TMI Blog1978 (12) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... that the land which was the subject-matter of contract was covered by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 ('Tenancy Act', for short) and as the intending purchaser, the plaintiff was not an agriculturist within the meaning of the Act, Section 63 of the Tenancy Act prohibited him from purchasing the land and, therefore, as the agreement was contrary to the provisions of the Tenancy Act the same cannot be specifically enforced. The plaintiff sought to repel the contention by producing a certificate Ext. 78 issued by the Mamlatdar certifying that the plaintiff was an agricultural labourer and the bar imposed by Section 63 of the Tenancy Act would not operate. Plaintiff also contended that if the Court does not take note of Ext. 78, an issue on the pleadings would arise whether the plaintiff is an agriculturist and in view of the provisions contained in Section 70(a) read with Sections 85 and 85A of the Tenancy Act the issue would have to be referred to the Memlatdar for decision and the Civil Court would have no jurisdiction to decide the issue. The trial Court held that the certificate Ext. 78 had no evidentiary value and was not valid. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ean a person who cultivates land personally. The expression 'land' is defined in Section 2(8) to mean; (a land which is used for agricultural purposes or which is so used but is left fallow and includes the sites of farm buildings appurtenant to such land; and (b) for purposes of sections including Sections 63, 64 and 84C(i) the sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses; (ii) the sites of structures used by agriculturists for allied pursuits. Section 63 which forbids transfer of agricultural land to non-agriculturists, reads as under: 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 delivered to the mortgagee, shall be valid in favour of a person who is not an agriculturist or who being an agriculturist will after such sale, gift, exchange, lease or mortgage, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent 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 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 . 6. There is no controversy that the land purported to be sold by the contracts for sale of land Exts. 82 and 83 is land used for agricultural purposes and is covered by the definition of the expression 'land' in Section 2(8)(a). The plaintiff thus by the contracts for sale of land Exts. 82 and 83 purports to purchase agricultural land. Section 63 prohibits sale of land inter alia, in favour of a person who is not an agriculturist. If, therefore, the plaintiff wants to enforce a contract for sale of agricultural land in his favour he has of necessity to be an agriculturist. The de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must give effect to the policy underlying the statute set out in express terms in the statute. There is, therefore, no escape from the fact that the legislature has expressly ousted the jurisdiction of the civil Court to settle, decide or deal with any question which is by or under the Tenancy Act required to be settled, decided or dealt with by any of the authorities therein mentioned and in this specific case the authority would be the Mamlatdar as provided in Section 70(a). 9. When the Tenancy Act of 1948 was put on the statute book, Section 85A did not find its place therein. A question arose while giving effect to the provisions contained in Sections 70 and 85 as to what should be done where in a suit in a civil Court an issue arises to settle, decide or deal with which the jurisdiction of the civil Court is ousted under Section 85. The Bombay High Court which had initially to deal with this problem, resolved the problem by holding that in such a situation the civil suit should be stayed and the parties should be referred to the competent authority under the Tenancy Act to get the question decided by the authority and on such decision being brought before the Civil Court, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alt with by any competent authority under the Tenancy Act is totally ousted. This would lead to inescapable conclusion that the Mamlatdar while performing the function and discharging duties as are conferred upon Mm by Section 70, would constitute an exclusive forum, to the exclusion of the civil Court, to decide any of the questions that may arise under any of the sub-clauses of Section 70. Section 70(a) requires the Mamlatdar to decide whether a person is an agriculturist. Therefore, it an issue arises in a civil Court whether a person is an agriculturist within the meaning of the Tenancy Act, the Mamlatdar alone would have exclusive jurisdiction under the Tenancy Act to decide the same and the jurisdiction of the Civil Court is ousted. The Civil Court as required by a statutory provision contained in Section 85A, will have to frame the issue and refer it to the Mamlatdar and on the reference being answered back, to dispose of the suit in accordance with the decision recorded by the competent authority on the relevant issue. To translate it into action, if the Mamlatdar were to hold that the plaintiff is not an agriculturist, obviously his suit for specific performance in the Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by the Civil Court, it would have to be referred to the competent authority under the Tenancy Act. Any other view of the matter would render the scheme of Sections 85 and 85A infructuous and defeat the legislative policy (see Bhimaji Shanker Kulkarni v. Dundappa Vithappa Udapudi and Anr.) [1966]1SCR145 The construction suggested by the respondent that the bar would only operate if such an issue arises only in a proceeding under the Tenancy Act, could render Section 85A infructuous or inoperative or otiose. Neither the Contract Act nor the Transfer of Property Act nor any other statute except the Tenancy Act prohibits a non-agriculturist from buying agricultural land. The prohibition was enacted in Section 63 of the Tenancy Act. Therefore, if a person intending to purchase agricultural land files a suit for enforcing a contract entered into by him and if the suit is resisted on the ground that the plaintiff is ineligible to buy agricultural land, not for any other reason except that it is prohibited by Section 63 of the Tenancy Act, an issue whether plaintiff is an agriculturist would directly and substantially arise in view of the provisions of the Tenancy Act. Such an issue wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction of the civil Court, notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it will have to be referred to the competent authority under the Tenancy Act. By such camouflage of treating issues arising in a suit as substantial or incidental or principal or subsidiary, civil Court cannot arrogate to itself jurisdiction which is statutorily ousted. This unassailable legal position emerges from the relevant provisions of the Tenancy Act. 11. Turning to some of the precedents to which our attention was invited, it would be advantageous to refer to the earliest decision of the Bombay High Court which had the opportunity to deal with the scheme of law under discussion in Trimbak Sopana Girme v. Gangaram Mhatarba Yadav. In that case plaintiff filed a suit against the defendant for actual possession on the allegation that the defendant was a trespasser and the defendant contested the suit contending that he was a protected tenant within the meaning of the Tenancy Act. The trial Court came to the conclusion that an issue would arise whether the defendant was a protected tenant and such an issue was triable by the Mamlatdar under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide for transfer of such suits where issues arise in respect of which the competent authority under the Tenancy Act is constituted a forum of exclusive jurisdiction so as to avoid the dismissal of the suit by the civil Court or being kept pending for a long time till the competent authority disposes of the issue which it alone is competent to determine. The legislature took note of this decision of the Bombay High Court and introduced Section 85A by Bombay Act XIII of 1956 which came into force from 23rd March 1956. 13. In Bhimaji Shanker Kulkarni, (supra) this very question arose in a suit filed by the plaintiff for possession of the suit property on redemption of a mortgage and taking of accounts on the allegation that defendant No. 1 was a usufructuary mortgagee under a mortgage deed, dated 28th June 1945. The defendants pleaded that the transaction of June 28, 1945 was an advance lease and not a mortgage, and they were protected tenants within the meaning of the Tenancy Act. The trial Court passed a decree holding that the transaction evidenced by the deed is a composite document comprising of a mortgage and a lease and on taking accounts of the mortgage debt it is found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for reference of the issue to the Mamlatdar for his decision. Now, the Mamlatdar has jurisdiction under Section 70 to decide the several issues specified therein for the purposes of this Act , and before the introduction of Section 85A, it was a debatable point whether the expression for the purposes of this Act meant that the Mamlatdar had jurisdiction to decide those issues only in some proceeding before him under some specific provision of the Act, or whether he had jurisdiction to decide those issues even though they arose for decision in a suit properly cognisable by a Civil Court, so that the jurisdiction of the Civil Court to try those issues in the suit was taken away by Section 85 read with Section 70, Dhondi Tukaram's case settled the point, and held that the Mamlatdar had exclusive jurisdiction to decide those issues even though they arose for decision in a suit properly cognisable by a Civil Court. The result was somewhat startling, for normally the Civil Court has jurisdiction to try all the issues arising in a suit properly cognisable by it. But having regard to the fact that the Bombay Legislature approved of Dhondi Tukaram's case and gave effect to it by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the matter came up before this Court by special leave. This Court first affirmed that whatever may have been the position before Act XIII of 1956, the legislature has unequivocally expressed an intention that even in a suit properly instituted in a civil Court, if any issue arises which is required to be decided by the revenue Court, the issue shall be referred for trial to that Court and the suit shall be disposed of in the light of the decision. The Legislature has clearly expressed itself that issues required under Act 67 of 1948, viz., Tenancy Act, to be decided by a revenue court, even if arising in a civil suit, must be decided by the revenue Court and not by the Civil Court. The view expressed by the Bombay High Court in Pandurang Hari v. Shanker Maruti 62 Bom. L.R. 873, and the Gujarat High Court in Kalicharari Bhajan'al Bhayya v. Rai Mahalaxmi and Anr. 4 Guj. L.R. 145, that in such suit the civil Court is competent to adjudicate upon the issues which are by Act 67 of 1948 required to be decided by the revenue Court, was disapproved. This Court held that the question whether the defendant being a tenant on the day on which the Tenancy Act was put into operation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the exclusive jurisdiction of the Mamlatdar under Section 70(mb) and that the Civil Court cannot decide or deal with this question and a reference ought to have been made to the Mamlatdar. Negativing this contention it was observed that the Civil Court had jurisdiction to entertain and decree a suit for specific performance of agreement to sell land. If upon the sale being completed it would violate some provision of the Tenancy Act an enquiry has to be made under Section 84C and Section 84C provides that if an acquisition of any land is or becomes invalid under any of the provisions of the Tenancy Act, the Mamlatdar may suo motu inquire into the question and decide whether the transfer or acquisition is or is not valid. This inquiry has to be made after the acquisition of title pursuant to a decree for specific performance. It is in the context of these facts that it was held that even though civil Court has no jurisdiction to determine whether the acquisition would become invalid but there is nothing in Section 70 or any other provision of the Act which excludes the Civil Court's jurisdiction to decree specific performance of a contract to transfer land which would be an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 70 imposes a duty on the Mamlatdar to decide whether a person is a tenant but the sub section 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. Approaching from this angle, it was held that the contention whether a defendant has become a statutory owner on the tillers' day involving the question of past tenancy was not within the exclusive jurisdiction of the Mamlatdar and, therefore, the civil Court has jurisdiction to decide the question. In the context of the language employed in Section 70(b) which, as it then stood, did not confer jurisdiction on the Mamlatdar to decide the question of past tenancy, it can be said that the civil Court's jurisdiction to decide the same was not ousted. It appears that the question was argued in the context of Section 70 only and has been answered in the context of the language employed in Section 70(b) only. Otherwise, the question whether a person has become a statutory owner on the tillers' day, i.e. on 1st April 1957 which would imply whether the person so contending was a tenant of the land on 1st April 1957 and hence would become the owner of the land by ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of High Court which had set aside the degree of the trial Court awarding possession because in the opinion of the High Court no actual delivery of possession can be given against the person claiming to be a tenant unless the requirements of the Mysore Land Reforms Act, 1961, were satisfied. It may be noticed that the scheme of the provisions in Mysore Land Reforms Act, 1961, under discussion in the decision were in pari materia with the scheme of Sections 70, 85 and 85A of the Tenancy Act. 19. Thus, 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 to 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. 20. If plaintiff sued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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