GUNDAJI SATWAJI SHINDE V. RAMCHANDRA BHIKAJI JOSHI, AIR 1979 SC 653 (D.A. DESAI, J.)

GUNDAJI SATWAJI SHINDE V. RAMCHANDRA BHIKAJI JOSHI, AIR 1979 SC 653 (D.A. DESAI, J.)

 

FACTS

• The appellant instituted a suit for the specific performance of a contract for sale of land between the Appellant & the Respondent. The contract was for a consideration of 42K out of which 10k was paid in part by way of earnest money and further advance for certain purposes.
• The Trial Court held the certificate by Mamlatdar certifying the appellant as an agricultural labourer (Ext. 78) invalid and found the appellant not an agriculturist. On the question of jurisdiction, it held that it was competent to decide whether the appellant was an agriculturist or not since it was an incidental issue that arose from a properly instituted civil suit of specific performance over which it had jurisdiction to decide.
• 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 S. 70(a) read with Ss. 85 and 85-A of the Tenancy Act the issue would have to be referred to the Mamlatdar for decision and the Civil Court would have no jurisdiction to decide the issue.
• So, if the appellant is held to be an agriculturist then he would be entitled to the land, if he held not to be an agriculturist then he cannot purchase the said land.
• HC agreed with the trial court on the issue of validity of Ext. 78 and on the issue of jurisdiction observed that the trial court undoubtedly has jurisdiction to decide a suit for specific performance and while deciding so it was within its jurisdiction to decide any subsidiary issue that may render granting of specific performance contrary to the law.
• Hence this appeal by the appellant.

 

RULE

Contradictory provisions of the Tenancy Act in respect of the CPC:

• 63 of the Tenancy Act forbids sale to a non-agriculturist and for enforcing the contract A must prove that he is an agriculturist as otherwise enforcing it would violate statutory prohibition.
• u/s 70(a) mamlatdar has the duty, inter alia, to decide whether the appellant is an agriculturist or not.
• 85-A was introduced in 1956 by the legislature later on after the Bombay High Court observed that an enabling provision should be introduced for civil courts to mandatorily transfer proceedings on which its jurisdiction was ousted.
• 85(2) provides that no decision of competent authority under the Tenancy Act shall be questioned in any civil court and hence doing away with conflict & multiplicity of jurisdiction.
• u/s. 85-A(2) the finding of the competent authority is made binding on the civil court.

 

 

ISSUE

Whether the civil court have jurisdiction to decide whether the appellant is an agriculturist or not, or is it bound to refer it to the competent authority u/s 85-A of the Tenancy Act?

 

HELD

The appeal was allowed.

• Legislature has expressly ousted the jurisdiction of the civil court to decide any question that is required to be decided by the competent authority under the Tenancy Act by 85. S. 85-A was introduced in 1956 by the legislature later on after the Bombay High Court observed that an enabling provision should be introduced for civil courts to mandatorily transfer proceedings on which its jurisdiction was ousted.
• HC overlooked & ignored the provision contained in S.85-A. Nomenclature of issues as principal or incidental is hardly helpful because each issue has to be determined to mould the final relief.
• In Secretary of State v Mask (AIR 1940 PC 105)it was observed that exclusion of jurisdiction of civil court must not be readily inferred unless such exclusion is explicitly expressed or clearly implied
• In Trimbak Sopana Girme v Gangaram Mhatarbe Yadav (AIR 1953 Bom. 241) the Bombay High court even in the absence of S. 85-A held that the question of whether a party to a suit is a trespasser or a protected tenant under the Tenancy Act is left to be determined by the revenue court (mamlatdar) and the jurisdiction of the civil court is ousted.
• In Dhondi Tukaram Mali v Daddo Piraji Adgale (AIR 1954 Bom. 100) the division bench affirmed the ratio of the Trimbak case and suggested that the legislature introduce a provision for transferring the issue by the civil court to the competent authority under the Tenancy Act.
• Bhimaji shanker v Dundappa Vithappa (AIR 1966 SC 166, 169) approved Dhondi.
• Combined reading of Ss. 70, 85, 85-A:
  • if in a properly constituted civil suit, an issue arises which is required to be settled by a competent authority under the Tenancy Act, the civil court is statutorily required to stay the suit and refer the issue to the competent authority and on the reference being answered back the civil court is required to proceed further and it is not open for it to dispute such finding as it is binding on it.
• Mamlatdar while performing duties u/s 70 constitutes an exclusive forum to the exclusion of the jurisdiction of civil court.
• Refuting 2nd contention of the Respondent, the court held that conceding to the contention would render S. 85-A inoperative. Neither the Contract Act nor the Transfer of Property Act nor any other statute prohibits the sale of land to non-agriculturists except u/s 63 of the Tenancy Act. Hence an issue related to that prohibition would certainly arise in view of the Tenancy Act though not in a proceeding under the Tenancy Act. Since S. 85 bars the jurisdiction of the civil court and 85-A imposes an obligation of reference to the competent authority it is not open to the civil court to decide the issue by treating it as a subsidiary issue.

 

COMMENTARY

“Exclusion jurisdiction of revenue Courts bars Civil Court's jurisdiction.”