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PETITIONER: GUNDAJI SATWAJI SHINDE

       Vs.

RESPONDENT: RAMCHANDRA BHIKAJI JOSHI

DATE OF JUDGMENT05/12/1978

BENCH: DESAI, D.A. BENCH: DESAI, D.A. SHINGAL, P.N.

CITATION:  1979 AIR  653            1979 SCR  (2) 586  1979 SCC  (2) 495  CITATOR INFO :  RF         1980 SC2181  (119)  R          1984 SC1130  (42)  R          1984 SC1450  (6)  R          1989 SC 100  (12)  R          1989 SC1019  (7)  RF         1991 SC 101  (64)  RF         1991 SC 855  (52)  R          1989 SC2240  (11)

ACT:      Bombay Tenancy  and Agricultural  Lands Act, 1948 (Bom. Act LXVII of 1948)-Ss. 63, 70, 85 & 85A-S. 70 made Mamlatdar authority to decide whether a person was an agriculturist-s. 85A barred  jurisdiction of  civil court  questions  arising under  s.  70-Suit  for  specific  performance  of  sale  of agricultural    land  in  civil  court-Civil  court  whether competent to  decide incidental  question if  vendee  is  an agriculturist.

HEADNOTE:      Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948  prohibits the  sale of  agricultural  land  to  a person who is not an agriculturist. One of the duties of the Mamlatdar, under  s. 70,  of the Act, is to decide whether a person  is  an  agriculturist  and  whether  a  transfer  or acquisition of land is invalid being in contravention of the Act. Section  85 bars  the jurisdiction  of a civil court to settle, decide  or deal  with any  question which  is by  or under the  Act is  required to  be settled, decided or dealt with by  the Mamlatdar,  or the  authority mentioned  in the section      The Bombay High Court in a case coming before it on the interpretation of s. 85 held that where in a suit in a civil court an  issue arises  which has  to be  decided under  the provisions of  s. 70,  the  civil  court  should  refer  the parties to  the competent authority under the Tenancy Act to get the  question decided and such decision would be binding on the  civil court. Taking note of this decision s. 85A was added to  the Tenancy Act, enabling the civil court to refer the issue  to the  competent authority  to decide  which the jurisdiction of the civil court is barred under s. 85.      The plaintiff’s  suit for  specific  performance  of  a

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contract for  sale of  land was  resisted by  the  defendant alleging  that   since  he   (the  plaintiff),  was  not  an agriculturist, he was prohibited by s. 63 of the Tenancy Act from purchasing  agricultural land  and the  contract  being contrary to  the provisions  of the  Act is  not capable  of being specifically enforced.      The trial  court dismissed  the plaintiff’s suit on the ground that  he was  not an  agriculturist. It held that the issue whether  or not  the plaintiff  was  an  agriculturist being incidental  in a  suit for  specific performance  of a contract the  civil court  had jurisdiction  to decide  such incidental issues.  On appeal  the High  Court held that the civil court  which had  jurisdiction to entertain a suit for specific performance,  it would  have jurisdiction to decide the  incidental   issue  whether   the  plaintiff   was   an agriculturist or not.      The question  before the  Supreme Court  was where in a suit for  specific performance,  an issue  arose whether the plaintiff was  an  agriculturist  or  not  on  the  date  of agreement whether the civil court would have jurisdiction to decide the  issue or  it is  required to  refer  it  to  the Mamlatdar under  s. 70 read with s. 85A. Allowing the appeal and remitting the case to the trial court for disposal. 587 ^      HELD: 1.  The Legislature  having expressly  ousted the jurisdiction of  the civil  court to  settle, decide or deal with any  question which  is by  or under  the  Tenancy  Act required to  be settled, decided or dealt with by any of the authorities therein  mentioned the  authority to  decide the issue whether  the vendee was an agriculturist would  be the Mamlatdar as provided in s. 70(a). [592 G]      2 . The expression "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" in s.  85A would  only mean  that, if  upon contest an issue which is  required to  be settled, decided and dealt with by the  competent  authority  under  the  Tenancy  Act  arises, notwithstanding the  fact that  such an  issue arises  in  a properly constituted  civil suit  cognizable  by  the  civil court, it  would  have  to  be  referred  to  the  competent authority under the Tenancy Act. [594H-595 B]      3.  Mere  because  jurisdiction  is  conferred  on  the Mamlatdar to  decide whether  a person  is an  agriculturist within the  meaning of  the Tenancy  Act, it  does not  ipso facto oust  the jurisdiction  of the  civil court  to decide that issue  if it  arises before  it in a civil suit. Unless the Mamlatdar  is constituted  an exclusive  forum to decide the question, conferment of such jurisdiction would not oust the jurisdiction  of the civil court. It is settled law that exclusion of  jurisdiction of  the civil  court is not to be readily inferred  but that  such exclusion  must  either  be explicity expressed or clearly implied. [592 D-E]      Secretary of State v. Mask, 67 IA 222: referred to.      4. The  finding of  the competent  authority under  the Tenancy  Act  is  made  binding  on  the  civil  court.  The jurisdiction of  the civil  court to  settle, decide or deal with any  issue which  is required to be settled, decided or dealt with  by any  competent authority  under  the  Act  is totally ousted.  This would  lead to the conclusion that the Mamlatdar while  performing the function and discharging his duties conferred  on  him  by  s.  70  would  constitute  an exclusive forum.  Section 70(a)  requires the  Mamlatdar  to decide whether  a person is an, agriculturist. Therefore, if an issue  arises in  a civil  court whether  a person  is an

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agriculturist within  the meaning  of the  Tenancy Act,  the Mamlatdar alone  would have exclusive jurisdiction under the Act to  decide the  same and  the jurisdiction  of the civil court is  ousted. The  civil court,  as required  by s. 85A, will have  to frame  an issue  and refer it to the Mamlatdar and on  the reference being answered back, to dispose of the suit  in  accordance  with  the  decision  recorded  by  the competent authority. [593G, 594 C]      Dhondi Tukaram  Mali v. Dadoo Piraji Adgale, 55 Bom. LR 663, Trimbak  Sopana Girme  v. Gangaram  Mhataraba Yadav, 55 Bom. LR 56; approved.      Mussamiya Imam  Haider Bax  Razvi v.  Rabari Govindbhai Ratnabhai & Ors. [1969] 1 S.C.R. 785, explained.      Bhimaji Shanker  Kulkarni v.  Dundappa Vithappa Udapudi ,& Anr.,  [1966] 1  SCR 145  at 150;  Ishverlal  Thakorelal, Almaula v.  Motibhai  Nagjibhai, [1966] 1 SCR 367; Jambu Rao Satappa Kocheri  v. Neminath Appayya Hanammannaver, [1968] 3 SCR 706;  and  Noor  Mohd.  Khan  Ghouse  Khan  Soudagar  v. Eakirappa Bharmappa  Machenahalli &  Ors., [1978] 3 SCC 188; referred to

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1280 of 1969. Appeal from  the Judgment  and Order  dated 7-9-1968  of the Bombay High Court in L.P.A. No. 117 of 1968. 588      U. R.  Lalit, Nanjul  Kumar and  K.  J.  John  for  the Appellant. R. B. Datar and Lalit Bhardwaj for Respondents 1-5 (d).      The Judgment of the Court was delivered by      DESAI, J.-This  appeal by  certificate  arises  out  of Special Civil Suit No. 39/66 filed by the appellant-original plaintiff for  specific performance of a contract dated 15th December 1965  for sale  of  land  admeasuring  45  acres  5 gunthas bearing  Survey No.  25 situated  in Sholapur  Mouje Dongaon in  Maharashtra State  for a  consideration  of  Rs. 42,000/- out of which Rs. 5,000/- were paid as earnest money and a  further amount  of Rs. 5,000/- was paid on 22nd April 1966 when  the period  for performance  of the  contract for sale was extended by six months, which suit was dismissed by the trial  Court and the plaintiff’s First Appeal No. 117/68 was dismissed by the Bombay High Court      Plaintiff claimed  specific performance  of a  contract dated  15th   December  1965   coupled  with   supplementary agreement dated  26th April  1966 for  sale of  agricultural land. This  suit was  resisted by the defendant, inter alia, contending that  the land  which was  the subject-matter  of contract was covered by the provisions of the Bombay Tenancy and Agricultural  Lands Act, 1948 (’Tenancy Act’, for short) and as  the intending  purchaser, the  plaintiff was  not an agriculturist within  the meaning  of the Act, section 63 of the Tenancy Act prohibited him from purchasing the land and, therefore, as  the agreement  was contrary to the provisions of,  the   Tenancy  Act  the  same  cannot  be  specifically enforced. The  plaintiff sought  to repel  the contention by producing a  certificate Ext.  78 issued  by  the  Mamlatdar certifying that the  plaintiff  was an agricultural labourer and the bar imposed by s.  63 of  the Tenancy  Act would  not operate. Plaintiff also contended  that if  the Court does not take note of Ext 78, an  issue on  the  pleadings  would  arise  whether  the plaintiff is  an agriculturist and in view of the provisions

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contained in  s. 70(a)  read with  ss. 85  and  85A  of  the Tenancy Act  the issue  would have  to be  referred  to  the Memlatdar for  decision and  the Civil  Court would  have no jurisdiction to  decide the issue. The trial Court held that the certificate Ext. 78 had no evidentiary value and was not valid.  On   the  question   of  the   plaintiff  being   an agriculturist the trial Court itself recorded a finding that the plaintiff  was not  an agriculturist. On the question of jurisdiction to decide the issue whether the plaintiff is an agriculturist, the  trial Court  was of  the opinion that it being an incidental issue in a suit for specific performance of contract,  which suit the Civil Court has jurisdiction to try, it will also have jurisdiction to decide the incidental or subsidiary issue 589 and recorded  a  finding  that  the  plaintiff  was  not  an agriculturist.  In    accordance  with  these  findings  the plaintiff’s suit  was dismissed. In appeal by the plaintiff, the High  Court agreed  with the  finding of the trial Court with regard  to the  validity of certificate Ext. 78. On the question of  jurisdiction of  the trial  Court to decide the issue about  the plaintiff  being an agriculturist, the High Court agreed with the trial Court observing that Civil Court has  undoubtedly   jurisdiction  to  entertain  a  suit  for specific performance,  and while  considering the main issue whether specific performance should be granted or not, civil Court will  have to  consider whether  there are prima facie any  facts   on  account   of  which  granting  of  specific performance would result into a transaction forbidden by law and, therefore, civil Court will have jurisdiction to decide the  subsidiary   issue  whether   the   plaintiff   is   an agriculturist. The  High  Court  accordingly  dismissed  the appeal  while   agreeing  with  the  trial  Court  that  the plaintiff had  failed to  prove that he was an agriculturist and  specific   performance  of   contract   for   sale   of agricultural land cannot be granted in his favour.      Mr. Lalit  for the  appellant  did  not  invite  us  to determine the  validity of  certificate Ext.  78  certifying that plaintiff  is an  agricultural labourer. Therefore, the question which  must engage  our attention  is whether Civil Court will have jurisdiction to decide an issue arising in a suit for  specific  performance  of  contract  for  sale  of agricultural land  governed by the provisions of the Tenancy Act that  the person seeking specific performance was or was not an  agriculturist and, therefore, ineligible to purchase the land  in view of the bar imposed by s. 63 of the Tenancy Act.  This   necessitates  examination   of   the   relevant provisions of the Tenancy Act.      Section 2(2)  of the  Tenancy Act defines agriculturist to  mean  a  person  who  cultivates  land  personally.  The expression ’land’  is defined  in s.  2(8) to  mean; (a land which is  used for agricultural purposes or which is so used but is  left fallow and includes the sites of farm buildings appurtenant to  such land;  and (b) for purposes of sections including ss.  63, 64  and 84C  (i) the  sites  of  dwelling houses occupied by agriculturists, agricultural labourers or artisans and  land appurtenant to such dwelling houses; (ii) the sites  of structures  used by  agriculturists for allied pursuits. Section  63 which forbids transfer of agricultural land to non-agriculturists, reads as under:      "63. (1) Save as provided in this Act-           (a) no  sale (including  sales in  execution of  a      decree of  a Civil  Court or for recovery of arrears of      land revenue or 590

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    for sums recoverable as arrears of land revenue), gift,      exchange or lease of any land or interest therein, or           (b) no  mortgage of  any land or interest therein,      in which  the possession  of the  mortgaged property is      delivered to the mortgagee,      shall be  valid in  favour of  a person  who is  not an      agriculturist or  who being an agriculturist will after      such sale,  gift, exchange lease or mortgage, hold land      exceeding two-thirds  of the  ceiling  area  determined      under the  Maharashtra Agricultural  Lands (Ceiling  on      Holdings) Act,  1961, or  who is  not  an  agricultural      labourer;           Provided  that   the  Collector   or  an   officer      authorised by  the State  Government in this behalf may      grant permission  for such  sale, gift, exchange, lease      or mortgage, on such conditions as may be prescribed". The next  important section  in this  context is s. 70 which defines duties and prescribes function of the Mamlatdar, the relevant portion of which reads as under:           "70. For  the purposes  of this  Act the following      shall be  the duties  and functions  to be performed by      the Mamlatdar:           (a)   to   decide   whether   a   person   is   an agriculturist;            x             x                     x           (mb) to issue a certificate under section 84A, and      decide under  section 84B  or 84C whether a transfer or      acquisition of  land is  invalid and to dispose of land      as provided in section 84C".      Section 85  bars jurisdiction  of the  civil Courts  to decide certain  issues and  s. 85A provides for reference of issues required  to be  decided under the Tenancy Act to the competent authority  set up  under the Tenancy Act. They are very material  for decision  of the  point herein raised and they may be reproduced in extenso:           "85. (1) No Civil Court shall have jurisdiction to      settle, decide  or deal  with any question (including a      question whether  a person is or was at any time in the      past a  tenant and whether any such tenant is or should      be deemed  to have purchased from his landlord the land      held by  him) which is by or under this Act required to      be settled, decided or dealt with by the 591      Mamlatdar or  Tribunal, a Manager, the Collector or the      Maharashtra Revenue  Tribunal in  appeal or revision or      the State  Government in  exercise of  their powers  of      control.           (2) No  order of  the Mamlatdar, the Tribunal, the      Collector or  the Maharashtra  Revenue Tribunal  or the      State  Government   made  under   this  Act   shall  be      questioned in any Civil or Criminal Court.           Explanation-For the  purposes of  this  Section  a      Civil  Court   shall  include   a   Mamlatdar’s   Court      constituted under the Mamlatdars’ Courts Act. 1906".      "85A. (1)  If any  suit instituted  in any  Civil Court      involves any  issues which  are required to be settled,      decided or  dealt with  by any  authority competent  to      settle, decide or deal with such issues under this Act,      (hereinafter 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

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    and such  court shall  thereupon dispose of the suit in      accordance with the procedure applicable thereto.           Explanation-For the  purpose  of  this  section  a      Civil  Court   shall  include   a   Mamlatdar’s   Court      constituted under the Mamlatdars’ Courts Act, 1906".      There is  no controversy  that the land purported to be sold by  the contracts  for sale  of land Exts. 82 and 83 is land used  for agricultural  purposes and  is covered by the definition of  the expression  ’land’ in  s. 2(8)  (a).  The plaintiff thus  by the  contracts for  sale of land Exts. 82 and 83  purports to  purchase agricultural  land. Section 63 prohibits sale of land inter alia, in favour of a person who is not  an agriculturist. If, therefore, the plaintiff wants to enforce  a contract  for sale of agricultural land in his favour he  has of  necessity to  be  an  agriculturist.  The defendant intending  vendor has  specifically contended that the plaintiff  not being an agriculturist he is not entitled to specific  performance of  the contract.  Therefore, in  a suit filed  by the  plaintiff for  Specific  performance  of contract on  rival contentions  a specific issue would arise whether the  plaintiff is  an agriculturist because if he is not, the  Civil Count  would be precluded from enforcing the contract 592 as it  would be  in violation of a statutory prohibition and the contract  would be  unenforceable as being prohibited by law and, therefore, opposed to public policy. .      The focal  point of  controversy is where in a suit for specific performance  an issue  arises whether the plaintiff is an  agriculturist or  not, would  the  Civil  Court  have jurisdiction to  decide the  issue or  the Civil Court would have to  refer the  issue under s. 85A of the Tenancy Act to the authority constituted under the Act, viz., Mamlatdar.      Uninhibited by the decisions to which our attention was invited, the  matter may  be examined purely in the light of the relevant  pro   visions of  the statute.  Section  70(a) constitutes  the   Mamlatdar  a  forum  for  performing  the functions and  discharging the  duties therein  specifically enumerated. One  such function of the Mamlatdar is to decide whether a  person is  an agriculturist.  The  issue  arising before the  Civil Court  is  whether  the  plaintiff  is  an agriculturist within  the meaning of the Tenancy Act. It may be that  jurisdiction may  be conferred  on the Mamlatdar to decide whether  a person  is  an  agriculturist  within  the meaning of  the Tenancy  Act but it does not ipso facto oust the jurisdiction, of the civil Court to decide that issue if it arises before it in a civil suit. Unless the Mamlatdar is constituted  an  exclusive  forum  to  decide  the  question hereinabove mentioned  conferment of such jurisdiction would not oust  the jurisdiction of the civil Court. 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 (see Secretary of State v. Mask) (1). However, by an express provision contained in s. 85 the jurisdiction of the Civil Court  to settle,  decided or  deal with  any question which is by or under the Tenancy Act required to be settled, decided or  dealt by  the competent authority is ousted. The Court must  give effect to the policy underlying the statute set  out   in  express  terms  in  the  statute.  There  is, therefore, no  escape from the fact that the legislature has expressly ousted  the jurisdiction  of the  civil  Court  to settle, decide  or deal  with any  question which  is by  or under the  Tenancy Act  required to  be settled,  decided or dealt with  by any  of the authorities therein mentioned and

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in this  specific case  the authority would be the Mamlatdar as provided in s. 70(a).      When the  Tenancy Act  of 1948  was put  on the statute book, s.  85A did  not find  its place  therein. A  question arose while giving effect to the provisions contained in ss. 70 and   85 as  to what  should be done where in a suit in a civil Court an issue arises to settle, decide or      (1) 67 I.A. 222. 593 deal with  which the  jurisdiction of  the  civil  Court  is ousted under  s. 85.    The  Bombay  High  Court  which  had initially to deal with this problem, resolved the problem by holding that  in such  a situation  the civil suit should be stayed and  the parties  should be referred to the competent authority under  the Tenancy Act to get the question decided by the  authority and  on such decision being brought before the Civil  Court, it  will be binding on the civil Court and the civil  Court  will  have  to  dispose  of  the  suit  in accordion  therewith.   While  so   resolving  the   problem immediately facing  the Court,  an observation was made that provision should  be  introduced  in  the  Tenancy  Act  for enabling the  civil Court  to transfer the proceeding to the competent   authority   under   the   Tenancy   Act   having jurisdiction to decide the issue and in respect of which the jurisdiction of  the  Civil  Court  is  barred  (see  Dhondi Tukaram Mali  v. Dadoo  Piraji Adgale)  (1). The Legislature took note  of this suggestion and promptly introduced s. 85A in  the  Tenancy  Act  by  Bombay  Act  XIII  of  1956.  The legislative scheme  that emerges  from a combined reading of ss. 70,  85 and  85A appears to be that when in a civil suit properly brought  before the  Civil Court an issue arises on rival contentions  between the  parties which is required to be settled,  decided or  dealt with by a competent authority under the  Tenancy  Act,  the  Civil  Court  is  statutorily required to  stay the suit and refer such issue or issues to such  competent   authority  under   the  Tenancy   Act  for determination. 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 Tenancy Act and  shall communicate  its decision  to the civil Court and such  errata shall;  thereupon dispose  of the  suit  in accordance with-the  procedure applicable  thereto. To avoid any conflict  of decision  arising out  of  multiplicity  of jurisdiction by  civil Court  taking one  view of the matter and the  competent authority  under the Tenancy Act taking a contrary or  different view, an express provision is made in s. 85(2) that no order of the competent authority made under the Act  shall be questioned in any civil Court. To complete the scheme.  sub-s. (2)  of s. 85A provides that when upon a reference a  decision is recorded by the competent authority under the  provisions of the Tenancy Act and the derision is communicated to  the civil Court, such Court shall thereupon dispose  of  the  suit  in  accordance  with  the  procedure applicable thereto.  Thus,  the  finding  of  the  competent authority under the Tenancy Act is made binding on the civil Court. It  would thus  appear that  the jurisdiction  of the civil Court to settle, decided, or deal with any issue which is required  to be  settled, decided  or dealt  with by  any competent authority under the Tenancy Act is totally ousted. This would lead to inescapable conclusion that the      (1) 55 Bom. L.R. 663. 594 Mamlatdar while  performing  the  function  and  discharging duties as  are conferred upon him by s. 70, would constitute an exclusive  forum, to the exclusion of the civil Court, to

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decide any  of the questions that may arise under any of the sub-clauses of  s. 70.  Section 70(a) requires the Mamlatdar to decide  whether a  person is an agriculturist. Therefore, it an  issue arises  in a civil Court whether a person is an agriculturist within  the meaning  of the  Tenancy Act,  the Mamlatdar alone  would have exclusive jurisdiction under the Tenancy Act  to decide  the same and the jurisdiction of the Civil Court  is ousted.  The Civil  Court as  required by  a statutory provision  contained in s. 85A, will have to frame the issue and refer it to the Mamlatdar and on the reference being answered  back, to  dispose of  the suit in accordance with the decision recorded by the competent authority on the relevant  issue.   To  translate  it  into  action,  if  the Mamlatdar  were  to  hold  that  the  plaintiff  is  not  an agriculturist, obviously  his suit  for specific performance in the  Civil Court  would fail  because he is ineligible to purchase  agricultural   land  and  enforcement  of  such  a contract would  be  violative  of  statute  and,  therefore, opposed to public policy.      The High Court was of the view that the jurisdiction of the Civil  Court to settle, decide or deal with any question which arises  under the Tenancy Act and which is required to be settled, decided or dealt with by the competent authority under the  Tenancy Act  would alone  be barred  under s. 85. Proceeding therefrom, the High Court was of the opinion that if an  issue arises  in a  properly constituted  civil  suit which  the   civil  Court  is  competent  to  entertain,  an incidental  or   subsidiary  issue   which  may  arise  with reference to provisions of the Tenancy Act, the jurisdiction of the  Civil Court  to decide  the same would not be ousted because the  issue is  not required  to be  decided or dealt with under  the Tenancy Act. This view overlooks and ignores the provision  contained in  s. 85-A.  There can  be a civil suit properly  constituted which  the Civil  Court will have jurisdiction to  entertain but  therein an  issue may  arise upon a  contest when  contentions are  raised by  the  party against whom  the civil  suit is  filed. Upon  such contest, issues will have to be framed on points on which parties are at variance  and which  have to  be  determined  to  finally dispose of  the suit.  if any  such issue  arises  which  is required  to  be  settled,  decide  or  dealt  with  by  the competent authority under the Tenancy Act, even if it arises In a  civil suit,  the jurisdiction  of the  civil Court  to settle, decide and deal with the same would be barred by the provision contained  in s.  85 and the civil Court will have to take  recourse to  the provision  contained in s. 85A for reference of  the issue to the competent authority under the Tenancy Act.  Upon a proper construction the expression "any issues which  are required  to be  settled, decided or dealt with by any authority 595 competent to  settle, decide  or deal with such issues under this Act"  in  s. 85A would only mean that if upon assertion and denial  and consequent  contest an  issue arises  in the context of  the provisions  of the  Tenancy Act and which is required to  be settled,  decided  and  dealt  with  by  the competent   authority    under   the   Tenancy   Act,   then notwithstanding the  fact that  such an  issue arises  in  a properly constituted  civil suit  cognizable  by  the  Civil Court,  it  would  have  o  be  referred  to  the  competent authority under  the Tenancy  Act. Any  other  view  of  the matter would render the scheme of ss. 85 and 85A infructuous and defeat  the  legislative  policy  (see  Bhimaji  Shanker Kulkarni  v.   Dundappa  Vithappa  Udapudi  &  Anr.)(1)  The construction suggested  by the respondent that the bar would

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only operate  if such  an issue  arises only in a proceeding under the  Tenancy Act,  could render  s. 85A infructuous or inoperative or  otiose. Neither  the Contract  Act  nor  the Transfer of  Property Act  nor any  other statute except the Tenancy  Act   prohibits  a  non-agriculturist  from  buying agricultural land.  The prohibition  was enacted in s. 63 of the  Tenancy  Act.  Therefore,  if  a  person  intending  to purchase agricultural land files a suit for enforcing a con- tract entered  into by  him and  if tile suit is resisted on the  ground   that  the   plaintiff  is  ineligible  to  buy agricultural land, not for my other reason except that it is prohibited by  s. 63  of the  Tenancy Act,  an issue whether plaintiff   is   an   agriculturist   would   directly   and substantially arise in view of the provisions of the Tenancy Act. Such  an  issue  would  indisputably  arise  under  the Tenancy Act  though not  in a  proceeding under  the Tenancy Act. Now, if, s. 85 bars the jurisdiction of the Civil Court to decide  or deal  with an  issue arising under the Tenancy Act and  if s. 85A, imposes an obligation on the civil Court to, refer  such issue  to the  competent authority under the Tenancy Act,  it would be no answer to the provisions to say that  the  issue  is  an  incidental  issue  in  a  properly constituted  civil   suit  before   a  civil   Court  having jurisdiction  to   entertain  the   same.  In  fact  s.  85A comprehends civil  suits which civil Courts are competent to decide but  takes note of the situation where upon a contest an issue  may arise  therein which  would be  required to be settled, decided  or dealt  with by  the competent authority under the Tenancy Act, and, therefore, it is made obligatory for the civil Court not only not to arrogate jurisdiction to itself to  decide the  same treating  it as  a subsidiary or incidental issue,  but to  refer the  same to  the competent authority under  the Tenancy  Act. This  is  an  inescapable legal position  that emerges  from a combined reading of ss. 85  and   85A.  This  can  be  clearly  demonstrated  by  an illustration. Plaintiff  may file  a suit on title against a defendant for  possession of  land on  the  allegation  that defendant is a trespasser. The      (1) [1966]1 S.C.R. 145 at 150. 596 defendant  may   appear  and   contend  that   the  land  is agricultural land  and he is a tenant. The suit on title for possession is  clearly within l-he jurisdiction of the civil Court. Therefore,  the civil  Court would  be  competent  to entertain the  suit. But  upon the  defendant’s contest  the issue would  be whether he is a tenant of agricultural land. Section 70(a)(ii)  read with  ss. 85  and 85A would preclude the civil  Court from dealing with or deciding the issue. In a civil  Suit nomenclature  of the  issue  as  principal  or subsidiary or  substantial or  incidental  issue  is  hardly helpful  because  each  issue,  if  it  arises,  has  to  be determined to  mould the  final relief. Further, sections 85 and 35A  oust jurisdiction  of civil Court not in respect of civil suit  but in  respect of  questions and issues arising therein and  s. 85A mandates the reference of such issues as are within  the competence  of the  competent authority.  If there is  an issue which had to be settled, decided or dealt with by  competent authority  under  the  Tenancy  Act,  the jurisdiction of  the civil  Court, notwithstanding  the fact that it arises in an incidental manner in a civil suit, will be barred  and it, will have to be referred to the competent authority under  the Tenancy  Act.  By  such  camouflage  of treating  issues   arising  in  a  suit  as  substantial  or incidental or  principal or  subsidiary, civil  Court cannot arrogate to itself jurisdiction which is statutorily ousted.

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This unassailable  legal position  emerges from the relevant provisions of the Tenancy Act.      Turning  to   some  of  the  precedents  to  which  our attention Was  invited, it would be advantageous to refer to the earliest decision of the Bombay High Court which had the opportunity to  deal with the scheme of law under discussion in Trimbak  Sopana Girime  v. Gangaram Mhatarba Yadav(1). In that case  plaintiff filed  a suit against the defendant for actual possession on the allegation that the defendant was a trespasser and  the defendant  contested the suit contending that he  was a  protected tenant  within the  meaning of the Tenancy Act. ’the trial Court came to the conclusion that an issue would  arise whether  the defendant  was  a  protected tenant and  such an issue was triable by the Mamlatdar under s. 70(b)  of the  Tenancy Act,  and the  trial Court  had no jurisdiction to  try the  issue. Accordingly the trial Court ordered the  plaintiff to  present the  suit to  the  proper court. It  may be  noticed that  at the relevant time s. 85A was not  introduced in  the Tenancy Act. In an appeal by the plaintiff the  appellate court  reversed the  finding that a suit on title for possession alleging that the defendant was a trespasser was a properly constituted civil suit and if in such a  suit defendant  raises a  contention that  he  is  a protected tenant  it would  be a  subsidiary issue and would not oust the jurisdiction of the      (1) 55 Bom. L.R 56 597 Court because  if the  civil Court  proceeding with the suit comes to  the  conclusion that the defendant is a trespasser it would  be fully  competent to  dispose of  the suit.  The defendant carried  the matter  to the High Court and Chagla, C.J., analysing  the scheme  of ss. 70 and 85 of the Tenancy Act,  held   that  in   order  to   avoid  the  conflict  of jurisdiction and  looking to the scheme of the sections, the legislature has  left to  the Mamlatdar  to decide the issue whether the  defendant is  a protected  tenant or not and it implies that  he must  decide that  the defendant  is not  a trespasser in order to hold that he is a tenant or protected tenant, and  that he  must also hold that he is a trespasser in order to determine that he is not a tenant or a protected tenant, and even while strictly construing the provisions of a statute  ousting the  jurisdiction of the civil Court, the conclusion is  inescapable that all questions with regard to the status  of a party, when the party  claims the status of a protected tenant, are left to be determined by the Revenue Court and the jurisdiction of the Civil Court is ousted.      This very contention kept on figuring before the Bombay High Court  and J.  C. Shah, J. in one of the Second Appeals before him  analysed some  conflicting decisions  bearing on the interpretation of ss. 70 and 85 specifically with regard to the  ouster of  jurisdiction of  civil court  to  settle, decide or deal with those questions which are required to be settled, decided  or dealt  with by  the competent authority under the Tenancy Act, and referred the matter to a Division Bench. The  Division Bench  in Dhondi  Tukaram Mali, (supra) while affirming  the ratio  in Trimbak Sopana Girme, (supra) further observed  that the  legislature should  by  specific provision provide  for transfer  of such  suits where issues arise in respect one which the competent authority under the Tenancy Act is constituted a forum of exclusive jurisdiction so as  to avoid the dismissal of the suit by the civil Court or being  kept pending  for a  long time  till the competent authority disposes  of the issue which it alone is competent to determine.  The legislature took note of this decision of the Bombay  High Court  and introduced  s. 85A by Bombay Act

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XIII of 1956 which came into force from 23rd March 1956.      In     Bhimaji  Shanker  Kulkarni,  (supra)  this  very question  arose  in  a  suit  filed  by  the  plaintiff  for possession of  the suit property on redemption of a mortgage and taking  of accounts on the allegation that defendant no. 1 was  a usufructuary mortgagee under a mortgage deed, dated 28th June  1945. The defendants pleaded that the transaction of June  28, 1945  was an  advance lease and not a mortgage, and they  were protected  tenants within  the meaning of the Tenancy Act.  The trial  Court passed  a decree holding that the transaction evidenced 598 by the deed is a composite document comprising of a mortgage and a  lease and  on taking accounts of the mortgage debt it is found  that plaintiff  owed nothing  to the defendants on the date  of the suit and the mortgage stood fully redeemed. A further  direction in the decree was that the plaintiff is at liberty  to seek  his remedy  for possession  of the suit lands in  the revenue  courts.  The  plaintiff  carried  the matter in  appeal to  the appellate court who partly allowed tile appeal  affirming that  the mortgage  is satisfied  and nothing is  due under  the mortgage and the direction of the trial Court that plaintiff was at liberty to seek his remedy for possession  of the  suit lands in the revenue courts was confirmed and  the rest  of the  decree,  namely,  that  the document Ext.  43 evidencing the transaction was a composite document showing  a mortgage and a lease was set aside and a direction was  given that  the record  and proceedings do go back to  the trial  court who should give three months’ time to the  plaintiff for  filing,  proper  proceedings  in  the Tenancy Court for determining as to whether defendant 1 is a tenant.  Some   consequential  order   was  also  made.  The plaintiff carried  the matter  in second  appeal to the High Court of  Mysore which, while dismissing the appeal observed that the  civil court  had no  jurisdiction to determine the nature of  the transaction  when the  contention was that it evidenced advance lease followed by the tenancy of defendant no. 1  and, therefore,  the only proper direction is the one given by the trial Court to refer the issue to the Mamlatdar as to whether the defendant is a lessee under Ext. 43 and Of the reference  being  answered  back,  the  suit  should  be disposed of  in accordance  therewith. the plaintiff brought the matter  before this  Court. This Court in terms approved the decision  of the  Bombay High  Court in Dhondi   Tukaram Mali (supra) observing as under:      "In Dhondi  Tukaram’s case the Court expressed the hope      that the  legislature would make suitable amendments in      the  Act.   The  Bombay  Legislature  approved  of  the      decision, and  gave effect  to it by introducing s. 85A      by the  amending Bombay  Act III  of 1956.  Section 85A      proceeds upon  the assumption  that  though  the  Civil      Court has otherwise jurisdiction to try a suit, it will      have no  jurisdiction to  try an issue is rising in the      suit, if  the issue  is required to be settled, decided      or dealt  with by  the  Mamlatdar  or  other  competent      authority under the Act, and on that assumption, s. 85A      provides for  suitable machinery  for reference  of the      issue to  the Mamlatdar  for  his  decision.  Now,  the      Mamlatdar has   jurisdiction  under s. 70 to decide the      several issues  specified therein  "for the purposes of      this Act",  and before  the intro diction of s. 85A, it      was a debatable point whether the 599      expression "for  the purposes  of this  Act" meant that      the   Mamlatdar had jurisdiction to decide those issues

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    only in  some proceeding before him under some specific      provision of the Act, or whether he had jurisdiction to      decide those issues even though they arose for decision      in a suit property cognisable by a Civil Court, so that      the jurisdiction of the Civil Court to try those issues      in the  suit was  taken away  by s. 85 read with s. 70,      Dhondi Tukaram’s  case settled the point, and held that      the Mamlatdar  had  exclusive  jurisdiction  to  decide      those issues  even though  they arose for decision in a      suit properly  cognisable by  a Civil Court. The result      was somewhat  startling, for  normally the  Civil Court      has jurisdiction  to try  all the  issues arising in  a      suit properly  cognisable by  it. But  having regard to      the fact that the Bombay Legislature approved of Dhondi      Tukaram’s case  and gave effect to it by introducing s.      85A,  we   must  hold   that  the   decision  correctly      interpreted the law as it stood before the enactment of      s. 85A.  It follows  that independently  of s.  85A and      under the  law as  it stood  before s.  85A  come  into      force, the  Courts below  were bound  to refer  to  the      Mamlatdar  the   decision  of  the  issue  whether  the      defendant is a tenant".      It  would   thus  appear  that  even  when  a  properly constituted suit  is  brought  to  the  civil  Court  having jurisdiction to  try the  same, prima  facie on a contention being raised  by the  defendant an issue may arise which the Civil  Court   would  not   be  competent  to  try  and  the legislature stepped in to avoid the conflict of jurisdiction by introducing  s. 85A  making it  obligatory upon the Civil Court to  refer such  an issue  to the  competent  authority under the Tenancy Act. Any controversy that such an issue is a primary  issue or  a subsidiary issue and hence triable by Civil Court  must be  said to  have been  resolved by laying down that  the Civil Court will have, no jurisdiction to try the same  even  if  such  are  issue  arose  in  a  properly constituted civil  suit cognisable  by the  civil Court. And the ratio of the decision is that a contention raised by the defendant  may   have  the  necessary  effect  to  oust  the jurisdiction Or the civil Court in respect of the contention which is  to be  disposed of before the suit can be disposed of one way or the other.      In  Ishverlal   Tha  Thkorelal   Almaula  v.   Motibhai Nagjibhai, (1)  the plaintiff  appellant had  filed  a  suit against the  defendant respondent  in the  civil  Court  for possession of  agricultural  land  and  mesne  profits.  The defendant contended that he was a tenant who was entitled to the protection  of the Tenancy Act in view of the proviso to s. 43C of the Tenancy Act      (1) [1966] 1 S.C.R. 367. 600 despite the fact that at the relevant time the suit land was not governed by the provisions of the Tenancy Act. The trial Court decreed  the suit  but in  first appeal  the  District Judge reversed  the decree  of the trial Court and dismissed the suit  as in  his  view  under  the  proviso  to  s.  43C incorporated in  the Tenancy  Act by Bombay Act XIII of 1956 the respondent  continued to  enjoy the  protection  of  the Tenancy Act and the civil Court had no jurisdiction to grant a decree  for possession  of the  land in  dispute. A second appeal to  the High  Court by  the  original  plaintiff  was dismissed in limine and the matter came up before this Court by special  leave. This  Court first  affirmed that whatever may have  been the  position before  Act XIII  of 1956,  the legislature has  unequivocally expressed  an intention  that even in  a suit properly instituted in a civil Court, if any

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issue arises  which is required to be decided by the revenue Court, the  issue shall  be referred for trial to that Court and the  suit shall  be disposed  of in  the  light  of  the decision. The  Legislature has clearly expressed itself that issues required  under Act 67 of 1948, viz., Tenancy Act, to be decided  by a  revenue court,  even if arising in a civil suit, must  be decided  by the  revenue Court and not by the Civil Court.  The view expressed by the Bombay High Court in Pandurang Hari  v. .Shanker  Maruti(1), and the Gujarat High Court in  Kalicharan   Bhayya, v.  Rai Mahallaxmi & Anr.(2), that in such suit the civil Court is competent to adjudicate upon the  issues which  are by Act 67 of 1948 required to be decided by  the revenue  Court, was  disapproved. This Court held that  the question whether the defendant being a tenant on the  day on  which the Tenancy Act was put into operation and whether  he retained  the, protection  in  view  of  the proviso to  s. 43C  was within the exclusive jurisdiction of the Mamlatdar  under the  Tenancy Act  and,  therefore,  the District Judge  was in  error in dismissing the suit. It was necessary  for   him  to   refer  the   very  question   for determination to  the competent  authority under the Tenancy Act and  it was  not open  to him  to dispose  of the  suit. Accordingly the  appeal  was  allowed  and  the  matter  was remanded to  the District  Court with  a direction  that  it should restore the appeal to its original number and proceed according to  law. This  decision does  not depart  from the ratio in Bhimji Shanker Kulkarni’s case (supra).      It  was,   however,  said  that  a  suit  for  specific performance of a con tract for sale of land is cognizable by the Civil  Court and  its jurisdiction  would not  be ousted merely because  contract, if  enforced, would  violate  some provisions of  the Tenancy  Act. If  contract when  enforced would      (1) 62 Bom. L.R. 873.      (2) 4 Guj. L.R. 145. 601 violate some  provisions of  the Tenancy  Act it may be that the competent   authority  under the Tenancy Act may proceed to take  action as  permissible under  the law but the Court cannot  refuse   to  enforce  the  contract.  And  while  so enforcing  the   contract  the  Court  need  not  refer  any subsidiary  issue  to  the  competent  authority  under  the Tenancy Act because if there is any violation of the Tenancy Act the  same would  be  taken  care  of  by  the  competent authority under  the  Tenancy  Act  in  view  of  the  power conferred upon  the Mamlatdar  under s.  84C of  the Tenancy Act. In  this connection  reference  was  made  to  Naminath Appayya Hanammannaver  v. Jambu Rao Satappa Kocheri. We need not examine  this  decision  in  detail  because  an  appeal against the  decision of  Mysore High  Court granting decree for specific  performance was brought to this Court. A brief resume of  the fact in Jambu Rai Satappa Kocheri v. Neminath Appayya Hanammannaver,  is necessary  to grasp  the ratio of this decision.  In  a  suit  for  specific  performance  the defendant contended  that if  the contract  is  enforced  it would  violate  s.  35  of  the  Tenancy  Act  in  that  the plaintiff’s holding after the appointed day would exceed the ceiling and  the acquisition  in excess  of the  ceiling  is invalid. A  contention appears  to have been raised that the question whether  an acquisition  in excess  of the  ceiling would be  invalid would be within the exclusive jurisdiction of the  Mamlatdar under  s. 70(mb)  and that the Civil Court cannot decide  or deal  with this  question and  a reference ought to  have been  made to  the Mamlatdar. Negativing this contention  it   was  observed  that  the  Civil  Court  had

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jurisdiction to  entertain and  decree a  suit for  specific performance of  agreement to  sell land.  If upon  the  sale being completed  it would  violate  some  provision  of  the Tenancy Act an enquiry has to be made under s. 84C and s.84C provides that  if an  acquisition of  any land is or becomes invalid under  any of the provisions of the Tenancy Act, the Mamlatdar may  suo motu inquire into the question and decide whether the transfer or acquisition is or is not valid. This inquiry has  to be  made  after  the  acquisition  of  title pursuant to  a decree for specific performance. It is in the context of  these facts  that it  was held  that even though civil Court  has no  jurisdiction to  determine whether  the acquisition would  become invalid but there is nothing in s. 70 or  any other  provision of  the Act  which excludes  the Civil Court’s jurisdiction to decree specific performance of a contract  to transfer  land which would be anterior to the acquisition. While  disposing of  this contention this Court took note  of the  fact that the transfer may not be invalid at all  because the  purchaser may  have already disposed of his prior holding and it was further observed that 602 when the scheme of the Act is examined it becomes clear that the legislature has not declared the transfer or acquisition invalid, for  s. 84C provides that the land in excess of the ceiling shall  be at  the disposal of the Government when an order is  made by  the  Mamlatdar.  The  invalidity  of  the acquisition is,  therefore, only  to the extent to which the holding exceeds  the ceiling  prescribed by law and involves the consequence  that the land shall vest in the Government. lt would  thus  transpire  that  after  the  acquisition  is completed, the  question may  arise whether ceiling has been exceeded and  in that  event the  Mamlatdar in  a  suo  motu inquiry can  declare the  transfer invalid to the extent the holding exceeds  the ceiling.  The distinguishing feature of the present case is that s. 63 bars purchase of agricultural land by  one who is not an agriculturist and, therefore, the disqualification is  at  the  threshold  and  unless  it  is crossed  the   Court  cannot  decree  a  suit  for  specific performance of contract for sale of agricultural land and in order to  dispose of  the contention  which  stands  in  the forefront a reference to the Mamlatdar under s. 70 read with ss. 85  and  85A  is  enevitable.  Therefore,  there  is  no conflict  between   the  decision  in  Kulkarni’s  case  and Jamburao’s case  (supra) nor  the latter decision, overrules the earlier  one. In  fact, Kulkarni’s  case (supra) was not referred to  in Jamburao’s case (supra) because the question before the  Court was  entirely different  from the  one  in Kulkarni’s case (supra).      In Mussamiya Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai & Ors.,the question that came up for consideration of this  Court was whether when in a suit in the civil Court for possession  of agricultural  land a contention is raised that  defendant   has  become   a  statutory  owner  on  the tillers’day under  s. 32 of the Tenancy Act implying that he was a  tenant on  1st April 1957, would the civil Court have jurisdiction to  decide the  question of past tenancy in the context of  s. 70  of the  Tenancy Act  ? The contention was negatived observing  that  s.  70  imposes  a  duty  on  the Mamlatdar to decide whether a person is a tenant but the sub section does  not cast  a duty  upon him to decide whether a person was  or was  not a tenant in the past, whether recent or remote. Approaching from this angle, it was held that the contention whether  a defendant has become a statutory owner on the  tillers’ day  involving the question of past tenancy was not  within the  exclusive jurisdiction of the Mamlatdar

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and, therefore,  the civil  Court has jurisdiction to decide the question.  In the context of the language employed in s. 70(b) which,  as it  then stood, did not confer jurisdiction on the  Mamlatdar to decide the question of past tenancy, it can be  said that  the civil  Court’s jurisdiction to decide the same was not ousted. It appears that the question 603 was argued  in the  context of  s.  70  only  and  has  been answered in the context of the language employed in s. 70(b) only. Otherwise,  the question whether a person has become a statutory owner  on the tillers’ day, i.e. on 1st April 1957 which would  imply whether  the person  so contending  was a tenant of  the land on 1st April 1957 and hence would become the owner  of the  land by operation of law, was exclusively with in  the purview  of the  Tribunal set up under s. 67 in chapter VI  of the Tenancy Act. Section 67 imposes a duty on the State  Government to  set up  Agricultural Land Tribunal for each  taluka or  mail or  for such  area  as  the  State Government may  think fit.  Section 68 prescribes the duties of the  Tribunal which inter alia include the duty to decide any dispute  under ss. 32 to 32R (both inclusive). A dispute under s.  32 would  comprehend whether the plaintiff was the owner of  the land  on the  tillers’ day i.e. 1st April 1957 and the  person claiming to have become a statutory owner by operation of law on that day should of necessity be a tenant and  that  this  question  would  be  within  the  exclusive jurisdiction of  the Tribunal  as provided by s. 68. Section 85 refers to the Tribunal meaning Agricultural Land Tribunal to be  a competent authority to settle, decide and deal with the question  set out  in s.  68 and it would have exclusive jurisdiction to  settle, decide  and deal  with the same. No submission  was   made  in  Mussamiya’s  case  (supra)  with reference to  the provisions  contained in  chapter  VI  and especially s.  68 and,  therefore, that decision cannot lend support  to   the  submission   that  past  enancy  being  a subsidiary issue,  as such  was within the competence of the Civil Court.      A question  similar to  the one under discussion in the context  of   provisions  contained  in  ss.  132,  133  and 142(1)(a) of  Mysore Land  Reforms Act,1961,  came up before this Court  very recently  in Noor  Mohd. Khan  Ghouse  Khan Soudagar v.  Fakirappa Bharmappa  Machenahalii  &  Ors.  The majority decision,  after approving  Kulkarni,  (supra)  and distinguishing Mussamiya,  (supra) and  referring to  Dhondi Tukaran, (supra)  held that  a  question  arose  during  the pendency of the suit and the execution proceeding whether by the final allotment of the land to the appellant, respondent no. 1  had ceased  to be  a tenant  in view  of s. 52 of the Transfer of  Property Act.  This question  according to  the opinion of the majority fell squarely and exclusively within the jurisdiction  of the  revenue authorities  and the civil Court had  no jurisdiction  to decide  it and a reference to the competent  authority was  inevitable, and  no discretion was left  in the  Civil Court  in this behalf. So observing, the majority upheld the decision of High Court which had 604 set aside  the decree of the trial Court awarding possession because in  the opinion of the High Court no actual delivery of possession can be given against the person claiming to be a tenant  unless the requirements of the Mysore Land Reforms Act, 1961, were satisfied. It may be noticed that the scheme of the  provisions in  Mysore Land  Reforms Act, 1961, under discussion in  the decision  were in  pari materia  with the scheme of ss.70, 85 and 85A of the Tenancy Act.      Thus, both  on principle  and on  authority there is no

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escape from  the conclusion  that where  in a  suit properly constituted and cognizable by the Civil Court upon a contest an issue  arises which is required to be settled, decided or dealt with  by a  competent authority under the Tenancy Act, the jurisdiction  of the  Civil Court  to settle,  decide or deal with the same is not only ousted but the civil Court is under a  statutory obligation  to refer  the  issue  to  the competent authority under the Tenancy Act to decide the same and upon  the reference  being answered  back, to dispose of the suit  in accordance  with the  decision of the competent authority under the Tenancy Act.      If  plaintiff   sued  for  specific  performance  of  a contract for  sale of  agricultural  land  governed  by  the provisions of  the Tenancy  Act in  the Civil  Court and the defendant appeared  and raised  a contention that in view of the provisions  contained in  s. 63  of the  Tenancy Act the plaintiff being  not an  agriculturist  he  is  barred  from purchasing the  land, the  issue  would  arise  whether  the plaintiff is  an agriculturist.  Such an  issue being within the exclusive jurisdiction of the Mamlatdar, it is incumbent upon the  Civil Court  to refer  the issue  to the competent authority under  the Tenancy  Act and the civil Court has no jurisdiction to  decide or  deal with  the same.  That issue arises in  the suit from which the present appeal arises and both the  trial Court  and the  High Court  were in error in clutching at  a jurisdiction which did not vest in them and, therefore, on this ground alone this appeal will succeed.      Accordingly this  appeal is  allowed and  the decree of the trial  Court dismissing  the suit,  affirmed by the High Court, is  set aside  and the  suit is remanded to the trial Court to  proceed further  according to  law in the light of the observations  made in  this judgment.  Costs would abide the final outcome of the suit in the trial Court.      As the  case is  very old  one, the trial Court and the competent authority  to which  a  reference  would  be  made pursuant to  the direction in this judgment, should give top priority to the matter and dispose it of as expeditiously as possible. N.V.K.                                       Appeal allowed. 605