# NOOR MOHD. KHAN GROUSE KHAN SOUDAGAR Ai'!D ANR v. FAKIRAPPA BHARMAPPA MACHENAHALLI AND ORS

- **Citation:** [1978] 3 S.C.R. 789
- **Court:** Supreme Court of India
- **Decided:** 1978-04-28
- **Bench:** R. S. Sarkaria, N. L. Untwalia, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/noor-mohd-khan-grouse-khan-soudagar-ai-d-anr-v-fakirappa-bharmappa-machenahalli-7435
- **Pages:** 28

## Headnote

B
Karnataka Land Refonns Act, 1961. (Mysore Act 10 af 1962), Sections
132, 133 an4 142 (IA)-Eviction of a "tenant" from the land,
whether
the
decision of this Court in Kulkarni's case [1966] 1 SCR 145, interpreting Section
SSA of the Bornbay Tenancy and Agricultural Lands Act, 1948 also governs
the interpretation of the provisions of the Karnataka Act, 1961.
Karna/aka Land Reforms Act, 1961 (Mysore Act 10 of 1962)-Whether the
C
provisions of Act render the doctrine of tis pendens contained in Section 52 of
the 1'ransf er of Property Act (Central Act 4), 1882 inapplicable.
Jurisdiction-Determination whether the jurisdiction was expressly or by
necessary implications excluded depends on the provisions of the relevc.nt enactments-Karnataka Land Reforms Act, 1961 (Mysore Act 10 of 1962), Sections 132 and 133 are applicable to pending proceedings.-lnterpretation ofKarnataka Land Reforms Act, 1961 Sections 132, and 133 r/w !vtysore Tenants
'D
(Ten1porary Protection froni eviction) Act, 1961 Section 4(1) and
Bombay
Tenancy and Agricultural Lands Act, 1948 S. SSA.
A suit for pa11ition and possession was filed by the original resp0ndent No.
2 herein against respondent No. 4 (Defendant No. 1 in the Suit), defendants 2
to 7 being co-sharers and defendants 8 to 14 being tenants in possession. The
Trial Court passed a preliminary decree on 13-12-1954 by which each branch
got 1 /7th share.
The said preliminary decree was confirmed
by
the
High
Court on 16-1-1963.
In accordance with the law prevalent in the Karnataka
State, an execution case under Section 54 r/w Order XX rule 18/0rder XXI
rule 35 C.P.C. being LD 117/56 was filed by the plaintiff-decree holder and
the appellants' predecessor-in-interest i.e. (defendants 5 and 6) in the Court
v,.·hich had passed the preliminary decree for final -partition and possession of the
same had to be made and given by the Collector. In this execution case respondent No. 1 herein \vas impleaded as judgment debtor No. 20 because, during
the pendency of the Suit in or about the year 1948, be had been inducted as a
lessee of a portion of the suit properties in R.S. No. 61/1 and R.S. No. 61/2
situated in village Yattinahalli in Ranebennur Taluk of Dharwar district, The
effect of impleading respondent No. 1 as a judgment debtor was as if he was
impleaded as a party to the suit before final partition. On May 29, 1961, the
Executing Court directed the Collector to partition the suit property and to give
possession of their respective allotted lands to the various co-sharers including
the appeUants.
Respondent No. 1 did not object to the claim. Neither did he
carry any appeal against the said orders. The Collector made the final allotment of the various lands to the different co-sharers. The disputed land over
which respondent No. 1 had been ihducted by respondent No. 4 was allotted to
the share of the predecessors-in-interest of the appellants some time after
29-5-1961 and before 29-5-1965.
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On 29-5-1965, in pursuance of the direction of the Execution Court and the
Collector, the Tahsildar went to effect the delivery of possession but proposed
to deliver only symbolical possession of the disputed land
and
declined
to
deliver actual possession, as he found respondent No. 1 to be in actual cultivating possession of it. The Execution Court was moved in the n1atter and by
its order dated 8-6-1965, it directed the Tahsildar to deliver actual possession.
H
On an appeal by respondent No. 1 in C.A. 104/65 the said execution orders
of the Tahsildar wac; confirmed resulting in Execution Second Appeal by Respondent No. I in E.S.A. 86165 before the High Court.
The High Court made
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certain conditional orders of ad-interim stay.
The conditions were not
complied with by respondent No. 1.
Thereupon the appellants made an application
again to the Execution Court for directing actual delivery. The first respondent contested the application on the ground that he being the

## Text

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789
NOOR MOHD. KHAN GROUSE KHAN SOUDAGAR Ai'!D ANR.
A
v.
FAKIRAPPA BHARMAPPA MACHENAHALLI AND ORS.
April 28, 1978
[R. S. SARKARIA, N. L. UNTWALIA AND P. S. KAILASAM, JJ.]
B
Karnataka Land Refonns Act, 1961. (Mysore Act 10 af 1962), Sections
132, 133 an4 142 (IA)-Eviction of a "tenant" from the land,
whether
the
decision of this Court in Kulkarni's case [1966] 1 SCR 145, interpreting Section
SSA of the Bornbay Tenancy and Agricultural Lands Act, 1948 also governs
the interpretation of the provisions of the Karnataka Act, 1961.
Karna/aka Land Reforms Act, 1961 (Mysore Act 10 of 1962)-Whether the
C
provisions of Act render the doctrine of tis pendens contained in Section 52 of
the 1'ransf er of Property Act (Central Act 4), 1882 inapplicable.
Jurisdiction-Determination whether the jurisdiction was expressly or by
necessary implications excluded depends on the provisions of the relevc.nt enactments-Karnataka Land Reforms Act, 1961 (Mysore Act 10 of 1962), Sections 132 and 133 are applicable to pending proceedings.-lnterpretation ofKarnataka Land Reforms Act, 1961 Sections 132, and 133 r/w !vtysore Tenants
'D
(Ten1porary Protection froni eviction) Act, 1961 Section 4(1) and
Bombay
Tenancy and Agricultural Lands Act, 1948 S. SSA.
A suit for pa11ition and possession was filed by the original resp0ndent No.
2 herein against respondent No. 4 (Defendant No. 1 in the Suit), defendants 2
to 7 being co-sharers and defendants 8 to 14 being tenants in possession. The
Trial Court passed a preliminary decree on 13-12-1954 by which each branch
got 1 /7th share.
The said preliminary decree was confirmed
by
the
High
Court on 16-1-1963.
In accordance with the law prevalent in the Karnataka
State, an execution case under Section 54 r/w Order XX rule 18/0rder XXI
rule 35 C.P.C. being LD 117/56 was filed by the plaintiff-decree holder and
the appellants' predecessor-in-interest i.e. (defendants 5 and 6) in the Court
v,.·hich had passed the preliminary decree for final -partition and possession of the
same had to be made and given by the Collector. In this execution case respondent No. 1 herein \vas impleaded as judgment debtor No. 20 because, during
the pendency of the Suit in or about the year 1948, be had been inducted as a
lessee of a portion of the suit properties in R.S. No. 61/1 and R.S. No. 61/2
situated in village Yattinahalli in Ranebennur Taluk of Dharwar district, The
effect of impleading respondent No. 1 as a judgment debtor was as if he was
impleaded as a party to the suit before final partition. On May 29, 1961, the
Executing Court directed the Collector to partition the suit property and to give
possession of their respective allotted lands to the various co-sharers including
the appeUants.
Respondent No. 1 did not object to the claim. Neither did he
carry any appeal against the said orders. The Collector made the final allotment of the various lands to the different co-sharers. The disputed land over
which respondent No. 1 had been ihducted by respondent No. 4 was allotted to
the share of the predecessors-in-interest of the appellants some time after
29-5-1961 and before 29-5-1965.
E
F
G
On 29-5-1965, in pursuance of the direction of the Execution Court and the
Collector, the Tahsildar went to effect the delivery of possession but proposed
to deliver only symbolical possession of the disputed land
and
declined
to
deliver actual possession, as he found respondent No. 1 to be in actual cultivating possession of it. The Execution Court was moved in the n1atter and by
its order dated 8-6-1965, it directed the Tahsildar to deliver actual possession.
H
On an appeal by respondent No. 1 in C.A. 104/65 the said execution orders
of the Tahsildar wac; confirmed resulting in Execution Second Appeal by Respondent No. I in E.S.A. 86165 before the High Court.
The High Court made
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certain conditional orders of ad-interim stay.
The conditions were not
complied with by respondent No. 1.
Thereupon the appellants made an application
again to the Execution Court for directing actual delivery. The first respondent contested the application on the ground that he being the tenant of the
land had made an application under the Mysore Land Reforms Act, 1961 which
had come into force on October 2, 1965 seeking a declaration that he was a
tenant within the meaning of that Act and obtained a stay.
The Execution
Court by its order dated 8-8-1967 rejected the plea and
again directed
the
Tahsildar to deliver actual possession and this order was confirmed by the First
Appellate Court in C.A. 34/67. Execution Second Appeal No. 78/67 was filed
by respondent No. 1 in the High Court on 21-9-1967. The High Court disposed of both the E.S.A. 86 /65 and E.S.A. 78/67 by a common judgment and
allowed the appeals.
The High ·Court held that respondent No. 1, in view of
the p.rovisioffi of the Karnataka Act, cannot be evicted and no actual delivery
of possession can be given against him unless the requirements of the said Act
was followed :
Dismissing the appeals by special leave, the Court
Per Untwalia, J. (On behalf of R. S. Sarkaria J. as well)
HELD :1. Civil Court's jurisdiction is barred under section
132
of
the
Karnataka Land Reforms Act, which is in pari materia with Section 85 of the
Bombay Tenancy and Agricultural Lands Act, 1948.
Section 133 corresponds
to Section 85A of the Act. 'The saving sub-section IA, inserted by Act 14 of
1965 in Section 142 e:xtcnded the protection of the eviction of
the
!vlysore
Act against eviction and provided that an agriculturist shall not be liable to be
evicted from land in respect of which he could be deemed to be a tenant except
in accordance with the provisions of the Karnataka Act. [797 F-G, 798 D]
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Dhondi Tukaram Mali and Anr. v. Harl Dadu Mang and Ors., I.L.R. 53
Y
Bombay, 969 referred to
Custodian of Evacuee Property, Punjab & Ors. v. Jafran Begum, [1967J 3
S.C.R. 736; Corporation of the City of Bangalore v. B. T. Kampanna, [1977}
I S.C.R. 269, Secretary af Store v. Mask Co., 67 I.A. 222, explained.
Mussamiya Imam Haider Bux Razvi v. Rabari Govindbhai Ratnabhai and
Ors., f1969] I SCR 785; explained and distinguished.
2. The facts of the present case do attract the provision~ of the
Mysore
Tenants (Temporary Protection from Eviction) Act, 1961 and subsequently the
Karnataka Land Reforms Act.
The first respondent Was a tenant under the
fourth respondent within the meaning of Section 2 ( 18) of the Bombay Act.
He had therefore, the protection of the Bombay Act. Later he got the protection under Section. 2(e) of the Mysore Act and subsequently,
the
protection
continued even under the Karnataka Act. The question which faU.c for decision in these appeals is not one as to the applicability of any of the three Acts
to the land in dispute but squarely (i) it is a question as to whether the claim
of the first respondent that he became a tenant under the appellants also is
tenable under the various Act. Thus on the facts of the case· the decision of
this Court in Kulkarni's case applies on all fours. i[802 A·CJ
Bhiniji Shankar Kulkarni v. Dundappa Vithappa Adapudi and Anr. [196']
I SCR 145; followed.
3, The argument that thong~ the respondent No. 1 might have been inducted
as a tenant by respondent No. 4, but as soon as, the land was allotted to the
share of the appellants he ceased to be in lawful possession of the land and in
view of the well settled position of law with reference to Section 52
of the
Transfer of Property Act he could not be a 'tenant' or 'deemed tenant' under
the appellants within the· meaning of the Bombay Act or Karnataka Act is not
correct. A question arose during the pendency of the suit and the execution
proceeding whether on the final allotment of the land to the appellants, respondoot No. 1 had ceased to be a tenant and had become a trespasser in view of
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SOUDAGAR V. MACHENAHALLI
791
section 52 of the Transfer of Property Act.
The appellants may have a good
ease on merits.
But there does not seem to be any escape from the position
that the adjudication of the question aforesaid fell squarely and exclusively within the jurisdiction of the Revenue Authorities and the Civil
Court had
no
jurisdiction to decide it.
It was not a case \vhere there was no dispute of the
fact that respondent No. 1 was a tenant or vice versa.
Nor was it a case where
dispute had cropped up inter se between two persons both claiming to be the
landlord of the land or bet\reen two persons both claiming to be the tenant of
the land. The dispute was whether respondent No. 1 had become the tenant
of the appellants or not.
[802 D-H, 803 A]
Bhifnappa J7ent..appa Kerisa v. Basavalingayya, I.L.R. 1958 Mysore, 197;
Ramdas Popat Patil v. Fakira Pandu Patil and Ors. A.I.R. 1959 Bombay, 19
and Chandbeg Muradbeg and Ors. v. Raje Madhao Devidasrao Jahagirda'r and
Ors., AIR 1961 By 146, explained and distinguished.
·
Kedar NaJh Lal and Anr. v. Ganesh Ran1 and Ors. [1970] 2 S.C.R. 204,
referred to.
Per F(ailasan1 l.
1. The exclusion of the jurisdiction of the Civil CV>urt is not to be lightly
inferred. Such exclusion must be explicitly expressed or clearly implied. In
order to determine whether the jurisdiction of the Civil Court was expressly or
by necessary implication exCiuded the provisions of the relevant enactments
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will have to be considered. [806 A-DJ
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Secretary of State v. Mask Co., 67 I.A. 622, Dhulabhai v. State
of M.P.
[1968] 3 SCR 662; State of West Bengal v. The Indian Iron and Steel Co. Ltd.,
[1971] I S.C.R 275, Union of India v. Tara Chand Gupta and Bros., [1971] 3
S.C.R. 557; reiterated.
2. The Kamataka Land Reforms Act as well as the. earlier enactments were
made for the purposes of introducing agrarian refom1~. conferment of owner-
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ship on tenants, ceiling on land holdings and for certain other matters referred
E
to in the Act.
Any dispute arising under the provisions of the Act and relating to disputes between landlord and tenant \vill be within the jurisdiction of
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the Tribunal constituted under the Act. [808 A-BJ
By Secti©n 132 of the Ka.rnataka Land Reforms Act, 1961, the jurisdiction
of the Civil Court to settle, decide, to deal with any question which is under
the Act required to be decided by the authorities set up by the Act is
taken
away.
Under Section 112 B which enumerates the duties of the Tribunal it is
clearly the duty of the Tribunal to determine whether a person who claims to
F
be a tenant is an agriculturist, whether he cultivates personally the I<inds,
whether he holds the lands from a landlord, whether he is a deemed tenant
under section 4, whether he is entitled to protection from eviction from any land
under the Kamataka Tenants (Temporary Protection from Eviction) Act, 1961,
whether he is a permanent tenant and whether he is a protected tenant. In this
connection it is necessary to note the definition of landiord in section
2(21)
which means a person who has leased the land to a tenant and includes person
eliltitled t~ receive the rent from ~ tena~t. It is alse thr duty of the T ribunz-1
to determine whether the tenant is holding the la:nd on lease from a landlord.
G
[807 B, F-Hl
Asa Ram and Anr. v. Mst. Ram Kali & Anr., [1958] S.C·.R. 986 referred tiJ .
. 3. Sub-section 2(a) o_f ~ection 133 of the. ~amatakc: Act is applicable
to
suits on!y and d?es not md1cate that. t.he prov1s1ons are applicable to -execution
proce~rngs or in appeals. before Crvd Courts.. The jurisdiction of the Civil
Court rs. taken away only in respect o.f the decisions of the issues in suits that
a.re required to be referred to the Tnbunal under Section 133 and the Civil
H
Court shall stay the suit. On receint of a communication from the Tribu'D.al
the Ci.vH Court has to proceed with the trial o~ .the suit and dispose it
0f
according to law. In the absence of express prov1s1on, when an issue has been
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[1978] 3 S.C.R·
referred by the Civil Court to the Tribunal and is receivetl back and a decree
passed in the suit, the provision of the Civil Procedure Code regarding appeals
and revisions will be applicable. In such circumstances the appellate Court
will have to consider the correctness or otherwise of the issue that has
been
decided by the Tribunal.
Section 4(1) of the Mysore Act which is similar to
section 133(2) of the Karnataka Act provided for stay of execution in suits,
proceedings and execution of decrees or orders and ot.he.r proceedings for the
eviction of tenant.
In applying section 133, therefore, the questions that have
to be considered are, whether the sub-section is applicable to execution proceed·
ings and in appeals before Civil Courts.
[808 F-H, 809 A-Bl
In the instant case, as the respondent took the plea that he
is
protected
under the Mysore Land Reforms Act, 1961, the question as to what extent the
jurisdiction of the Civt1 Court is barred ought to have been gone into by the
High Court. It is unfortunate that the High Court corisi.dered it unnecessary
to consider the various questions in the Second Appeals in view of the decision
of this court in Bhima}i Shanker Kulkarni v. Dundappa Vithappa Udapudi and
Anr., [1966] 1 S.C.R. 145.
The only other ground on which the appeals were
dismissed was that under section 142(1-A) of the Mysore Act corresponding
to section 22 of the Kamataka Act, the 1st respondent was entitled to protection. The protection is available only when the land is held by a person as a
tenant.
[810 B-D]
Bhimaji Shankar Kulkarni v. Dundappa Vithappa Udapudi and Anr. [1966]
;.
1 S.C.R. 145; Dhondi Tukkaram v. Hari Dadu I.LR. (1953) Born. 969; explained.
/
4. If in law the sharer in possession could not enter into any transaction
obviously affecting the rights of the parties the defendant cannot
claim
any
right and therefore, will not be a tenant. The question to be considered
in
such circumstances is whether an issue that the defendant is a tenant arises at
all. [8ll G-H, 812 A]
5. The Civil Court has inherent power to decide the question of its
own
juri5diction .d. h'lLigb as a result of an inquiry it may turn out that it has no
jurisdiction.
Even though the defendant may plead that he is a tenant,
the
Court must be satisfied that an issue whether the defendant is a tenant or not
arises before it could be referred for determination by the Tribunal and the
question of jurisdiction will not be decided mainly on L.1.e plea of the defendants.
[812 A, 813A]
Bhatia Cooperative Housing Society v. D. C. Patel,
[1953]
S.C.R.
185;
followed.
Bhimaji Shankar Kulkarni v. Dundappa Vithappa Udapudi and Anr., [1966}
1 S.C.R. 145, Raizada Topandas and Anr. v. Mis. Gorakhram Gokhalchand,
[19641 2 S.C.R. 214; Vasudcva Gopalkrishna Tanwaker v. The Board of Liquidators Happ)' Home Cooperative Housing
Society
[1964]
3
S.C.R.
964;
Musamiya Imam Haider Beg Razvi v. Raberi Govindha Ratnabhai and Ors.
[1969] 1 S.C.R. 785, Secretary of State v. Mask & Co .• 67 I.A, 222. Corporation of City of Bangalore v. B. T. Kan1panna, [1977] 1 S.C.R. 269, explained.
6. In the instant case :
(a) It was incumbent on the High Court to decide the
several questions
that arise for consideration. The plea of the appe1lants Lhat the decisions of
the Civil Courts directing the 1st respondent to deliver the possession
to the
appellant have become final and was no more available to him to be
raised
under the Karnataka Land Reforms Act also falls for decision.
Equally, the
plea that the questions that arise in the appeals. are not \Vithin the. compet~nce
of the Tribunal, also ought to have been gone into.
Before referring the issue
to the Tribunal the High Court ought to have come to a conclusion that on the
facts of the case the issue as to whether the Ist respondent is a tenant has arisen
and has to be decided by the Tribunal.
[816 D-E]
(b) The High Court O'll;ght to have also considered whe~her a~y restriction
011 the jurisdiction of the Civil Courts placed under the } .. ct ts applicable to the
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SOUDAGAR v. MACHENAHALLI (Untwalla, !.)
793
High Court also.
The jurisdiction of the Civil Courts is not entirely barred as
the Act only provides for reference of certain issues for decision before
the
Revenue Tribunal and after receipt of the finding of such issues to
record a
1udgment on such finding.
The appeal to the Civil Courts according to
the
Civil Procedure Code and the jurisdiction of the High Cuurt in hearing appeals
and revisions under certain circumstances have not been excluded. [816 F-G]
[In view of the statement at the bar that during the pendency
of these
appeals in this Court that the Land Tribunal dismissed R.C. 37 /66 filed by tbe
respondent seeking declaration that he is a tenant in holding and that he 1s not
a tenant, the court ordered (a) that actual delivery ot possessions w~uld ~e
delivered to the appellants if the question has already been finally decided in
favour of the appellants (b) If not the revenue authorities should
decide
as
quicl~ly as possible and if the decision goes in favour of the appellants no time
should be lost in giving actual delivery of possession to them an~ if per chance,
the decision goes against them only symbolical possession be given.]
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CIVIL APPELLATE
JURISDICTION : Civil Appeals Nos. 2372C
2373/68.
Appeals by Special Leave from the Judgment. and Order dated 9th
February 1968 of the Mysore High Court in Execution Second Appeal .
Nos. 86 of 1965 and 78 of 1967.
S. S. Javali and M. Veerappa for the Appellants.
Nazmit Lal and K. Vasudev for Respondent No. 1 in both the
appeals.
K. Ramkumar and K. Jayaram for Respondent No. 4 (In C.A.
2372/68).
The Judgment of the Court was deliver~d by
lJNTWAUA, J. These two appeals by special leave are from the
co?1mon jud!9!1ent of the Karnataka High Court. In the year 1945, a
smt for J?Urt1t10n and posses~10n :vas filed by th~ original respondent
No. 2 (smce deceased and his helfs substituted). In the said suit all
the C?-sharers were impleaded as defendants 1 to 7. The 4th respondent m these appeals was defendant No. 1 and the predecessors-ininterest of the appellants were defendants 5 and I\. Each branch had
1 /7th share., A prelimhzary decree was pa>sed by the Trial Court ori
Deccm?er b. 1954, whzch was eventually confirmed by the ·High
Cou:t m a 'econd. al?peal decided on January 16, 1963.
After. the
passmg Qf the prehmmary decree in thq year 1954, in accordance \vith
t~e law prevalent. in the Stat.e of Karnataka (then known as Mysore
s.ate),. an execution case bemg L.D. 117 of 1956 was filed
by the
plamtzff .. decree ho.Ider and the appellants in the
Court which
had
passed the prclimmary decree for final partition and possession; the
same had .to be made and given by the Colle~tor. In the , execution
case was 1mpkaded respondent No. 1 in these appeals as
judgmentdebtor . N,a. 20 be~ause ~e h~d _been inducted as a lessee of a portion
of the su,t properties dunng its pcndency in or about the year 1948 b
:espondent no. 4.
The e.ffect of impleading respondent no. 1 as i
JUdgment-clebtor was as 1f he was 1mpleaded as a party to th
't
before the final partition.
On May 29, 1961
the executing eci~:t
16-315SCI/78
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directed the Collector to partition the suit property and to give possession of their respective allotted Iapds to the various co-sharers including the appellants. The Collector made the final allot.ncnt of the
various lands to the different co-sharers. The disputed land over which
respondent no. 1 had been inducted by respondent no. 4 was allotted
to the share of the appellants sometime after May 29, 1961 and before
May 29, 1965. On 29-5-1965, in pursuance of the direction of the
Execution Court and the Collector, the Tahsildar went to edect the
delivery of possession but proposed to deliver only symbolical possession of the disputed land and declined to deliver actual possession, as,
he found 1espondent no. 1 to be in actual cultivating possession of it.
The Execution Court was moved in the matter and by its order dated
June 8, 1965, it directed the Tahsildar to deliver actual possession. The
said order was confirmed in appeal on July 31, 1965 by the First,
Appellate Court.
Respondent no. 1 filed Execution Second Appeal
No. 86 of i965, presumably because the order dated 8-6-1965 of the
Execution Court was one under section 4 7 of the Code of Civil Procedure. In this appeal, the High Court made certain conditional orders
of ad-interim stay. The conditions were not complied with by respondent no. 1. Tliereupon, the appellants made an application again to
the Execution Court for directing actual delivery of possession. The
first respondent contested the application filed by the appellants on the
ground that he being a tenant of the land had made an application
under the Mysore Land Reforms Act, 1961 which had come into force
'on 0-=tober 2, 1%5, hereinafter to be called the Karnataka Act, seeking a declaration that he was a tenant within the meaning of tbat Act.
The Execution Court, by its order dated August 8, 1967, again directed
the Tahsilde.r to deliver actual possession and its order was confirmed
by the First Appellate Court on August 31, 1967. Execution Second
Appeal No. 78 of 1967 was filed by respondent no. 1 in the High
Court on September 21, 1967.
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The Hi[,11 Court has allowed both the appeals by its common juagment dated February 9, 1968 and held that respondent no. J, in view
of the provisions of the Kamataka Act, cannot he evicted and no actual
delivery ,,f possession can be given against him unless the requirements
of rhe said Act are followed. In so doing !he High Court has followed
the decision of this Court in Bhimaji Shanker Kulkarni v. Dwzdappa
Vuthappa Udapudi and anr(2 ) given in relation ~o the corresponding
provisions of The Bombay Tenancy and Agricultural Lands Act, 1948,
hereinafter called the Bombay Act. Hence these appeals.
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Mr. S. S. Javali argued for the appellants and strenuously assailed
the judgmen! of the High Court. Mr. Naunit La!, appearing for the
first respondent combated his argument.
Although respondent no. 4
was also represented before us by an Advocate, no argument was ad.
vanced Dn his behalf, as thei disput11 in these appeal; i~ mainly between
the appellants and the first respondent.
Before we proceed to notice and discuss the contentions raised by
the appellan:.S, we may note a few more undisputed facts \\'hich were
(1) [1966J 1 S.C.R 145-A.I.R. 1966 S.C. 166.
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SOUDAGAR·V. MACHENAHALLI (Un'iwaliii, !.)
795
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given to us by learned counsel for tlie parties.. The disputed land in
this case is comprised in R.S. No. 61/1 and R.S. No. 61/2 situated in
village Yattinahalli in Ranebennur Taluk of Dharwar District, which
once formed pat! of the erstwhile State of Bombay. On the re-organization of the States in the year 1956, vt1!age Yattinahalli came to form
part of the erstwhile State of Mysore-now known as the State of
Karnataka.
Our attention was, therefore, rightly drawn to the rele-
'ant provisions of the Bombay Act which were applicable to the disB
puted lar;d 2nd remained so applicable even after the re-organization
of the State until The Mysore Tenants (Temporary Protection from
Eviction) Act. 1961, hereinafter called the Mvsore Act, and the Karnataka Act were passed and enforced.
.
·At the outset of the discussion of the points urged for the appellants, we may briefly notice the relevant provisions of the three Acts'-
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viz. the Bombay Act, the Mysore Act and the Karnataka Act. Subsections (18), (14) and (lOA) of the definition section 2 of the Bombay Art respectively defines 'tenant', 'protected knant' and 'permanerit
tenant'. Sub-section (18) says:
" "tenant" means a person who holds land on lease and
includesD
(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;
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and the word "landlord" shall be construed accordingly."
Persons to be 'deemed tenants' are mentioned in section 4. The procedure for taking possession by or from a tenant under the Bombay
Act is provided in section 29. If a person was a tenant under the 8aid
Act indisputably he could be evicted only on the grounds and in accordance wilh the Bombay Act. Section 70 enumerates the duties of
the Mamlatdar and says :
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"For the purposes of this Act the following shall be the
duties and functions to be performed by the Marnfatdar :--
(a) to decide whether a person is an agriculturist;
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(b) to decide whether a person is, or was at any time in
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the past, a tenant or a protected t~nant or a permanent
tenant : .................... "
The words in ~lause (b) "or was at any time in the past" were added
with retrospective effect by Maharashtra Act 49 cl 1969. It seerr1s
to have be~n so done in view of the decision of this Court in Mussamiya
Imam Haz~er Bax Raz~i y. ,Rqbari Govindbhai Ratnabhai & Ors.(")
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~nder section 85 the 3unsd1ct10n of the Civil Court concerning any
(I) [1969] I S.C.R· 785.
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SUPREME COURT REPORTS
[1978] 3 S.C.R.
matter which has to be decided or dealt with by the Revenue Authorities, including the question whether a person is ur was at any time In
the past a tenant or not, is barred. Section 85A has been extracted
in Kulkarni's case (supra). It provides that if in any suit instituted in
any Civil Court an issue arises which has to be decided by the Revenue Authority, then the Civil Court shall refer such an issue for the
decision of the Revenue Authority and stay the hearing of the suit
until then. The Civil Court shall, thereafter, pronounce its decision ·in
accordance with the decision of the Revenue Authority on that issue.
Dealing with the provisions of the Bombay Act and approving the
principle decided by the Bombay High Court in the case of Dhondi
Tukaram Ma!i, and another v. Hari Dadu Mang, and others(') a dcciEion which was given before the introduction of Section 35A in the
Bombay Act, it was held in Kulkarni's case as follows at page 149 :-
"The Mamlatdar has exclusive jurisdiction to entertain
an application by a landlord for possession df agricultural
lands against a tenant, and the Civil Court has no jurisdiction to entertain, and try a suit by a landlord against a tenant
for possession of agricultural lands. The Mamlatdar has no
jurisdiction to try a suit by a landowner for recovery of
possession of agricultural lands from a trespas_ser or from a
mortgagee on redemption of a mortgage. and the Civil
Court has jurisdiction t0 entertain such a suit; but if the
defendant to the suit pleads that he is a tenant or a protected
tenant or a permanent tenant and an issue arises whether he
is such a tenant, the Court must refer the issue to the Mamlatdar for determination, and must. stay the suit pending such
determination, and after the Mamlatdar has decided the issue,
the Court may dispose of the suit in the light of the decision
of the Mamlatdar."
We now advert to the relevant and corresponding provisions of the
Mysore and the Karnataka Acts.
Section 2(e) of the Mysore Act
says:--
" "tenant" means an agriculturist who holds land on lease
from a landlord and includes an agriculturist, who is or is
deemed to be a tenant under any law .for the time being in
forcr.',
Sub-section ( 1) of section 4 rellds as follows :
"Stay of certain suits or proceedings.-(1) All suits proceedings in execution of decrees or orders and other proceedings for the eviction of tenants from the lands held by
them as tenants or in which a claim for such evictiou is involved pending in any civil or revenue court Jr before any
Tribunal on the date of commencement o[ this Act, or which
mav be instituted on or after the date of such commericeme~t, shall stand stayed during the period this Act remains
in force."
(1) I.L.R. 53 Bombay, 969 .
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eOUDAGAR v. MACHENAHALLI ( Untwalia, J.)
797
It would thus be seen that if respondent No. 1 in these appeals was
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~ "deemed tenant" under the Bombay Act,
he had the protection of . the Mysore Act. The Karnataka Act has been amended
several hmes, such as, by Karnataka Act 14 of 1965; Act 38 of 1966·
Act .6. of 1970 and Act 1 of 1974. We are referring to the relevant
pro~is1011s ot the Karnataka Act from one of the two petitions of
si;iecial leave, as we we_re given to understand that the relevant provision~ at the relevant time read as mentioned in the said petition of
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specia\ leave. _The .expression~ 'permanent tenant' and 'protected
t?nant are defin~d m sub-sect10ns (23) and (27) respectively of sect10n 2. Sub-section (34) says :-
·
" "tenant" means an agriculturist who holds land on
lease from a landlord and includes :-
(i) a person who is deemed to be a tenant under section
4;
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(ii) a person who was protected from eviction froni any
land by the Mysore Tenants (Temporary Protection
from Eviction) Act, 1961, ;
(iii) A person who is a permanent tenant; and
(iv) A person who is a protected tenant."
Persons to be 'deemed tenants' are mentioned in section -1- more or
less on the lines of section 4 of the Bombay Act.
The grounds on
which a tenant can be evicted are mentioned in section 22.
Section
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111 provides for constitution of Tribunal and the duties of Tribunal
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are enumerated in section 112, the relevant portion of which reads as
follows:-
"For the purpose of this Act, the following shall be the
duties and functions to be performed by the Tribunal
namely:--
(b) to decide whether a person is a tenant or not under
Section 4."
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Civil Court's jurisdiction is barred under section 132 \\hich is
in
pari materia with section 85 of the Bombay Act. Section 133 corres-
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ponding to section 85A of the Bombay Act may be quoted here:-
"Suits involving issues required to be decided under this
Act :-(I) 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 wit_h
such issues under this Act (hereinafter referred to as tlie
"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
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SUPREME COURT REPORTS
[1978] 3 S.C.R.
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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."
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Section 142 of the Karnataka Act provides for repeal and savings ot
certain earliar Acts. Sub-section (lA) was inserted by Act 14 of
J 965 in section 142. It reads as follows :-
'~Notwithstanding anything contained in sub-section (1)
or in any law in force in any area of the State of Mysore
at any time before the commencement of this Act, the first
proviso to the said sub.,sectien or any other provision of Jaw.
shall not be applicable in so far as the said proviso or provision of law will enable any person to evict from any agricultural land any agriculturist protected from eviction from
any land in his possession by the Mysore Tenants (Temporary
Protection from Eviction) Act, 1961, and no such agriculturist shall be liable to be eviCted from such land except in
accordance with the provisions of this Act."
It would thus be seen that if respondent no. 1 was a tenant within the
meaning of the Bombay Act, then he had the protection of the Mysore
Act against his eviction and sub-section (lA) of section 142 of the
Karnaiaka Act extended the protection and provided that he shall not
be liable to be evicted from land in respect of which he could be
deemed to be a tenant except in accordance with the provisions of the
Kar~ataka Act.
In the execution proceeding in question a dispute h.as arisen as to
whether respondent no. 1 is a tenant or not within the meaning of the
Bombay Act and/or the Karnataka Act. The said respondent was
inducted upon the disputed land by respondent no. 4 during the pendency of the partition suit. Iri all probability, therefore, as was argued
by Mr. Javali for the appellants, his lease would be affected on the
doctrine of !is pendens engrafted in section 52 of The Transfer or
Property Act, 1882. Counsel submitted that respondent no. l could
not be a tenant or a deemed tenant under the appellants after the
land was finally allotted in their share by the Collector in pursuance
of the preliminary decree passed by the Civil Court. He was inducted
upon the land when by a private arrangement or otherwise the land
was in possession of respondent no. 4 and during the pendency of the
partition suit. It seems, because of that reason, this respondent was
impleaded in the execution case filed by the appellants and others as
judgment debtor no. 20. In view of the special procedure of law prevalent in the State of Karnataka (then Mysore), the effect of impleading respondent no. 1 as judgment debtor no. 20 was to make him a
party to the suit and the execution proceeding enabling him to take
his objections to the execution under section 47 of the C<1de of Civil
Procedure.
Rightly or wrongly he took the objection th1t he was a
tenant and, therefore, could not be 'evicted by the Collector in pursuance n'. the Jina! partition decree or order by giving actual deTivery of
possession to the appellants.
An issue, therefore, ,arose for decision
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SOUDAGAR v. MACllENAilALLI (Untwalia, J.)
799
of the Civil Court in the suit or the execution proceeding which was a
continuation of the partition suit as to whether respond'ent no. 1 was
a tenant within the meaning of the relevant Acts. The stand taken on
behalf of lhe appellants with reference to section 52 of The Transfer
of Property Act may be good and may hav~ force.
i:'one~he1css, the
jurisdiction ol the Civil Court to decide this contenllous issue . was
barred. The matter had to be decided by the Revenue Authonttes.
If the Revenue Authorities finally came fo the conclusion that respondent no. 1 w~s a tenant within the meaning of the relev~nt provisions of the Jaw, it 1s plam that no actual dellvery of possesswn could
be effected in favour of the. appelfants in respect of the disputed fand.
If, however, the decision of the Revenue Aulhorities finally went agamst
respondent no. 1 in regard to his claim of being a tenant, it is equally
plain that aclual delivery of possession over the disputed land can be
and has got to be effected in favour of the <lppellants by dispossessing
respondent no. 1 in the very execution case which has given rise to
these appeals.
Mr. Naunit Lal's contention that, in that event, respQndent no. 1 will have other points to urge before the Civil Court
or the High Court has no substance.
No other point requiring any
further consideration arises in this case.
An identical view was expressed by this Court in regard to the bar
of the jurisdiction of the Civil Court with reference to an evacuee property in the case of Custodian of Evacuee Property Punjab & Ors. v.
Jafra11 Begum,( 1) interpreting section 46 of the Administration of
Evacuee Property Act, 1950. The High Court had taken the _view
that whether a certain person had or had not become an evacuee was
determinable only by the authorities under the Act; 1:mt the determination of a complicated question of law relating to title to the property
by such authorities was not final and could be re-opened In the Civil
Court. This Court did not countenance the view of the High Court
and held that section 46 is a complete bar to the jurisdiction of the
Civil Court to adjudicate upon the question whether the. property in
dispute or rigl1t to or interest therein is or is not evacuee prope11y. Mr.
Javali, on the basis of the decisions of this Court inMussamiya Imam
Haider v. Rabari Govindbhai Ratnabhai & Ors (supra) and Corporation of the City of Bangalore v. B. T. Kampanna(2 ) submitted that the
question whether respondent no. 1 in the past was a tenant of the appellants could not be referred to the Revenue Authorities; nor was the
jurisdiction of the Civil Court ousted to decide the applicability of the
Act concerning the claim of respondent no. 1.
It would be noticed from the facts of Razvi's case that the Collector's order gra_t1ting lease in favour of the defendant$ was made on
28-7-1956 but the Kabuliyat was executed on August 24, 1956. It
was, therefore, held by the Higli Court as also by this Court that tbc
lease was granted only on 24-8-1956. One of the question for consideration was whether the defendants had become statutory owners of
the suit lands under Section 32 o( the "Bombay Act on account of their
(I) [1967] 3 S.C.R. 736.
(2) (1977 S.C.R. 269.
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SUPREME COURT REPORTS
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claim that they were tenants of the land on tlie tillers' day i.e. 1-4-57.
The lease which became operative from24-8-1956 was for a period
of one year.
Since the provisions of Section l to 87 A of the Bombay Act were not applicable to the plaintiff's estate from 1-8-1956 to
11-5-1958, and the tenancy expired on 31-5-1957, it was held that
there was no subsisting lease on 11-5-1958 and the High Court was
right in taking the view that the defendants had failed to establish that
they had become statutory owners of the land by virtue of the first
provi3o to Section 88 read with Section 32 and 32F as amended under
the Amending Act No. 13 of 1956 (vide pages 795-796).
It may be pointed out that neither by Section 70 nor by Section
85, as it stood at the relevant time, a jurisdiction was CQ\'lferred on
the Mamlatdar nor was the jurisdiction of the Civil Court ousted in
clear terms as required by
Mask's case( 1) apropos the questions
whether a person was or was not a tenant in the past or whether he
had become a statutory owner under _the relevant amended provisions
of the Bombay Act. In that situation iJ was held by this Court that
the decision on the question of ownership of the teoont on the tillers'
day was not outside the jurisdiction of the Civil Court. The decision
of this issue was dependant on the d!cision of another issue, namely,
whether the defendants were or were not the tenants of the suit lands
on the material date namely 28-7-1956 or on 11-5-1958. In view of
the provisions of law, as it then stood, it was held at pages 796-797:
"Section 70(b) of the Act imposes a duty on the Mamlatdar to decide whether a person is a tenant, but the subsection 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 ....... .
Jn other words, the plea of tenancy on the two past
dates wus a subsidiary plea and the mam pie~ :was of statutory ownership and the jurisdiction of the CIVIi Court cannot therefore be held to be barred in this .case by virt!l~ of
the provisions of s. 70 of the Act read with the prov1s10ns
of s. 85 of the Act."
The suit in Razvi's case was filed on 11-7-1958 and this Court
opined that the decision of the question whether the defendants_ w~e
the tenants on any of the relevant dates before th~ :Jate of the smt 'Yas
not outside the jurisdiction of the Civil .Court as 1t was a qucstton
relating to their claim of being a tenant m the past.
It may be useful to point out that sections 70 and 85 of the Bombay Act were thereafter amended with retrospective effcet by Maharashtra Act 49 of 1969. In clause (b) of section_70 t_hc words after
the amendment are "person is, or was at an:,: time m the I?ast, a
tenant". Clause (kk) was also inserted in secllon 70 by the said Act
giving jurisdiction to the Mamlatdar to bold an enqmry and restore
possession of land under sub-section (lB) of scc!ion 32. It is also
(l) 67 J ndian Appeals, 222.
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SOUDAGAR v.