neminath Appayya Hancnunanr;aver,
[19681 3 SCP~ 706; and I\Too:· A1ohd. Khc!n Chou~c Khan S01:dagar v. Eakil'appa
Bhannappa lvfachenahalli & Ors., [1978] 3 SCC 188; r>::ferl'cd to.
CrvrL APPELLATE JURISDICTION : Civil Appeal No. 1280 o' 1969.
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Appeal from the Judgment and Order dated 7-9-1968 of the Bombay
High Court in LP.A. No. 117 of 1968.
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588
SUPREME COURT REPORTS
[1979] 2 S.C.R.
U. R. Lala, Nanjul Kumar and K. J. John for the Appellant.
R. B. Datar and Lalit Bhardwaj for Respondents J-5 ( d).
The Judgment of the Court was delivered by
DESAI, J.-This appeal by certificate arises out of Special Civil
Suit No. 39/66 filed by the appellant-original plaintiff for specific
performance of a contract dated 15th December 1965 for sale of land
admeasuring 45 acres 5 gunthas bearing Survey No. 25 situated in
Sholapur Mouje Dongaon in Maharashtra State for a consideration of
Rs. 42,000/- out of which Rs. 5,000/- were paid as earnest money and
a further amount of Rs. 5,000/- was paid on 22nd April 1966 when
the period for performance of the contract for sale was extended by
six months, which suit was dismissed by the trial Court and the plaintiff's First Appeal No. 117 /68 was dismissed by the Bombay High
Court.
Plaintiff claimed specific performance of a contract dated
15th
December 1965 coupled with supplementary agreement dated
26th
April 1966 for sale of agricultural land. This snit was resisted by the
defendant, inter alia, contending that the land which was the subjectmatter of contract was covered by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 ('Tenancy Act', for short) and
as the. inteμding purchaser, the plaintiff was not an agriculturist within
the meaning of the Act, section 63 of the Tenancy Act prohibited him
from purchasing the land and, therefore, as the agreement was contrary to the provisions of the Tenancy Act the same cannot be specifically enforced.
The plaintiff sought to repel the contention by producing a certificate Ext. 78 issued by the Mamlatdar certifying that the
plaintiff was an agricultural labourer and the bar imposed by s. 63 of
the Tenancy Act would not operate. Plaintiff also contended that if
the Court does not take note of Ext. 78, an issue on the pleadings
would arise whether the plaintiff is an agriculturist and in view of the
provisions contained in s. 70(a) read with ss. 85 and SSA of the Tenancy Act the issue would have to be referred to the Memlatdar for
decision and the Civil Court would have no jurisdiction to decide the
issue.
Th" tri1'1 Court held that the certificate Ext. 78 had no cvidentiary value and was not valid.
On the question of the plaintiff being
an agriculturists the trial Court itself recorded a finding that the plaintiff
was not an agriculturist. On the question of jurisdiction to decide the
issue whether the plaintiff is an agriculturist, the trial Court was of the
opinion that it being an incidental issue in a suit for specific performance of contract, which suit the Civil Court has jurisdiction to try, it
will also have jurisdiction to decide the incidental or subsidiary issue
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G. s. SHINDE v. 1'., B. JOSHI (Desai, !.)
589
and recorded a finding that the plaintiff was not an agriculturist. In
accordance with these findings the plaintiff's rnit was dismissed.
Jn
appeal by the plaintiff, the High Court agreed with the finding of the
trial Court with regard to the validity ofj certificate Ext. 78.
On the
question of jurisdiction of the trial Court to decide the issue about the
plaintiff being an agriculturist, the High Court agreed with the trial
Court observing that Civil Court has undoubtedly jurisdiction to entertain a suit for specific perfonnance, and \Vhi1e considering the n1ain
issue whether specific performance should be granted or not, c'vil Court
will have to consider whether there are prima facie any facts on account of which granting of specific performance would result into a
transaction forbidden by law and, therefore, civil Court w111 have jurisdiction to decide the subsidiary issue whether the plaintiff is an agriculturist. The High Court accordingly dismissed the appeal while agreeing with the trial Court that the plaintiff had failed to prove that he
was an agriculturist and specific performance of contract for sale of
agricultural land cannot be granted in his favour.
Mr. Lalit for the appellant did not invite us to determine the validity of certificate Ext. 78 certifying that plaintiff is an agricultural labourer. Therefore, the question which must engage our attention is whether Civil Court will have jurisdiction to decide an issue arising in a
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snit for specific performance of contract for sale of agricultural land
governed by the provisions of the Tenancy Act that the person seeking
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specific performance was or was not an agriculturist and, therefore,
ineligible to purchase the land in view of the bar imposed by s. 63 of
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the Tenancy Act.
This necessitates examination of the relevant provisions of the Tenancy Act.
Section 2(2) of the Tenancy Act defines agriculturist to mean a
person who cultivates land personally. The expression 'land' is defined
in s. 2 ( 8) to mean ; (a land which is use<l for agricultural purposes or
which is so used but is left fallow and includes the sites of farm buildings appurtenant to such land; and (b) for purposes of sections including ss. 63, 64 and 84C (i) the sites of dwelling houses occupied
by agriculturists, agricultural labourers or artisans and land appurtenant
to such dwelling houses; (ii) the sites of structures used by agriculturists for allied pursuits. Section 63 which forbids transfer of agricultural land to non-agriculturists, reads as under :
"63. (1) Save as provided in this Act-
( a) no sale (including sales in execution of a decree of
a Civil Court or for recovery of arrears of land revenue or
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SUPREME COURT REP{IRTS
[1979] 2 S.C.R.
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for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or
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(b) no mortgage of any land or interest therein, in which
the possession of the mortgaged property is delivered to the
n1ortgagee,
shall be valid in favour of a person who is not an agriculturist
or who being au agriculturist will after such sale, gift, exchange,
lease or mortgage, hold land exceeding two-thirds of tl1e ceiling area determined under the Maharashtra
Agricultural
Lands (Ceiling on Holdings) Act, 1961, or who is not au
agricultural labourer;
Provided that the Collector or an officer authorised by the
State Government in this behalf may grant permission for
such sale, gift, exchange, lease or mortgage, on such conditions as may be prescribed".
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The next important section in this context is s. 70 which defines duties
and prescribes function of the Mamlatdar, the relevant portion of which
reads as under :
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"70. For the purposes of this Act the following shall be
the duties and functions to be performed by the Mamlatdar :
(a) to decide whether a person is an agriculturist;
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(mb) to issue a certificate under section 84A, and decide
under section 84B or 84C whether a transfer or acquisition
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of land is invalid and to dispose of land as provided in section 84C".
Section 85 bars jurisdiction of the civil Courts to decide certain
issues and s. 85A provides for reference of issues required to be decided
under the Tenancy Act to the competent authority set up under the
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'l;enancy Act. They are very material for decision of the point herein
raised and they may be reproduced in extenso :
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"85. (I) 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
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G. s. SHINDE v. R. B. JOSHI (Desai, J.)
591
Mamlatdar or Tribunal, a Manager, the Collector or the
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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
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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.. (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 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
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thereupon dispose of the suit in accordance with the procedure
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applicable thereto.
Explanation-For the purpose of this section a Civil Court
shall include a Mamlatdar's Court constituted under the Mamlatdars' Courts Act, 1906".
There is no controversy that the land purported to be sold by the
contracts for sale of land Exts. 82 and 83 is land used for agricultural
purposes and is covered by the definition of the expression 'land' in s.
2(8) (a). The plaintiff thus by the contracts for sale of land Exts. 82
and 83 purports to purchase agricultural land.
Section 63 prohibits
sale of land inter alia, in favour of a person who is not an agriculturist.
If, therefore, the plaintiff wants to enforce a contract for sale of agricultural land in his favour he has of necessity to be an agriculturist.
The defendant intending vendor has specifically contended that the
plaintiff not being an agriculturist he is not entitled to specific performance of the contract. Therefore, in a suit filed by the plaintiff for
Specific performance of contract on rival contentions a specific
issue would arise whether the pfaintiff is an agriculturist because if he
is not, the Civil Court would be precluded from enforcing the contract
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SUPREME COURT REPORTS
[1979] 2 s.c.R.
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as it would be in violation of a statutory prohibition and the contract
would be unenforceable as being prohibited by law and, therefore, opposed to public policy.
The focal point of controversy is where in a suit for specific performance an issue arises whether the plaintiff is an agriculturist or not,
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would the Civil Court have jurisdiction to decide the issue or the Civil
Court would have to refer the issue under s. 85A of the Tenancy Act
to the authority constituted under the Act, viz., Mamlatdar.
Uninhibited by the decisions to which our attention was invited,
the matter may be examined purely in the light of the relevant proC
visions of the statute.
Section 70(a) constitutes the Mamlatdar a forum
for perfonning the functions and discharging the duties therein specifically enumerated. One such function of the Mamlatdar is to decide
whether a person is an agriculturist. The issue arising before th·~ Civil
Court is whether the plaintiff is an agriculturist within the meariing of
the Tenancy Act. It may be that jurisdiction may be conferred on the
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Mamlatdar to decide whether a person is an agriculturist within the
meaning of the Tenancy Act but it does not ipso facto oust the jurisdiction of the civil Court to decide that issue if it arises before it in a civil
suit. Unless the Mamlatdar is constituted an exclusive forum to decide
the question hereinabow mentioned
confennent of such jurisdiction
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would not oust the jurisdiction of the civil Court. It is settled law
that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed
or clearly implied (sec Secretary of State i-. Mask)('). However, by
an express provision contained in s. 85 the jurisdiction of the Civil
Court to settle, decided or deal with any question which is by or under
the Tenancy Act required to be settled, decided or dealt by the competent authority is ousted.
The Court must give effect to the policy
underlying the statute set out in express terms in the statute. There
is, therefore, no escape from the fact that the legislaure has expressly
ousted the jurisdiction of the civil Court to settle, decide or deal with
any question which is by or under the Tenancy Act required to be
settled, decided or dealt with by any of the authorities therein mentioned
and in this specific case the authority would be the Mamlatdar as provided in s. 70(a).
When the Tenancy Act of 1948 was put on the statute book, s. ~SA
did not find its place therein.
A question arose while giving eifoct
to the provisions contained in ss. 70 and 85 as to what should be done
where in a suit in a civil Court an issue arises to settle, decide or
(l) 67 I.A. 222.
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G. s. S!IlNDE v. R. B. JOSHI (Desai, J.)
593
deal with which the jurisdiction of the civil Court is ousted under s. 85.
The Bombay High Court which had initially to deal with this problem,
resolved the problem by holding that in such a situation the civil suit
should be stayed and the parties should be referred to the competent
authority under the Tenancy Act to get the question decided by the
authority and on such decision being brought before the Civil Court,
it will be binding on the civil Court and the civil Conrt will have to
dispose of the suit in accordance therewith.
While so resolving the
problem immediately facing the Court, an observation was made that
provision should be introduced in the Tenancy Act for enabling the
civil Court to transfer the proceeding to the competent authority under
the Tenancy Act having jurisdiction to decide the issue and iu respect
of which the jurisdiction of the Civil Court is barred (see Dhondi Tukaram Mali v. Dadoo Piraji Adgale) ('). The Legislature took note of this
suggestion and promptly introduced s. 85A in the Tenancy Act by
Bombay Act XIII of 1956.
The legislative scheme that emerges from
a combined reading of ss. 70, 85 and 85A appears to be that when in
a civil suit properly brought before the Civil Court an issue arises on
rival contentions between the parties which is required to be settled,
decided or dealt with by a competent authority under the Tenancy Act,
the Civil Court is statutorily required to stay the suit and refer such
issue or issues to such competent authority under the Tenancy Act for
determination.
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 the Tenancy Act and shall communicate
its decision to tl1e civil Court and such court shall, thereupon dispose of
the suit in accordance with the procedure applicable thereto. To avoid
any conflict of decision arising out of multiplicity of jurisdiction by civil
Court taking one view of the matter and the competent authority under
the Tenancy Act taking a contrary or different view, an express provision is made ins. 85(2) that no order of tl1e competent authority made
under the Act shall be questioned in any civil Court.
To complete
the scheme, sub-s. (2) of s. 85A provides that when upon a reference
a decision is recorded by the competent authority under the provisions
of the Tenancy Act and the decision is communicated to the civil Court,
such Court shall thereupon dispose of the suit in accordance with the
procedure applicable thereto.
'.fhus, the fmding
of the
competent
authority under the Tenancy Act is made binding on the civil Court. It
would thus appear that the jurisdiction of the civil Court to settle,
decide, or deal with any issue which is required to be settled, decided
or dealt with by any competent authority under the Tenancy Act is
totally 0usted.
This would lead to inescapable conclusion that the
(1) 55 Born. LR. 663.
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594
SUPREME COURT REPORTS
[1979] 2 S.C.R.
Mamlatdar while performing the function and discharging duties as are
conferred upon him by s. 70, would constitute an exclusive forum,
to the exclusion of the civil Court, to decide any of the questions tbat
may. arise under any o:f the snb-<:Iauses of s. 70.
Section 70(a)
reqwres the Mamlatdar to decide whether a person is an agriculturist.
Therefore, it an issne arises in a civil Court whether a person is an
agriculturist within the meaning of the Tenancy Act, the Mamlatdar
alone would have exclusive jurisdiction under the Tenancy Act to decide
the same and the jurisdiction of the Civil Court is ousted. The Civil
Court as reqnired by a statutory provision contained in s. ~5A, will
have to frame the issue and refer it to the Mamlatdar and on the
reference being answered back, to dispose of the suit in accordance ... ..,.
with the decision recorded by the competent authority on the relevant
issue.
To translate it into action, if the Mamlatdar were to hold that
the plaintiff is not an agriculturist, obviously his suit
for
specific
performance in the Civil CO\Ufl would fail because he is ineligible to
purchase agricultural land and enforcement of such a contract wonld
be violative of statute and, therefore, opposed to public policy.
The High Court was of the view that the jurisdiction of 1he Civil
Court to settle, decide or deal with any question which arises under
the Tenancy Act and which is required to be settled, decided or dealt
with by the competent authority under the Tenancy Act would alone be
barred under s. 85. Proceeding therefrom, the High Court was of the
opinion that if an issue arises in a properly constituted civil suit which
the civil Court is competent to entertain, an incidental or subsidiary issue
which may arise with reference to provisions of the Tenancy Act, the
jurisdiction of the Civil Court to decide the same would not be ousted
because the issue is not required to be decided or dealt with under
the Tenancy Act.
This view overlooks and ignores
the provision
contained in s. 85-A. There can be a civil suit properly constituted
which the Civil Court will have jurisdiction to entertain but therein
an issue may arise upon a contest when contentions are raised by the
party against whom the civil suit is filed.
Upon such contest, issues
will have to be framed on points on which parties are at varianc~ and
which have to be determined to finally dispose of the 'uit. If any
such issue arises which is reqnired to be settled, decided or dealt with
by the competent authority under the Tenancy Act, even if it arises iii
a civil suit, the jurisdiction of the civil Court to settle, clccide and deal
with the same would be barred by the provision contained in s .. 85 and
the civil Court will have to take recourse to the provision contained in
s. 85A for reference of the issue to the competent authority under the
Tenancy Act.
Upon a proper construction the expression "any issues
which are required to be settled, decided or dealt with by any authority
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G. s. SHINDE v. R. B. JOSHI (Desai, !.)
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competent to settle, decide or deal with such issues under this Act" iu
s. SSA would only mean that if upon assertion and denial and consequent contest an issue arises in the context of the provisions of the
Tenancy Act and which is required to be settled, decided and dealt
with by the competent authority under the Tenancy Act, then notwithstanding the fact that such an issue arises in a properly constituted
civil suit cognizable by the Civil Court, it would have !r> be referred
to the competent authority under the Tenancy Act.
Any Nher view
of the matter would render the scheme of ss. SS and SSA infructuous
and defeat the legis4tive policy (see Bhimaji Shallker Kulkarni v.
Dundappa Vithappa Udapudi & A nr.) (1) The construction suggested
by the respondent that the bar would only operate if such an issue
arises only in a proceeding under the Tenancy Act, could render s. SSA
infructuous or inoperative or otiose.
Neither the Contract Act nor the
Transfer of Property Act nor any other statute except the Tenancy Act
prohibits a non-agriculturist from buying agricultural la_nd. The prohibition was enacted in s. 63 of the Tenancy Act.
Therefore, if a persOlfi
intending to purchase agricultural land files a suit for enforcing a contract entered into by him and if the suit is resisted on tlie ground
that the plaintiff is ineligible to buy agricultural land, not for any other
reason except that it is prohibited by s. 63 of the Tenancy Act, an
issue whether plaintiff is an agriculturist would directly and substantially
arise in view of the provisions ol the Tenancy Act.
Such an issue
would indisputably arise under the Tenancy Act though not in a proceeding under the Tenancy Act.
Now, if, s. 85 bars the jurisdiction
'(Jf the Civil Court to decide or deal with an issue arising under the
Tenancy Act and if s. 85A imposes an obligation on the civil CQurt
to refer such issue to the competent authority under the Tenancy Act,
it would be no answer to the provisions to say that the issue is an
incidental issue in a properly constituted civil suit before a civil Court
having jurisdiction to entertain the same.
In fact s. 85A comprehends
civil suits which civil Courts are competent to decide but takes note of
the situation where upon a contest an issue may arise therein which
would be required to be settled, decided or dealt with by the competent
authority under the Tenancy Act, and, therefore, it is made obligatory
for the civil Court not only not to arrogate jurisdiction to itself to
decide the same treating it as a subsidiary or incidental issue, but to
refer the same to the competent authority under the Tenancy Act.
This is an inescapable legal position that emerges from a combined
reading of ss. SS and SSA.
This can be clearly demonstrated by an
illustration.
Plaintiff may file a suit on title against a defendant for
possession of land on the allegation that defendant is a trespasser. The
(ll [1966] l S.C.R. 145 at 150.
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defendant may appear and contend that the land is agricultural land
and he is a tenant.
The suit on title for possession is clearly within the
jurisdiction of the civil Court.
Therefore. the civil Court would be
competent to entertain the suit.
But upon the defendant's contest the
issue would be whether he is a tenant of agricultural land.
Section.
70(a) (ii) read with ss. 85 and 85A would preclude the civil Court
from dcali!lg with or deciding the issue. In a civil suit nomenclature
<Jf the issue as principal or subsidiary or substantial or incidental issue
is hardly helpful because each issue, if it arises, has to be determined
to mould the final relief.
Further, sections 85 and SSA oust jurisdiction
of civil Court not in respect of civil suit but in. respect of questio,ns
and issues arising therein. and s. SSA mandates the reference of such
issues as are within the' competence of the competent authority. If there
is an issue which had to be settled, decided or dealt with by competent
authority under the Tenancy Act, the jurisdiction of the civil Court,
notwithstanding the fact that it arises in an incidental manner in a
civil suit, will be barred and it will have to be referred to the competent
authority under the Tenancy Act.
By such camouflage of treating
issues arising in. a suit as substantial or incidental or principal or subsidiary, civil Court cannot arrogate to itsclfi jurisdiction which is statutorily ousted.
This unassailable legal position. emerges from the
relevant provisions of the Tenancy Act.
Turning to some of the precedents to which our attention was
in.vite<l, it would be advantageous to refer to the earliest decision of
the Bombay High Court which had the opportunity to deal with the
scheme of law un.der discussion in. Trimbak Sopana Ginne v. Gangaram
Mhatarba Yadav(').
In. that case plaintiff filed a suit against the
defendant for actual poosession. on the allegation. that the defendan~
was a trespasser and the defendant contested the suit contending that
he was a protected tenant within the meaning of the Tenancy Act.
The trial Court came to the conclusion that an issue would arise whether
the defendant was a protected tenant and such an issue was triable
by the Mamlatdar under s. 70(b) of the Tenancy Act, and the trial
Court had no jurisdiction. to try the issue.
Accordingly the trial Court
ordered the plaintiff to present the suit to the proper court. It may
be noticed that at the relevant time s. 85A was not introduced in the
Tenancy Act.
In an appeal by the plainti!I the appellate court reversed·
the finding that a suit on, title for posses§ion. alleging that the defendant
was a trespasser was a properly constituted civil suit and if in such
a suit defendant raises a contention. that he is a protected tenant it
would be a subsidiary issue and would not oust the jurisdiction of the
(I) 55 Born. L.R. 55.
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G. s. SHINDE v. R. ll. JOSHI (Desai, J.)
597
Court because if the civil Court proceeding with the suit comes to the
conclusion that the defendant is a trespasser it would be fully competent to dispose of the suit.
The defendant carried the matter to; the
High Court and Chagla, C.J., analysing the scheme of ss. 70 and 85
of the Tenancy Act, held that in order to avoid the conflict of jurisdiction and looking to the scheme of the sections, the legislature has
left to the Mamlatdar to decide the issue whether the defendant is a
protected tenant or not and it implies that he must decide that the
defendant is not a trespasser in order to hold that he is a tenant or
protected tenant, and that he must also hold that he is a trespasser
in order to determine that he is not a tenant or a protected
tenant,
and·
even
while
strictly
construing
the
prov1s1ons
of
a
statute ousting the jurisdiction of the civil Court, the conclusion is
inescapable that all questions with regard to th~ status of a party, when
the party claims the status of a protected tenant, are left to be determined by the Revenue Court and the jurisdiction of the Civil Court
is ousted.
This very contention kept ou figuring before the Bombay High Court
and J. C. Shah, J. in one of the Second Appeals before him analysed
some cooflicting decisions bearing on the interpretation of ss. 70 and
85 specifically with regard to the ouster of jurisdiction of civil court to
settle, decide or deal with those questions which are required to be
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Tenancy Act, and referred th~ matter to a Division Bench. The Division Bench in Dhondi Tukaram Mali, (supra) while affirming the ratiq
in Trimbak Sopana Girme, (supra) further obserevd that thd Jcgislature
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should by specific provision provide for transfer of such suits where
issues arise in respect of which the competent authority under the
Tenancy Act is constituted a forum of exclusive jurisdiction so as to
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avoid the dismissal of the suit by the civil Court or being kept pending
for a long time till the competent authority disposes of the issue which
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it alone is competent to determine.
The legislature took note of this
decision of the Bombay High Court and introduced s. 85A by Bombay
Act XIII of 1956 which came into force from 23rd March 1956.
In Bhimaji Shanker Kulkarni, (supra) this very question o.rose in
a suit filed by the plaintiff for possession of the suit property on
redemption of a mortgage and taking of accounts on the allegation,
that defendant no. 1 was a usufructuary mortgagee under a mortgage
deed, dated 28th June 1945. The defendants pleaded that the transacG
tion of June 28, 1945 was an advance lease and not a mortgage, and
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they were protected tenants within the meaning of the Tenancy Act.
The trial Court passed a decree holding that the transaction evidenced
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SUPREME COURT REPORTS
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by the deed is a composite document comprising of a mortgage and a
lease and on taking account• of the mortgage debt it is found that
plaintiff owed nothing to the defendants on the date of the suit aRd
the mortgage stood fully redeemed.
A further direction in the decree
was that the plaintiff is at liberty to seek his remedy for possession
of the suit lands in the revenue courts.
The plaintiff carried the matter
in appeal to the appellate court who partly allowed tlte appeal affirming
that the inortgage is satisfied and nothing is due under the mortgage
and the direction of the trial Court that plaintifI w:is at liberty to seek
his remedy for possession of the suit Jands in th0 r::~
1:cnue courts \vas
confir111ed and the rest of the decree, n<.1.n1cly,
Lh~~t the t:o~JJ11cnt Ext.
43 evidencing the transaction \Vas a co1npc.,·itc docun1cnt sbo\ving a
mortgage and a lc?se was set aside and a direction \V<ts fivcn that the
record and proceedi_ngs do go back to the trial cc:>urt who should give
three months' time to the plaintiff for !\ling proper proceedings in the
1"cnancy Court for determining as to v . .r11ethcr dcfc:1dant 1 i~ a tenant.
Some consequential order \Va~ also n1~H'.~.
·r11c pluintiff :::~.rricd the
matter in second appeal to t:;c High Court of Mysore w11:ch, while
dismissing the appeal observed that the civil court had no jorisdiction
to determine the nature of the tr:i.nsa::tio1~ v;hcn the conteiltion ._,.as
that it evidenced advance lt~asc fo11o·\ved by lhc tcn~::1cy of defendant
no. 1 and, therefore, the only proper dircctio~ is the one given by th•
trial Court to refer the isstfe to the Marnlatdar ;_'.s to \Vhcther 1he
defendant is a lessee under Ex~. 43 and 0-1 the r21'crcncc being ans\Ycrcd
back, the suit should be. disposed of in accoid~ince ·therewith. The
plaintiff brought the matter before th;s Court.
Tc:is Court in terms
approved the decision of the B;:;;11bay r1~f~'- Court !n Dlzondf :·rikar1.un
Mali (supra) observing as tlllder:
"Jn Dhondi Tukaram's case the Court expressed the hope
that the legislature would n1ake ~,uitable ;Jr1cnd1r..c 11ts. i11 the
Act.
The Bombay Legislature approved of the decision,
and gave effect to it by intnxlnci'1g s. f'5A by the a!"ending
Bombay Act XIII of 1956.
Section 85A proceeds upon the
assumption that though the Civil Court has otherwise jurisdiction to try a sujt, it \Vill have no _:urisdiction to try an
issue arising in the suit, if the issue _ii; re.quired to be s~ttled,
decided or dealt with by the Mamlatdar or otlitr competent
authority under the Act,
and on that assumption, s. 85A
provides for suitable machinery for reference of the issue to
the Mamlatdar for his decision.
Now, the /.;J'.:rn1;,tdn hos
jurisdiction under s. 70 to decide the several i•sues sr-cified
therein "for the purposes of this Act", and before the i:l'.roduction of s. 85A, it was a debatable
point whether the
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G. s. SHINDE v. R. B. JOSHI (Desai, !.)
599
expression "for the purpose• of this Act" meant that the
Mamlatdar had jurisdiction to decide those issues only in some
proceeding before him under some specific provision of the
Act, or whether he had jurisdiction to decide those issues
even though they arose for decision in a suit properly
cognisable by a Civil Court, so that the jurisdiction
0£ the Civil Court to try those issues in the suit was taken
away by s. 85 read with s. 70, Dhondi Tukaram's case
settled the point, and held that the Mamlatdar had. exclusive
jurisdiction to decide those issues even though they arose for
decision in a suit properly cognisable by a Civil Court. The
result was somewhat startling, for normally the Civil Court
has jurisdiction to try all the issues arising in a suit properly
cognisablc by it.
But having regard to the fact that the
Bombay Legislature approved 0£ Dhondi Tukaran1's case and
gave effect to it by introducing s. 85A, we must hold that
the decision correctly interpreted the law as it stood before
the enactment of s. 85A.
It follows that independently of
s. 85A and under the law as it stood before s. 85A came mto
force, the Courts below were bound to refer to the Mamlat,hr
the decision of the issue whether the defendant is a tenant".
It would thus appear that even when a properly constituted suit
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facie on a contention being raised by the defendant an issue may arise
which the Civil Court would not be competent to try and the legislature
stepped in to avoid the conflict of jurisdiction by introducing s. 85A
maldng it obligatory upon the Civil Court to refer such an issue to
the competent authority under the Tenancy Act.
Any controversy that
such an issue is a primary issue or a subsidiary issue and hence Iriable
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by Civil Court must be said to have been resolved by laying down
that the Civil Court will have no jurisdiction ro try the same even if
•uch an issue arose in a properly constitued civil suit cognisable by
the civil Court.
And the ratio of the decision is that a contention
raised by the defendant may have the necessary effect to oust the
jurisdiction of the civil Court in resp""t of the contention which is to
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be disposed of before the suit can be disposed of one way or tl1e other.
In lshverlal Thakorelal Almaula v.