# MUSSAMIYA IMAM HAIDER BAX RAZVI v. RABARI GOVINDHAI RATNABHAI & ORS

- **Citation:** [1969] 1 S.C.R. 785
- **Court:** Supreme Court of India
- **Decided:** 1968-08-21
- **Bench:** J. C. Shah V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mussamiya-imam-haider-bax-razvi-v-rabari-govindhai-ratnabhai-ors-4520
- **Pages:** 15

## Headnote

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Bombay Tenancy and Agricultural !Ands Act (Born. 67 of 1948),
as amended by Bombay Amendment Act 13 of 19'56, ss. 32, 70, 85 and
88-Suit land under management of Court of Wards-Tenancy created
during such management-Tenant if became statutory owner on "tillers'
da.v"-Jurisdiction of civil court to •decide if tenancy subsisi!!d on relevant dr..
1tes-lf barred.
The appellant succeeded to the estate consisting of the suit lands when
he was a minor.
The State Government assumed. management of the
estate under the Bombay Court of Wards Act, 1905 and appointed the
Collector as the manager of the estate.
While the estate was under the
management of the Court of Wards on July 25, 1956. the first respondent wrote to the Collector that the ·respondents were forming a cooperative society for carrying on agricultu!re, and that tho suit lands wer'
required for that purpose. The Collector passed an order on July 28,
1956.
The kabuliyat was executed on August 24, 1956 by the respondents, though no cooperative society was formed.
The lease was therefore created on August 24,
1956 and accdrding to
the
kabuliyat,
expired on 31st May, 1957. The Court of Wards withdrew its superintendence on May II, 1958.
Under s. 32 df the Bombay Tenancy and AgriculturaJ Lands Act, 1948
every tenant :shall be deemed to have become a ~tatutory owner of the
land on 1st April, 1957 known as the "tillers' day". The Act was amended
by Amending Act 13 of 1956 which came into force on August 1, 1956.
The effect of the amendment was that ss. 1 to 87A were not appl'cable
to an estate or land taken under the management ot the Court of Wards.
Under s. 88 of the Act, after cessation of the management by the Court
of Wards, the provisions of the Act would apply to such estate. Therefore, ss. 1 to 87 A of the Act were not applicable to the suit lands from
August 1, 1956 to May 11, 1958.
The appellant filed a suit on July 11, 1958 for recovery of possession
of the suit lands and mesne profits on the ground that the lease was
fraudulently obtained by the respondents.
The respondents contended
that they became statutory owners under s. 32 or s. 88 of the Act and
that ,the civil court had no jurisdiction to hear the suit.
The trial court decreed the suit.
On appeaJ, the High Court held :
( 1) that the appellant had failed to establish that the lease was vitiated
by fraud; (2) that the respondents had failed to establish that they had
become statutory owners of the suit lands on dr before the date of suit;
( 3) that the civil court had jurisdiction to decide whether the respondents were tenants on the relevant dates namely July 28, 1956 or May
11, 1958, before the suit was filed. and whether they had become statutory
owners, ( 4) but that the civil court had no jurisdiction to deal with the
question as to whether the defendants were or were not tenants on the
date of the suit tbat such question could only be decided by the Revenue
!tuthori•ies and that the question should be referred to the Mamlatdar
accordingly.
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786
SUPREME COURT REPORTS
[ 196') J I s.C.R.
In appeal to this Court,
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HELD : (I) On the evidence adduced, the High C-Ourt w'" right
in its viey.· that the I-case in favour of the respondents was not vitiated
by fraud.
The evidence .sho\vcd that the lease was granted with the
kno\\·lcl..lge that there v.•as no cooperative society. 1795 A.t;J
(2) (a) As during tk period August I, 1956 to
May
II,
1958
~cctions 1 to 87 A of 1he Act were not applicahle 10 the suit land~. s. 32
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\Vas not applicable, and therefore, the respondents could not have become
statutory owners on the "tillers' day", n1entioncd in s. 32. l795 G; 796 A]
(b) As provided by the Kabuliyat itself the
tenancy
expired
on
~lay 31, 1957.
That is, there was no subsisting lci1Se on May II. !958
\11hich was the date of cessation of the management by the
Court of
Wards.
If there was no subsisting lease on' ~lay 11, 1958 the
rcspon-
<lents v.·erc not tenants, and the High Court was right in its vi

## Text

A
MUSSAMIYA IMAM HAIDER BAX RAZVI
v.
RABARI GOVINDHAI RATNABHAI & ORS.
August 21, 1968
B
[J. C. SHAH V. RAMASWAMI AND A. N. GROVER, JJ.]
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Bombay Tenancy and Agricultural !Ands Act (Born. 67 of 1948),
as amended by Bombay Amendment Act 13 of 19'56, ss. 32, 70, 85 and
88-Suit land under management of Court of Wards-Tenancy created
during such management-Tenant if became statutory owner on "tillers'
da.v"-Jurisdiction of civil court to •decide if tenancy subsisi!!d on relevant dr..
1tes-lf barred.
The appellant succeeded to the estate consisting of the suit lands when
he was a minor.
The State Government assumed. management of the
estate under the Bombay Court of Wards Act, 1905 and appointed the
Collector as the manager of the estate.
While the estate was under the
management of the Court of Wards on July 25, 1956. the first respondent wrote to the Collector that the ·respondents were forming a cooperative society for carrying on agricultu!re, and that tho suit lands wer'
required for that purpose. The Collector passed an order on July 28,
1956.
The kabuliyat was executed on August 24, 1956 by the respondents, though no cooperative society was formed.
The lease was therefore created on August 24,
1956 and accdrding to
the
kabuliyat,
expired on 31st May, 1957. The Court of Wards withdrew its superintendence on May II, 1958.
Under s. 32 df the Bombay Tenancy and AgriculturaJ Lands Act, 1948
every tenant :shall be deemed to have become a ~tatutory owner of the
land on 1st April, 1957 known as the "tillers' day". The Act was amended
by Amending Act 13 of 1956 which came into force on August 1, 1956.
The effect of the amendment was that ss. 1 to 87A were not appl'cable
to an estate or land taken under the management ot the Court of Wards.
Under s. 88 of the Act, after cessation of the management by the Court
of Wards, the provisions of the Act would apply to such estate. Therefore, ss. 1 to 87 A of the Act were not applicable to the suit lands from
August 1, 1956 to May 11, 1958.
The appellant filed a suit on July 11, 1958 for recovery of possession
of the suit lands and mesne profits on the ground that the lease was
fraudulently obtained by the respondents.
The respondents contended
that they became statutory owners under s. 32 or s. 88 of the Act and
that ,the civil court had no jurisdiction to hear the suit.
The trial court decreed the suit.
On appeaJ, the High Court held :
( 1) that the appellant had failed to establish that the lease was vitiated
by fraud; (2) that the respondents had failed to establish that they had
become statutory owners of the suit lands on dr before the date of suit;
( 3) that the civil court had jurisdiction to decide whether the respondents were tenants on the relevant dates namely July 28, 1956 or May
11, 1958, before the suit was filed. and whether they had become statutory
owners, ( 4) but that the civil court had no jurisdiction to deal with the
question as to whether the defendants were or were not tenants on the
date of the suit tbat such question could only be decided by the Revenue
!tuthori•ies and that the question should be referred to the Mamlatdar
accordingly.
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786
SUPREME COURT REPORTS
[ 196') J I s.C.R.
In appeal to this Court,
A
HELD : (I) On the evidence adduced, the High C-Ourt w'" right
in its viey.· that the I-case in favour of the respondents was not vitiated
by fraud.
The evidence .sho\vcd that the lease was granted with the
kno\\·lcl..lge that there v.•as no cooperative society. 1795 A.t;J
(2) (a) As during tk period August I, 1956 to
May
II,
1958
~cctions 1 to 87 A of 1he Act were not applicahle 10 the suit land~. s. 32
B
\Vas not applicable, and therefore, the respondents could not have become
statutory owners on the "tillers' day", n1entioncd in s. 32. l795 G; 796 A]
(b) As provided by the Kabuliyat itself the
tenancy
expired
on
~lay 31, 1957.
That is, there was no subsisting lci1Se on May II. !958
\11hich was the date of cessation of the management by the
Court of
Wards.
If there was no subsisting lease on' ~lay 11, 1958 the
rcspon-
<lents v.·erc not tenants, and the High Court was right in its viev.· that
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lhe respondents had failed to establish that they had
become
statutory
ov:ners of the land under s. 32 by virtue of the first proviso to s. 88. [796
R-E]
(3) Section 70lb) of 1hc Act impose_<
a duty
on the Mamlatdar to
decide whe[hcr a person Lr a tenant and not to decide whether a person
was or "'as not a tenant in the past.
In the present case, the contention
of statutory O\lt'ncrship of the respondents v.·as based on the
question
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\\1hether the resnondcnts "·ere tenanrs on July 28~ I 956 or on f\fay 11.
1958 and not whether they were tenants on lulv 11, 1958 the dale of
the suit.
The question would be therefore whether they were or \\'ere
not tenants in the past.
Further. the question was pul for1,1,·ard by the
respondents not as an independent question hut as a reason for suhstan·
tiating their plea of statutory ownership.
Therefore. the plea of tenancy
on the past two dates was a suh~idiary plc<t and the main pica was of
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statutorv O\\•ncrship and the jurisdiction of the civil court cannot be held
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to he barred hv virtue of the provision-; of '>S. 70 and 85, as there is
no exclusion, exprc.~sly or hy necessary implication, of the juri!ldiction of
the civil court to decide the question whether the rc'<;Pondcnts had acquired title as stalutorv
owners.
Nor is the
juri<;diction of rhe
civil
court barred for considering the question whether
the provisions of the
Act are or arc not applicahle to the suit li1.nd during i1. pi1.rlicular period.
[796 H; 797 A-E; G-H]
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Scrreta1;v of State v. Mask & Co .. 67 I.A. 222, 236, referred to.
( 4) Jn the \\Titten statement. the only plea set up on behalf of the
respondents v.·as the ple;1 of tcnancv on Julv 28. 1956 which \vas the
basis of !-tatutorv owner,hip.
·rne HiJ?h Court found that the tenancy
was created on August 24, 1956 .and that the tenancy did not subsist on
\fay 11, 1958 when there was a ccr;sation of rhe management by the
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Court o·f Wards.
·1ncre was no plc;1 of
any intervening act or transaction hetwecn \lay 11. 1958 and Julv 11. 1958, the date of suit.
under
\\'hich a fresh tenancy was created and "·hich
\\'<~s
subsistin.I.": on
the
date of the suit.
There was thus no issue \Vhich survived for the dcci-
<ion of the \iamlatdar under s. 85A of the Act.
Therefore. the High
Court should ha\"C dc:reed the ~uit and was in error in referring the issue
whether the respondents \Vere tenant<; of the land on the date of suit
:o the Mombtdar. [798 A-GJ
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Civ11. APPFI.I.ATE
Jt:RISDlf"'rtO~: Civil Appeals ~os. 312
and 313 of 1966.
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MUSSAM!YA v. RABARI (Ramaswami, J.)
787
Appeals by special leave from the judgment and decree dated
February 5, 1963 of the Gujarat High Court in Appeal No. 1009
of 1960 from original decree.
S. T. Desai, G. L. Sanghi, B. R. Agarwala and M. I. Patel,
for the appellant (in C.A. No. 312 of 1966) and the respondent
(in C.A. No. 313 of 1966).
K. L. Hathi, for respondents Nos. 1 to 8 (in C.A. No. 312 of
1966) and the appellants (in C.A. No. 313 of 1966).
N. S. Bindra and S. P. Nayar, for respondent No: 9 (in
C.A. No. 312 of 1966).
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The Judgment of the Court was delivered by
Ramaswami, J.
These appeals are brought, by special leave,
from the judgment of the High Court of Gujarat dated February
5 1963 in appeal No. 1009 of 1960 arising out of Civil Suit
No. 64 of 1958 filed by Mussamiya Imam Haider Bax Razvi,
appellant in Civil Appeal No. 312 of 1966 (h~reina.fter referred
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to as the plaintiff) against the respondents in Cml Appeal No. 312
of 1966 and the appellants (excepting the
Charity Commissioner) in Civil Appeal No. 313 of 1966 (hereinafter referred to
as the defendants) .
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The lands in dispute are located in the village Isanpur and
form part of a 'Devasthan' inam. The 'Sanads' were created in
the name of the ancestors of the plaintiff as the Sarjudanashi of
the estate of Shah Alam which was an estate consisting of 'Roza',
a mosque, a grave-yard and several other properties. The estate
was last held by the father of the plaintiff who expired on or
about March 9, 1948 leaving behind him the plaintiff who was
then a minor as his only heir. On August 26, 1948 the Collector of Ahmedabad was appointed as the guardian of the properties of the plaintiff by an order of the District Court, Ahmedabad.
Subsequently, on or about January 15, 1953, the then Bombay
Government assumed management of the estate under the Court
of Wards Act, 1905 (Bombay Act No. 1 of 1905) and appointed
the Collector df Ahmedabad as the manager of the same. The
case of the plaintiff is that the defendants fraudulently entered
into a conspiracy with the Collector's subordinate staff for getting
possession of the disputed lands. In this connection the first
defendant wrote to the District Collector, Ahmedabad on July
25, 1956 representing that certain persons formed or will form
a Co-operative Society for carrying on agriculture and therefore
required the lands for that purpose. Defendants 1, 2, 3 and 5
also made applications for that purpose alleging that they were
Jlabari, kept cattle and were residents of Ahmedabad but none
of them had any agricultural land. On account of the fraud of
tire defendants the Collector was prevailed upon to make an order
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788
SUPREME COURT REPORTS
(1969) J S.CR.
dated July 28, 1956 in breach of the provisions of ss. 63 and 64
of the Bombay Tenancy and Agricultural Lands Act (Bombay
Act 67 of 1948), hereinafter referred to as the 'Act', and the
Rules made thereunder granting possession of the lands to the
defendants who were neither carrying on agriculture on co-operative basis nor ever formed a Co-operative Society. It was contended on behalf of the plaintiff that the lease granted to
the
derendants was void and the plaintiff was entitled to a decree for
recovery of possession of the lands from the defendants and also
for a sum ol Ks. 1 U,000 for damages tor use and occupation of
the land prior to the date of the suit and for future mcsne profics
at the rate of Rs. 500 per month.
The main written statement
was filed by the first defendant and his contention was that the
Civil Court had no jurisdiccion to hear the suit. le was said that
z valid lease had been created in favour of the defendant~ and
as a result of the coming into force of the Amending Act (Bombay Act !\o. 13 of 1956) the defendants had become statutory
owners of the lands in question.
The suit came up for hearing
before the 5th Joint Civil Judge, Senior Division at Ahmedabad
who by his judgment dated July 30, 1960, held that the Civil
Court had jurisdiction to hear the suit and the provisions of the
Act did not apply to the suit lands and therefore the defendants
were trespassers.
The learned Judge
accordingly granted
a
decree in favour of the plaintiff for recovery of possession of the
lands from defendants 1 to 8.
He al~o granted the plaintiff a
decree for a sum of Rs. 10,000 as damages for use and occupation of the lands with interest at 6 per cent p.a. from August 1,
1956 till the date of the suit i.e., July 11.
1958. The learned
Judge further ordered that the plaintiff was entitled to recover
mcsnc profits to be detennincd under 0.20, r.12, Civil Procedure Code. Defendants I to 8 took the matter in appeal to the
High Court of Gujarat. being First Appeal No. I 009 of 1960.
The High Court held :
( 1) that the defendants had failed to
establish that they had become statutory owners of the suit lands
on or before the date of the suit, (2) that° the plaintiff had
failed to establish that the lease created either on July 28, 1956
or on August 24, 1956 was vitiated by fraud, and (3) that the
Civil Court had no jurisdiction to deal with the question as to
whether the defendants were or were not tenants from the date of
the suit and this question could only be decided by the Revenue
Authorities.
For these reasons the High Court directed that
under s. 85A of the Act the following issue should be referred
to the Mamlatdar having jurisdiction in the matter for his decision and that the officer shall communicate his decision, or, if
there arc appeals from the decision, the final decision, to
the
High Court as soon as possible. The issue was as follows : "Do
the defendants prove that they are tenants of th~ lands in suit?•
The High Court further directed that the hearing of the appeal
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MUSSAMIYA v. RABARI (Ramaswami, J.)
789
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should stand adjourned until after the relevant communication
was received from the Revenue Authorities.
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It is necessary at this stage to set out the relevant provisions
of the Act as it stood at the material time.
Section 2 ( 18)
states :
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"2. In this. Act, unless there is anything repugnant in
the subject or context,-
(18) 'tenant' means a person who holds land on
lease and include-
(a) a person who is deemed to be a tenant under
section 4;
(b) a person who is a protected tenant; and
( c) a person who is a permanent tenant;
and the word 'landlord' shall be construed accordingly;"
Section 32(1) is to the following effect :
"32.(1). On the first day of April 1957
(hereinafter referred to as 'the tillers' day") every tenant shall,
subject to the other provisions of this section and the
provisions of the next succeeding sections be deemed to
have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land
held by him as tenant, if
(a) such tenant is a permanent tenant thereof and
cultivates land personally;
(b) such tenant is
not a permanent tenant but
cultivates the land leased personally; and
( i) the landlord has not given notice of termination of his tenancy under section 31; or
(ii) notice has been given under section 31,
but the landlord has not applied to the
Mamlatdar on or before the 31st day of
March 1957 under section 29 for obtaining; possession of the land; or
(iii) the
landlord has
not terminated the
tenancy on any of the grounds
specified
in section 14, or has so
terminated the
tenancy but has not applied to the Mamlatdar on or before the 31st day of March
1957 under section 29 for obtainirig possession of the lands.
Provided that if an application
made
'by the landlord under section 29 for obtainLI Sup. C.T.-69---4
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SUPREM~. COuRl REl'ORTS
[1%9j IS.CR.
ing possession of the land bas been rejected
by the Marnlatdar or by the Collector in
appeal or in revision by the Gujarat Revenue Tribunal under the provisions of the
Act, the tena'nt shall be deemed to
have
purchased the land on the date on which
the final order of rejection is passed. The
date on which the final order of rejection 'is
passed is hereinafter referred to
as
'the
postponed date".
Provided further that the tenant of a
landlord who is entitled to the benefit of
the proviso to sub-section ( 3) of section
31 shall be deemed to have purchased the
land on the 1st day of April 1958, if no
separation of his share has been effected
before the date mentioned in that proviso."
Section 32-F reads as follows :
"(I) J\otwithstanding any1hing conlained in the
preceding sections.--
(a) where tlie landlord is a minor, or a widow or
a person subject to any mental or physical
disability or a serving member of
the
armed
forces the tenant shall have the right to purchase
such land under section 32 within one year
from the expiry of the period during which such
landlord is entitled to terminate the
tenancy
under section 31.
Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at
least one member of the joint family is outside
tlie categories mentioned in
this
sub-section
unless before the 31st day of March 1958 the
share of such person in the joint family has been
separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of
such person in the land is separated,
having
regard to the area, assessment, classification and
vaiue of the land in the same proportion as tlie
share of that person in the entire joint family
property and not in a larger proportion.
(b) Where the tenant is a minor or a widow or a
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person subject to any mental or physical disII
ability or a serving member of the
armed
force:s, then subject to the provisions of clause
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MUSSAM!YA v. RABARI (Ramaswami, J.)
791
(a) , the right to purchase land under section
32 may be exercised-
( i) by the minor within one year from the date
on which he attains majority;
(ii) by the successor-in-title of the widow within one year from the date on which her
interest in the land ceases to exist;
Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at
least one member of the joint family is outside
the categories mentioned in this sub-section unless before the 31st day of March 1958 the
share of such person in the joint family has
been separated by metes and bounds and the
Mamlatdar on inquiry is satisfied that the
share of such person in the land is separated,
having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire
joint family property, and not in a larger proportion.
"
.
.
Section 63 ( 1 ) reads thus :
"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 for sums recoverable as arrears
of land revenue), gift, exchange or lease of
any land or interest therein, or
(b) no mortgage of any land or interest therein, in
which the possession of the mortgaged property
is deliyered to the mortgagee,
shall be valid in favour of a person who is uot an agriculturist (or who being an agriculturist will, after such
sale, gift, exchange, lease or mortgage, hold land exceeding two-thirds of the ceiling area determined under
the Maharashtra Agricultural Lands
(Ceiling on
Holdings Act, 1961, or who is not an 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 inortgage, on such conditions as may be prescribed .
Explanation.-For the purpose of this sub-section
the expression 'agriculturist' includes any person who as
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792
SlJPRE:ME COURT REPORTS
(I 969] I S C.R.
a result of the acquisition of his land for any public purA
pose has been rendered landless, for a period not exceeding ten years from the date possession of his land
is takcu for such acquisition.
,,
Section 70 is to the following effect
"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;
( b) to decide whether a
person is a
tenant or a
protected tenant (or a permanent tenant);
( c) to decide such other matters as may be referred
to him by or under this Act."
Section 85 states :
" ( 1 ) '.\io 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 Maharashtra Revenue Tribunal in
appeal or revision or the State Government in exercise
of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the
Collector or the Maharashtra Revenue Tribunal or the
State Government made under this Act shall be questioned in any Civil or Criminal Court.
Explanation.-For the purposes of this section a
Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdars' Courts Act, 1906."
Section 85A provides as follows :
"(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 thereupon
dispose of the
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MUSSAMIYA v. RABARI (Ramaswami, !.)
suit in accordance with the procedure 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."
Section 8 8 reads
"(l) Save as otherwise provided in sub-section (2),
nothing in the foregoing provisions of this Act shall
apply-
( a) to lands belonging to, or held on lease from, the
Government;
(b) to any area which the State Government may,
from time to time, by notification in the Official
Gazette, specify as being reserved for non-agricultural or industrial development;
(c)
(d)
to an estate or land taken . . . . . . . . . . . . under
the management of the Court of Wards or of a
Government Officer appointed in his
official
capacity as a guardian under the Guardians and
Wards Act, 1890;
to an estate or land taken under management
by the State Government under Chapter IV or
section 65 except as provided in the said Chapter
IV or section 65, as the case may be, and in
sections 66, 80A, 82, 83, 84, 85, 86 and 87 :
Provided that from the date on which the
land is released from management, all the foregoing provisions of this Act shall apply thereto; but subject to the modification that in the
case of a tenancy, not being a permanent
tenancy, which on that date subsists in the
land-
( a) the landlord shall be entitled to terminate
the tenancy under section 31 or under section 33B in the case of a certificated landlord within one year from such date; and
(b) within one year from
the expiry of the
period during which the landlord or certificated landlord is entitled to
terminate
the tenancy as aforesaid, the tenant shall
have the right to purchase the land under
section 32 (or under section 33C in the
case of an excluded tenant); and
"
793
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Sl'PREME COl!RT REPORTS
fl 969] I S.C.R.
Rule 36 of the Bombay Tenancy and Agricultural Lands Rules,
1956 is to the following effect :
"Conditions on which pem1ission for sale etc.
of
land under section 63 may be granted-
( I) The Collector or other officer authorized under
the proviso to sub-section (I ) of section
63
shall not grant permission for the sale, gift, exchange, lease or mortgage of any land in favour
of a person who is not either an agriculturist or
an agricultural labourer or who, being an agriculturist, cultivates personally land not less than
the ceiling area whether as owner or tenant or
partly as owner and partly as tenant unless any
of the following conditions are satisfied :-
(a) such a person bona fide requires the land
for a non-agricultural purpose; or
(b) the land is required for the benefit of an
industrial or commercial undcrtakini; or an
educational or charitable institution; or
( c) such land being
mortgaged,
the
mortgagee has obtained from the Collector a
certificate that he intends to take the profession of an agriculturist and agrees to cultivate the land personally: or
( d) the land is required
by
a Co-operative
Society; or
"
The first question to be considered in this case is whether
the High Court was right in taking the view that the plaintiff
failed to establish that the lease created on August 24,
1956
was vitiated by fraud.
It was contended by Mr. S. T. Desai on
behalf of the plaintiff that the trial court had reached the finding
that there was a conspiracy between the defendants and the Collectorate staff and the Collector was induced hy fraud and misrepresentation to grant lease in favour of the defendant~. It was
argued that there was no justification for the High Court to
interfere with the finding of the trial Judge on this point Mr.
S. T. Desai took us through the relevant documentary evidence
on this issue hut having perused that evidence, we are satisfied
that the High Court was right in holding that the plaintiff had
not established that there was any fraud
or misrepreseniation
made to the Collector or that there was a consniracv between the
defendants and the Citv Deoutv Collector or his subordinates. In
this connection, the High Court has referred to the circumstance
that the offer made by the Collector in his letter, Ex. 51 embodi8S
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the conditions which are capable of being explained on the
ground that the Collector was aware of the fact that there was
no Co-operative Society in existence and that the defendants
were not members of any C<H>perative Society. The High Court
also referred to the application, Ex. 53 which contains an endorsement of the City Deputy Collector that the
defendants were
given the lands for cultivation on co-operative basis. The High
Court also referred to the circumstance that neither the plaintiff
nor his personal guardian had appeared in the witness box to
support the allegation of fraud. We are accordingly of the
opinion that the High Court was right in expressing the view that
the lease in favour of the defendants was not vitiated by fraud
and Counsel on behalf of the plaintiff has been unable to make
good his submission on this aspect of the case
We pass on to consider the next question arising in this case,
namely, whether the defendants had become statutory owners
of the suit lands because of the provisions of s. 32, s. 32-F or
s. 88 (1) of the Act. It is necessary to state at the outset that
the Amending Act No. 13 of 1956 came into force on August l,
1956. It is not disputed by the parties that the Act as it stood
before the Amending Act 13 of 1956, applied to the suit land.
One of the sections which was amended by the Amending Act
13 of 1956 was section 88.
One of the effects of the amendment of s. 88 was that ss. 1 to 87 A were not applicable to "an
estate or land taken under the management of the Court of
Wards". So, it is not in dispute that after August 1, 1956 the
provisions contained in ss. 1 to 87 A of the Act did not apply
to the suit lands.
It is also admitted that after the cessation of
the management by the Court of Wards the provisions of the Act
again became applicable to the suit lands.
It has been found
by the High Court upon examination of the evidence that the
Court of Wards withdrew its superintendence on May 11, 1958
when the order for the release of the management was actually
passed and not on May 11, 1957 when the plaintiff attained
majority.
It is evident therefore that the Act applied to the suit
lands before August I, 1956. that ss. I to 87 A did not apply
during the period between August 1, 1956 and May 11, 1958
which was the date on which the management of the estate by
the Court of Wards ceased, and that the provisions of the Act
again applied to the suit lands after the cessation of such management.
On behalf of the defendants the argument was presented
that there was a valid lease granted on July 28, 1956 and the
defendants were tenants on April 1, 1957 i.e., the date of 'the
tillers day' under s. 32 of the Act and accordingly the defendants became statutory owners of the lands in suit under that section.
Mr. Hathi on behalf of the defendants challenged the findiiJg of the High Court that there was no valid lease created on
July 28, 1956, but having gone through the relevant documentary
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and oral evidence, we are satisfied that the defendants have not
substantiated their case that there was any valid lease of the
lands on July 28, 1956 and the High Court was right in taking
the view that the lease was created only on the execution of the
'Kabuliyat' dated August 24, 1956. It follows from this finding
that the defendants were not tenants on the 'tillers' day' mentioned in s. 32 of the Act.
The other question which arises in
this connection is
whether the defendants became statutory
owners because of the provisions contained in the first proviso to
s. 88 of the amended Act.
The High Court has found that the
defendants were not subsisting tenants on May 11, 1958 which
was the date on which there was a cessation of the management.
The reason was that the 'Kabuliyat' dated August 24, 1956 was
for a period of one year and having regard to the fact that the
Act was not applicable to the plaintiff's estate from August l,
1956 to May II, 1958, the tenancy would expire on May 31,
1957 as provided for in the 'Kabuliyat' itself.
The High Court
therefore found that on the basis "that the tenancy was created
by the 'Kabu!iyat' dated August 24, 1956, the tenancy came to
an end on May 31. 1957, so that there was no subsisting tenancy
on the date of the cessation of the management. If there was
no subsisting lease on May 11, 1958. the .. High Court was right
in taking the view that the defendants had foiled to establish that
they had become statutory owners of the land by virtue of the
first proviso to s. 88 of the new Act.
We proceed to consider the next question arising in this ease,
namely, whether the Civil Court had jurisdiction to decide the
question whether the defendants were tenants of the suit lands
on July 28, 1956 or on May 11, 1958 and whether the lease
was created in favour of the defendants on July 28,
1956 as
claimed by them or on August 24, 1956 as claimed by the plaintiff. Mr. Hathi addressed the argument that the question whether
the defendants were tenants with effect from July 28, 1956 or
thereafter was an issue which was expressly triable by a Revenue
Court under s. 70 of the Act and the jurisdiction of the Civil
Court was barred.
It was argued that the i"ue of ownership
was not the primary issue before the High Court and the main
question was whether the defendants were or were not the
tenants of the suit lands on the material date. namely, July 28,
1956 or on Mav 11. 1958 and such a question lay within the
scope of the jurisdiction of the Revenue Authorities.
In other
words it was argued that the detennination of the question
wheth~r the lease was created which subsisted after August I,
1956 or which subsisted also on May 11. 1958 was not a matter
within the scope of the jurisdiction of the High Court. We are
unable to accept the ar1rnment put forward hy Mr. Hathi as
correct.· Section 70 (b) of the Act imposes a duty on the Mam;,
latdar to decide whether a person ii- a tenant. hut the sub-section
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does not cast a duty upon him to decide whether a person was
or was not a tenant in the past-whether recent or remote. The
main question in the present case was the claim of the defendants
that they had become statutory owners of the disputed lands because they were tenants either on the 'tillers' day' or on the date
of the release of the management by the Court of Wards. In
either case, the question for decision will be not whether the defendants were tenants on the date of the suit but the question
would be whether they were or were not tenants in the past. The
question whether the defendants were tenants on July 28, 1956
or on May 11, 1958 was not an independent question but it was
put forward by the defendants as a reason for substantiating their
plea of statutory ownership. In other words, the plea of tenancy
on the two past dates was a subsidiary plea and the main plea
was of statutory ownership and the jurisdiction of the Civil Court
cannot therefore be held to be barred in this case by virtue of
the provisions of s. 70 of the Act read with the provisions of
s. 85 of the Act.
We are accordingly of the opinion that s. 85 read with s. 70
of the Act does not bar the jurisdiction of the Civil Court to
examine and decide the question whether the defendants
had
acquired the title of statutory owners to the disputed lands under
the new Act.
In this context, it is necessary to bear in mind tl1e
important principle of construction which is that if a statute purports to exclude the ordinary jurisdiction of a Civil Court it must
do so either by express terms or by the use of such terms as would
necessarily lead to the inference of such exclusion.
As the Judicial Committee observed in Secretary of State v. Mask & Co.( 1 )
"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 expressedor clearly implied."
In our opinion, there is nothing in the language or context of
s. 70 or s. 85 of the Act to suggest that the jurisdiction of the
Civil Court is expressly or by necessary implication barred with
regard to the question whether the defendants had become statutory owners of the land and to decide in that connection whether
the defendants had been in the past tenants in relation to the land
on particular past dates.
We are also of the opinion that the
jurisdiction of the Civil Court is not barred in considering the
question whether the provisions of the Act are applicable or not
applicable to the disputed land during a particular period. We
accordingly reject the argument of Mr. Hathi on this aspect of
the case.
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The next contention on behalf of the plaintiff is that the High
Coun was in error in referrin~ lo the !vlmnlatdar under s. 85A
of the Act, the issue whether "the defendants were tenants of the
land in suit". It was pointed out by Mr. S. T. Desai that th<:
High Court had rejected the contention of the defendants that
the tenancy was created on July 28, 1956 but the
defendants
were tenants only with effect from August 24, 1956.
The High
Court has funher found that !here was no subsisting tenancy on
May 11, 1958 when there was a cessation of the management of
the Coun of Wards.
The suit was brought by the plaintiff on
July 11. 1958 and the argument put forward on behalf of the
plaintiff is that there was no plea on behalf of the defendants that
there was any inlnvening ;ict, event or lransaction between Mav
11, .1958 and July 11, 1958 under which a fresh tenancy
was
created. In other words, the argument on behalf of the plaintiff
was that the only plea set up on behalf of !he defendants was the
plea of tenancy on July 28, 1956 which was the basis of the
plea of statutory ownership.
It was said
that there was no
other plea of tenancy set up by the defendants subsequent to May
11, 1958 when the management of the Court of Wards ceased.
Jn our opinion, the argument is
well-founded and must be accepted as correct.
On behalf of the defendants Mr. Hathi referred to paragraphs 4 and 6 of the written statement of the first
defendant dated September 18, 1958. but, in our opinion, both
these paragraphs must be read together and the pica of tenancy
in para 4 is based upon the claim of the defendants : that the;
were "lawful tenants of the suit lands and they got this right before August 1. 1956".
The plea of tenancy is therefore based
upon the alleged lease of July 28, 1956 which is rolled up in the
plea of substantive claim of statutory mmcrship.
On a proper
interpretation of the language of paragraphs 4 and 6 of the written
statement we are satisfied that there is no independent plea of
tenancy set up by the defendants as subsisting on the date of the
suit and there was no issue which survived for being referred for
the decision of the Mamlatdar under s. 85A of the Act.
We
arc accordingly of the opinion thai the High Court was in error
in rcfcrrin~ anv fresh issue to the Mamlatdar but instead should
have granted a decree to the plaintiff for recovery of possession
nf the lands and also as to damages and rnesne profits as decreed
by the trial court.
For the reasons expressed we hold that Civil Appeal No. 312
of 1966 must be allowed and the judgment of the High Court
<lated f'ebruarv 5, 1963 should be set aside and the decree o[
the 5th Joint Civil Judge. Senior Division at Ahmcdabad dated
Julv 30. 1960 should be rcslored. Civil Appeal No. 313 of
1966 is dismissed.
The plainlilf will be entitled to the costs o'
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this Court (one set of hearing fees) but we do not propose to
make any order with regard to the costs incurred by the parties
in the High Court.
The application filed by the defendants for leave to produce
additional evidence in this Court is rejected.
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C.A. 312 of 1966 allowed.
C.A. 313 of 1966 dismissed.
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