# ISHVERLAL THAKORELAL ALMAULA v. MOTIBHAI NAGJIBHAI

- **Citation:** [1966] 1 S.C.R. 367
- **Court:** Supreme Court of India
- **Decided:** 1965-08-10
- **Bench:** K. N. Wanchoo, J. C. Shah, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ishverlal-thakorelal-almaula-v-motibhai-nagjibhai-3580
- **Pages:** 15

## Headnote

Bombay Tenancy and Agricultural Lands Act 67 of 1948-Proviso
to s. 43C-lntroduced by Bombay Act 13 of 1956-Whether protect$
tenants In suits filed after enactment of BOJmbay
Act 33 pf 1952Ss. 70 and 85-Jurisdlction of Civil
Courts-Scope of-ProviSo-If
a substantive provision.
In June 1939, the appellant granted tenancy of certain lands for agricultural purposes, at first to the respondent's father, and later to the resM
pondent. The tenancy was continued from year to year under fresh
agreements.
After serving a notice on the respondent
in
November
1955 to deliver vacant possession of the lands in March 31, 1956, the
appellant filed a suit
for ejectment. The trial court decreed the appellant's claim, but in appeal the District Judge reversed this
decision ~n
the ground that under the· proviso to s .. 43C, of the Bombay Tenancy
and Agricultural Lands Act 67 of 1948, the respondent was a protected
tenant within the meaning of that Act, read with the Bombay Tenancy
Act, 1939; and that the civil court had no jurisdiction to grant a decree
for possession of the land in dispute.
An appeal to the High Court was
dismissed.
In the appeal to this Court,
HELD: (per Shah and Wanchoo, JJ.)
(i) The provi>o to s. 43C aiforts protection to the tenant if the tenant
bad the protection of the Act of 1948 as originally enacted, notwithstanding that the protection was taken away by the Bombay Tenancy and
Agricultural Lands (Amendment) Act, 1952.
Protection of the proviso
to 1. 43C must be given to the tenant even in cases where it is claimed in
a lllit filed before the amending Act of 1956 was enacted, if the suit is
not finally disposed of. [376 G-H]
Pat•/ Maganbhai Jethabhai v. Somabhai Sursang, (1958) 60
Bom.
LR. 1383, approved.
The proper function of a proviso is to except or qualify som..thing
enacted in the substantive clause, which but for the proviso would be
within that clause.
But
the question is one of interpretation of
the
proviso; there is no rule that the proviso must always be restricted to the
ambit of the main enactment and it may at times amount to a substantive
provision, [373 F, G]
(ii) The order passed by the District Judge dismissing the suit could
not be sustained.
Under s. 85A, introduced into Act 67 of 1948 by Act 13 of 1956, even
in a suit properly instituted in the civil court, if any issue arises which
is required to be decided by the revenue court, such issue shall be referred
for trial to that court, and the suit shall be disposed of in the light of
that decision.
The District Judge should have referred the questi.>ns relating to the tenancy and its determination wbich arose in the suit, to be
368
SUPRl!MB COURT ltEPORTS
[ 1966] 1 S.C.R.
tried by the Mamlatdar u a revenue court and should not have proceeded
A
to dilposc of the suit. (378 C.D, HJ
Pandurang Hari v. Shanker Maruri, 62 Bom. L.R. 873 and Kalicharan
Bha/anlal Bhayya v. Roi Malw/axmi and Anr., 4 Guj. L.R. 145, copgidcrcd.
(per :-.ludbolk.ar, J. di.Jseming) The benefit of the proviso to s. 43C
would be available only to a person who is or claims to be a tenant or
protected tenant under the Act. Under s. 70, the question whether or nol
a penoo is a protected tenant is to be determined by the Mamlatdar acting
B
u a revenue court and by virtue of s. 85 ( 1) no civil court has jurisdietion to consider such a claim.
No sooner such a claim is malie before
a civil court, it must stay it• hands and refer the question to the Mamlaldar, who has exclusive jurisdic:ion to adjudicate on the facts in issue
between the parties as well 39 to detennine the
effect of the
various
prnviaions of law bearing on the point. [379 F-380 CJ
It is not open to this court to examine for itself the various enactment>,
C
comt111C tho provisions, and state its conclusions as to their applicability
to the present case. The jurisdiction to do any of these things in ao
appeal of thil kind ii barred by the combined operation of ss. 70(b) and
85(1). (381 CJ
Paika DcuaTlt Bhan.fl• v. Rajeshwar Bala

## Text

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367
ISHVERLAL THAKORELAL ALMAULA
v.
MOTIBHAI NAGJIBHAI
August 10, 1965
(K. N. WANCHOO, J. C. SHAH AND J. R. MUDHOLKAR, JJ.J
Bombay Tenancy and Agricultural Lands Act 67 of 1948-Proviso
to s. 43C-lntroduced by Bombay Act 13 of 1956-Whether protect$
tenants In suits filed after enactment of BOJmbay
Act 33 pf 1952Ss. 70 and 85-Jurisdlction of Civil
Courts-Scope of-ProviSo-If
a substantive provision.
In June 1939, the appellant granted tenancy of certain lands for agricultural purposes, at first to the respondent's father, and later to the resM
pondent. The tenancy was continued from year to year under fresh
agreements.
After serving a notice on the respondent
in
November
1955 to deliver vacant possession of the lands in March 31, 1956, the
appellant filed a suit
for ejectment. The trial court decreed the appellant's claim, but in appeal the District Judge reversed this
decision ~n
the ground that under the· proviso to s .. 43C, of the Bombay Tenancy
and Agricultural Lands Act 67 of 1948, the respondent was a protected
tenant within the meaning of that Act, read with the Bombay Tenancy
Act, 1939; and that the civil court had no jurisdiction to grant a decree
for possession of the land in dispute.
An appeal to the High Court was
dismissed.
In the appeal to this Court,
HELD: (per Shah and Wanchoo, JJ.)
(i) The provi>o to s. 43C aiforts protection to the tenant if the tenant
bad the protection of the Act of 1948 as originally enacted, notwithstanding that the protection was taken away by the Bombay Tenancy and
Agricultural Lands (Amendment) Act, 1952.
Protection of the proviso
to 1. 43C must be given to the tenant even in cases where it is claimed in
a lllit filed before the amending Act of 1956 was enacted, if the suit is
not finally disposed of. [376 G-H]
Pat•/ Maganbhai Jethabhai v. Somabhai Sursang, (1958) 60
Bom.
LR. 1383, approved.
The proper function of a proviso is to except or qualify som..thing
enacted in the substantive clause, which but for the proviso would be
within that clause.
But
the question is one of interpretation of
the
proviso; there is no rule that the proviso must always be restricted to the
ambit of the main enactment and it may at times amount to a substantive
provision, [373 F, G]
(ii) The order passed by the District Judge dismissing the suit could
not be sustained.
Under s. 85A, introduced into Act 67 of 1948 by Act 13 of 1956, even
in a suit properly instituted in the civil court, if any issue arises which
is required to be decided by the revenue court, such issue shall be referred
for trial to that court, and the suit shall be disposed of in the light of
that decision.
The District Judge should have referred the questi.>ns relating to the tenancy and its determination wbich arose in the suit, to be
368
SUPRl!MB COURT ltEPORTS
[ 1966] 1 S.C.R.
tried by the Mamlatdar u a revenue court and should not have proceeded
A
to dilposc of the suit. (378 C.D, HJ
Pandurang Hari v. Shanker Maruri, 62 Bom. L.R. 873 and Kalicharan
Bha/anlal Bhayya v. Roi Malw/axmi and Anr., 4 Guj. L.R. 145, copgidcrcd.
(per :-.ludbolk.ar, J. di.Jseming) The benefit of the proviso to s. 43C
would be available only to a person who is or claims to be a tenant or
protected tenant under the Act. Under s. 70, the question whether or nol
a penoo is a protected tenant is to be determined by the Mamlatdar acting
B
u a revenue court and by virtue of s. 85 ( 1) no civil court has jurisdietion to consider such a claim.
No sooner such a claim is malie before
a civil court, it must stay it• hands and refer the question to the Mamlaldar, who has exclusive jurisdic:ion to adjudicate on the facts in issue
between the parties as well 39 to detennine the
effect of the
various
prnviaions of law bearing on the point. [379 F-380 CJ
It is not open to this court to examine for itself the various enactment>,
C
comt111C tho provisions, and state its conclusions as to their applicability
to the present case. The jurisdiction to do any of these things in ao
appeal of thil kind ii barred by the combined operation of ss. 70(b) and
85(1). (381 CJ
Paika DcuaTlt Bhan.fl• v. Rajeshwar Bala/I A wari, (1958) Bom. LR. 8
(P.B.), re~rred to.
C1v1L APPELLA TB JUR!SDICTION : Civil Appeal No. 210 of
1%3.
Appeal by special leave from the judgment and order dated
April 30, 1959 of the Bombay High Court in second appe.!I
No. 439 of 1959.
S. T. Desai, S. N . .Andley, Mohinder Narain, Rameshwar Nath
and P. L. V ohra, for the appellants.
S. S. Shukla, for the respondent.
The Judgment of Wanchoo and Shah, JJ. was delivered by
Shah. J. Mudholkar, J. delivered a dissenting Opinion.
Shah, J,
On June 18, 1939, lshverlal Almaula-hcreinafter
called 'the appellant'-granted for agricultural purposes tenancy
rights in land bearing Survey Nos. 52 & 158 at Kanbivaga in
the town of Broach to Nagjibhai, father of the respondent, and
since that date the land continued to remain in the possession of
Nagjibhai and after his death of his son Motibhai. By letter dated
November 2, 1955
the appellant terminated the tenancy and
called upon the respondent to deliver vacant possession of the
land on March 31, 1956, and filed on April 4, 1956 Suit No.
180 of 1956 in the Court of the Civil Judge, Senior Division.
at Broach for a decree in ejcctmcnt against the respondent and
for mesne profits.
The Civil Judge decreed the appellant'~ claim.
In appeal the District Judge, Broach reversed the decree of the
Trial Coun and dismiwd the sui~. He held that in view of tlle
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JSHVERLAL V. MOTJBHAI (Shah, J.)
369
A proviso to s. 43C incorporated in the Bombay Tenancy and
Agricultural Lands Act 67 of 1948 by Bombay Act 13 of 1956,
the respondent continued by virtue of the amendment by Act 13
of 1956 to remain a tenant, and tlie Civil Court had no jurisdiction to grant a decree for possession of the land in dispute.
In
reaching that conclusion the learned Judge followed the decision
B of the Bombay High Court in Pntel Maganbhai Jethabhai v.
Somabhai Sursang. (')
A second appeal to the High Cour1: of
Bombay was dismissed summarily.
With special leave, the appellant has appealed to this Court.
Counsel for the appellant raised two contentions in support
C of the appeal :
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( 1) That the rights of tlie respondent in the land
conferred or recognised by virtue of Bombay Act 67
of 1948 were extinguished on the enactment of Bombay
Act 33 of 1952, and by the amendments made by Act
13 of 1956 '(which was brought into force during the
pendency of the suit) tliose rights were not restored to
the respondent so as to prejudice the appellant's claim
to evict him; and
(2) that the Civil Court was competent in the suit
filed by the appellant to grant a decree for possession
of the land held by the respondent.
Facts which have a bearing on the question raised in this
appeal and the relevant statutory provisions may be briefly set
out. The land in dispute is situate within the limits of the Broach
F Borough Municipality.
Nagjibhai-father of the respondent and
after his death the respondent were tenants of the land since June
1939, the tenancy being continued year afrer year under fresh
agreements.
Notice calling upon the respondent to vacate and
deliver possession of the land on March 31, 1956 was given in
terms of s. 84 of the Bombay Land Revenue Code, 1879.
The
G Bombay Tenancy Act 29 of 1939 was applied on April 11, 1946
to the area in which the land is situate, and the name of Nagjibhai
was entered in the Record of Rights as a protected tenant under
the Bombay Tenancy Act 29 of 1939 as amended by Bombay
•
Act 26 of 1946. By the Bombay Tenancy and Agricultural
Lands Act 67 of 1948, which was brougM into force on DecemH
ber 28, 1948, the Bombay Tenancy Act 29 of 1939 stood repealed, subject to the reservation that ss. 3, 3A and 4 of the
(I) (1958) 6\J Bom. L. R. 1383.
370
SUPIU!MB COUllT llEPORTS
[1966) I S.C.R.
repealed Act as modified by the Schedule to the repealing Act
A
remained
operative.
The status of the respondent und~r the
Bombay Tenancy Act 29 of 1939 remained, even after the repeal
of that Act, protected by virtue of s. 31 of Act 67 of 1948 as
originally enacted.
A tenant was defined
in Act 67 of 1948
as meaning an
agriculturist who holds
land
on
lease
and
includes a
person who is deemed to be a tenant under the provision.s of the
Act [s. 2(18)J. '·Land"' was defined hy s. 2(~) as "land which
is used for ag'."icultural purposes, and includes" amongst others
sites of farm buildings and sites of dwelling houses occupied by
agriculturists.
Section 5 of the Act provided that no tenancy of
any land shall be for a period of less than ten years, and that
no renancy shall be terminated before the expiry of the period
of ten years except on the grounds mentioned in s. 14.
Section
14 provided that :
" (I) Notwithstanding
any
agreement,
usage,
decree or order of a Court of law, the tenancy of any
land held by a tenant shall not be tem1inated unless
such tenant"
has done acts or committed defaults specified in els. (a) to (e).
It may be sufficient to state that under s. 14 a notice calling upon
the tenant to vacate and deliver possession of the land demised
on the expiry of the contractual period of the annual tenancy does
not operate to determine the tenancy.
By sub-s. (2) of s. 29 it
was enacted that a landlord shall not obtain possession of land
held by a tenan~ except under an order of the Mamlatdar. Chapter Ill dealt with the special rights and privileges of protected
tenants.
By s. 32 it was provided that notwithstanding anythin!!
(to the) contrary in any law, usage or contract, a protected
tenant shall at any time be entitled to purchase from the lan~lord
the land held by him as a protected tenant. Section 34 prescribed
certain other restricrions upon the landlord's right to determine
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a protected tenancy. The first sub-section gave liberty to a landlord to determine a protected tenancy notwithstanding anything
contained in s. I 4, by giving one year's notice in writing, if the
landlord bona fide required the land,
(I) for cultivating personally, or (2) for any non-agricultural use of his own purpose.
H
The Act also provided a special forum for determination of questions required to be settled, decided or dealt with by the Act.
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ISHVERLAL V. MOTIBHAI (Shah, J.)
371
A By s. 70 the duties of the Mamlatdar were specified.
The se~
tion, in so far as it is material, provided :
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"For the purposes of this Act, the following shall
be the duties and functions to be performed by the
Mamlatdar-
(a)
(b) to decide whether a person is a tenant or a
protected tenant;"
Section 85 provided by its first sub-seccion :
"No Civil Court shall have jurisdiction to settle,
decide, or deal with any question which is by or under
this Act required to be settled, decided or dealt with
by the Mamlatdar or Tribunal, a Manager, the Collector or the Bombay Revenue Tribunal in appeal or
revision or the Provincial Government in exercise of
their powers of control,"
and for the purpose of this section, a civil court includes a
Mamlatdar's Court constituted under the Mamlatdars' Court'S Act,
1906.
Therefore, by Act 67 of
1948 the rights of protected
tenants acquired under the Bombay Tenancy Act, 1939, were,
notwithstanding the repeal of that Act, preserved, a tenancy
E
agreement was to be for a period of not less than ten years, and
the tenancy could not be determined before the expiry of the
period otherwise than for reasons set out in s. 14, and possession
of land demised to a tenant could not be obtained otherwise than
by an order of the Revenue Court under s. 29(2). A landlord
F could determine a protected tenancy on the grounds mentioned
in s. 34, but a protected tenant had a right to purchase the land
occupied by him.
The jurisdiction of the Civil Court "to deal
with or decide any question which is by or under the Act required
to be dealt with, settled or decided by" the Revenue Court was
excluded and the Revenue Courts were invested with exclusive
G jurisdiction for the purpose of the Act to decide several questions
including the question whether a person was a tenant or a
protected tenant.
When Bombay Act 67 of 1948 was brought into force in the
town of Broach, the respondent acquired right'S which a renant
H
could claim under that Act and his rights flowing from the status
of a protected tenant remained expressly preserved.
But the
Legislature thereafter enacted Bombay Act 33 of 1952 with effect
from January 12, 1953 and by the amendment to s. 88 !which
372
SUPREME COURT REPORTS
[l96b] I S.C.R.
exciuded lands in certain areas and of specified descriptions from
A
the operation of ss. 1 to 87 of th" Bombay Act 67 of 1948) lands
situate within all municipal boroughs constituted under Act 18 of
1925 ceased to be governed by Act 67 of 1948. Taking advantage
of the amendment by Bombay Act 33 of 1952 the appellant purported to terminate as from March 31, 1956 the tenancy by a
notice in accordance with s. 84 of the Bombay Land Revenue
B
Code, 1879, and commenced an action in the Civil Court for a
decree for possession.
During the pendency of the action, s. 88
was again amended by Act 13 of 1956.
The Legislature by
that Ac~ repealed cl. ( c) of s. 88 as it stood modified by Act 33
of 1952 and restricted the exemption from the operation of the
Act to lands belonging to the Government and certain other lands.
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The effect of the amendment was to restore to tenants of lands
within certain municipal boroughs (such lands not falling within
the dci;cription of lands described in s. 88 as amended and ss. 88A
to 88C as inserted) the protection of the Bombay Tenancy and
Agricultural Lands Act 67 of 1948 as originally enacted. It is
D
common ground that the land with which we arc concerned in
this appeal i~ not of the description in ss. 88 and 88A to 88C
of the Act as amended by Act 13 of 1956.
The Legislature also enacted by Act 13 of 1956 s. 43C which
by the proviso sought to restore with retrospective effect the rights
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which had been previously acquired under the Bombay Tenancy
and Agricultural Lands Act 67 of 1948 on or after December 28,
1948, notwithstanding that the Bombay Act 33 of 1952 bad been
made applicable to the area in which the land is situate.
Section
43C provided :
"Nothing in sections 32 to 32R
(both inclusive)
and 43 shall apply to lands in the areas within the
limits of-
(a) Greater Bombay,
F
(h) a municipal corporation constituted under the
G
Bombay Provincial Municipal Corporation Act,
1949,
( c) a municipal borough constituted under the Bombay
Municipal Boroughs Act, 1925,
(d) a municipal district constituted under the Bombay
H
District Municipal Act, 1901,
(e) a cantonment, or
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ISHVERLAL V. MOTIBHAI (Shah, J.)
373
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(f) any area included in a Town Planning Schedule
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under the Bombay Town Planning Act, 1954:
Provided that if any person has acquired any right
as a tenant under this Act on or after the 28th December, 1948, the said right shall not be deemed to have
been affected by the Bon1bay Tenancy and Agricultural
Lands (Amendment) Act, 1952, or (save as expressly
provided in section 43D), by the Amending Act, 1955,
notwithstanding the fact that either of the said Act has
been made applicable to the area in which such land
is situate."
The decision in this appeal must primarily depend upon the·
meaning and effect of the proviso to s. 43C.
The enactment of
tlle proviso, it may be observed, illustrates how clumsy drafting
obscures the meaning of a statute.
The proviso appears to he
entirely out of place in the scheme of the substantive part of
s. 43C, which excludes from the operation of ss. 32 to 32R and
43, lands in the areas specified in els. (a) to (f), and cl. (c)
specifies one of such areas as "a municipal borough constituted
under the Bombay Municipal Boroughs Act, 1925".
Sections 32
to 32R as inserted by Act 13 of 1956 deal with the purchase of
lands held by tenants on April 1, 1957, and to related matters and
s. 43 imposes restrictions on the transfer of lands purchased by
virtue of the right reserved under ss. 32, 32F or 32-0 or sold
under ss. 32-P or 64 of the Act.
The proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso
would be within that clause.
It may ordinarily be presumed in
construing a proviso that it was intended that the enacting part
of the section would have included the subject-matter of the
proviso.
But the question is one of interpretation of the proviso :
and there is no rule that the proviso must always be restricted
to the an1bit of the main enactment.
Occasionally in a statute
a proviso is unrelated to the subject-matter of the preceding section, or contains matters extraneous to that section, and it may
have then to be interpreted as a substantive provision, dealing
independently wfoh the matter specified therein, and not as qualifying the main or the preceding section.
By the substantive clause of s. 43C the tenants do not acquire
H
in respect of lands described therein rights conferred by ss. 32
to 32R : that part of s. 43C is therefore in the nature of a qualification or an exception, and functions as a proviso to ss. 32 to
•
374
SUPREME COURT REPORTS
[1966] l S.C.R.
32R.
The proviso to s. 43C goes on, not to carve out an exception--0r to impose a qualification to the exclusion prescribed by
the main enactment, but deals with a matter which is unrelated
thereto.
In terms it seeks to protect ·rigllts acquired or arising
not under ss. 32 to 32R (which were added by Act 13 of 195~)
but under the principal Act 67 of 1948 on or after December
28, 1948, and those rights are protected not from the operation
of the substantive part of s. 43C, but from the operation of Act
33 of 1952, or of "the Amending Act of 1955". It may be
recalled that by Act 33 of 1952, the Act ceased to apply to land
within the municipal boroughs, but the intention disclosed by
the proviso to s. 43C was to declare that all rights acquired by
persons as tenants under the principal Act were to continue to
remain available to them in respect of lands within the Municipal
Boroughs as if Act 33 of
1952 were
never enacted.
The
"Amending Act of 1955" is no other than Act 13 of 1956 [see
the definition of "permanent tenant" in s. 2( lOA) added to the
principal Act ands. 1 (1) of Act 13 of 1956].
The Legislature
has by referring to the "Amending Act of 1955" sought aiso to
protect, save as cxp~essly provided in s. 43D, the rights acquired ·
under Act 67 of 1948, notwithstanding the amendments made
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by Act 13 of 1956. Bys. 48 of Act 13 of 1956, the scheme of
exemption from the operation pf the Act of certain provisions
thereof was extensively amenped in respect of different classes of E
land.
Section 88 of Act 67 of 1948 as originally enacted was
substituted by ss. 88, 88A, 88_B, 88C & 88D.
But this modified
scheme of exemption and other provisions of the Act were by
virtue of the proviso to s. 43C not to affect the rights of tenants
acquired on or after ·December 28, 1948 under Act 67 of 1948,
save as expressly provided by s. 43D.
F
Counsel for, the appellant, however, urged that even if the
proviso to s. 43C be read as dealing substantively with matters
specified therein,. it does not CO)Ile to the aid of the respondent,
because at the date when Act 13 of 1956 was enacted, the tenancy
of the resp9ndent stood· determined accbrding to law, as it then
applied to the. land~ and the respondent had ceased to be a tenant.
In the absence of express enactment to the contrary, said counsel,
the rights of the appellant to obtain possession of the land accord·
ing to the law prevailing, from a person who was at the date of
the suit not a tenant, could not be deemed to be restricted by
the enactment of Act 13 of 1956. In support of this contention,
counsel strongly. relied upon s. 89(2)(b) of· Act 67 of 1948
which provided :
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ISHVERLAL v. MOTIBHAI (Shah, J.)
37 5
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"But nothing in this
Act or any repeal effected
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thereby-
( a)
(b) shall save as expressly provided in !his Act, affect
or be deemed to affect,
( i) any right, title, interest, obligation or liability
already acquired, accrued or incurred before
the commencement of this Act, or
(ii) any legal proceeding or remedy in respect of
any such right, title, interest,
obligation or
liability or anything done or suffered before
the commencement of this Act,
and any such proceedings shall be continued and disposed of, as if this Act was not passed."
~n our view sub-s. (2) of s. 89 which incorporates, with some
variations, the provisions found in s. 7 of the Bombay General
Clauses Act 1 of 1904, relating to the operation of provisions
which repeal statutes, has no relevance in considering the effect
of the amendments made by Act 13 of 1956.
Sub-section (2)
of s. 89 in terms protects (save as expressly provided in the Act)
right, title, interest, obligation or liability acquired, accrued or
incurred "before the commencement of this Act" i.e. Act 67 of
1948. and it also protects legal proceedings or remedies in respect of any such right, title, interest, obligation or liability or
anything done or suffered "before the commencement of this Act".
The appellant does not seek to enforce a right acquired before the
Act 67 of 1948 was enacted, and a suit instituted for a decree
for possession of lands pursuant to a determination of tenancy by
a notice in 1956 is not a suit in respect of a right or title acquired
or accrued "before the commencement of this Act" within !he
meaning of s. 89(2).
The argument of counsel if based on the
assumption that the expression commencement of this Act means
commencement of Act 13 of 1956, but for that assumption there
is no warran~ in the language of the statute.
The alternative contention of counsel for the appellant that
by virtue of s. 7 of the Bombay General Clauses Act 1 of 1904
also legal proceedings to enforce rights acquired before Act 13
of 1956 was passed were saved, has no force.
By s. 7 of the
General Clauses Act the repeal of an enactment shall not inter alia
affect any right, privilege, or liability acquired, accrued or incurred under any enactment so repealed or affect any investigation, legal proceeding or remedy in respect of any such right,
371)
SUPREME COURT
REPORTS
[1966] I S.C.R.
privilege, obligation. liability etc. and any such investigation, legal
A
proceeding or remedy may be instituted or continued or e~f:'rced
as if the repealing Act had not been passed.
Act 13 of 1956
may in so far as it seeks to substitute the new scct;ons 8i> and
88A ;o g;m for the old section 88 be regarded as a re~·1Iing
enactment.
Section 7 of the Bombay General Clauses Ac\ however, applies ~nly if a different intention docs not appear, and a
B
different intention clearly appears from the teems of the n-·ovi<o
to s. 43C which state tha~ the rights acquired by a pcr~on as a
tenant under Act 67 of 1948 on or after December 28. 1 9.tR
arc not to be deemed affected by Act 33 of 1952.
The provi--o
therefore by cxprC'.<s enactment saves the rights acquired under
Act 67 of 1948 before Act 33 of 1952 was enacted.
C
The respondent became on the enactment of Act 67 of \ 9.\8
entitled as a tenant to the diverse rights conferred by thctt Act.
The right to claim that every contractual tenancy is statutorily
extended for a period of ten years, the right to claim that the
tenancy may not be determined otherwise than in circumstances
D
mentioned in s. 14, and in case of protected tenants subject to
restrictions imposed by s. 34, the right not to be deprived of
possession otherwise than by an order under s. 29(2), were some
of those rights vested in the respondent before Act 33 of 1952
was enacted.
These and other rights were restored to the tena·~l'
~ctrospectivdy from the date on which Act 33 of 1952 was enE
acted by virtue of 1he express provision contained in the orovi"''
to s. 43C.
The Lef•i<Iaturc having restored the rights ori~inally
granted under Act 67 of 1948 with retrospective operation from
the date on which Act 33 of 1952 was enacted. a person sued,
heforc Act 13 of 1956 was ·brought into force, could in a pending
>uit set up the defence that he is entitled to the rights or a ~cnant
F
or a protected tenant.
In Parr/ Maganbhai f!>rhabhai's case(') the Bombay High
Court held that the proviso to s. 43C affords protection to the
tenant if the tenant had the protection of the Act of 1948 a.,
originally enacted, notwithstanding that the protection was taken
G
away by the Bombay Tenancy and Agricultural Lands (Amendments) Act, 1952.
The Bombay High Court also held that the
protection of the proviso to s. 43C must be given to the tenant
even in cases where it is claimed in a suit filed before the amendment was enacted. if the suit is no~ finally disposed of.
We a!?fCC
with the Bombay High Court on both the questions decided in
H
Patel Maganbhai Jethabhafs case. ( 1 ).
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(I) (t9S8) 60 Bom. LR. 1383.
..
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ISHVERLAL V. MOTIBHAI (Shah, J.)
377
A
But the order passed by the District Judge dismissing the sui~
cannot be sustained.
The learned District Judge passed the order
of dismissal of the suit, presumably because a similar order was
passed in Patel Maganbhai Jethabhai's case.(') It was assumed
in Patel Maganbhai Jethabhai's case(') that the Mamlatdar in
whose Court the suit was instituted was competent to decide the
B
various issues relaHng to the rights claimed by the tenant. It is
not clear from the judgment in Patel Maganbhai Jethabhai's
case(') whether the suit was instituted in the Court of the Mamlatdar exercising his power under s. 5 of the Mamlatdars' Courts
Ac~ 2 of 1906.
Bys. 85 of Act 67 of 1948 a Mamlatdar's Court
constituted under Act 2 of 1906 is a Civil Court, whereas a Mame latdar exercising powers under s. 29(2) is a Revenue Court. In
the present case, the suit was properly entertained by the Civil
Court, but since the enactrnen~ of Act 13 of 1956 the Civil Court
could not try certain issues arising therein, because those issues
were triable by virtue of s. 70 of Act 67 of 1948 exclusively by
D the Revenue Court.
There is, however, nothing in Act 67 of
1948 which prevents continuation of the suit already instituted.
In such a suit the issues exclusively triable by the Revenue Court
by the combined operation of ss. 70 & 85 will have to be tried
by the Mamlatdar as a Revenue Court, and a decree in ejectment against a tenant may, since the enactment of Act 13 of 1956,
E not be made by the Civil Court. The proper procedure in such
a case is that the Civil Court should refer to the Revenue Court
all such issues as are triable exclusively by that Court by virtue
of the combined operation of ss. 70 & 85. The Civil Court may
then pass such decree or order as is consistent with the adjudication of the Revenue Court. If the Revenue Court is of the view
F
that the relation of landlord and tenant subsisted and the tenancy
had been duly determined in the manner provided by s. 14 or by
s. 34 if the tenant is a protected tenant, it may be necessary to
obtain from the Revenue Court in an appropriate proceeding an
order under s. 29(2).
It may be pertinent in this connection to refer to s. 85A
G which was added by Act 13 of 1956. The section, insofar as it
is material, provided :
" ( 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,
H
decide or deal with such issues under this Act (hereinafter referred to as the "compete11~ authority") the
(I) (1958) 60 Bom. L.R. 1383.
378
SUPREME COURT
REPORTS
[1966] I S.C.R.
Civil Court shall stay the suit and refer such issues to
such competent authority for determination.
( 2) On rcecipt of such reference from the Civil
Court, tl1e 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.
Exrifmiativ11.-for purpose of this section a Civil
Court shall include any Mamlatdar's Court constituted
under the Mamlatdars' Courts Act, 1906."
Whatcva may have been the position before Act 13 of 1956, the
Legislature has clearly exprcss~d its imcntion that even in a suit
properly instirutd in the Civil Court, if any issue arises which
is required to be decided by the Revenue Court, the issue shall
be rckrrcd for trial to that Court, and the suit shall be disposed
of in the light of that decision.
TI1e Legislature has therefore
clearly expressed itself that issues required under Act 67 of 1948
to be decided by a Revenue Court, even if arising in a civil sui~
must be decided by the Revenue Court and not by the Civil Court.
The view expressed by the Bombay High Court in Pandurang Hari
A
c
D
v. Shanker Maruti(') and by the Gujarat High Court in Kalicharan
E
Bhaja11/al Bhayya v. Bai Mahalaxmi widow of Trikamlal &
Another,(') that a suit properly instituted in the Civil
Court
before Act 13 of 1956 is not liable to be dismissed merely because
the rights acquired by tenants under Act 67 of 1948 are retrospectively restored is correct, but we are unable to agree with the
Bombay and the Gujarat High Courts that the Civil Court i~ competent to adjudicate upon the issues which are by Act 67 of 1948
required to be decided by the Revenue Court.
The finding recorded by the District Judge that the Civil
Court had no jurisdiction to hear the suit and the ultimate order
passed by him dismissing
the plaintiff's suit are therefore not
strictly accurate. If the appellant desired that the questions relating to the tenancy and its derermination which arose in the suit
be tried by the Mamlatdar as a Revenue Court, which that authority alone was competent to decide, the District Judge should have
referred to the Revenue Court those questions for determination
and should not have proceeded to dispose of the suit.
We accordingly set aside the decree passed by the High Court ancl the
(I} 62 Born. L. R. 873.
(2) ~ G1rj. L R. 14S.
G
H
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ISHVERLAL v. MOTIBHAI (Mudholkar, I.)
379
A District Court and direct that the District Couri do restore the
appeal to its original number and do proceed according to law.
It appears that before the District Couri the appellant had
conceded that the suit may in view of the judgment of the Bombay
High Court in Patel Maganbhai Jethabhai's case(') be dismissed,
and he requested the Disirict Court not to pass an order for costs
B against him.
In the circumstances of the case, we direct the
appellant's legal representatives to pay the costs of this appeal to
the respondent.
The costs in the District Court will abide the
event.
Mudholkar, J.
The facts as well as the two points raised in
c the argument before us appear in the judgment prepared by my
brother Shah and need not be repeated. I agree with him that
the District Court was in error in allowing the appeal and dismissing the present appellant's suit for possession of the land in suit.
In that suit the appellant's case was that he had terminated the
respondent's ienancy by giving him an appropriate notice to quit.
D
The substantial plea of the respondent was that his tenancy was
governed by the Bombay Tenancy and Agricultural Lands Act,
1948 as it stood on the date of suit and that the combined effect
of ss. 70 and 85 of that Act was to deprive the civil court of its
jurisdiction to entertain the suit.
E
Tn the arguments before us reliance was placed on his behalf
in particular on the proviso to s. 43C which was added by amendment Act 13 of 1956.
The learned counsel on the other side
had claimed the benefit of the provisions of s. 89(2) (h) of the
Act which seeks to preserve certain rights, titles etc., and exempts
them from the operation of the Act.
F
The benefit of the proviso to s. 43C of the Act would be
available only to a person who is or claims to be a tenant or
protected tenant under the Act. That in turn would depend upon
the effect of the various amendments to the Act made after its
enactment in 1948 till the date of suit, including the effect of
s. 89(2) (h) of the Act. ~ection 70 of the Act, however, proG vides that one of the duties to be performed by the Mamlatdar
(who acts as a revenue court) is to decide whether a person is
a tenant or a protected tenant. Obviously this must mean a claim
to be a tenant or a protected tenant under the Act. Section 85 ( 1)
provides:
H
"No Civil Couri shall have jurisdiction to settle,
decide or deal with any question which is by or under
this Act required to be settled, decided or dealt with
(I) [1958] 60 Born. L.R. 1383.
380
St;PREME COURT REPORTS
(1965] I S.C.R.
by the Mamlatdar or Tribunal, a Manager, the Col!ccA
tor or the Maharashtra Revenue Tribunal in appeal or
revision or the State Goverrunent in exercise of their
powers of control."
It would be seen from the two aforesdd provisions that no sooner
such a claim is made before a Civil Court it must stay its hands
B
and refer that question to the Mamlatdar, acting
as a revenue
court for his decision [sec Paika Dasaru Bhongle v. Rajeshwar
Ba/aji Awari(')].
In order to answer it, the Mamlatdar will
have to adjudicate on the facts in issue between the parties as
well as to determine the effect of the various provisions of law
bearing on the point.
He gets exclusive jurisdiction to do so by c
the combined operation of the two provisions aforesaid in view
of the fact that a person claims to be a tenant or protected tenant.
If the Mamlatdar finds that he is a tenant or a protected tenant
he has to send his finding to the Civil Court which has to decide
the suit in the light of that finding.
If, on the other hand. his
finding is to the contrary, the civil court will have to decide tlre
D
suit on the basis that the person docs
not
possess the status
claimed by him.
Initially, therefore, the matter has to be decided
by the Mamlatdar and subject to the result of any appeal or revision under the Act his decision will be final.
I would. however.
make it clear that when r say this I am not considering whether
finality attaches to a decision of the Mamlatdar as to a juri.sdicE
tional fact.
TI1e question required by the Act to be decided by the Mam·
latdar may be one of fact only or as is the case in the appeal
before us, a mixed question of fact and law.
The civil
court
hefore which the suit was brought raised
the following
issues
F
bearing upon it :
(2) Whether the provisions of Bombay Tenancy
and i\gricultural Lands Act would be applicable to the
suit Su~ey Numbers?
G
( 3) Whether this Court has no jurisdiction to entertain suit in view of section 85 of the Bombay Tenancy
and Agricultural Lands Act ?
. . . . . . . . . . . . . . . . . . . . . . . .
( 5) Whether defendant proves that he is a permaII
nent tenant of the suit land ?"
(I) (1958! Bom. L.R. 8(P.B.)
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•
ISHYERLAL v. MOTIBHAI (Mudholkar, J.)
381
A
The first and third of tl!ese had to be decided by the Mamlatdar and the second by the Civil Court in the light of the findings
of the Mamlatdar on the other two issues.
The limitations placed
on the jurisdiction of the Civil Court would necessarily extend to
the entire hierarchy of courts, including this Court before which
the decision of the Civil Court can be challenged in appeal. It
B is in the light of this legal position that I hold that the District
Court could not dismiss the appellant's suit.
What this Court
can, however, do is only to set aside the judgment of the District
Court and remand the suit to the Civil Court with the direction
that issues Nos. 2 and 5 be remitted to the Mamlatdar for his
findings.
It is not open to this Court to examine for itself the
c
various enactments, construe the provisions and state its conclusions as to their applicability to the case before us.
The jurisdiction to do any of these things in an appeal of the kind before us
is, in my view, barred by the combined operation of ss. 70(b)
and 8 5 (I ) of the Ac~.
D
I would, therefore, allow the appeal, set aside the judgment
of all the courts below and remit the suit to the court of first instance with the direction that it should remit issues 2 and 5 to the
Mamlatdar for decision and upon receiving his findings, decide
the suit on the basis of his findings.
I would further direct that
costs so far incurred shall be costs in the suit and shall abide
E
the final decision of the /is.
ORDER
In accordance with the opinion of the majority the decree
passed by the High Court and the District Court is set aside and
F
the appeal remanded to the District Court with the direction that
it do restore the appeal to its original number .and do proceed
according to law.
Appellant's legal representatives will pay the
costs of this appeal to the respondent.
Costs in the District
Court will -abide the event.
L6Sup.Cl/65--M