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PETITIONER: PATHAN MURTAZAKHAN DADAMKHAN AND ORS.

       Vs.

RESPONDENT: PATHAN PIRKHAN AMDUMIYAN (DEAD) BY LRS.

DATE OF JUDGMENT23/03/1993

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. SAHAI, R.M. (J)

CITATION:  1993 AIR 1750            1993 SCR  (2) 578  1993 SCC  Supl.  (2) 518 JT 1993 (3)   615  1993 SCALE  (2)399

ACT: Code of Civil Procedure, 1908. Section  100-Second  appeal-Raising of  fresh  plea  during- Permissibility of. Section 9-Civil Courts-Bar of jurisdiction. Bombay Tenancy Act, 1939.  Sections 24, 85-A.

HEADNOTE: The appellants’ predecessor was inducted as an  usufructuary mortgagee  of  certain fields. On the expiry  of  redemption period the respondents filed a suit for redemption which was decreed subject to payment of  damages for improvements.  On appeal,  the District Court confirmed the redemption  decree but set aside the decree for damages. In second appeal,  the appellants raised a new plea: that they were deemed  tenants by operation of Section 2-A of the Bombay Tenancy Act, 1939. It was also contended on  their behalf that Section 85-A  of the Act ousted the jurisdiction of the Civil Court to decide the dispute of tenancy rights In pending suit. Rejecting both the contentions the High Court confirmed  the decree    of  the appellate court. Against the  judgment  of the High Court an appeal was flied in this Court. Dismissing the appeal, this Court, HELD:  1.  The plea based on Section 2-A was  sought  to  be raised for     the  first time in second appeal  before  the High  Court.  It  was neither raised in  the  pleadings  nor argued either before the trial Court or the appellate  court. Therefore,  the  High  Court  rightly  did  not  permit  the appellants to  raise  the  plea of a deemed tenancy  as  the said  claim needs investigation based on factual  foundation which was lacking. Consequently, the question whether  under Section  85-A the Civil Court had jurisdiction or  not  need not be gone into. [580 D-E, 579 F] 579 Salman  Raje  v. Madhavsang Benesang I.L.R. 1963  Guj.  722, cited.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1890 of 1974.

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From  the Judgment and Order dated 6.8.1973 of  the  Gujarat High Court in Second Appeal No.98 of 1973. M.V. Goswami for the Appellants. S.K. Dholakia and P. Narasimhan for the Respondents. The following Order of the Court was delivered: This appeal under Article 136 is against the judgment of the High  Court of Gujarat in Second Appeal No.98 of 1973  dated August 6, 1973.  The appellants’ predecessor was inducted in Field  Nos.439 and 676 as, an usufructuary mortgagee in  the year 1945.  On expiry of the period of redemption prescribed therein,  that  is, 25 years, the suit  for  redemption  was filed  in 1970 by the respondents.  The trial court  decreed the suit subject to payment of damages for improvements.  On appeal,   the  District  Court  confirmed  the  decree   for redemption but set aside the decree for damages.  In  second appeal, the High Court confirmed the decree of the appellate court.  Thus this appeal. In  the High Court, the appellants sought  two  contentions, namely, by operation of Section 2-A which was brought by way of amendment of Section 48 to the Bombay Tenancy Act,  1939, the mortgagee became a deemed tenant.  It was not  permitted to  argue  as is not a pure question of law but is  a  mixed question of law and fact which need investigation of  facts. It  was  neither raised in the pleadings nor  argued  either before  the trial court or the appellate court.   Therefore, the question raised in the second appeal for the first  time was   disallowed.    The   second   question   namely,   the jurisdiction  of  the  civil court to  declare  the  tenancy rights by operation of the Amendment Act 5/73 which  brought Section  85-A  on  statute with  retrospective  effect.   It ousted  the  jurisdiction of the civil court to  decide  the dispute of tenancy rights in pending suit.  This  contention too was negatived as when the Amendment Act came into force, the  second appeal was pending and therefore the High  Court held  that  the civil court was not ousted to  exercise  the jurisdiction  and to refer the matter to the  Revenue  Court for jurisdiction for adjudication whether the appellants 580 were  or were not deemed tenants.  The same  contention  was reiterated before us.  Placing reliance on a Division  Bench judgment  of  the  Gujarat  High Court  in  Salman  Raje  v. Madhavsang Benesang, reported in ILR 1963 Guj.722, Shri M.V. Goswami,  the learned counsel for the  appellants  contended that by operation of Section 2-A, the appellants are  deemed tenants.   Once  the  appellants  are  deemed  tenants,  the Revenue  Court has to decide that issue.  The second  appeal is a continuation on the suit and therefore, the High  Court is not right in rejecting the claims of the appellants.   It is  not necessary to express any opinion on the  correctness of  the judgment of the Division Bench of the  Gujarat  High Court.   Suffice  it  to say that  the  appellants  had  not specifically pleaded that the appellants are deemed  tenants by operation of Section 2-A of the Act.  What was pleaded in the  written  statement was that initially  the  appellants’ predecessor  was continuing as cultivating tenant.   But  by virtue  of the mortgage, their tenancy right merged  in  the right as usufructuary mortgagee.  On redemption pre-existing tenancy rights get revived.  But that plea was not  pursued. A new plea based on Section 2-A was sought to be raised  for the  first time in the High Court.  The High  Court  rightly did not permit the appellants to raise the plea of a  deemed tenancy  as  the  said claim needs  investigation  based  on factual  foundation  which was lacking.  Once the  right  of tenancy  is  not  permitted to be raised,  the  question  of construction  of  Section 85-A whether the Civil  Court  had

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jurisdiction  or not is an academic issue.  Accordingly,  we are  not going into that question.  The learned counsel  for the  appellants  also  contended  that  the  appellants  are entitled  to  the improvements.  The High Court did  not  go into  that  question as the same was not canvassed  and  the decree of the appellate court is quite right.  We cannot  go into  that  question  which is  accordingly  rejected.   The appeal,  is accordingly dismissed but in  the  circumstances without costs. T.N.A.                         Appeal dismissed. 581