# PATHAN MURTAZAKHAN DADAMKHAN AND ORS v. J'ATHAN PIRKHAN AMDUMIYAN (DEAD) BY LRS

- **Citation:** [1993] 2 S.C.R. 578
- **Court:** Supreme Court of India
- **Decided:** 1993-03-23
- **Case number:** Civil Appeal No. 1890 of 1974
- **Bench:** K. Ramaswamy, R.M. Saha!
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pathan-murtazakhan-dadamkhan-and-ors-v-j-athan-pirkhan-amdumiyan-dead-by-lrs-11702
- **Pages:** 3

## Headnote

Code of Civil Procedure, 1908:
Section JOO-Second appeal-Raising of fresh plea during-f'ermisc sibility of.
Section 9-Civi/ Courts-Bar of jurisdiction.
Bombay Tenancy Ac4 1939: Sections 2A, 85-A.
D
The appellants' predecessor was inducted as an usufructuary
mortgagee of certain fields. On th.e expiry of redemption period the respoodents filed a suit for redemption which was decreed subject to payment of
damages for improvements. On appeal, the District Court confirmed the
redemption decree but set aside the decree for damages. Io second appeal,
(be appellants raised a new plea: that they were deemed tenants by operaE lion of Section 2-A of the Bombay Tenancy Act, 1939. It was also contended
y
,,o their behalf that Section 85-A of the Act ousted the jurisdiction of the
Civil Court to decide the dispute of tenancy rights In pending suit.
Rejecting both the contentions the High Court confirmed the decree -
F
of the appellate court. Against the judgment of the High Court an appeal
·,.was filed In this Court.
Dismissing the appeal, this Court,
..,...
HELD: 1. The plea based on Section 2·A was sought to be raised for
G
the llrst time In second appeal before the High Court. It was neither raised
In the pleadings nor argued either before the triiil Court or the appellate
courf. Therefore, the High Court rightly did not permit the appellants to
raise tbe plea of a deemed tenancy as the said claim needs Investigation
...,....
based on factnal foundation which was lacking. Consequently, the question
whether under Section 85-A the Civil Court had jurisdiction or not need
H not be gone into. (580 D·E, S79 Fl
578
'
)_
·~.
-
P.M. DADAMKHAN v. P.P. AMDUMIYAN
579
Salman Raje v. Madhavsang Benesang, l!..R. 1963 Guj. 722, dted.

## Text

.~
A
PATHAN MURTAZAKHAN DADAMKHAN AND ORS.
v.
J'ATHAN PIRKHAN AMDUMIYAN (DEAD) BY LRS.
MARCH 23, 1993
B
[K. RAMASWAMY AND R.M. SAHA!, JJ.)
Code of Civil Procedure, 1908:
Section JOO-Second appeal-Raising of fresh plea during-f'ermisc sibility of.
Section 9-Civi/ Courts-Bar of jurisdiction.
Bombay Tenancy Ac4 1939: Sections 2A, 85-A.
D
The appellants' predecessor was inducted as an usufructuary
mortgagee of certain fields. On th.e expiry of redemption period the respoodents filed a suit for redemption which was decreed subject to payment of
damages for improvements. On appeal, the District Court confirmed the
redemption decree but set aside the decree for damages. Io second appeal,
(be appellants raised a new plea: that they were deemed tenants by operaE lion of Section 2-A of the Bombay Tenancy Act, 1939. It was also contended
y
,,o their behalf that Section 85-A of the Act ousted the jurisdiction of the
Civil Court to decide the dispute of tenancy rights In pending suit.
Rejecting both the contentions the High Court confirmed the decree -
F
of the appellate court. Against the judgment of the High Court an appeal
·,.was filed In this Court.
Dismissing the appeal, this Court,
..,...
HELD: 1. The plea based on Section 2·A was sought to be raised for
G
the llrst time In second appeal before the High Court. It was neither raised
In the pleadings nor argued either before the triiil Court or the appellate
courf. Therefore, the High Court rightly did not permit the appellants to
raise tbe plea of a deemed tenancy as the said claim needs Investigation
...,....
based on factnal foundation which was lacking. Consequently, the question
whether under Section 85-A the Civil Court had jurisdiction or not need
H not be gone into. (580 D·E, S79 Fl
578
'
)_
·~.
-
P.M. DADAMKHAN v. P.P. AMDUMIYAN
579
Salman Raje v. Madhavsang Benesang, l!..R. 1963 Guj. 722, dted.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1890 of
1974.
From the Judgment and Order dated 6.8.1973 of the Gujarat High
A
Court in Second Appeal No.98 of 1973.
B
M.V. Goswami for the Appellants.
S.K. Dholakia and P. Narasimhan for the Respondents.
The following Order of the Court was delivered:
This appeal under Article 136 is against the judgment of the High
Court of Gujarat in Second Appeal No.98 of 1973 dated Ailgust 6, 1973.
c
The appellants' predecessor was inducted in Field Nos.439 and 676 as .an
usufructuary mortgagee in the year 1945. On expiry of .the period of
redemption prescribed therein, that is, 25 years, the suit/for redemption D
was filed in 1970 by the respondents. The trial court decreed the suit
subject to payment of damages for improvements. On appeal, the District
Court confirmed the decree for redemption but set aside the decree for
damages. In second appeal, the High Court confirmed the decree of the
appellate court. Thus this appeal.
In the High Court, the appellants sought two contentions, namely, by
operation of Section 2-A which was brought by way of amendment of
Section 48 to the Bombay Tenancy Act, 1939, the mortgagee became a
deemed tenant. It was not permitted to argue as is not a pure question of
E
law but is a mixed question of law and fact which need investigation of F
facts. It was neither raised in the pleadings nor argued either before the
trial court or the appellate court. Therefore, the question raised in the
second appeal for the first time was disallowed The second question
namely, the jurisdiction of the civil court to declare the tenancy rights by
operation of the Amendment Act sm which brought Section 85-A on
statute with retrospective effect. It ousted the jurisdiction of the civil court G
to decide the dispute of tenancy rights in pending suit. This contention too
was negatived as when the Amendment Act came into force, the second
appeal was pending and therefore the High Court held that the civil court
was not ousted to exercise the jurisdiction and to refer the matter to the
Revenue Court for jurisdiction fot adjudication whether the appellants H
580
SUPREME COURT REPORTS
(1993) 2 s.c 'l.
A were or were not deemed tenants. The same contention was reiterated
before us. Placing reliance on a Division Bench judgment of the Gujarat
High Court in Salman Raje v. Madhavsang $enesang, reported in ILR 1963
Guj.722, Shri M.V. Goswami, the learned counsel for the appellants contended that by operation of Section 2-A, the appellants are deemed
tenants. Once the appellants are deemed tenants, the Revenue Court has
B to decide that issue. The second appeal is a continuation on the suit and
therefore, the High Court is not right in rejectmg the claims of the
appellants. It is not necessary to express any opinion O!! the correctness of
the judgment of the Division Bench of the Gujarat High Court. Suffice it
to say that the appellants had not specifically pleaded that the appellants
C are deemed tenants by operation of Section 2-A of the Act. What was
pleaded in the written statement was that initially the appellants' predecessor was continuing as cultivating tenant. But by virtue of the mortgage, their
tenancy right merged in the right as usufructuary mortgagee. On redemption pre-existing tenancy rights get revived. But that plea was not pursued.
D A new plea based on Section 2-A was sought to be raised for the first time
in the High Court. The High Court rightly did not permit the appellants
to raise the plea of a deemed tenancy as the said claim needs investigation
based on factual foundation which was lacking. Once the right of tenancy
is not permitted to be raised, the question of construction of Section 85-A
whether the Civil Court had jurisdiction or not is an academic issue.
E Accordingly, we are not going into that question. The learned counsel for
the appellants also contended that the appellants are entitled to the improvements. The High Court did not go into that question as the same was
not canvassed and the decree of the appellate court is quite right. We
cannot go into that question which is accordingly rejected. The appeal, is
accordingly dismissed but in the circumstances without costs.
T.N.A
Appeal dismissed.
'
_j