Khavas Mega Rava v. Collector, Kutch District — 1991 DIGILAW 316 (GUJ)

J. N. BHATT, J. ( 1 ) BY this appeal, the appellant has assailed the judgment and decree passed in Regular Civil appeal No. 49 of 1977, by the learned Assistant district Judge, Kachchh, at Bhuj, on 12-1-1979 by invoking the aids of the provisions of Section 100 of the Civil Procedure Code, 1908 ("code" for short hereinafter ). ( 2 ) THE respondent, herein, is the original plaintiff-landlord and the appellant, herein, is the original defendant-tenant, in respect of the property situated in village Manfara, Taluka bhachau, District Kachchh, which is hereinafter referred to as "the demised property". The parties are hereinafter referred to as the plaintiff and defendant for the sake of brevity and convenience. ( 3 ) THE plaintiff filed Regular Civil Suit No. 5 of 1973, in the court of the learned Civil Judge (J. D. ). , Bhachau, at Bhachau, District Kachchh, for arrears of rent and possession of the demised property. The plaintiff is a registered Public trust. The plaintiff, inter alia, contended that manfara Charitable Estate Trust is a Public trust, registered under the provisions of the bombay Public Trust Act, 1950, and that the collector of Kachchh District is the sole administrator of the said Trust. Thus the demised property is the ownership of the plaintiff-Trust. The demised property is consisting of one small room and a big open land with a small room. The plaintiff, inter alia, contended that the defendant is in occupation of the demised property at a monthly tenant and the contractual rent, at the time of the suit, was Re. 0. 62 Ps. per month. Month of the tenancy commenced as per the British calendar. The plaintiff-Trust also pleaded that the tenancy of the defendant was terminated by giving registered notice under Section 106 of the transfer of Property Act, 1982. The notice was replied but not complied with and hence the aforesaid suit was filed for arrears of rent and possession. ( 4 ) THE defendant appeared and resisted the suit, by filing written statement, Ex. 12. He, inter alia, contended that his father had taken the demised property, on lease, 40 years before, at a monthly rent of 1. 3/4 Koris and thereafter on account of change in currency, the rent was fixed, at Re. 0. 62 Ps. per month. ( 4 ) THE defendant appeared and resisted the suit, by filing written statement, Ex. 12. He, inter alia, contended that his father had taken the demised property, on lease, 40 years before, at a monthly rent of 1. 3/4 Koris and thereafter on account of change in currency, the rent was fixed, at Re. 0. 62 Ps. per month. It was further pleaded by the defendant-tenant that the demised property is in his possession since long and he is a permanent tenant. ( 5 ) ACCORDING to the case of the defendant- tenant, his father had constructed a kachcha room in the suit wada land and his father was residing therein. The said kachcha room had fallen down on account of rain and, therefore, it was reconstructed. It is also contended by him that the suit wada land is being used for the purpose of storing agricultural implements and after death of his father, he is also using the suit wada land for agricultural purposes. He raised the dispute about the jurisdiction of the Court. ( 6 ) THE defendant-tenant further contended that in view of the provisions of the Bombay tenancy and Agricultural Lands (Vidharbha region and Kachchh Area) Act, 1958 ("kachchh Tenancy Act" for short hereinafter) the suit was not maintainable in the civil court. The validity of the notice, terminating the lease, was also challenged. It was also contended that the suit was barred by limitation. ( 7 ) IN view of the facts and circumstances of the case and evidence on record, the trial court was pleased to decree the suit and the contentions raised by the defendant-tenant had been negatived. The defendant-tenant was directed to handover the actual possession of the demised property. The trial court passed the decree on 31-1-1977. ( 8 ) BEING aggrieved by the judgment and decree, the original defendant-tenant preferred the aforesaid appeal in the District Court, kachchh, at Bhuj, which also came to be dismissed on 12-1-1979 and hence the present appeal under Section 100 of the Code. ( 9 ) THE learned Counsel for the appellant/ original defendant-tenant has, forcefully, contended that in view of the provisions of the kachchh Tenancy Act, issue No. 7b, of Ex. ( 9 ) THE learned Counsel for the appellant/ original defendant-tenant has, forcefully, contended that in view of the provisions of the kachchh Tenancy Act, issue No. 7b, of Ex. 19, in the trial court, was required to be decided by the Competent Authority, under the Kachchh tenancy Act and it was not open for the civil court to decide the dispute involved in issue no. 7b. Therefore, it is contended that the courts below have committed a serious error and illegality in deciding the said issue. ( 10 ) THE trial court had raised issues, at Ex. 19. Issue No. 7b reads as under :"does the defendant prove that the suit wada is dwelling house and it covers under the provisions of B. A. T. Act ?"the aforesaid issue, obviously, had been settled, pursuant to the contentions raised by the defendant-tenant, in paras 7, 9 and 14 of the written statement, Ex. 12. The trial court decided against the defendant-tenant and recorded the finding of the aforesaid issue, in the negative. The trial court was pleased to hold that since the plaintiff had established that the suit wada is not a dwelling wada meant for agricultural purposes and the evidence of the defendant as well as other witnesses showed that the demised property is a residential property and not a dwelling house for agricultural purpose. As the defendant-tenant had lost in the trial court, he carried the matter to the District Court by filing appeal under 96 of the Code. ( 11 ) UNFORTUNATELY, the contention of the defendant-tenant was negatived in the appeal also. The first appellate court reached to the conclusion that the demised properly is not an agricultural land and that the Rent Note, Ex. 44, and the evidence on record, proved that it is a residential house on the suit wada land. Therefore, the first appellate court held that since the suit wada land is not being used for agricultural purposes, it was not incumbent upon the learned trial Judge to refer the issue No. 7b to the Competent Authority for decision on that issue, under the Kachchh Tenancy Act, and to stay the suit till decision on that issue by the Competent Authority. ( 12 ) THERE is no dispute about the fact that the civil court will not have jurisdiction to settle, decide or deal with any question which is by or under the Kachchh Tenancy Act required to be settled, decided or dealt with by the tahsildar or Tribunal. It would be, therefore, profitable to refer to the relevant provisions of Section 124 (1) of the Kachchh Tenancy Act. Section 124 (1) of the Kachchh Tenancy Act reads as under:"124. Bar of Jurisdiction (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this act required to be settled, decided or dealt with by the Tahsildar or Tribunal, a Manager, (the collector, the Gujarat Revenue Tribunal or the state Government) in appeal or revision or the state Government in exercise of their powers of control. " ( 13 ) IF the court finds that the dispute or controversy is required to be decided by the competent authority under the Kachchh Tenancy act, the suit is required to be stayed, and such issue or issues, as the case may be, shall have to be referred to the competent authority for trial and decision. This provision is prescribed in Section 125 (1) of the Kachchh Tenancy Act. Section 125 of the Kachchh Tenancy Act reads as under:"125 Suits involving issues required to be decided under this Act- (1) If any suit instituted in any Civil Court, involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter to as the "competent 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 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 Mamlatdars Court constituted under the Mamlatdars Court Act, 1906 (Bom. II of 1906 ). Explanation For the purpose of this Section a Civil Court shall include a Mamlatdars Court constituted under the Mamlatdars Court Act, 1906 (Bom. II of 1906 ). " ( 14 ) THE issues and disputes triable by the competent authority under the Kachchh Tenancy act are, elaborately, prescribed in Section 100 of the Kachchh Tenancy Act. In fact, it defines the duties of the Tahsildar. Section 100 of the kachchh Tenancy Act reads as under : 100. Duties of Tahsildar.--"for the purposes of this Act, the following shall be the duties and functions to be performed by the Tahsildar :- (1) to decide whether a person is an agriculturist; (2) to decide whether a person is a tenant, a protected lessee or an occupancy tenant; (3) to decide a dispute regarding rent under section 12; (4) to commute rent in crop share into cash rent; (5) to commute rent in terms of service of labour into cash rent under Section 14; (6) to determine the amount of compensation under Section 15; (7) to determine the amount to be refunded to a tenant under Section 18 (4); (8) to decide whether any land should be declared surplus under Section 21; (9) to determine the amount of compensation for trees under Section 25; (10) to determine any dispute regarding the right to produce of trees under Section 26; (11) to determine the costs of repairing protective bunds under Section 28; (12) to decide an application for possession under Section 36; (13) to sanction exchange of tenancies under section 51; (14) to determine compensation to be paid under Section 52; (15) to fix the price of land under Section 90; (16) to decide whether the transfer of acquisition is or is not invalid under Section 122; (17) to dispose of land under Section 122; (18) to take measures for putting the tenant or the landlord or the agricultural labourer or artisan or person carrying on allied pursuit into the possession of the land or dwelling house or site under this Act; and (19) to decide such other matters as may be referred to him by or under this Act. " ( 15 ) BEFORE deciding the merits of the aforesaid contention raised by the learned counsel for the appellant/defendant-tcnant it would be necessary, at this stage, also to mention that necessary modifications are incorporated in Schedule III pursuant to Section 1 (2) of the Kachchh Tenancy Act under the provisions of the Kachchh Tenancy Act applicable to Kachchh Area of the erstwhile state of Bombay. According to the said schedule III, the competent authority, the competent authority Tahsildar is required to be read as mamlatdar. Thus the word "tahsildar is substituted by the word "mamlatdar by virtue of the modification, subject to the Act extended to Kachchh area as per Schedule III. Therefore, the competent authority to decide and determine the issues and disputes under Section 100 of the Kachchh tenancy Act is the mamlatdar. ( 16 ) IT appears from the evidence on record that the demised property was given on lease to the father of the defendant-tenant since more than 40 years prior to the date of filing of the suit. According to the contention of the defendant-tenant, the demised property was a land on which expenses were incurred by him and it was made habitable by raising or erecting a room thereon. There is no dispute about the fact that initially the demised property was leased to the father of the defendant-tenant and thereafter he is in occupation thereof. The rent note is produced at Ex. 44, dated 16-5-1969, which is executed by the defendant-tenant megha Reva. The defendant-tenant further contended that he is an agriculturist and he is occupying the demised property for agricultural purposes. The courts below have found that the demised property is a residential property and not a land or house for agricultural purpose. Therefore, it is held, concurrently, by both the courts below that issue No. 7b was not required to be transmitted to the competent authority under Section 124 (1) of the Kachchh Tenancy act. Ordinarily, this court, while sitting in a second Appeal, would be at loath to interfere with the concurrent finding of facts, unless manifest error on the face of the record or misreading of evidence or illegality is committed by the courts below. Ordinarily, this court, while sitting in a second Appeal, would be at loath to interfere with the concurrent finding of facts, unless manifest error on the face of the record or misreading of evidence or illegality is committed by the courts below. With due respect to the learned Judges of the courts below, they have committed, serious error, resulting into miscarriage of justice, while appreciating the relevant provisions of the Kachchh Tenancy act, in the background of the facts on record. The concurrent finding of both the courts below that, as the demised property is a residential one and not a land for agricultural purpose, issue No. 7b was not required to be transmitted to the competent authority under the Kachchh tenancy Act, is not only erroneous but manifestly exhibiting failure in appreciating other relevant provisions of the Kachchh tenancy Act. It appears, prima facie, that the definition of land was not properly placed before the courts below. Even if the suit wada land is a dwelling house and not a land for agricultural purpose, it is required to be considered as to whether it is covered under the provisions of Section 2 (17) of the Kachchh tenancy Act or not. Section 2 (17) defines the word "land". Section 2 (17) of the Kachchh tenancy Act reads as under :" (17) "land" means- (a) land which is used or capable of being used for agricultural purposes and includes the sites of farm buildings appurtenant to such land; and (b) for the purposes of Sections 16, 22, 23, 24, 25, 26, 32, 34, 36, 37, 55, 57, 89, 91, 121 and 122; (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. ( 17 ) IT seems that the courts below have failed to appreciate the provisions incorporated in section 2 (17) (b) of the Kachchh Tenancy Act. It may be mentioned that there is no dispute about the fact that the demised property is a dwelling house with open land in front of it occupied by the defendant-tenant, who, prima facie, appears to be an agriculturist or agricultural labourer. It may be mentioned that there is no dispute about the fact that the demised property is a dwelling house with open land in front of it occupied by the defendant-tenant, who, prima facie, appears to be an agriculturist or agricultural labourer. It is the contention of the defendant-tenant that from the inception he is an agriculturist and using the demised property since last more than 40 years, after incurring necessary expenses and making it habitable. Such a plea is also raised in the written statement, and issue No. 7b, as aforesaid, is precisely raised in view of the contentions raised by the defendant-tenant. It is true that whether any issue referable to the competent authority under the Kachchh Tenancy Act arose or not, could be appreciated by the civil court, if any dispute or controversy has arisen, which could be decided by the competent authority as enumerated in Section 100 of the Kachchh tenancy Act, and if the Civil Court, prima facie, finds that it is a dispute which is required to be settled, decided and dealt with by the competent authority under the Kachchh Tenancy act, then in that case, it is incumbent upon the Civil Court to follow the procedure prescribed under Sections 124 (1) and 125 (1) of the Kachchh Tenancy Act. Issue No. 7b, in the present case, pertains to the dispute as to whether the suit wada land was a dwelling house or not and it is covered under the provisions of the Kachchh Tenancy Act. Therefore, in the facts and circumstances of the present case, the said issue ought to have been referred by the trial court to the competent authority for determination under Section 124 (1) of the kachchh Tenancy Act and should have stayed the suit till the decision of the said issue, under section 125 (1) of the Kachchh Tenancy Act. Therefore, in the facts and circumstances of the present case, the said issue ought to have been referred by the trial court to the competent authority for determination under Section 124 (1) of the kachchh Tenancy Act and should have stayed the suit till the decision of the said issue, under section 125 (1) of the Kachchh Tenancy Act. The competent authority under the statutory special forum shall have to decide such disputes and issues in accordance with the provisions of the Kachchh Tenancy Act and the competent authority shall have to communicate this decision to the Civil Court, and the Civil Court shall have to thereupon dispose of the suit in accordance with the procedure applicable thereto, Unfortunately, the views of the courts below that the demised property is a residential house and not a land for agricultural purposes, and therefore, issue No. 7b is not required to be determined by the competent authority under the Kachchh Tenancy Act do not appear to be correct. The courts below have failed to notice the entire tenor of the provisions of Section 2 (17) (b) read with Section 22 of the Kachchh tenancy Act. It would be also interesting to refer to the provisions of Section 22 of the kachchh Tenancy Act at this juncture, which prescribes bar to eviction from dwelling house. Section 22 of the Kachchh Tenancy Act reads as under:"22. Bar to eviction from dwelling house :- (1) If in any village, a tenant is in occupation of a dwelling house built at the expenses of such tenant or his predecessor-in-title on a site belonging to his landlord, such tenant shall not be evicted from such dwelling house (with the materials and the site thereof and the land immediately appurtenant thereto and necessary for its enjoyment) unless - (a) the landlord proves that the dwelling house was not build at the expense of such tenant or his predecessor-in title; and (b) such tenant makes three defaults in the payment of rent, if any, which he has been paying for the use and occupation of such site. (2) The provisions of sub-Section (1) shall not apply to a dwelling house which is situated on any land used for the purposes of agriculture from which the tenant has been evicted under section 38 or 39. (2) The provisions of sub-Section (1) shall not apply to a dwelling house which is situated on any land used for the purposes of agriculture from which the tenant has been evicted under section 38 or 39. " ( 18 ) IT is apparent from the plain perusal of the aforesaid provisions of Section 22 of the kachchh Tenancy Act that if a dispute is raised by a person who is a tenant in any village and who is in occupation of a dwelling house and who is an agriculturist, under the Kachchh tenancy Act and if the court, prima facie, finds, that there is some substance in the dispute raised in view of the material on record, then in that case, the Court shall have no option but to follow the procedure prescribed in Sections 124 (1) and 125 (1) of the Kachchh Tenancy Act, as aforesaid. ( 19 ) IN the background of the facts on record, it appears that issue No. 7b is required to be settled and determined by the competent authority under the Kachchh Tenancy Act and the finding of the courts below in respect of issue No. 7b, in the facts of the present case, is without jurisdiction. It is required to be determined only and only by the competent authority under the Kachchh Tenancy Act. Since issue No. 7b is required to be exclusively determined by the competent authority under the Kachchh Tenancy Act, which is going to the root of the matter, it is incumbent upon this court to remand the matter to the trial court with necessary directions to transmit issue No. 7b in Ex. 19, to the competent authority for determination under the provisions of Section 125 91) of the Kachchh Tenancy Act. ( 20 ) IN view of the aforesaid discussion, the contention raised on behalf of the appellant / original defendant-tenant is full of merit and requires to be sustained. . ( 21 ) IT may be mentioned that the competent authority shall have to decide issue No. 7b, as aforesaid as mentioned under the provisions of Sections 124 and 125 of the Kachchh tenancy Act, irrespective of the observations made in this judgment as well as in the judgments of the courts below on this issue. . ( 21 ) IT may be mentioned that the competent authority shall have to decide issue No. 7b, as aforesaid as mentioned under the provisions of Sections 124 and 125 of the Kachchh tenancy Act, irrespective of the observations made in this judgment as well as in the judgments of the courts below on this issue. The competent authority shall bear this aspect in mind and exercise its statutory jurisdiction in accordance with the provisions of Kachchh tenancy Act. ( 22 ) SINCE this matter is very old, it would be expedient to schedule a time bound programme for adjudication by the competent authority and thereafter by the trial court. ( 23 ) IN the facts and circumstances of the present case, this court is left with no alternative but to quash the judgment and decree passed by the trial court and confirmed in the first appeal, as aforesaid, and to remand the matter to the trial court. Therefore, the matter is remanded to the trial court with a specific direction that it shall refer issue No. 7b, of ex. 19, as aforesaid, to the competent authority, under the provisions of Section 125 (1) of the kachchh Tenancy Act and shall stay the suit till the determination of the said issue by the competent authority. The competent authority shall, on receipt of the reference from the civil court, deal with and decide issue No. 7b in accordance with the provisions of Kachchh tenancy Act as early as possible and not later than three months after receipt of the reference from the trial court and thereafter shall communicate its decision to the trial court immediately. The trial court shall thereupon dispose of the suit in accordance with law within a period of one month after receipt of the decision of the competent authority. ( 24 ) IN the result, the impugned judgment and decree passed by the trial court and confirmed by the first appellate court, are, hereby quashed. The case is remanded to the trial court with a direction to refer issue No. 7b, in Ex 19, as aforesaid, to the competent authority under Section 124 (1) of the Kachchh tenancy Act as early as possible and not later than one month after receipt of writ of this court, and the competent authority (Mamlatdar) shall deal with and decide the aforesaid issue no. 7b in accordance with the provisions of the Kachchh Tenancy Act, and shall communicate its decision to the trial court as early as possible and not later than 3 months from the date of receipt of the reference from the trial court. The trial court shall thereupon dispose of the suit in accordance with law as early as possible and not later than one month from the date of receipt of the decision from the competent authority. ( 25 ) IT is hoped, since the directions for time bound disposal are issued keeping in mind the old dispute between the parties and facts and circumstances of the case and, therefore, the trial court and the competent authority shall, scrupulously, observe the said directions. 26. The appeal is partly and accordingly allowed. In the peculiar circumstances of the case, there shall be no order as to costs. Order accordingly. .