PATNI ALI HUSSEIN v. KAJI MUSTAFAMIYAN AJAMMIYAN — 1970 DIGILAW 42 (GUJ)

S. H. SHETH, J. ( 1 ) THESE two appeals arise out of the judgments and decrees in Regular Civil Appeals Nos. 41 and 42 of 1960 decided by Mr. K. R. Marjadi learned Extra Assistant Judge Junagadh. ( 2 ) THE facts of the case briefly stated are as under. Kaji Mustafamiya Ajammiya is the common plaintiff in both the suits. Civil Suit No. 182 of 1958 against Patni Ali Hussein of Patan and Patni Karim Hussein of Patan and Regular Civil Suit No. 183 of 1958 against Ghanchi Hasan Abhram of Patan wore filed by the plaintiff for recovering possession of agricultural lands more particularly mentioned in the plaint which had been allotted to him as Gharkhed lands under the Saurashtra Barkhali Abolition Act. The admitted facts are that the plaintiff was the Barkhalidar and the defendants were his tenants With the enforcement of the provisions of the Saurashtra Barkhali Abolition Act 1951 the relationship of the Barkhalidar and the tenants which had been subsisting between the plaintiff on one hand and the defendants of the other hand came to on end. Out of the plaintiffs lands which the defendants had been holding as tenants the suit lands were allotted to the plaintiff as Gharkhed lands on 22nd March 1953. Thereafter for some time the defendants cultivated these lands but ultimately they refused to hand over possession of the suit lands to the plaintiff. The plaintiff therefore instituted proceedings before the Mamlatdar under the Saurashtra Barkhali Abolition Act 1951 but he failed to recover possession of the suit lands in a those proceedings. He also instituted proceedings before the Deputy Collector under sec. 38 of the Saurashtra Barkhali Abolition Act 1951 in order to recover possession of the suit lands but he also failed in that attempt of his. Thereafter he instituted the present suits for recovery of possession of the suit lands form the defendants. The material allegation which the plaintiff made in the plaint was that after the allotment orders were made in his favour in respect of the suit lands under the Saurashtra Barkhali Abolition Act 1951 he had inducted the defendants on the lands as agricultural labourers for cultivating them for a period of two years. On the expiry of the said period they had refused to deliver possession of the lands to him. Therefore he filed the present suits. On the expiry of the said period they had refused to deliver possession of the lands to him. Therefore he filed the present suits. ( 3 ) THE defendants resisted the suits on the ground that the plaintiff had created permanent leases in their favour and had leased out the lands to them. Therefore the plaintiff was not entitled to decrees for possession against them. ( 4 ) THE learned Trial Judge after raising the issues and recording the evidence arrived at the finding that the plaintiff and not executed any leases of the suit lands in favour of the defendants but he had allowed them to cultivate them as agricultural labourers. A plea was taken before the learned Trial Judge that in case the plaintiff and created leases in respect of the suit lands in favour of the defendants they were hit by sec. 40 of the Saurashtra Prohibition of Leases Act 1953 and that therefore the defendants could not set up any claim on the strength of those leases. For the reasons stated in his judgments the learned Trial Judge negatived their pleas. In the view which he took the learned Trial Judge passed in favour of the plaintiff decrees for possession in both the suits. ( 5 ) THE defendants went in appeal to the District Court at Junagadh. ( 6 ) THE learned Extra Assistant Judge who heard the appeals recorded his findings on several questions. He dissented from some of the findings recorded by the learned Trial Judge but he did not decide the question whether the plaintiff had created tenancies in favour of the defendants after the allotment orders were made in favour of the plaintiff. He however came to the conclusion that the Saurashtra Prohibition of Leases Act hit any leases which the plaintiff might have created in favour of the defendants. In that view of the matter for different reasons he dismissed the appeals. ( 7 ) IT is against those appellate judgment and decrees that the defendants have filed the present Second Appeals in this Court. ( 8 ) ON going through the merits of the case and having examined the provisions of law bearing on the subject to and constrained to state that the judgments of the learned Extra Assistant Judge suffer from total misconception of law and otherwise appear to be a result of non-application of mind. ( 8 ) ON going through the merits of the case and having examined the provisions of law bearing on the subject to and constrained to state that the judgments of the learned Extra Assistant Judge suffer from total misconception of law and otherwise appear to be a result of non-application of mind. It appears to me that he did not perceive the points which arose in the appeals and on superficial considerations he dismissed the appeals of the defendants. ( 9 ) THE first finding which the learned Extra Assistant Judge has recorded is that the jurisdiction of the Civil Court is barred under sec. 39 of the Saurashtra Barkhali Abolition Act 1951 and that therefore the Civil Court cannot inquire into the question whether the defendants are the tenants of the plaintiff. For the reasons which I am presently stating this finding recorded by the lower Appellate Court is entirely erroneous and misconceived. ( 10 ) SEC. 39 of the Saurashtra Barkhali Abolition Act bars the jurisdiction of the Civil Court in respect of questions which are required to be settled decided or dealt with by the Mamlatdar the Collector or the Tribunal or by the Government in exercise of their powers or control and which are required to be so settled decided or dealt with by or under the said Act. It is therefore clear that the bar of jurisdiction under sec. 39 operates only against those questions which arise under the Act and which are required to be settled decided or dealt with by the special forum provided by the said Act. Now sec. 21 of the said Act prescribes the duties and functions which the Mamlatdar has to perform under the Act. Clause (a) of sec. 21 confers upon him the power to decide the question whether a person is a tenant or not. Read with sec. 39 sec 21 (a) makes it quite clear that if a question arises whether a person is a tenant or not within the meaning of the said Act the Mamlatdar has the exclusive jurisdiction to decide that question and the Civil Court cannot decide it. Sec. 21 opens with the words For the purposes of this Act. This expression limits the exclusive jurisdiction of the Mamlatdar to the questions of tenancies arising under the said Act. Sec. 21 opens with the words For the purposes of this Act. This expression limits the exclusive jurisdiction of the Mamlatdar to the questions of tenancies arising under the said Act. Sec. 21 (a) therefore confers upon the Mamlatdar the exclusive jurisdiction to decide for the purposes of the said Act whether a person is a tenant or not. Let us now turn to the definition of the word tenant given in sec. 2 (iv ). Tenant is defined so as to mean an agriculturist who holds land on lease from a Barkhalidar or a person claiming through him and includes a person who is deemed to be a tenant under the provisions of this Act. Within the meaning of this definition therefore a tenant must be a tenant of a Barkhalidar or a person claiming through him and holding agricultural land on lease from such a person. Let us now see the definition of the word Barkhalidar. Barkhalidar has been defined by sec. 2 (1) so as to mean a person who holds a tenure as Barkhalidar Jivaidar Chakariyat Kherati or Dharmada and then the definition proceeds to include certain other kinds of persons within the definition of Barkhalidar. The inclusive part of the definition of the term Barkhalidar is not important for the purpose of this case. In light of the provisions contained in sec. 39 (1) sec. 2 (iv) and sec 2 (i) it is clear that the exclusive jurisdiction of the Mamlatdar to decide whether a person is a tenant or not is confined to persons who claim to be the tenants of the Barkhalidars and to persons claiming through them. By no process of construction this exclusive jurisdiction of the Mamlatdar under the Saurashtra Barkhali Abolition Act can be extended to any other kinds of tenants. Now Barkhalidar means a person who holds a tenure as Barkhalidar Jivaidar Chakariyat Kherati or Dharmada but does not include a person who held a tenure in any one of those capacities. In order therefore to attract the bar of jurisdiction under sec 39 (1) of the said Act it must first be shown that the tenure of the Barkhalidar has been subsisting and that there has been a subsisting relationship of a Barkhalidar and a tenant. If it is not shown then the bar of jurisdiction under sec 39 (1) of the said Act does not operate. If it is not shown then the bar of jurisdiction under sec 39 (1) of the said Act does not operate. Sec. 5 of the said Act abolished the Barkhali tenure with effect from 1st September 1951 which was notified under sec. 1 (3) for the purposes of the commencement of the said Act. Within the meaning of sec. 5 therefore the Barkhali tenure in this case was abolished long before the present suits were filed. With effect from that date therefore the relationship of the Barkhalidar and the tenant between the plaintiff on one hand and the defendants on the other hand ceased to exist and a direct relationship between the State on one hand and the defendants on the other hand came into existence and the suit lands vested in the State Government free from all encumbrances under sec. 5 of the said Act. Under sec. 8 of the said Act it is not in dispute before me that allotment orders were made in respect of the suit lands by the Mamlatdar in favour of the plaintiff. Naturally therefore the plaintiff became entitled to hold the suit lands for his Gharkhed purposes. The allotment of lands to the plaintiff for Gharkhed necessarily presupposes that the defendants must have been made occupants of the rest of the lands within the meaning of secs. 10 11 and 12 of the said Act. It is therefore clear that on account of the implementation of the provisions of the said Act in respect of the suit lands the plaintiff became full-fledged occupant an in respect of the remaining lands the defendants became the full-fledged occupants. The relationship of Barkhalidar and tenants between them was abolished with effect from 1st September 1911. So far as the suit lands are concerned with the making of he allotment orders both in favour of the plaintiff and in favour of the defendants the applicability and implementation of the provisions of the said Act in respect of the suit lands were exhausted except for the purpose of issuing occupancy certificate in favour of the plaintiff which it is contended was not granted to the plaintiff until the institution of the present suits and which is not on record. ( 11 ) MR. ( 11 ) MR. Chhaya appearing for the defendants has contended that as long as the occupancy certificates in favour of the plaintiff in respect of the suit lands are not granted under sec. 8 of the said Act the relationship of Barkhalidar and tenants between the parties continues. I am unable to accept this contention of his in view of the clear and unambiguous provisions of sec. 5 of the said Act. Sec. 5 has abolished the Barkhali tenure and therefore. the effect of that section is to abolish the relationship of Barkhalidar and tenant with effect from the date on which the said section came into force or otherwise became applicable. In this case it is not in dispute that the said section because applicable the suit lands on 1st September 1951. The contention raised by Mr. Chhaya that the relationship of the Barkhalidar and the tenants continued between the plaintiff and the defendants between the dates of the allotment orders in favour of the plaintiff (22nd March 1953) and of the grant of occupancy certificates to him is in my opinion therefore untenable. Sec. 5 of the said Act makes a clean sweep by abolishing all relationships between Barkhalidars and tenants What follows thereafter is the working out of the rights and obligations of the parties in respect of the lands of which they ultimately become the occupants. In this view of the matter by no process of reasoning or by no stretch of imagination it can be said that the controversy between the parties in the present suit was governed by the provisions of the Saurashtra Barkhali Abolition Act 1951 and that therefore there was a bar to the jurisdiction of the Civil Court under sec. 39 (1) of the said Act. I am therefore unable to agree with the learned Extra Assistant Judge in the finding on this point which he has recorded. 1 therefore set it aside. ( 12 ) THE second finding which he has recorded is based upon subsec. (2) of sec. 39 of the said Act. Sub-sec. (2) is consequential and follows closely upon the heels of sub-sec. (1 ). Its object is to make sub-sec. (1) more effective and exclusive. I have already held that sec. 39 (1) has no application to the present case. Therefore it must necessarily follow that sub-sec. (2) of sec. 39 of the said Act. Sub-sec. (2) is consequential and follows closely upon the heels of sub-sec. (1 ). Its object is to make sub-sec. (1) more effective and exclusive. I have already held that sec. 39 (1) has no application to the present case. Therefore it must necessarily follow that sub-sec. (2) thereof has also no application so far as the facts of the present case are concerned. The finding recorded by the learned Extra Assistant Judge on the basis of sub-sec. (2) of sec. 39 loses force and cannot be sustained I therefore set it aside ( 13 ) THE next finding which the learned Extra Assistant Judge has recorded is based upon sec. 38 of the Saurashtra Barkhali Abolition Act which provides for summary eviction of persons in unauthorised occupation or wrongful possession of any land or dwelling house. It is a special remedy provided by the said Act. Since I have held that the provisions of the Saurashtra Barkhali Abolition Act 1951 hate no application to the present case sec. 380 the said Act cannot be invoked for any purpose in the present suits. The finding which the learned Extra Assistant Judge has recorded is however strange and curious. His finding is that the plaintiff by instituting proceedings against the defendants under sec. 38 of the said Act for the summary eviction had tacitly and by necessary application accepted the finding of the Deputy Collector in the earlier litigation between the parties where the Deputy Collector in appeal had held that the defendants were the tenants. Firstly the proceedings which were instituted between the parties under the Saurashtra Barkhali Abolition Act after the allotment orders were made in favour of the plaintiff were void and without jurisdiction because the applicability of the provisions of the said act was exhausted so far as the suit lands were concerned except for the purpose of issuing the occupancy certificates to the plaintiff. The Mamlatdar or the Deputy Collector therefore did not have any jurisdiction to decide any question between the parties as there was no subsisting relationship of Barkhalidar and tenants between them. Any finding therefore which the Mamlatdar or the Deputy Collector recorded was a totally worthless and of no consequence whatsoever. The Mamlatdar or the Deputy Collector therefore did not have any jurisdiction to decide any question between the parties as there was no subsisting relationship of Barkhalidar and tenants between them. Any finding therefore which the Mamlatdar or the Deputy Collector recorded was a totally worthless and of no consequence whatsoever. To say that such a finding was accepted by the plaintiff and then to hold that he-was bound by it is really strange and ludicrous. Such a finding can never be binding upon the plaintiff. It appears that the learned Extra Assistant Judge was invoking the doctrine of estoppel against the plaintiff without realizing the circumstances under which the said doctrine can come into play. In any case by instituting proceedings for summary eviction under sec. 38 of the Saurashtra Barkhali Abolition Act the plaintiff can never be said to have accepted any finding recorded against him in the earlier proceedings which were without jurisdiction. The finding therefore recorded by the learned Extra Assistant Judge against the plaintiff in paragraph 9 of his judgment cannot in that view of the matter be sustained. I therefore set it aside. ( 14 ) THE next finding which has been recorded by the learned Extra Assistant judge is based upon the provisions of the Saurashtra Prohibition of Leases Act 1953 That finding also proceeds a total misconception of law. I have already held that the provisions of the Saurashtra Barkhali Abolition Act 1951 do not apply to the present case. Therefore if any leases were created by the plaintiff in favour of the defendants as the defendants allege after the allotment orders were made in favour of the plaintiff those leases would be governed by any other law if there is one to govern them but not by the provisions of the Saurashtra Barkhali Abolition Act 1951 The provisions of the Transfer of Property Act also do not come into play in these cases because sec. 117 of the said Act exempts leases for agricultural purposes from the provisions of Chapter V of the said Act. Therefore if the plaintiff had created any leases in favour of the defendants they would have to be decided according to law which applied to them. Since the provisions of the Transfer of Property Act do not apply to the leases in question by virtue of the provisions of sec. Therefore if the plaintiff had created any leases in favour of the defendants they would have to be decided according to law which applied to them. Since the provisions of the Transfer of Property Act do not apply to the leases in question by virtue of the provisions of sec. 117 of the said Act the further question which arises is whether the said leases are hit by the provisions of the Saurashtra Prohibition of Leases Act 1953 The said Act was enacted in order to provide for situations arising out of the abolition of Girasdari and Barkhali systems in Saurashtra and out of the abolition of intermediate interests as between the State and the cultivators. The said Act makes two-fold provisions. Sec. 4 provides for registration of leases which were created before the said Act came into force on 19th October 1953. Sec. 5 in Chapter 2 of the said Act prohibits the creation of leases after the said date. It also prohibits the renewal of earlier lease after the said date In these cases the allegation of the defendants is that the leases in their favour were created by the plaintiff on 22nd March 1953 that is to say prior to the coming into force of the said Act. Sec. 4 in so far as the registration of the said leases is concerned may have some bearing but sec 20 provides for a limited non-application of the provisions of the Act to certain cases. Clause (c) of sub-sec. (I) of sec. 20 is material. It reads as under. Nothing in this Act shall apply (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . (c) to any land reserved as Gharkhed by or allotted for personal cultivation to a Girasdar or a Barkhalidar under the provisions of the Saurashtra Land Reforms Act 1951 or the Saurashtra Barkhali Abolition Act 1951 upto the Akhatrij of Samvat Year 2012. Akhatrij of Samvat Year 2012 corresponds to 13th May 1956. By virtue of those provisions therefore neither sec. 4 nor sec. 5 had any application to the alleged leases until 13th May 1956. Akhatrij of Samvat Year 2012 corresponds to 13th May 1956. By virtue of those provisions therefore neither sec. 4 nor sec. 5 had any application to the alleged leases until 13th May 1956. The learned Extra Assistant Judge has completely ignored the provisions of sec. 20 (1) (c) and has proceeded as if sec. 4 hit the alleged leases absolutely. In my opinion that finding of the learned Extra Assistant Judge is entirely erroneous and it must be set aside. ( 15 ) FOR the reasons stated above I am unable to sustain any of the findings recorded by the learned Extra Assistant Judge. The present cases therefore have got to be considered de novo. ( 16 ) THE learned Trial Judge has held that the plaintiff had inducted the defendants on the suit lands as agricultural labourers. The lower Appellate Court has not examined evidence and has therefore neither confirmed nor set aside that finding of the learned Trial Judge. It appears that there is considerable evidence on record. Mr. Nanavati appearing for the plaintiff has inter alia invited my attention to the depositions of Ali Hussein-defendant in Civil Suit No. 182 of the 1958 and of Hasam Abhram-defendant in Civil Suit No. 183 of 1958. Since the lower Appellate Court has not examined the question whether the defendants are the tenants which for the reasons staled in this judgment is necessary to be decided or whether they are agricultural labourers it becomes necessary for me to remand the appeals to the District Court. It would be necessary for the District Court upon remand to consider the questions arising out of the pleadings independently of any decision of the Mamlatdar or any decision of the Deputy Collector on them. It shall have to decide strictly in light of the evidence on record and on the merits of the case because in my opinion there is no bar of jurisdiction which operates in this case. ( 17 ) I shall try to indicate in brief the questions which the lower Appellate Court shall have to decide upon remand. Firstly it shall have to decide whether the plaintiff proves that he inducted the defendants upon the suit lands only for two years as agricultural labourers. ( 17 ) I shall try to indicate in brief the questions which the lower Appellate Court shall have to decide upon remand. Firstly it shall have to decide whether the plaintiff proves that he inducted the defendants upon the suit lands only for two years as agricultural labourers. If this question is decided by the lower Appellate Court in the affirmative it will not be necessary for it to decide any other question but it will have to pass decrees for possession in favour of the plaintiff. If however upon evidence the lower Appellate Court decides that the plaintiff did not induct the defendants on the suit lands as agricultural labourers then it shall have to decide whether the plaintiff inducted them as tenants or as permanent tenants (in accordance with the pleas raised by them in their written statements) and whether the plaintiff created any new leases in favour of the defendants after the allotment orders were made in his favour of 22 March 1953. If the lower Appellate Court answers the second question in the affirmative and if it becomes necessary for it to do so then it will consider what effect the provisions of Saurashtra Prohibition of Leases Act 1953 had upon those leases or upon the renewals if any are proved after 13th May 1956. After answering the questions which I have raised in this judgment it shall decide the appeals on merits and in accordance with law and in light of the observations made in this judgment. I may however add that so far as the Saurashtra Prohibition of Leases Act 1953 is concerned there is bar to the jurisdiction of the Civil Court against deciding any of the aforesaid questions. Sec. 17 which provides for bar of Jurisdiction bars it in respect of questions which a Mamlatdar a Collector or the Tribunal or the Government has to settle deco de or deal with and which arise under the said Act. It is not as if the jurisdiction of the Civil Court is barred in respect of all questions which arise under the said Act. The bar of jurisdiction is limited only to the express provisions contained in sec. 17 (1 ). When sec. 17 (1) is read in light of secs. It is not as if the jurisdiction of the Civil Court is barred in respect of all questions which arise under the said Act. The bar of jurisdiction is limited only to the express provisions contained in sec. 17 (1 ). When sec. 17 (1) is read in light of secs. 10 to 16 in Chapter III of the said Act it is very clear that the exclusive original jurisdiction of the Mamlatdar is confined only to determination of the question whether any person has contravened the provisions of the said Act and if he has done so; then his power to make an inquiry into such contravention under sec. 11 only for the purposes of sec. 6 can be invoked. In case of any contravention of the provisions of the said Act under sec. 11 he can make an enquiry after following the procedure and within the meaning of sec. 11 of the said Act only for the purpose of imposing penalty contemplated by sec. 6. Therefore when sec. 17 (1) is read in light of secs. 10 11 and 6 of the said Act it is clear that the exclusive jurisdiction of the Mamlatdar is confined only to the cases of contravention of the provisions of the said Act for the purpose of imposing penalty under sec. 6 and not for any other purpose. If any lease is rendered void an account of the statutory provisions contained in the said section the jurisdiction of the Civil Court to inquire into the legal effect and legal consequences of such a lease is not barred under the said Act. In this view of the matter it will not be necessary for the lower Appellate Court to go into the question of bar of jurisdiction under the said Act if it answers the second and the third questions which I have raised in the affirmative. ( 18 ) IN the result I set aside the decrees passed by the lower Appellate Court in both the appeals and for the reasons stated above I remand the appeals to the District Court for a fresh hearing and for deciding the questions which I have raised in this judgment and for finally disposing of the appeals. ( 18 ) IN the result I set aside the decrees passed by the lower Appellate Court in both the appeals and for the reasons stated above I remand the appeals to the District Court for a fresh hearing and for deciding the questions which I have raised in this judgment and for finally disposing of the appeals. So far as the costs of these appeals are concerned I think in the circumstances of the case they shall abide by the result of the appeals in the District Court. Appeals remanded. .