Smt. Ganga Coelho And Others v. Smt. Neena Pinto And Others

1. The petitioners (plaintiffs in the suit) had filed a suit for permanent injunction seeking to restrain the respondents (defendants in the suit) from interfering with the suit field “Palmar Gaspar Dias”. The plaintiffs' case, in brief, is that the original plaintiff was tenant and now deemed owner of the suit field by virtue of Fifth Amendment to Agricultural Tenancy Act, 1964 (hereinafter called ‘the said Act’). According to plaintiffs, the defendants were the owners of the said paddy field. The suit field, which is an agricultural property, was leased to the original plaintiff in the year 1956 by original defendant and, in the year 1977, defendant No. 1 stopped the original plaintiff from carrying out work in the suit field and apprehending that he would be dispossessed, he filed suit for permanent injunction in October, 1977.

2. The defendants in their written statement answered the pleadings in the plaint on the assumption that the plaintiff had averred that “he is a tenant” whereas the averment of the plaintiff was that he was a tenant and now deemed owner by virtue of Fifth Amendment to the said Act. On merits, the defendants denied that the suit field was an agricultural property and also that the same was leased to the plaintiff in the year 1956.

3. On the pleadings of the parties, a number of Issues were framed, but amongst them, the following Issues are material for the purpose of dealing with the revision in question. The said Issues are:—

“1. Whether the plaintiff proves that the suit field is an agricultural property and the same was leased out to the plaintiff in the year 1956 by the defendant?

2. Whether the plaintiff proves for the last 21 years the plaintiff is in a continuous, open and peaceful possession of the suit field?

3. Whether the plaintiff proves that he pays a sum of Rs. 200/- to the defendant as yearly rent?

7. Whether the defendant proves that this Court has no jurisdiction?”

4. The plaintiffs repeatedly filed applications claiming that the Issues whether the suit field is an agricultural land and whether the plaintiff was tenant of the suit field be referred to the Mamlatdar for decision in view of amendment to S. 7 of the said Act which came into effect from 1991. The said applications were rejected by the trial Court and I shall refer to the said applications one by one. It may also be mentioned here, at this stage, that the trial Court vide Order dated 1st September, 1978 had answered the question relating to jurisdiction against the defendants and had come to the conclusion that in a suit for possession, the Court has to decide who is in possession of the property and the Court is not going to decide whether the plaintiff is a tenant or not. Obviously, this finding, though not challenged, is erroneous, since even though the suit was for permanent injunction, the Issues of tenancy and whether the suit field is an agricultural property under the said Act were not only relevant, but specific Issue, namely, Issue No. 1 had been framed in this respect and it appears that the lower Court while passing the said Order dated 1-9-1978 totally lost sight of the said fact.

5. Be that as it may, the plaintiffs had filed an application on 31-8-1991 in which it was prayed that the Issue whether the suit field is an agricultural land and whether the plaintiff was a tenant of the suit field be referred to the Mamlatdar in view of amendment to S. 7 of the said Act. Unfortunately, the trial Court once again went on the erroneous assumption that not a single Issue has been framed in respect of tenancy of the plaintiff over the suit field. As I have already stated, Issue No. 1 had already been framed on this aspect. The trial Court vide Order dated 21-11-1991 came to the conclusion that, admittedly, the Court had no jurisdiction to decide whether the plaintiff is tenant of the suit field, but went on to hold that there is no provision to make reference of Issue relating to tenancy in the said Act to the Mamlatdar.

6. The plaintiff once again filed an application on 11-8-1992 that the said Issue be referred to the Mamlatdar and, once again, the Civil Judge dismissed the said application on the ground that no Issue as to whether the plaintiff is a tenant of the suit field had been framed and there was no provision for making any reference to the Mamlatdar.

7. Thereafter, the plaintiff filed another application dated 3-7-1993 that in view of the judgment of the Apex Court in Inacio Martins v. Narayan Hari Naik, (1993) 3 SCC 123 : (AIR 1993 SC 1756), the Civil Court has no jurisdiction to decide the issue of tenancy and the issue be referred to the Mamlatdar. This application was, once again, dismissed by the trial Judge that the suit was simpliciter for injunction and there was no necessity to make any reference.

8. It is not understood as to how such slipshod applications could be filed one after the other on the same issue and as to how the trial Court continued to entertain the same after dismissal of the first application in question.

9. Ultimately, the plaintiff filed a detailed application on 14-1-1994 stating that the suit was filed in the year 1977 and at that time the Mamlatdar had no jurisdiction to decide the issue as to “who was a tenant”. It was further pointed out in the said application that the said Act was amended in the year 1990 and jurisdiction was conferred on the Mamlardar to decide the issue as to who was a tenant; that in view of the judgment of the Apex Court in Inacio Martins v. Narayan Hari Naik (AIR 1993 SC 1756) (supra), the entire dispute falls outside the Civil Court's jurisdiction due to change in law and the proper course would be to follow in spirit the procedure outlined in Order 7, Rules 10 and 10-A of the Civil Procedure Code and that in view of the same, the plaint be returned to the plaintiff along with all the documents for presentation in proper Court, that is to say, the Court of Mamlatdar, Panaji, Goa. This application was also dismissed on the ground that the suit was for injunction simpliciter and had to be decided purely on possession and that the Issue No. 7 on the question of jurisdiction had already been answered in the negative. This order is challenged in the revision under consideration.

10. Learned Sr. Advocate Shri S.K Kakodkar argued that the Court of Mamlatdar had no jurisdiction in the year 1977 when the suit was filed to decide whether the plaintiff “was a tenant” and it is only by amendment to S. 7 of the said Act in the year 1991 that the Mamlatdar has been invested with the power to decide the said question. According to learned Sr. Advocate Shri Kakodkar, the Civil Court had jurisdiction to try the matter when the suit was filed in 1977, but the Civil Court lost jurisdiction in the year 1991 when S. 7 of the said Act was amended. He also submitted that the suit was filed for permanent injunction claiming tenancy and, as such, the question of title and tenancy was very much relevant and in this connection, he has placed reliance on rulings of this Court in Bhagwanrao s/o Jijaba Auti v. Ganpatrao s/o Mogaji Raut, (1987) 3 Bom CR 258 and Marybai Marshal Pimenta v. Ramnath Gopal Bhuskute, AIR 1988 Bom 108. He further submitted that the principle of res judicata does not operate in the facts and circumstances of the case and in support of his submission, he relied upon Gangappa Gurupadappa Gugwad v. Rachawwa, AIR 1971 SC 442, Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B Jeejeebhoy, AIR 1971 SC 2355, Isabella Johnson (Smt) v. M.A Susai (Dead) By Lrs.., AIR 1991 SC 993 and Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193. On the basis of above submissions, learned Sr. Advocate Shri Kakodkar has submitted that the main issues in question are required to be tried now by the Mamlatdar in view of amendment to S. 7 of the said Act and relying upon the judgment of the Apex Court in the case of Inacio Martins v. Narayan Hari Naik (AIR 1993 SC 1756) (supra), it is urged that since the entire suit falls outside the jurisdiction of the Civil Court in view of the said amendment, the plaint be returned to the plaintiffs for presentation to the proper Court, namely, the Court of Mamlatdar, Panaji.

11. Learned Advocate Shri Padiyar, appearing for respondents Nos. 1 and 3, submitted that the suit was for permanent injunction simpliciter; that when the plaintiffs claim to be deemed owners, by necessary implication, it is alleged that the defendants are trespassers and, as such, jurisdiction of the Civil Court is not ousted. Relying upon Raizada Topandas v. Gorakhram Gokalchand, AIR 1964 SC 1348, it was submitted that there was no question of return of plaint. According to Shri Padiyar, all orders passed by the trial Court on the applications of the plaintiff are perfectly legal and it is for the plaintiff to go to the Court of Mamlatdar and seek declaration in respect of his tenancy rights. He further urged that the facts in the case of Inacio Martins v. Narayan Hari Naik (AIR 1993 SC 1756) (supra) are totally different and the ratio of the said ruling does not apply to the case under consideration. According to him, the jurisdiction of the Court does not depend upon the defence taken by the defendants in the written statement, but the allegations made in the plaint decide the forum in view of the ruling of the Apex Court in Abdulla Bin Ali v. Galappa, AIR 1985 SC 577.

12. Learned Advocate Shri V.P Thali argued on behalf of respondent No. 2 and submitted that there was no question of return of plaint, but the plaint was bound to be rejected under O. 7, R. 11(d) of Civil Procedure Code. According to him, Civil Court continues to have jurisdiction and no issue is required to be referred to the Mamlatdar. He placed reliance on Bhatia Co-operative Housing Society Ltd. v. D.C Patel, AIR 1953 SC 16, Prakash Chandra Pathak v. State of U.P, AIR 1960 SC 195 and The Regional Manager v. Pawan Kumar Dubey, AIR 1976 SC 1766.

13. The sole question which has to be determined in this revision is whether the Civil Court has jurisdiction to deal with the matter in view of amendment to S. 7 of the said Act. Section 58(2) of the said Act bars the jurisdiction of the Civil Court to settle, decide or-deal with any question which is required to be settled, decided or dealt with by the Mamlatdar, Tribunal, Collector or Government under the said Act. The question as to the nature of land, namely, whether any land is or is not used for agricultural purpose is to be decided by the Mamlatdar in terms of S. 7A of the said Act. One of the questions which arises in the suit is whether the suit field is an agricultural property and, in fact, an issue to this effect has been framed. Likewise, if any question arises whether any person is or was tenant or should be deemed to be tenant under the said Act, the said question is required to be decided by the Mamlatdar in terms of S. 7 of the said Act. It may be mentioned here that till the amendment to S. 7 of the said Act, the jurisdiction of the Mamlatdar was limited only to the question as to whether any person is a tenant and it was only by way of amendment in the year 1991 to S. 7 that the question whether any person was a tenant gave jurisdiction to the Mamlatdar to decide this question. It may be noted that the question of tenancy, namely, whether the petitioners were tenants has also been framed by the Civil Court.

14. It is now well settled that in a suit for permanent injunction wherein claim of tenancy is put up, it is necessary to frame an issue of tenancy and to decide the same before granting relief of permanent injunction. In Sujanbai Haribhau Kakde v. Motiram Gopal Saraf, AIR 1980 Bom 188, the applicants therein had claimed to be tenants and sought temporary as well as permanent injunction against the respondents who were interfering with their possession. The learned single Judge held that for the purpose of decision on temporary injunction, the capacity in which possession was held was immaterial and that it could not be said that the trial Court had no jurisdiction to grant temporary injunction against the defendants simply because they contended that they were in occupation of the suit land as tenants.

15. In Bhagwanrao s/o Jijaba Auti v. Ganpatrao s/o Mogaji Raut, (1987 (3) Bom CR 258) (supra), Division Bench of this Court pointed out the difference in the considerations between grant of temporary injunction and permanent injunction. It was pointed out that temporary injunction can be granted without referring the question of tenancy, but the relief of permanent injunction on merits cannot be granted in suit simpliciter for permanent injunction, unless an issue is raised, referred and decided by Tenancy Court in accordance with provisions of the Act.

16. From the facts of the case, it is clear that the petitioners had claimed in a suit for permanent injunction that they were tenants and now deemed owners by virtue of Tenancy Act, 1964; that the respondents were owners of the suit field and that the suit field was an agricultural property. The respondents refuted the claim of the petitioners that they were tenants or deemed owners and that the suit field was an agricultural property Issue No. 1 was framed by the Civil Court on these aspects. The Civil Court had, admittedly, no jurisdiction to decide the question as to whether the suit field was an agricultural property in view of S. 7-A, which had come into effect from 6-11-1975. Therefore, even on the date of filing of the suit, the Civil Court had no jurisdiction to try the said aspect of the matter. However, the position in respect of the question as to whether the petitioners' status was different when the suit was filed and, at that time, the Mamlatdar had no jurisdiction to try the said issue and the same could be tried by the Civil Court, by amendment to S. 7, which was effected somewhere in the year 1991, jurisdiction was conferred on the Mamlatdar to try the issue whether any person was a tenant and from the said date the Civil Court had lost jurisdiction to try the said issue. Respondents had taken the stand in their written statement that the Civil Court had no jurisdiction, but before me it was argued that the Civil Court has jurisdiction. In view of amendment to S. 7, the jurisdiction was vested on the Mamlatdar and the question which remains to be examined is as to what is the effect of this amendment.

17. The Apex Court in Inacio Martins v. Narayan Hari Naik (AIR 1993 SC 1756) (supra) examined the effect of Fifth Amendment to the said Act with reference to the question whether the said subsequent change of law by way of amendment deprived the Civil Court of the jurisdiction which it, undoubtedly, possessed on the date of the institution of the suit. The Apex Court examined three situations arising in the context of the Act as amended by the Fifth Amendment, namely, (i)the Civil Court retains jurisdiction; or (ii) the Civil Court is precluded from deciding even incidentally, questions falling within the ambit of S. 7 of the Act; or (iii) Civil Court's jurisdiction is wholly ousted. It was held by the Apex Court that since the Act is silent as to the fate of pending litigation after the Fifth Amendment, the situation arising on the amendment of the Act must be decided on first principle. It was pointed out that if the suit is filed to recover possession of agricultural land from a trespasser and no dispute arises, the adjudication whereof is required to be done by special machinery set up under the Act, the Civil Court will continue to have jurisdiction, but, if the defendant raises a dispute which is required to be resolved by a special machinery under the Act, a question will arise what procedure the Civil Court should adopt. The Apex Court then considered a situation where the entire dispute pending before the Civil Court can be adjudicated by the special machinery only and not the Civil Court, then what procedure the Civil Court should follow in such a situation.

18. The Apex Court held that in the first mentioned situation, there is no difficulty as the Civil Court will continue to have jurisdiction to settle, decide the dispute and grant appropriate relief, but the problem arises in the two other situations where the jurisdiction of the Civil Court is partly or wholly ousted. The Apex Court illustrated with reference to a suit where possession of an agricultural land is sought on the plea that the defendant is a trespasser and the defendant contends that he is a tenant and as the question of tenancy in respect of agricultural land falls within the exclusive jurisdiction of the Mamlatdar under S. 7 r/w S. 58(2) of the Act, then what is the procedure which the Civil Court should follow. Another situation which was considered was whether the entire dispute falls within the exclusive jurisdiction of the special machinery under the Act and had the litigation commenced after the Fifth Amendment was brought into force, it could not have been instituted in a Civil Court and in such cases what procedure the Civil Court should follow.

19. Before answering the said questions, the Apex Court decided and came to the conclusion on the basis of the provisions of the said Act that the provisions of Fifth Amendment would apply to pending suits also. But the Act does not preclude the institution of a suit by a tenant for restoration of possession from a trespasser. However, if the defendant who is sued as a trespasser raises a plea of tenancy, the question which would arise is whether his plea of tenancy can be decided by Civil Court as incidental for grant of relief for possession or is the Civil Court precluded from deciding the same in view of Sec. 7 r/w Sec. 58(2) of the Act. This issue will be required to be decided by the Mamlatdar in view of Sec. 7 and Sec. 58-A of the said Act.

20. In the said case of Inacio Martins v. Narayan Hari Naik (AIR 1993 SC 1756) (supra), defendant No. 1 had raised a contention in his written statement that he was lawfully inducted as tenant in the lands in question by the owner, defendant No. 2. He disputed the plaintiffs contention that he was trespasser and pleaded tenancy. This question could not be gone into by the Civil Court in view of S. 7 r/w S. 58 of the said Act and, as such it was examined as to what procedure should the Court follow in such a situation. The Apex Court pointed out that it would not stand to reason to non-suit the plaintiff who had filed a suit in a competent Court having jurisdiction, merely because of subsequent change in law.

21. The Apex Court held that the question squarely arose for consideration by the Bombay High Court in Dhondi Tukaram v. Dadoo Piraji, AIR 1954 Bom 100. In the said case, Bombay High Court had held that the proper procedure to be adopted in such cases would be to direct the party who raises such a plea, to get a decision from Mamlatdar within reasonable time and pursuant to the Court's recommendation, the Bombay Legislature introduced S. 85-A which provided that in a suit instituted in Civil Court wherein issues are required to be settled, decided and dealt with by any competent authority to settle, decide and deal with the same, the Civil Court shall stay the suit and refer such issue to such competent authority for determination under the Statute. The Apex Court noted that, unfortunately, under the Goa, Daman and Diu Agricultural Tenancy Act, the Legislature has not chosen to make any provision for dealing with such situation. In view of the above, the Apex Court held in Inacio Martin's case (AIR 1993 SC 1756) (supra) that the issue whether the defendant was a tenant in respect of land in question should be referred to Mamlatdar for decision.

22. The Apex Court then considered a situation where the impact of the Fifth Amendment may give rise to a situation where the remedy lies entirely under the Act and may have to be taken in the manner prescribed by or under the Act. In such a case where the entire dispute falls outside the Civil Court's jurisdiction, procedure which the Court should follow in a pending suit which was instituted in a Court having competent jurisdiction at the date of its institution on account of change in law should be not to non-suit the plaintiff altogether for no fault of his own, but the proper course to be followed is to have recourse to O. 7, Rr. 10 and 10A of the Code of Civil Procedure.

23. In the case under consideration, the issue whether the plaintiff was a tenant squarely fell within the jurisdiction of the Civil Court when the suit was instituted since under the unamended S. 7 of the said Act, Mamlatdar had no jurisdiction to decide the said issue. Of course, issue relating to whether the suit filed was agricultural property could be decided only by the Mamlatdar when the suit was instituted in view of S. 7-A of the said Act, which was brought in force from 6-11-1975. After the amendment to S. 7 of the said Act, even the jurisdiction to try issue that plaintiff was a tenant was vested in the Mamlatdar. The Act being silent in respect of the impact of the amendment on the pending suits, the principles laid down by the Apex Court in Inacio Martin's case (AIR 1993 SC 1756) (supra) have to be applied to the situation arising in this case. After the amendment of S. 7 of the said Act in the year 1991, the entire dispute now falls outside Civil Court's jurisdiction and, as such I am in agreement with learned Sr. Advocate Shri S.K Kakodkar that the plaint should be returned to the plaintiff in accordance with O. 7, Rr. 10 and 10A of the Code of Civil Procedure. I do not find any force in the contention advanced by learned Advocate Shri V.P Thali that the plaint should be rejected under O. 7, R. 11(d) of Civil Procedure Code. I cannot also agree that the Civil Court continues to have jurisdiction in the matter.

24. In view of the aforesaid reasons, impugned order dated 25th February, 1994 is liable to be set aside and the Civil Court is directed to return the plaint to the plaintiffs under O. 7, Rr. 10 and 10A of Code of Civil Procedure for presentation of the same to the proper Court, namely, Court of Mamlatdar, Panaji, Goa. Rule made absolute in aforesaid terms. In the facts and circumstances, I would leave the parties to bear their costs.

Order accordingly.