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PETITIONER: MAGITI SASAMAL

       Vs.

RESPONDENT: PANDAB BISSOI

DATE OF JUDGMENT: 20/09/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) DAYAL, RAGHUBAR

CITATION:  1962 AIR  547            1962 SCR  Supl. (3) 673  CITATOR INFO :  R          1963 SC 361  (4,6)  RF         1987 SC2205  (10,11)  R          1991 SC1094  (9)

ACT: Landlord  and  Tenant-Relationship  in  dispute-Civil  Court Jurisdiction of Orissa Tenants Protection Act, 1948 (Act III of 1948), s. 7(1).

HEADNOTE: The appellant filed in the Civil Court a suit for  permanent injunction  restraining  the respondents from  entering  the lands  in suit on the allegation that the lands belonged  to him  and were in his cultivatory possession for  many  years and  that the respondents had no right or title to them  and had  never cultivated them.  The respondents contended  that they were tenants of portions of the said lands and were  in cultivating possession of the same as tenants.  The question which  arose for decision was whether having regard  to  the provisions of S. 7(1) of the Orissa Tenants Protection  Act, 1948, the Civil Court had jurisdiction to entertain the suit which involved a dispute as to the relationship of  landlord and tenant between the parties. Held, that even on a liberal construction of s. 7(1) of  the Act it cannot be held that disputes as regards the existence of the relationship of landlord and tenant fall to be deter- mined  by the Collector under that section.  Disputes  which are entrusted to the Collector under s. 7(1) are the  simple disputes specified therein in the five categories and do not include a serious dispute as to the relationship between the parties  as  landlord and tenant.  In the present  case  the suit  was  therefore within the jurisdiction  of  the  Civil Court. Secretary  of State v. Mask & Co. (1940) L.R. 67  I.A.  222, referred to.

JUDGMENT: Civil APPELLATE JURISDICTION: Civil Appeal No. 92 of 59. Appeal from the judgment and order dated August 31, 1956, of

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the Orissa High Court in second appeal No. 1.5.1 of 1951. A.   V.  Viswanatha Sastri and T. V. R. Tatachari,  for  the appellant. M. S. K. Sastri, for respondents. 674 1961.  September 20.  The Judgment of the    Court       was delivered by      GAJENDRAGADKAR,  J.-This is an appeal by a  certificate granted  by the High Court of Orissa and it raises  a  short question about the scope and effect of the provisions of  s. 7 (1) of the Orissa Tenants Protection Act, 1948 (Act III of 1948)  (hereafter  called the Act).   The  appellant  Magiti Sasamal sued the respondents Pandab Bissoi and others in the Court  of the District Munsiff, Berhampur, for  a  permanent injunction  restraining  them from entering the  suit  lands belonging  to the appellant.  The appellants case  was  that the  suit  lands belonged to him and were  in  his  personal cultivation  for  many years.  In the year of the  suit  the appellant  had cultivated the said lands as  usual,  manured and raised paddy crop thereon after spending a large  amount in  that behalf According to the appellant  the  respondents had  no manner of right or title to the said lands  and  had never cultivated them.  From the notice given by them to the appellant, however, it appeared that the respondents  wanted to enter upon the lands forcibly and to remove the  standing crop  therefrom.   This they desired to do by setting  up  a false  claim that they were the tenants of the lands and  as such were entitled to the protection of the Act.  The appel- lant  alleged  that the respondents were local  rowdies  and were   known   for   their   high-handed   action   in   the neighbourhood.  On these allegations the appellant claimed a permanent injunction against the respondents. The respondents admitted the title of the  appellant to  the lands  in  suit but pleaded that they were  the  tenants  in respect  of  separate  portions of the  said  lands.   Their version  was  that they had cultivated  their  holdings  and raised  the  paddy  crop thereon in the  year  in  question. According to them they had been in cultivating possession of their  respective holdings as tenants long before  September 1,  1947, and so they were entitled to remain in  possession as such tenants under the 675 they  had  filed  petitions under the Act  before  the  Sub- Collector,  Berhampur, claiming appropriate  relief  against the  appellant.   They urged that they were ever  ready  and willing to pay the Rajabhag as provided by the Act and  they contended  that  the Suit was not maintainable  in  a  civil court. On   these   pleadings  the  learned  trial   judge   framed appropriate issues.  Three issues of law had been framed  by him  on the pleas raised by the respondents.   These  issues were,  however,  not pressed at the hearing,  One  of  them, namely  issue 5, refers to the jurisdiction of the Court  to try the suit in view of the provisions of the Act.  Thus, it if; clear that the issue of jurisdiction was not pressed  by the  respondents  at the trial.  On the merits  the  learned trial judge considered the evidence and held that though the appellant was the owner of the property the respondents  had proved  that  they were the tenants in possession  of  their respective  holdings  and  that their  possession  was  long before  September  1, 1947.  On these findings  the  learned judge  came  to the conclusion that the  appellant  was  not entitled to claim an injunction against the respondents  and so he dismissed his suit. The  matter  was  then taken by  the  appellant  before  the

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District  Judge,  Ganjam, Nayagarh.   The  learned  District Judge  considered  the  evidence  led  by  the  parties  and reversed  the conclusions of the trial court.  He held  that the onus was on the respondents to prove their possession of their  respective  holdings  as tenants  on  or  before  the specified date, and according to him they had failed to dis- charge  that  onus.  The question of  jurisdiction  was  not raised  before  the  appellate  court  by  the  respondents. Having  held  against  the respondents  on  the  merits  the learned  District  Judge allowed the appeal, set  aside  the decree  passed  by  the trial court  and  directed  that  an injunction  should  be  issued against  the  respondents  as claimed by the appellant. 676 The respondents then moved the High Court by second appeal ; and  the main point which they urged before the  High  Court was  that  the learned trial judge had  no  jurisdiction  to entertain  the suit having regard to the provisions of s.  7 (1) of the Act.  The appellant pointed out to the High Court that  this  question of jurisdiction bad  not  been  pressed before  the trial court and had not been raised  before  the lower  appellate court.  Even so the High Court allowed  the point  to  be  raised  and  decided  it  in  favour  of  the respondents.   As  a result of the finding  that  the  civil court  bad no jurisdiction to entertain the suit the  second appeal preferred by the respondents has been allowed and the appellant’s  suit  dismissed with costs throughout.   It  is against  this  decree that the appellant has  come  to  this Court  with the certificate granted by the High  Court;  and the  short  point  which has been raised before  us  on  his behalf by Mr. Viswanatha Sastri is that in holding that  the present suit is outside the jurisdiction of the civil  court the High Court has misconstrued the scope and effect of  the Provisions of s. 7(1) of the Act. The  Act  received  the assent of the  Governor  General  on February 5, 1948 and was published on February 14,194S.   It is  a temporary Act and by s.1(4) it has been provided  that it  shall cease to have effect on April 15, 1949 except is respects  things  done  or omitted to  be  done  before  the expiration thereof.  It has been passed in order to  provide for  temporary protection to certain classes of  tenants  in the  Province of Orissa.  Legislature thought that the  said tenants  deserved protection and so as a beneficent  measure the  Act has been passed.  Section 2(c) of the  Act  defines landlord  and s. 2(g) defines a tenant.  The main  operative provision  of  the Act is contained in s.  3.  This  Section provides  that  not withstanding anything contained  in  any other  law  for the time being in force, or any  express  or implied  agreement  to  the contrary,  but  subject  to  the provisions of this Act, 677 a  person  who,  on the first day  of  September  1947,  was cultivating any land as a tenant shall continue to have  the right to cultivate such land and it shall not be lawful  for the landlord to evict the tenant from the land or  interfere in any way with the cultivation of such land by the  tenant. It  would  thus  be seen that the Act  purports  to  provide protection to tenants who were in possession of lands on the appointed  day which is September 1, 1947.  The  other  sub- sections of s. 3 make material and subsidiary provisions  in regard  to  the said protection.  Section 7(1)  reads  thus: "’Any  dispute  between  the  tenant  and  the  landlord  as regards, (a) tenant’s possession of the land on the 1st  day of September, 1947 and his right to the benefits under  this Act. or (b) misuse of the land by the tenant, or (c) failure

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of the tenant to cultivate the land properly, or (d) failure of  the tenant to deliver to the landlord the  rent  accrued due  within  two months from the date on  which  it  becomes payable,  or (e) the quantity of the produce payable to  the landlord  as rent, shall be decided by the Collector on  the application of either of the parties". The appellant contends that s. 7(1) covers disputes  between landlords and tenants which are specified under cls. (a)  to (e)  but it does not cover a dispute between the parties  as to  whether the relationship of landlord and tenant  ’exists between  them.   It is only where such a  relation  ship  is either  admitted  or established in a civil court  that  the specified disputes fall within the exclusive jurisdiction of the  Collector  on the other hand the respondents’  case  is that  the  dispute as to the status of the  tenant  is  also included  under  s.  7(1).  The High Court  has  upheld  the respondents’  interpretation,  and  Mr.  Viswanatha   Sastri contends   that   this   interpretation  is   based   on   a misconstruction of the section. It is true that having regard to the beneficent object which the Legislature had in view in passing the Act its  material provisions should be liberally 678 construed.   The  Legislature  intends  that  the  ’disputes contemplated by the said material provisions should be tried not  by  ordinary civil courts but  by  tribunals  specially designated  by  it,  and so in dealing with  the  scope  and effect  of the jurisdiction of such tribunals  the  relevant words used in the section should receive not a narrow but  a liberal construction. While bearing this principle in mind we must have regard  to another  important  principle of construction, and  that  is that   if  a  statute  purports  to  exclude  the   ordinary jurisdiction of civil courts it must do so either by express terms or by the use of such terms as would necessarily  lead to  the inference of such exclusion.  As the  Privy  Council has observed in Secretary of State v. Mask & Co., (1) "it is settled  law that the exclusion of the jurisdiction  of  the civil  courts is not to be readily inferred, but  that  such exclusion  must  either be explicitly expressed  or  clearly implied".   There can be no doubt that ordinarily a  dispute in  regard to the relationship between the parties  such  as that between a landlord and a tenant would be a dispute of a civil  nature  and would fall within the competence  of  the civil   court.    If  the  respondents  contend   that   the jurisdiction  of the civil court to deal with such  a  civil dispute  has  been taken away by s. 7 (1)  we  must  enquire whether  s. 7(1) expressly takes away the said  jurisdiction or  whether the material words used in the section  lead  to such  an  inference  or the scheme of  the  Act  inescapably establishes   such   an  inference.    The   relevance   and materiality of both these principles are not in dispute. Let us then revert to s. 7. It would be noticed that a. 7(1) has expressly and specifically provided for five  categories of  disputes  which  are  within  the  jurisdiction  of  the Collector  and which must therefore be taken to be  excluded from  the jurisdiction of the civil court.  On a  reasonable construction  of s. 7(1) a dispute specified by  s.  7(1)(a) would be a dispute between a tenant and a landlord in regard (1)  (1940) L. R. 67 1. A. 222, 236.  679 to the former’s possession of the land on September 1, 1947. It is clear that the dispute to which s. 7(1)(a) refers is a narrow  dispute  as  to the possession of the  tenant  on  a specific date and his consequential right to the benefits of

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the Act.  The same is the position with regard to the  other categories of the dispute specified by s. 7(1).  In none  of the  said  categories is a dispute contemplated  as  to  the relationship of the parties itself.  In other words s.  7(1) postulates  the relationship of tenant and landlord  between the  parties  and  proceeds to  provide  for  the  exclusive jurisdiction of the Collector to try the five categories  of disputes that may arise between the landlord and the tenant. The disputes which are the subject-matter of s. 7(1) must be in  regard  to the five categories.  That is the  plain  and obvious construction of the words "any dispute as  regards". On this construction it would be unreasonable to hold that a dispute about the status of the tenant also falls within the purview  of  the  said section.  The scheme of  s.  7(1)  is unambiguous and clear.  It refers to the tenant and landlord as  such  and  it contemplates  disputes  of  the  specified character arising between them.  Therefore, in our  opinion, even  on  a  liberal construction of s.  7(1)  it  would  be difficult  to uphold the argument that a dispute as  regards the  existence  of the relationship of landlord  and  tenant falls to be determined by the Collector under s. 7(1). In  this   connection  it would be relevant  to  take   into consideration  the  provisions  of  s.  7(2).   This  clause provides that the Collector may, after making such enquiries as  he  may deem necessary, order the tenant,  by  a  notice served  in the prescribed manner and specifying the  grounds on which the order is made, to cease to cultivate the  land. It  is  significant that the making of the enquiry  and  its mode  are  left to the discretion of the  Collector.   If  a serious  dispute as to the existence of the relationship  of landlord and tenant between the parties had been covered  by s. 7(1) it is difficult to imagine that the 680 Legislature  would  have  left  the  decision  of  such   an important issue to the Collector giving him full freedom  to make  such enquiries as he may, deem necessary.  As is  well known, a dispute as to the existence of the relationship  of landlord  and  tenant raises serious questions of  fact  for decision,  and if such a serious dispute was intended to  be tried  by the Collector the Legislature would have  provided for  an  appropriate enquiry in that behalf and  would  have made   the  provisions  of  the  Code  of  Civil   Procedure applicable  to such an enquiry.  Section 7(2) can be  easily explained  on  the basis that the relationship  between  the parties  is  outside s. 7(1) and so the  disputes  that  are covered by s. 7(1) are not of such a nature as would Justify a  formal enquiry in that behalf The provisions  of  sub-ss. (3), (6) and (7) also indicate that the relationship between the  parties  is  not, and cannot be,  disputed  before  the Collector.  The parties arrayed before him are landlord  and tenant  or  vice  versa,  and it is on  the  basis  of  such relationship between them that he proceeds to deal with  the disputes entrusted to him by s. 7(1). It is true that when the relationship of landlord and tenant is  proved or admitted the disputes falling within the  five categories  enumerated in s. 7(1) will have to be  tried  by the  Collector.   Let  us take the present  case  itself  to illustrate  how s. 7(1) will operate.  In the suit filed  by the  appellant against the respondents the issue  about  the status  of  the respondents was framed and so it had  to  be tried by the civil court.  In such a suit if the civil court holds  that  the relationship between the landlord  and  the tenant had not been established it may proceed to deal  with the suit on the merits.  If, however, it holds that the said relationship is established then the civil court cannot deal

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with the dispute between the parties if it falls within  any one of the categories specified by s. 7(1).  In such a case, having  made the finding about the relationship between  the parties the civil court will either dismiss the suit on  the ground that it can give no relief to 681 the landlord, or may, if it is permissible to do so,  return the  plaint for presentation to the Collector.  What  course should be adopted in such a case it is unnecessary for us to decide in the present appeal.  All that we wish to emphasise is  that the initial dispute between the parties  about  the relationship subsisting between them will still continue  to be tried by the civil court and is outside the purview of s. 7(1). In  support  of  the  argument that  a  dispute  as  to  the existence  of relationship as landlord and tenant should  be taken to be included under s. 7(1) reliance is placed on the provisions  of s. 8(1) of the Act.  Section  8(1)  provides that subject to the provisions of s. 7 all disputes  arising between  landlord  and tenant shall be  cogniscible  by  the revenue  court  and shall not be cogniscible  by  the  civil court.   It  must  be pointed out that  we  are  really  not concerned  with s. 8(1) in the present appeal  because  even according to the respondents the present dispute between the parties attracted s. 7(1.) and should have been tried by the Collector  and  not  by  ’the  civil  court.   However,  the question  about  the  construction  of  s.  8(1)  has   been incidentally  raised before us.  In appreciating  the  scope and  effect of s. 8(1) it is necessary to bear in  mind  the provisions  of s. 13 of the Act.  The said section  provides that  the Act shall, as far as may be,  read and  construed. as forming part of the Madras Estates Land Act, 1908, or  as the case may be, of the Orissa tenancy Act, 1913.  Therefore reading  the  provisions of s. 8(1) and s. 13  tog-other  it follows  that all that s. 8 (1) provides is that except  for the  disputes  covered  by s. 7  (1)  all  disputes  arising between  landlord  and tenant shall be  cogniscible  by  the revenue  court  and  to the trial of such  disputes  by  the revenue court the relevant provisions of the Orissa  Tenancy Act, 1913 would apply.  It is true that disputes to which s. 8(1) applies are entrusted to the exclusive jurisdiction  of the revenue courts and are excluded from the jurisdiction of civil courts, but the effect of this 682 the  other  relevant provisions of the parent Act  of  which this temporary Act forms a part.  Now, if we turn to some of the relevant provisions of the, parent Act it would be clear that  when the revenue courts are given jurisdiction to  try the  disputes  the  enquiry held by them purports  to  be  a formal enquiry to which the provisions of the Code of  Civil Procedure may apply (Vide: s. 192 of the Orissa Tenancy Act, 1913).   Similarly,  the  provisions  of  s.  204(1)   which provides  for  appeals contemplate appeals to  the  District Court  and  the  High Court where  questions  of  title  are involved.  These provisions illustrate the point that  where serious  disputes  about  title  are  entrusted  to  special tribunals usually the Legislature contemplates a formal  en- quiry  and  makes  the  provisions  of  the  Code  of  Civil Procedure  applicable  to such an enquiry and  provides  for appropriate appeals.  Now, in regard to the order passed  by the Collector under s. 7(1) the only provision about appeals is  that made by s. 11 which provides that an  appeal  shall lie  to  the  prescribed superior  revenue  authority  whose decision  shall  be final, and shall not be subject  to  any further   appeal  or  revision.   Departure  made   by   the

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Legislature  in  providing only one appeal and that  too  in every  case  to the prescribed  superior  revenue  authority clearly brings out that the disputes which are entrusted  to the  Collector  under  S.  7(1)  axe  the  simple   disputes specified  in  the  five categories and  do  not  include  a serious  dispute like that of the relation,ship between  the parties as landlord and tenant., If such a dispute had  been intended to be tried by the Collector the Legislature  would have provided for a formal enquiry and would have prescribed appropriate  appeals on the lines of ss. 192 and 204 of  the parent Act. In this connection we may in passing refer to the provisions of  s. 126 of the parent Act.  This section deals  with  the jurisdiction  of civil courts in matters relating  to  rent. Section  126(3)  provides for the institution  of  suits  in civil courts on the 683 grounds specified by cls. (a) to (g).  Clause (c) deals with the ground that the relationship of landlord and tenant does not  exist.   This  clause shows that  if  a  dispute  arose between the parties as to the existence of the  relationship of  landlord  and  tenant  a  suit  in  a  civil  court  a.% contemplated is prescribed by s. 126(3) (c).  That also  has some  bearing on the construction of s. 7(1); and it is  for that   limited  purpose  that  we  have  referred   to   it. Therefore, we are satisfied that the High Court was in error in holding that under a. 7(1) of the Act it was competent to the Collector to try the issue between the appellant and the respondents whether or not the Respondents were the  tenants of   the  appellant  and  that  the  civil  court   had   no jurisdiction to entertain the said dispute. In the result, the appeal must be allowed, the  order passed by  the High Court set aside and that of the District  Court restored with. costs throughout.                              Appeal allowed. 684