The jurisdiction of the civil court to settle, decide or deal with the same is not only ousted but the civil court is under a statutory obligation to refer the issue the competent authority under the Tenancy Act to decide the same and upon the reference being answered back, to dispose of the suit in accordance with the decision of the competent authority under the Tenancy Act
|Case name:||Pandurang Ramchandra Mandlik (Since Dead)By His Lrs. And An v. Smt. Shantabai Ramchandra Ghatge And Ors|
|Case number/Citation:||Civil Appeal No. 1582 Of 1973|
|Court:||Supreme Court of India|
|Bench:||HON’BLE JUSTICE K. N. SAIKIA HON’BLE JUSTICE M. N. VENKATACHALIAH|
|Decided on:||September 12, 1989|
|Relevant Act/Sections:||Bombay Tenency and Agricultural Lands Act|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- The appellants were the owners of land bearing R.S. No. 1442 and 1445, situate at Kasba Karvir, within the municipal limits of Kolhapur. The said land was leased out to the father of respondents 1 and 2 and the husband of respondents 3 and 4 on October 12, 1950 for a period of ten years. The appellants had filed Revision Civil Suit No. 298 of 1964 against the respondents for possession thereof, mesne profits and for damages.
- It was averred in the plaint that the appellants had earlier initiated proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as ‘the Act’, and in the said proceedings it was held that the provisions of the Act were not applicable to the land inasmuch as only grass grew thereon naturally. It was further averred that on expiry of the period of lease the appellants terminated the tenancy under the provisions of the Land Revenue Code and filed the aforementioned suit.
- Respondent 1 and 2 contested the suit contending, inter alia, that the civil court had no jurisdiction inasmuch as the Act was applicable to the land; and that they having not been in wrongful possession thereof, the notice of termination was invalid. The learned trial court tried the issues regarding the applicability of the Act, jurisdiction of the civil court, and estoppel, out of the issues framed, as preliminary issues and by order dated March 16, 1965 fixed the date for hearing of the other issues and on that date respondents 1 and 2 being absent, after recording the appellants evidence, by judgment dated July 17, 1965 decreed the suit in favour of the appellants.
- The respondents appeal therefrom having been dismissed by the District Judge, they took Second Appeal No. 983 of 1966 to the High Court of Bombay, and the learned Single Judge has set aside the judgment of the trial court as affirmed by the lower appellate court, and remanded the case back to the trial court with a direction that it should raise the necessary issues on the pleadings of the parties and should made a reference to the competent authority under Section 85-A of the Act with respect to those issues which are required to be decided by the competent authority under the Act and on receipt of the findings, dispose of the suit according to law.
- The appellants application for leave under the letters patent having been rejected by the High Court, they have obtained special leave to appeal.
- ISSUE BEFORE THE COURT:
- Whether the High Court was correct in directing the trial court to refer the issues relating to tenancy to the competent authority under the Act
- RATIO OF THE COURT
- The learned counsel for the appellants submits, inter alia, that the appellants application under Section 29(2) read with Section 25(2) of the Act, being Case No. 184 of 1962-63 having been dismissed by the tenancy authorities on the ground that only natural grass grew thereon and therefore the authority had no jurisdiction to deliver possession thereof under Section 29(2) of the Act, that finding should act as res judicata.
- The learned counsel for the respondents submits that under Section 85-A in a civil involving any issues which are required to be decided or dealt with by any authority competent to settle or decide such issues under the Act, the civil court is to settle the issues and refer those to such competent authority for determination; that the High Court’s direction in the impugned judgment is consistent with this provision; and that the appellant’s earlier proceedings under the Act before tenancy authority having been dismissed ex parte, it could not operate as res judicata.
- The court relied upon Secretary of State v. Mask & Co. (67 IA 222, 236 : AIR 1940 PC 105) wherein it was held that there is nothing in the language or context of Section 70 or Section 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.
- This court was of the opinion that the jurisdiction of the civil court is not barred in considering the question whether the provision of the Act are applicable or not applicable to the disputed land during a particular period.
- The court came to the conclusion based on precedents that both on principle and on authority there is no escape from the conclusion that where in a suit properly constituted and cognizable by the civil court upon a contest an issue arises which is required to be settled, decided or dealt with by a competent authority under the Tenancy Act, the jurisdiction of the civil court to settle, decide or deal with the same is not only ousted but the civil court is under a statutory obligation to refer the issue the competent authority under the Tenancy Act to decide the same and upon the reference being answered back, to dispose of the suit in accordance with the decision of the competent authority under the Tenancy Act.
- This court held that the High Court had rightly sent back the suit to the trial court with the direction to refer issues, if raised any, to be determined exclusively by the competent authority, to that authority.
- It further held that the Mamlatdar declined to exercise jurisdiction holding that the Act did not apply. If an issue is referred to it by the trial court under the Act, the question of jurisdiction would not arise and there could be no question of res judicata as to jurisdiction of the Mamlatdar on reference. Hence, there could arise no question of res judicata in the instant case. Section 11 would not be a bar to the trial court in referring issues which are to be exclusively determined by a competent authority under the Act, to that authority. Nor should arise any such question of res judicata in the competent authority deciding those issues when referred to by the trial court.
- DECISION HELD BY COURT: