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1972 DIGILAW 202 (KAR)

K. S. SATYPALA v. ALICE D SOUZA

1972-08-25

CHANDRASHEKHAR, SADANANDASWAMY

body1972
CHANDRASHEKHAR, J. ( 1 ) THIS second appeal had come up for hearing, in the first instance, before one of us (Sadanandaswamy, J.) and has been referred to a Division bench under the proviso to S. 6 of the Mysore High Court Act, 1961, on the ground that the question of law involved in this appeal is an important one and that the decision thereon affects a large number of cases which have already been decided by subordinate Courts. ( 2 ) THE appellant is defendant-1, respondent-1 is the plaintiff and respon- dent-2 is defendant-2 in the suit which was tried by the Civil Judge at chickmagalur. The plaintiff's case is that he was the tenant of the suit land under defendant-1 who purported to sell it to defendant-2 without giving him (the plaintiff) the first option to purchase it as required by S. 22 of the Mysore Tenancy Act, 1952, and that defcndant-2 was trying to dispossess him (the plaintiff) from the suit land. He sought for a declaration that he was the tenant of the suit land for a permanent injunction restraining defcndant-2 from interfering with his lawful possession thereof. The first issue in the suit is whether the plaintiff is the tenant of the suit land. Both the Courts below concurrently held that issue in favour of the plaintiff and decreed the suit. In this appeal, it was contended for the appellant that bv virtue of s. 12 of the Mysore Land Reforms (Amendment) Act, 1970, (Mysore Act 6 of 1970) (hereinafter referred to as the Amendment Act) the jurisdiction of Civil Courts to decide the question whether a person is a tenant, has been taken away with retrospective effect and that consequently the Courts below must be deemed to have had no jurisdiction to decide whether the plaintiff was the tenant of the suit land. ( 3 ) ON the other hand, Mr. M. Gopalakrishna Shetty, learned Counsel for rcspondent-1, contended that at the time when the learned Civil Judge decided the suit and the learned District Judge decided the appeal therefrom, civil Courts had iurisdiction to decide such question, and that the amendment Act cannot be construed as invalidating the decisions rendered by Civil Courts prior to the Amendment Act, when they had undoubted jurisdiction. ( 4 ) TO appreciate the rival contentions of the parties, it is necessary to set out certain provisions of the Mvsore Land Reforms Act, 1961 (hereinafter referred to as the Principal Act), and the Amendment Act. The Principal Act came into force on 2-10-1965. S. 2 (A) (34) of the Principal Act has defined the word 'tenant' so as to include a person who is deemed to be a tenant under S. 4 of that Act. S. 4 of the Principal Act provides that a person who is lawfully cultivating any land belonging to another person, shall be deemed to be a tenant in certain circumstances set out in that section. S. 112 of the Principal Act sets out the duties of Tribunals constituted under Section 111 of that Act. The relevant part of S. 112, as it stood before it was amended by the amendment Act, read as follows:"112. Duties of Tribunal: For the purpose of this Act, the following shall be the duties and functions to be performed by the Tribunal, namley, (a) ***** (b) to decide whether a person is a tenant or not under S. 4 and make declaration accordingly ; (c) *****"sub-sec. (1) of S. 132 of the Principal Act bars the jurisdiction, inter alia, of Civil Courts to settle, decide or deal with any question which by or under that Act, is required to be settled, decided or dealt with by the tribunal. S. 133 of the Principal Act, before it was amended by S. 28 of the amendment Act, provided that if any suit instituted in any Civil Court involved issues which were required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issued under that Act, the Civil Court should stay the suit and refer such issues for determination by the authority competent to settle, decide or deal with such issues under that Act and after such authority decided such issues and communicated its decision lo the Civil Court, such Court should thereupon dispose of the suit. ( 5 ) IN C. Thimmayya v. Thimmayya, (1968) 2 Mys. ( 5 ) IN C. Thimmayya v. Thimmayya, (1968) 2 Mys. L. J. 207, this Court held that the only power conferred on the Land Tribunal under S. 112 (b) of the Principal act, was the power to decide whether a person was a deemed tenant under s. 4 of that Act, that there was no provision in that Act authorising an adjudication by the Land Tribunal on the question whether a person was a tenant otherwise than under S. 4 of that Act, and that the power to decide whether a person was a tenant otherwise than under S. 4 of that Act, still resided in the Civil Court. This Court pointed out the incongruity in the provisions of the Principal Act which authorised the Land Tribunals to decide the limited question whether a person was a deemed tppant while the jurisdiction of the Civil Court to make an adiudication on the question whether a person was a tenant of any other description, remained unaffected. ( 6 ) THE above incongruity was removed retrospectively by the Amendment act which came into force on 15-1-1970. By S. 12 (i) of the Amendment Act, the words and figures "under S. 4 and make declaration accordingly" occurring at the end of Clause (b) of s. 112 of the Principal Act, have been deleted with retrospective effect as if those words and figures never existed in the Principal Act. After such amendment, the relevant part of S. 112 of the Principal Act, should be deemed always to have read as follows :"112. Duties of the Tribunal: For the purposes of this Act, the following shall be the duties and functions to be performed by the tribunal namely : (a) ***** (b) to decide whether a person is a tenant or not. "s. 2 of the Amendment Act inserted in S. 2 (A) of the Principal Act a new clause, Clause (9a), which defines the word 'court' as the Court of the Munsiff xvithin the local limits of whose jurisdiction the land is situate. Sec. 3 of the Amendment Act has substituted in several sections of the principal Act including S. 112, the word 'court' for the word 'tribunal'. Sub-sec. Sec. 3 of the Amendment Act has substituted in several sections of the principal Act including S. 112, the word 'court' for the word 'tribunal'. Sub-sec. (2) of new S. 133 of the Principal Act (substituted by S. 28 of the Amendment Act) provides that if any suit instituted in any Civil Court other than the Court, involves any issues which are required to be settled, decided or dealt with by the Court, then the Civil Court shall stay the suit and refer such issues to the Court for decision and that the Court shall decide such issues in accordance with the provisions of that Act and shall communicate its decision to the Civil Court which has made such reference. S. 33 of the Amendment Act validates the decree and orders made by the Tribunal constituted under Sec. 111 of the Act. Sub-sec. (1) of that section reads:"33. Validation. (1) All proceedings taken and decrees and orders passed before the commencement of this Act by a Tribunal exercising or purporting to exercise jurisdiction to decide whether a person is a tenant or not shall notwithstanding any judgment, decree or order of any Court, be deemed to be as good and and valid in law as if the Tribunal exercising or purporting to exercise such jurisdiction had been duly conferred with such jurisdiction by the Principal Act. Explanation: For purposes of this section 'tenant' shall have the meaning assigned to it in the Principal Act. " ( 7 ) THE effect of retrospective amendment of Clause (b) of S. 112 of the principal Act by S. 12 (i) of the Amendment Act, is that the Tribunal constituted under S. 111 of the Principal Act, should be deemed to have had jurisdiction to decide whether a person is a tenant and not only the question whether a person is a deemed tenant as defined under S. 4 of the Principal act. The validating provision in sub-sec. (1) of S. 33 of the Amendment act, puts the matter beyond doubt that all decisions of the Tribunal on the question whether a person is a tenant, shall be valid in law as if the Tribunal had always been conferred jurisdiction to decide such question. Mr. The validating provision in sub-sec. (1) of S. 33 of the Amendment act, puts the matter beyond doubt that all decisions of the Tribunal on the question whether a person is a tenant, shall be valid in law as if the Tribunal had always been conferred jurisdiction to decide such question. Mr. Gopalakrishna Shetty did not dispute that in view of amendment cf Clause (b) of S. 112 of the Principal Act and S. 33 of the Amendment Act, all decisions rendered by Tribunals before the Amendment Act came into force, on the question whether any persons are tenants and not merely deemed tenants under S. 4 of the Principal Act, should be deemed to be valid decisions. However, Mr. Gopalakrishna Shetty submitted that prior to the Amendment Act, the Civil Court had undoubtedly jurisdiction to decide whether a person was a tenant other than a deemed tenant and that the Amendment Act should not be construed as invalidating decisions of civil Courts on such question, which were valid when they (such decisions) were rendered. Mr. Gopalakrishna Shetty also pointed out that while there is an express provision validating decisions of Tribunal, on such question, there is no express provision in the Amndt. Act invalidating decisions of Civil Courts on such question, rendered prior to the Amendment Act. Mr. Gopalakrishna Shetty urged that a statute should not be construed as having such degree of retrospective effect as would invalidate acts or decisions validly done or made prior to enactment of such statute. ( 8 ) IT is true that the Amendment Act does not contain any express provision declaring as invalid decisions of Civil Courts on the question whether a person is a tenant other than a deemed tenant, rendered prior to the amendment Act. But even in the absence of such an express provision in the Amendment Act, such consequence will, in our opinion, follow by necessary implication, from retrospective conferment of jurisdiction on the tribunal to decide such question. S. 132 of the Principal Act excludes the jurisdiction of Civil Courts in respect of matters which should be decided by the Tribunal. Hence both Civil Courts and the Tribunal cannot be regarded as having jurisdiction at the same time to decide the same matter. S. 132 of the Principal Act excludes the jurisdiction of Civil Courts in respect of matters which should be decided by the Tribunal. Hence both Civil Courts and the Tribunal cannot be regarded as having jurisdiction at the same time to decide the same matter. If the Tribunal is deemed to have had jurisdiction to decide the question whether a person is a tenant and not merely a deemed tenant, it necessarily follows that Civil Courts should be deemed to have had no jurisdiction to decide such question at any time. Though the Courts below had jurisdiction to decide whether the plaintiff was the tenant of the suit land, their decision on that question has been subsequently rendered invalid and without jurisdiction in view of the provisions of the Amendment Act. Consequently, the decrees made by the courts below, based on their finding on issue No. 1 should be set aside. ( 9 ) IN the result, we allow this appeal, set aside the judgments and decrees of the Courts below and remit the case to the learned Civil Judge with a direction to refer under amended S. 133 of the Principal Act to the Court the question whether the plaintiff is the tenant of the suit land. After receiving the finding of the Court on that question, the learned Civil Judge shall dispose of the suit afresh. ( 10 ) AS we have remanded the case to the trial Court, the appellant will be entitled to refund of the court fee paid on the memorandum of appeal presented in this Court. In the circumstances of this case, we direct the parties to bear their own costs in this appeal. --- *** --- .