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Case Number

Second Appeal No. 462 of 1952 (with Second Appeals Nos. 6 of 1953 and 387 of 1952), against the decision of S.J Surana, Additional District Judge, at Washim, in Civil Appeal No. 40-A of 1951, from the decision of J.N Khare, Second Civil Judge, Class II, at Washim, in Civil Suit No. 202-A of 1949

Judges

H.K Chainani, C.J
Tambe
Patwardhan, JJ.

Acts

Sub-section (1) of s. 132 of the new Tenancy Act repeals Chapter XIV of the Madhya Pradesh Land Revenue Code and the Berar Regulation of Agricultural Leases Act, 1951 (XXIV of 1951). Sub-section (2) of this section
Clause (b) of sub-s. (3) of s. 132 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, (Bombay Act No. XCIX of 1958) (hereinafter referred to as the Tenancy Act)
provisions repealed by s. 132 are the Berar Regulation of Agricultural Leases Act and Chap. XIV of the Madhya Pradesh Land Revenue Code.
land.29. Section 68 and several other section of the M.P Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act
section 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, questions
Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950
section 3 of the Berar Regulation of Agricultural Leases Act, 1951.6. Section 9
Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kuteh Area) Act, 1958,
provisions of sub-ss. (2) and (3) of s. 132 of the new Act. Sub-section (2) of s. 132
Berar Regulation of Agricultural Leases Act.38. Under s. 3 of this Act
s. 3 of the Berar Regulation of Agricultural Leases Act, 1951,
s. 3 of the Berar Regulation of Agricultural Leases Act.
provisions of ss. 124 and 125 of the new Tenancy Act,
hereinafter appearing;5. Section 5 of the new Act
Berar Regulation of Agricultural Leases Act,
Tenancy Act. Section 132 of the Tenancy Act
s. 5 of the C.P & Berar General Clauses Act
provisions of sub-s. 3(b). Section 132
Schedule.(2) Nothing in sub-section (1)
TRANSFER OF PROPERTY ACT 1882
Section 6 of the Tenancy Act
Sub-sections (7) and (2) of s. 6
Clause (p) of s. 2 of this Act
s. 6 of the new Tenancy Act.
s. 19 of the Tenancy Act,
s. 6 of the Tenancy Act.
Sub-section (3) of s. 73-A
Sub-section (1) of s. 125
Section 100, sub-s. (1),
s. 6 of the new Act
Section 73-C

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This set of proceedings arises from multiple second appeals concerning possession of agricultural land and competing claims by landlords and persons claiming tenancy or tenant-like status under several statutes in force at different times.

Background elements appearing in the opinion (as stated by the Court) include:

Earlier law: the Berar Land Revenue Code (including s. 73 and the later-inserted s. 73-A) and the Berar Regulation of Agricultural Leases Act, 1951, had conferred certain tenant rights, including a cause of action under s. 73-A for tenants ejected after January 1, 1935, to seek reinstatement.
Legislative changes: the Berar provisions were affected by later enactments — the Madhya Pradesh Abolition of Proprietary Rights Act (1950), the Madhya Pradesh Land Revenue Code (1954/1955), and ultimately the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (the "Tenancy Act"). The Tenancy Act repealed specified earlier enactments (see s.132) and created new rules about who is “deemed to be” a tenant (s.6) and about administrative jurisdiction (e.g., duties of the Tahsildar under s.100 and bar on civil courts under ss.124–125).
Specific suits and appeals:
- Second Appeal No. 387 of 1952: an ejectment suit by landlords concerning survey nos. 131 and 132. Trial court and District Court reached differing conclusions about whether defendant No.1 was a tenant of antiquity, permanent tenant, ordinary tenant, etc. The appeal was pending when the new Tenancy Act commenced.
- Second Appeals Nos. 462 of 1952 and 6 of 1953: suits filed by tenants under s.73-A of the Berar Land Revenue Code to recover possession after eviction. Trial court decrees in 1951 gave possession to these tenants; on appeal the District Court set aside the decrees; one execution was carried out and in the other matter execution was stayed by this Court — leaving appellants in interim possession via stay order.
Procedural posture: The Division Bench considered the jurisdictional and statutory questions of applicability of the Tenancy Act and reformulated and referred narrow jurisdictional questions for Full Bench consideration; subsequently a bench composed of Chainani C.J., Tambe and Patwardhan JJ. heard the reformulated question and issued the opinion summarized here. The Court ultimately answered the reformulated question in the negative and directed the appeals to be sent back to the Division Bench to be heard on merits and disposed of according to law.

Legal Issues Presented

Whether, having regard to the facts in these appeals, the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (Bombay Act No. XCIX of 1958), apply to the proceedings then pending.
Whether this Court (the Civil Court/this appellate bench) has jurisdiction to hear the appeals in view of the questions raised under the Tenancy Act, or whether those matters fall within the exclusive jurisdiction of the Revenue Authorities (i.e., whether issues relating to the status of parties who claim to be tenants must be referred to the Tahsildar under section 125 of the Tenancy Act).

Arguments of the Parties

Appellants / Tenants' Arguments

Under s.6 of the Tenancy Act, persons lawfully cultivating land belonging to another (when not personally cultivated by the owner) are to be deemed tenants; therefore claimants cultivating the land should be deemed tenants.
Alternatively, claimants should be recognised as protected lessees under s.3 of the Berar Regulation of Agricultural Leases Act, immediately before the commencement of the Tenancy Act, and thus recognised as lessees under the Tenancy Act (by s.6(2)).
If so, their tenancies cannot be terminated except under the conditions of s.19 of the Tenancy Act, and possession cannot be taken from them except by order of the Tahsildar under s.36(2).
Given s.100(7) and s.100(2) (making it the Tahsildar's duty to decide whether a person is a tenant or protected lessee) and ss.124–125 (bar/transfer of civil court jurisdiction), the Civil Court's jurisdiction is barred and civil suits should be stayed and issues referred to the Tahsildar.
Specifically for suits under s.73-A of Berar Land Revenue Code, those suits constitute a special cause of action which should be determined by civil courts and are not swept into the exclusive domain of the Tahsildar under the Tenancy Act.

Respondents / Landlords' Arguments

Where plaintiffs (landlords) had obtained decrees and the tenants were ejected by execution, any subsequent possession by tenants was attributable not to lawful tenancy but to interim stay orders and therefore was not possession that should be deemed a tenancy under s.6 of the Tenancy Act.
Landlords contend they had validly terminated the tenancy by notice and obtained decrees for ejectment; tenants who re-entered or continued by interim court orders hold only provisional possession which does not convert into a tenancy or defeat landlords' vested rights under their decrees (restitution under s.144 CPC).
Where tenants base rights on s.73-A (Berar Code) such suits are preserved by saving provisions in transitional statutes (e.g., M.P. Land Revenue Code s.239 and general clauses provisions), so those proceedings continue as if under the older laws and are not displaced by the Tenancy Act.
On the point of jurisdiction, landlords argued that suits filed under s.73-A are specifically to be determined by civil courts as the right is conferred by that provision and is not consigned to Tahsildar jurisdiction by the Tenancy Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Garikapati Veeraya v. N. Subbiah Choudhry & Others (Supreme Court)	The "golden rule" of statutory construction: absent an express retrospective provision, a statute should not be construed to have retrospective operation so as to alter the law applicable to a claim in litigation at the time the Act was passed.	The Court relied on this principle to hold that the Tenancy Act could not be construed to apply to suits that were not instituted under the enactments expressly repealed by the Tenancy Act. The Court therefore treated pending suits (not instituted under repealed enactments) as to be disposed of "as if this Act had not been passed" under s.132(2).

Court's Reasoning and Analysis

The Court approached the disputes by identifying and isolating the legal and jurisdictional questions raised by the coming into force of the Tenancy Act, the wording of its transitional provisions (s.132), and the new mechanisms for administrative determination (s.100 duties of the Tahsildar; ss.124–125 bars and referral provisions).

1. Reformulation of the central procedural question: the Bench reformulated the broad Full Bench questions into the practical question whether, in the specific second appeals before it, it was necessary to refer to the Tahsildar under s.125 issues relating to the status of parties who claim to be tenants.

2. Distinction between two classes of pending suits under s.132: the Court emphasized that s.132(2) saves "any legal proceeding or remedy" in respect of rights accrued before the Tenancy Act and provides that such proceedings "shall be instituted, continued and disposed of, as if this Act had not been passed." By contrast, s.132(3)(b) expressly addresses proceedings under the enactments repealed which were pending in civil courts and makes s.125 applicable to those proceedings. The Court therefore drew a statutory distinction between:

Proceedings that were instituted under the now-repealed enactments (to which s.132(3)(b) and then s.125 apply), and
Ordinary suits in which parties merely assert rights that originally arose under repealed enactments (which are governed by s.132(2) and continue as if the Tenancy Act had not been passed).

3. Application to Second Appeal No. 387 of 1952 (landlord ejectment suit):

The suit was an ordinary ejectment suit filed by landlords — it was not a suit instituted "under" any of the enactments that the Tenancy Act repealed. Consequently it falls within s.132(2), not s.132(3)(b).
Although defendants in that suit claimed rights under repealed enactments (e.g., tenants of antiquity under s.73 of the Berar Code, or protected lessee status under the Berar Regulation Act), that did not make the suit one "under" those laws for the purposes of s.132(3)(b).
Thus the Tenancy Act does not automatically deprive the civil courts of jurisdiction in such a suit; the governing law for the litigation is the law in force at the date of suit and the Tenancy Act does not, by implication, apply retrospectively to change the law applicable to the claim.
Because the ultimate characterisation of defendant No.1 (annual tenant v. permanent tenant v. tenant of antiquity) would determine the outcome, and could be decided by the civil courts on the merits, there was no need to refer the question to the Tahsildar under s.125. The appeal was therefore sent back to the Division Bench to be heard on merits and disposed of in accordance with law.

4. Application to Second Appeals Nos. 462 of 1952 and 6 of 1953 (suits by tenants under s.73-A Berar Land Revenue Code):

These suits were brought under s.73-A of the Berar Land Revenue Code (a right to seek reinstatement) and were not suits instituted under any of the enactments repealed by the Tenancy Act. The Tenancy Act's s.132 therefore did not make s.125 applicable to them.
The Court analysed the factual posture: trial court decrees in favour of the tenants (1951) were reversed on appeal; in one matter execution of the appellate decree returned possession to landlords and in the other execution was stayed by this Court, leaving the tenants currently in possession only by virtue of an interim stay.
Section 6 of the Tenancy Act deems a person lawfully cultivating land to be a tenant in specified circumstances. The Court held that a mere interim possession maintained by a stay order (when a higher court has reversed the trial court) does not convert the possessor into a person "lawfully cultivating" so as to be deemed a tenant under s.6. The appellants' possession was provisional and could not be treated as lawful while the District Court's decree stood.
On the alternative contention that appellants had become protected lessees under the Berar Regulation of Agricultural Leases Act (s.3), the Court observed that protected lessee status required a lease in favour of the person by the landholder; here there was no lease and landlords had not acquiesced in the trial court decrees. Consequently appellants were not protected lessees and there was no requirement to refer the questions to the Tahsildar under s.125.
The Court therefore concluded that the reformulated procedural question (whether to refer under s.125) was answered in the negative for these appeals as well, and these appeals were also to be referred back to the Division Bench for hearing on merits and disposal according to law.

5. Statutory construction and non-retrospectivity: the Court expressly relied on the principle (as stated in Garikapati Veeraya) that absent express retrospective intent, an Act should not be construed as changing the law applicable to pending litigation. The Tenancy Act's s.132(2) is interpreted as preserving suits that were not instituted under the repealed enactments; only those proceedings specifically instituted under the repealed enactments and pending in civil courts are to be referred under s.125 per s.132(3)(b).

Holding and Implications

Holding: The Court answered the reformulated question in the negative — it held that it was not necessary, in the three second appeals before it, to refer the issues relating to the status of parties who claimed to be tenants to the Tahsildar under section 125 of the Tenancy Act.

Consequential directions and immediate legal effects:

Second Appeal No. 387 of 1952 (the landlord ejectment appeal) is remitted to the Division Bench to be heard on the merits and disposed of in accordance with law.
Second Appeals Nos. 462 of 1952 and 6 of 1953 (suits by tenants under s.73-A of the Berar Land Revenue Code) are likewise referred back to the Division Bench to be heard on the merits and disposed of in accordance with law.
The Court recorded the position that the Tenancy Act's s.132(2) preserves suits that were not instituted under the enactments repealed by the Tenancy Act, and that s.125 (and the Tahsildar's determination) applies only to proceedings under the repealed enactments that were pending in civil courts as specified in s.132(3)(b).
The opinion directs that the reformulated procedural question — whether the civil court must stay and refer the issues in the particular appeals at hand — is answered negatively, and costs were awarded (noted as "Costs, costs in appeals").

Note: The opinion does not state that it establishes a novel binding precedent beyond the decisions made in these particular appeals. The summary above limits itself to the holdings, statutory interpretations and orders expressly contained in the provided opinion.

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Chandbeg Muradbeg v. Raje Madhaorao Devidasrao Jahagirdar

Kotval, J.:— [His Lordship after stating the facts in the appeals, proceeded]. Of the two principal questions argued under the provisions of the new Act, we consider the question as to the jurisdiction of this Court to try the questions raised under it to be the more fundamental and we shall accordingly deal with it first.

2. We have already shown how originally s. 73 of the Berar Land Revenue Code defined “tenant of antiquity”. The Full Bench in answering the reference in Second Appeal No. 6 of 1953 had held that the presumption of antiquity could only be drawn when two conditions have been fulfilled: (i) that there is no satisfactory evidence of the data of the commencement of the tenancy and (ii) that this lack is due to the antiquity of the tenancy. In 1948 the Legislature amended s. 73 of the Berar Land Revenue Code by adding a proviso to sub-s. (1). By this proviso it virtually gave the rights of a tenant of antiquity to a tenant who was not an ante-alienation tenant, if he could prove that he had personally or through his predecessor-in-title held the land continuously for a period in excess of twenty years; and on such proof the tenant was to be deemed to be a tenant of antiquity unless the landlord proved that such tenant was an annual tenant or a tenant holding the land under one or more valid written leases covering the entire period of twenty years.

3. This proviso was given retrospective effect by a new section, s. 73-A, inserted in the Code. That section further gave a right to a tenant ejected after January 1, 1935, to file suits in order to recover possession of lands from which they had been evicted. Sub-section (3) of s. 73-A provides that the Courts shall decide such suits as if s. 73 as amended by the Act of 1948 was in force on January 1, 1935. It was under these amended provisions that the tenants had made their claim in suit filed under s. 73 of the Berar Land Revenue Code. While that controversy remains to be resolved—it has only been partially resolved by the decision of the Full Bench which dealt only with the question of law,—there have been brought about far more sweeping changes in the rights of tenants by the new Bombay Act No. XCIX of 1958.

4. The new Act purports to have been passed with a view to bringing the status and rights of tenants as far as possible in line with those prevailing in certain other parts of the Bombay State, and the object and necessity for the legislation has been stated in the preamble to be:

“…Whereas it is expedient in the interests of the general public to regulate and impose restrictions on the transfer of agricultural lands and of dwelling houses and lands appurtenant thereto and sites used for allied pursuits belonging to or occupied by agriculturists…and to provide for the assumption of the management of agricultural lands in certain circumstances and to make provisions for certain other matters hereinafter appearing;…”

5. Section 5 of the new Act commences with a recital that the provisions of Chapter V of the Transfer of Property Act, 1882, shall, in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of lands to which this Act applies. The ss. 6 and 7 create a new class of persons who are “deemed to be” tenants. Sub-sections (7) and (2) of s. 6 run as follows:—

“Persona deemed to be tenants. (1) A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not—

(a) a member of the owner's family, or

(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or

(2) For the purposes of this Act, a person shall be recognised to be a protected lessee if such person was, immediately before the commencement of this Act, deemed to be protected lessee under section 3 of the Berar Regulation of Agricultural Leases Act, 1951.”

6. Section 9 provides that no tenancy of any land shall be terminated merely on the ground that the period fixed for its duration whether by agreement or otherwise has expired. It is to be noticed that in all the three appeals before us it was one of the grounds that the landlord had terminated it by notice after its expiry. Sections 19 and 20 provides for the termination of tenancy, and s. 19 lays down the conditions under which alone the tenancy could he terminated and the provisions are “Notwithstanding any agreement, usage, decree or order of a court of law …”. Section 37 then provides that the rights and privileges of any tenant under any usage or law for the time being in force or arising out of any contract, grant, decree or order of a Court or otherwise how so ever shall not be limited or abridged except as provided under this Act.

7. We then turn to the provisions as to the duties of the Tahsildar, procedure and right of appeal. Section 100, sub-s. (1), prescribes as one of the duties to be performed by the Tahsildar “to decide whether a person is an agriculturist”; sub-s. (2) “to decide whether a person is a tenant, a protected lessee or an occupancy tenant” and sub-s. (19) “to decide such other matters referred to him by or under this Act.” Then follow the two important provisions which bar the jurisdiction of Civil Courts, namely, ss, 124 and 125 which run as follows:—

“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 or the Bombay Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.

(2) No order of the Tahsildar, the Tribunal, the Manager, the Collector or the Bombay Revenue Tribunal or the State Government made under this Act shall be questioned in any civil or criminal Court….

125. Suits involving issues required to be decided under this Act.—(1) If any suit instituted in any Civil Court, involves any issue 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 referred 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 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.”

8. Section 132 has a hearing on these provisions and particularly the provisions of sub-s. 3(b). Section 132 runs as follows:—

“132. Repeals and savings.—(1) The provisions of the enactments specified in Schedule I are hereby repealed to the extent specified in column 4 of the said Schedule.

(2) Nothing in sub-section (1) shall, save as expressly provided in this Act, affect or be deemed to affect—

(i) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or

(ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of this Act,

and any such proceedings shall be instituted, continued and disposed of, as if this Act has not been passed.

(3) Notwithstanding anything contained in sub-section (2)—

(a) all proceedings for the termination of the tenancy and ejectment of a tenant or for the recovery or restoration of the possession of the land under the provisions of the enactments so repealed, pending on the date of the commencement of this Act before a Revenue Officer or in appeal or revision before any appellate or revising authority shall be deemed to have been instituted and pending before the corresponding authority under this Act and shall be disposed of in accordance with the provisions of this Act, and

(b) in the case of any proceeding under any of the provisions of the enactments so repealed, pending before a civil Court on such date, the provisions of section 125 of this act shall apply.”

9. Now the argument on behalf of the tenants in appeals Nos. 387/52 and 462/52 has been that by virtue of the provisions of s. 6, the tenants who were still lawfully cultivating the lands belonging to another person, are to be deemed to be tenants because it is not in dispute that the lands are not being cultivated personally by the owners. At any rate, alternatively these persons should be deemed to be protected lessees under s. 3 of the Berar Regulation of Agricultural Leases Act, 1951, immediately before the commencement of this Act and, therefore, they would be lessees under this Act. If so, their tenancy cannot be terminated under the provisions of s. 19 and possession of the fields cannot be taken from them except under the orders of the Tahsildar as provided in s. 36(2). Lastly, it is contended that having regard-to the provisions of s. 100(7) and (2) which make it the duty or function of the Tahsildar to decide whether a person is a tenant or a protected lessee and to decide applications for possession under s. 36 (sub-s. (12) of s. 100), the jurisdiction of the Civil Court is barred by virtue of ss. 124 and 125.

10. To these contentions a fourfold answer has been given on behalf of the landlord. The first answer is that the possession of the tenants in the instant cases was not possession to which they were entitled under the normal rights between the parties, but it was possession which accrued to them because of stay orders passed by the Courts. The submission is that the landlords had obtained decrees, the tenants were ejected in execution and possession of the lands was obtained. After some years, as a result ss. 73 and 73-A of the Berar Land Revenue Code the tenants filed their suits under the special rights conferred under s. 73-A, for reinstatement and having succeeded in the first Court, obtained possession, and even though the appellate Court dismissed their suits they are continuing in possession as a result of stay orders. Their tenancy has already been terminated by valid notices and thereafter decrees for ejectment have been passed against them and they had lost possession also. After this, the tenants could not have re-entered the lands. Their possession was not attributable to any legal right but to the interim orders of the Court. The landlords would thus become entitled to restitution under s. 144 of the Civil Procedure Code and the right of restitution given to the landlords cannot be defeated by the mere accident of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kuteh Area) Act, 1958, supervening. Their possession is only provisional till the decision of the second appeal, and it cannot be said that they should be deemed to be tenants within the meaning of s. 6 of the new Act when they are cultivating the lands because of the stay orders of the Courts. The decree-holders moreover have got a vested right under the decrees which cannot be taken away by the said Act.

11. On the question whether the Civil Court or the Revenue Authorities have jurisdiction, it was contended on behalf of the tenants that the question whether a person is a tenant within the meaning of s. 6 of the new Act is different from the question whether a person is a tenant of antiquity within the meaning of s. 73 of the Berar Land Revenue Code. The Tahsildar is not given the power to decide if a person is a tenant of antiquity, nor is he given the power to nullify decrees obtained by landlords by restoring back possession of lands to persons evicted in execution of validly obtained decrees through the Civil Courts. The suits of the appellants-plaintiffs are based on a special type of cause of action and a right which was given to them by s. 73-A of the Berar Land Revenue Code, and the substantial questions arising in the present suits are not entrusted for decision to the Tahsildar under the new Act, and therefore ss. 124 and 125 of that Act do not come into play in those suite.

12. The second answer is that the suits brought by the plaintiffs-appellants were based on a special type of cause of action and a right which was specially conferred upon them by s. 73-A of the Berar Land Revenue Code and that right by the terms of s. 73-A itself falls to be determined by the civil Court and is expressly assigned to its jurisdiction. Therefore, no other rights can be agitated in those suits and the plaintiffs-appellants cannot be given decrees for possession on the basis that they have become tenants under the provisions of the new Act.

13. Another contention raised was on the basis of the provisions of ss. 238 and 239 of the M.P Land Revenue Code. By s. 238 of the M.P Land Revenue Code, the Berar Land Revenue Code was repealed; but by s. 239 it was provided that all rights, liabilities incurred and other things done under any of the enactments repealed by the M.P Land Revenue Code shall, so far as may be, be deemed to have been respectively acquired, incurred and done under the said Code. (M.P Land Revenue Code). Thus by an express provision of law the rights obtained by the landlords were expressly saved. Similar rights obtained by the tenants under the provisions of the Berar Land Revenue Code were also saved. Therefore, the suits filed by the tenants under s. 73-A of the Berar Land Revenue Code are saved and can be continued as if they were filed under the provisions of the M.P Land Revenue Code. Reference was also made to s. 5 of the c.p & berar general clauses act which saves rights acquired, accrued or incurred under repealed enactments.

14. Another contention was founded upon the provisions of sub-ss. (2) and (3) of s. 132 of the new Act. Sub-section (2) of s. 132 provides that inspite of repealed rights pending proceedings will not be affected and the proceedings “shall be instituted, continued and disposed of, as if this Act had not been passed”. This shows that for pending proceedings the repeal has no significance and the repealed provisions are to be considered as if in force. Thus, though Chapter XIV of the M.P Land Revenue Code has been repealed, it is to be treated as if in force for rights accrued and obligations incurred. It is thus implicit in sub-s. (2) of s. 132 that rights accrued, obligations incurred or pending proceedings under other enactments are not affected by the provisions of the new Act. Having regard to the provisions of sub-s. (3) of s. 132, it is clear that s. 132 divides pending proceedings into two categories: (i) those which have to be governed by the provisions of the new Act, and (ii) such proceedings which have arisen under the repealed enactments mentioned in Schedule I to the Act and other proceedings. The latter are not touched. They are saved and have to be continued under the laws under which they were started. The suits in the present appeals are thus saved and are not affected by the new Act.

15. We consider that the question as to the applicability of the Act to pending proceedings is a question of great importance and will affect numerous proceedings pending in Courts. They are questions of great general importance and affect jurisdiction of the civil Courts and the Revenue Courts in the Vidarbha Region. It is of importance that on such vital questions, an authoritative decision should once for all be given and that there should be no divergent views expressed. In our opinion, therefore, these are matters which it would be proper to place before a Full Bench. We, therefore, frame the following questions and refer them for decision to a Full Bench to be constituted by my Lord the Chief Justice:—

(1) Whether having regard to the facts in these appeals the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (Bombay Act No. XCIX of 1958), apply? and

(2) Whether this Court has jurisdiction to hear the appeals in view of the questions raised under the Act or they lie within the exclusive jurisdiction of the Revenue Authorities?

16. The questions referred were heard by a bench composed of Chainani C.J and Tambe and Patwardhan JJ.

S.A No. 462 of 1952.

17. C.S Dharmadhikari, for the appellants.

18. S.N Kherdekar, for respondents Nos. 1 to 4.

19. N.L Abhyankar and S.V Natu, for respondents Nos. 1 to 3.

S.A No. 387 of 1952.

20. N.L Abhyankar and S.V Natu, for the appellant.

21. S.N Kherdekar, for respondents Nos. 1 to 9.

S.A No. 6 of 1953.

22. C.S Dharmadhikari, for the appellant.

23. S.N Kherdekar, for the respondents.

24. Chainani, C.J:— The questions referred to the Full Bench are:—

(1) Whether having regard to the facts in these appeals the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, (Bombay Act No. XCIX of 1958), apply? and

(2) Whether this Court has jurisdiction to hear the appeals in view of the questions raised under the Act or they lie within the exclusive jurisdiction of the Revenue Authorities?

25. These questions have been formulated in very wide terms. Clause (b) of sub-s. (3) of s. 132 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, (Bombay Act No. XCIX of 1958) (hereinafter referred to as the Tenancy Act) provides that in the case of any proceeding under any of the provisions of the enactments repealed by this Act, pending before a civil Court on the date of the commencement of the Act, the provisions of s. 125 of the Act shall apply. Sub-section (1) of s. 125 requires a civil Court to stay the proceedings and refer such issues as under the Act are required to be decided by an authority specified in the Act, to such authority for determination. Sub-section (2) provides that after the competent authority has decided the issues referred to it, it shall communicate its decision to the civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto. The jurisdiction of the civil Court to hear the proceedings before it has, therefore, not been completely taken away by s. 132 read with s. 125 of the Act. In consultation with the learned advocates for the parties, we have, therefore, reformulated the question for our consideration as follows:—

“Whether in Second Appeals Nos. 387 of 1952, 462 of 1952 and 6 of 1953, it is necessary to refer to the Tahsildar, under section 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, questions relating to the status of parties, who claim to be tenants?”

26. In order to answer this question,’ it will be necessary to consider the nature of the proceedings in each of these three cases. Second Appeal No. 387 of 1952 arises out of the suit filed by the landlords of survey Nos. 131 and 132 for obtaining possession of those lands. Survey No. 131 was service inam land, while survey No. 132 was khalsa land. The plaintiffs-landlords contended that defendant No. 1 had executed a kabuliyat, the period of which had expired and that they were, therefore, entitled to the possession of the lands. In answer to this claim, the defendants claimed that defendant No. 1 was a permanent tenant of survey No. 132 and a tenant of antiquity of survey No. 131. The trial Court held defendant No. 1 to be an ordinary tenant in respect of survey No. 132 and a tenant of antiquity in respect of survey No. 131, and the trial Court, therefore, granted the plaintiffs a decree for possession of survey No. 132. The claim in respect of survey No. 131 was dismissed. Both the parties appealed to the District Court. That Court confirmed the finding of the trial Court in regard to survey No. 132 that the tenancy of defendant No. 1 had been lawfully terminated and that his possession was not lawful. The District Court differed from the finding of the trial Court in regard to survey No. 131 and held that defendant No. 1 was an ordinary tenant of this land also. The order made by the trial Court dismissing the claim of the plaintiffs for possession of survey No. 131 was set aside and a decree was granted to the plaintiffs for possession of both the lands, survey Nos. 131 and 132. From this decree, Second Appeal No. 387 of 1952 was preferred to this Court. During the pendency of this appeal, the new Tenancy Act came into force. Certain rights were claimed under this Act before the Division Bench before which the second appeal came up for hearing. As the Division Bench considered that the questions raised were of considerable importance, the matter was referred to the Full Bench.

27. At the time when the suit was filed in 1949, the Berar Land Revenue Code, 1928, was in force. Chapter VIII of this Code gave certain rights to tenants. section 73 of this code laid down what class of tenants were to be regarded as tenants of antiquity and also conferred certain rights upon such tenants. Section 73-C dealt with permanent tenants. Section 74 provided that when there was no agreement relating to the period of his tenancy, the tenant should be deemed to be an annual tenant holding from year to year. Section 75 imposed certain restrictions on the right of the landlord to enhance the rent. These provisions, therefore, conferred several rights on tenants.

28. In 1951 the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (No. I of 1951) was passed. As a result of this Act, survey No. 131 ceased to be inam land. Clause (p) of s. 2 of this Act defines a “specified tenant” as including a permanent tenant and a tenant of antiquity. If, therefore, the contention of the defendants that defendant No. 1 was a tenant of antiquity of survey No. 131 is accepted, defendant No. 1 became a specified tenant under the above Act. Under s. 68, he must then be held to have become the lessee of the land from the State. On the other hand, if the defendants' above contention is negatived, then under s. 68 of the Act the landlords became occupants of the land.

29. Section 68 and several other section of the M.P Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act were repealed by the Madhya Pradesh Land Revenue Code, 1954 (II of 1955). Chapter XIV of the Code dealt with the rights of tenants. Sub-section (1) of s. 132 of the new Tenancy Act repeals Chapter XIV of the Madhya Pradesh Land Revenue Code and the Berar Regulation of Agricultural Leases Act, 1951 (XXIV of 1951). Sub-section (2) of this section provides as follows:

“Nothing in sub-section (1) shall, save as expressly provided in this Act, affect or be deemed to affect—

(i) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or

(ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of this Act, and any such proceedings shall be instituted, continued and disposed of, as if this Act had not been passed.”

30. Under this sub-section, therefore, proceedings instituted before the commencement of the Tenancy Act in respect of any rights acquired or liabilities incurred under any of the enactments repealed can be continued and disposed of as if the Tenancy Act had not been passed. Sub-section (3) is an exception to what is provided in sub-s. (2). It contains two clauses, (a) and (6). Clause (a) deals with proceedings before Revenue Authorities, with which we are not concerned. Clause (6) provides that notwithstanding anything contained in sub-s. (2), in the case of any proceeding under any of the provisions of the enactments so repealed, pending before a civil Court on such date, i.e the date of the commencement of the Act, the provisions of s. 125 of the Act shall apply. This clause, therefore, applies only to proceedings under any of the provisions of the enactments repealed. The provisions repealed by s. 132 are the Berar Regulation of Agricultural Leases Act and Chap. XIV of the Madhya Pradesh Land Revenue Code. If, therefore, any proceedings under any of these two enactments were pending in a civil Court on the date, on which the new Tenancy Act came into force, s. 125 would apply to such proceedings. Section 125 provides that 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, the civil Court shall stay the suit and refer such issues to such competent authority for determination. Sub-section (2) provides that 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 the 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. Section 100 specifies the duties and functions to be performed by the Tahsildar. It is his duty to decide whether a person is a tenant, a protected lessee or an occupancy tenant. Section 124 provides that no civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to he settled, decided or dealt with by the Tahsildar.

31. In view of these provisions, it has been contended by Mr. Abhyankar on behalf of the defendants, that the questions whether the original defendant No. 1 was a permanent tenant of survey No. 132 and a tenant of antiquity of survey No. 131 should be referred to the Tahsildar for determination. He has contended that under the provisions of ss. 124 and 125 of the new Tenancy Act, this Court has no jurisdiction to decide these questions. There is no force in these arguments. The suit was an ordinary ejectment suit filed by the landlords under the ordinary law in order to obtain possession of their lands from their tenants. It was not a suit under any of the enactments which have now been repealed. In this suit, the defendants claimed certain rights conferred by the repealed enactments. Mr. Abhyankar has contended that as rights were claimed under the repealed enactments, the suit must be deemed to have been instituted under the provisions of those enactments. This argument cannot be accepted. Section 132 itself draws a distinction between suits in which rights are claimed under the repealed enactments and those instituted under the enactments repealed. The former suits are governed by sub-s. (2) of s. 132, while cl. (b) of sub-s. (3) applies to the latter class of suits. The suit in the present case will, therefore, fall under sub-s. (2), and as provided in that sub-section, it must be continued and disposed of, as if the Tenancy Act had not been passed.

32. Mr. Abhyankar has invited our attention to s. 19 of the Tenancy Act, which provides that notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated except as provided in this section. He has also urged that by reason of ss. 100 and 125 of the Act, the civil Courts no longer possess the jurisdiction to decide whether defendant No. 1 was a permanent tenant, a tenant of antiquity or an ordinary tenant. It is, however, a well-settled rule that unless the Legislature directs otherwise, every suit must be decided by reference to the law in force at the date of the suit. As observed by the Supreme Court in Garikapati Veeraya v. N. Subbiah Choudhry & Others Choudhury,1 the golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so constructed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. There is no provision in the Tenancy Act stating that this Act shall also apply to pending proceedings, which had not been instituted under any of the enactments repealed by this Act. On the other hand, sub-s. (2) of s. 132 provides that such suits shall be disposed of as if this Act had not been passed.

33. It appears that when the appeals were pending in the District Court, the defendants made an application that they should be allowed to raise an additional contention that defendant No. 1 was a protected lessee under the Berar Regulation of Agricultural Leases Act. No order appears to have been passed on that application. A grievance about this has been made in the appeal now pending before this Court. Section 6 of the Tenancy Act provides that a person shall be recognised to be a protected lessee if such person was, immediately before the commencement of the Act, deemed to be a protected lessee under s. 3 of the Berar Regulation of Agricultural Leases Act. Mr. Abhyankar has, therefore, urged that the question whether defendant No. 1 was a protected lessee should be referred to the Tahsildar for determination. In this connection, it is necessary to consider the rival contentions of the parties. The case of the landlord was, and which case has been accepted by the lower appellate Court, that defendant No. 1 was an annual tenant and that his tenancy had been lawfully terminated. If that contention is accepted and upheld by this Court, defendant No. 1 could not become a protected lessee under the Berar Regulation of Agricultural Leases Act, which came in force long after the suit was filed. On the other hand, if the contention of the defendants that defendant No. 1 was a permanent tenant of survey No. 132 and a tenant of antiquity of survey No. 131 is accepted, then the landlords' suit for possession of the lands must fail. In either case, therefore, it is not necessary to refer any question to the Tahsilder for determination.

34. Second Appeal No. 387 of 1952 will, therefore, go back to the Division Bench for being heard on merits and thereafter disposed of in accordance with law.

35. So far as the other two appeals, Second Appeals Nos. 462 of 1952 and 6 of 1953, are concerned, they arise out of suits filed by the tenants for recovery of possession of the lands, from which they had been evicted, under s. 73-A of the Berar Laud Revenue Code. This Code was repealed by the Madhya Pradesh Land Revenue Code. Only Chap. XIV of the Madhya Pradesh Land Revenue Code has been repealed by the new Tenancy Act. The suits were, therefore, not suits under any of the enactments, which were repealed by the Tenancy Act. Section 132 of the Tenancy Act has, therefore, no application to these proceedings. It is also not seriously disputed that the questions, which arise under s. 73-A of the Berar Land Revenue Code, are not questions, which under the Tenancy Act can only be decided by the Tahsildar or other authority specified in this Act.

36. In these suits the trial Court passed decrees in 1951, in one case on February 28, 1951 and in another on March 24, 1951. Thereafter, plaintiffs-tenants obtained possession of the lands in execution of the decrees passed in their favour. Both the decrees were set aside on appeal by the District Court. In execution of the decree passed in appeal in the suit, which has given rise to Second Appeal No. 6 of 1953, the landlords again recovered possession of the lands. The execution of the decree of the District Court in the other appeal, Second Appeal No. 462 of 1952, has been stayed by this Court. Consequently, the appellants-tenants are still in possession of the lands in this appeal. Section 6 of the Tenancy Act provides that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated by the owner. There are three exceptions to this provision, but it is not necessary to refer to them, as they do not apply in this case. It has been contended that as the tenants have been cultivating the lands since the date on which they obtained possession thereof in execution of the decree of the trial Court, they must be deemed to be tenants under s. 6 of the Act, and that this question must be referred to the Tahsildar for determination. This argument is without any merit. The decree passed by the trial Court was reversed by the District Court. Consequently the possession of the appellants-tenants cannot at present be said to be lawful. The execution of the District Court's decree has been stayed by this Court, but that is without prejudice to the rights of either party. The interim order made by this Court only maintains the status quo, and does not alter the rights of any party. In any case it cannot alter the original character of possession of the tenants, which cannot be held to be lawful, so long as the decree of the District Court stands and is not set aside. The tenants are now trying to take an unfair and improper advantage of the interim protection granted to them by this Court. This they cannot be permitted to do. In any case, the position at present is that having regard to the decree of the District Court, the appellants cannot at present be said to be cultivating the lands lawfully. They cannot, therefore, be deemed to be tenants under s. 6 of the new Tenancy Act. This section was not intended to and cannot apply in such cases.

37. It has also been contended that as the tenants were cultivating the lands in 1951–1952 after they had obtained possession of the lands in execution of the decrees passed by the trial Court, they became protected lessees under the Berar Regulation of Agricultural Leases Act.

38. Under s. 3 of this Act a person could become a protected lessee only if there was a lease of land by a landholder in his favour. It is conceded that in these cases the landlords did not lease the lands to the appellants tenants in 1951–1952. The landlords had also not acquiesced in the decrees passed by the trial Court. On the other hand, they immediately challenged these decrees and subsequently succeeded in getting these decrees reversed by the District Court. It cannot, therefore, be said-that the tenants cultivated the lands in 1951–1952 under any leases granted to them by their landlords. They were consequently not protected lessees under the Berar Regulation of Agricultural Leases Act. It is, therefore, not necessary to refer to the Tahsildar the question whether the appellants can-be deemed to be tenants under s. 6 of the Tenancy Act.

39. These appeals will, therefore, also be referred back to the Division Bench for being heard on merits and thereafter disposed of in accordance with law.

40. The question, which we have formulated for our decision, will be answered in the negative.

41. Costs, costs in appeals.

Chandbeg Muradbeg v. Raje Madhaorao Devidasrao Jahagirdar

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants / Tenants' Arguments

Respondents / Landlords' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Chandbeg Muradbeg v. Raje Madhaorao Devidasrao Jahagirdar

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