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PETITIONER: SMT. KAZI NAJMUNISSA BEGUM

       Vs.

RESPONDENT: YUSUF KHAN & ORS.

DATE OF JUDGMENT21/09/1989

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) DUTT, M.M. (J)

CITATION:  1989 AIR 2289            1989 SCR  Supl. (1) 217  1989 SCC  Supl.  (2) 568 JT 1989 (3)   717  1989 SCALE  (2)607

ACT:     Hyderabad  Tenancy  and Agricultural  Lands  Act,  1950: Sections  2(r),  (u),  (v), 31, 32, 34-37,  87-95--Exclusive jurisdiction   of   the  Tenancy   Authorities   under   the Act--Competent Authority to decide issue on merits.

HEADNOTE:     The  appellant/plaintiff instituted a suit for  declara- tion  of  title, possession and mesne profits  of  the  suit property.  The respondents/ defendants 1 and 2 resisted  the suit  mainly  on the ground that they were  tenants  of  one Sirajuddin  who  had allegedly acquired title  to  the  suit property  on the basis of a gift in favour of his wife.  The Trial Court decreed the suit holding that Sirajuddin had  no right or title and that the defendants were trespassers. The High  Court rejected the defendants’ appeal and the  special leave therefrom was rejected by this Court.     The  decree-holder moved an Execution Petition for  pos- session.  The respondents objected to the execution  on  the ground  that they were tenants and could not, therefore,  be dispossessed in execution of the decree of the Civil  Court. The  objection was rejected and the High Court rejected  the appeal therefrom.     Thereafter, when the Execution Petition was set down for proceeding  further, once again the respondents  raised  the plea of tenancy, and this time the Executing Court raised an issue of tenancy and referred the same to the Tenancy  Court for determination. The appellant appealed to the High Court. The  High Court observed that there could be no question  of creation of tenancy interest by those who themselves had  no title;  that  the  judgment debtors’  earlier  objection  to execution  on the ground of their claim of tenancy was  also rejected;  and  it was not open to the judgment  debtors  to once  again raise an issue of tenancy before  the  Executing Court which ought to have rejected the same contention. Even so,  the High Court having noted that judgment debtor No.  2 had  already filed an independent proceeding under the  Hyd- erabad Tenancy and Agricultural Lands Act, 1950 for declara- tion  of his tenancy rights observed that, if that  was  so, then the Competent 218

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Authority  under  the Tenancy Act would have to  decide  the issue on its own merits and in accordance with law irrespec- tive of and regardless of all observations, if any, touching upon  such a claim of tenancy in the civil  proceedings  be- tween  the  parties. The High Court also observed  that  the question  of tenancy was not directly in issue  between  the parties in the civil proceedings and the judgment debtor No. 2  was not debarred from instituting proceedings  under  the Tenancy  Act before the Competent Authority. The High  court allowed  the revision petition, set aside the order  of  the Executing Court referring the issue of tenancy, and directed the  Executing Court to proceed further with  the  Execution Petition.     Before  this Court it was contended that the High  Court committed  a serious error while setting aside the order  of the  Executing Court referring the issue of tenancy  to  the Tehsildar,  at the same time allowing the proceedings  under the Tenancy Act before the Tehsildar proceed in the face  of the  fact that the judgment debtors’ objection on the  basis of  their  tenancy  was already rejected  by  the  Executing Court,  and in holding that the competent  authority  should decide the issue of tenancy in accordance with law irrespec- tive of and regardless of all observations made in the  suit and the appeal. Disposing of the appeal, this Court,     HELD: (1) The Tenancy Act had amended the law regulating the  relations of land-holders and tenants  of  agricultural land and the alienation of such land. [221B]     (2)  Though  it could he said that when the  person  who inducted the tenants on the land was found to be a trespass- er  on  the  date of the induction, the  tenants  could  not continue to have a right to be on the land against the  will of the true owner, yet, taking into consideration the exclu- sive nature of jurisdiction of the Tenancy authorities under the Tenancy Act, and the fact that the appellant has already preferred an appeal from the order of the competent authori- ty,  the Court was not inclined to interfere with the  order of the High Court appealed against. [222D-E] Latchaiah v. Subrahmanyam, [1967] 3 SCR 712, referred to.     (3)  It will now be open to the appellant to  place  the decisions rendered in her favour by the Civil Courts  before the competent authority hearing the appeal and to proceed in accordance with the provisions of the Tenancy Act. [222F] 219

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4003  of 1989.     From  the  Judgment and Order dated 17.12. 1986  of  the Bombay High Court in Civil Revision A. No. 270 of 1983. R.S. Hegde and N. Ganpathy for the Appellant. The Judgment of the Court was delivered by     K.N. SAIKIA, J. Leave granted. Heard learned counsel for the appellant. None appears for the respondents.     The  appellant  as plaintiff instituted suit No.  32  of 1964 in the Court of Civil Judge (Senior Division), Auranga- bad  for declaration of title, possession and mesne  profits of the suit property. The respondents 1 and 2 as  defendants 1  and  2 resisted the suit mainly on the ground  that  they were  inducted  as tenants by Sirajuddin who  allegedly  ac- quired title to the suit property by a deed of gift executed by Hasmuddin in favour of his wife Waliunnissa from whom  it was  inherited  by Sirajuddin. The trial court  decreed  the

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suit  holding that Sirajuddin had no right or title and  the defendants were trespassers. In the appeal therefrom by  the defendants  1  and 2 before a Division Bench of  the  Bombay High court the same plea of tenancy was raised and rejected; and  it was held that the gift of the suit property by  Has- muddin in favour of Waliunnissa was not proved. Their appli- cation  for leave to appeal therefrom to the  Supreme  Court was also rejected.     The  decree-holder  moved the execution  petition  being Special Darkhast No. 20 of 1967 for delivery of  possession. The respondent Nos. 1 & 2 (who were judgment debtor Nos. 1 & 2)  objected to the execution on the ground that  they  were tenants and could not, therefore, be dispossessed in  execu- tion  of the decree of the Civil Court. The Executing  Court rejected  this objection and directed the Darkhast  to  pro- ceed. The defendants’ Civil Appeal No. 264 of 1977 therefrom was  also  rejected by the High Court. Thereafter  when  the aforesaid Darkhast No. 20 of 1967 was set down for  proceed- ing further, once again the same judgment debtor Nos. 1 &  2 raised  the  plea of tenancy; and this  time  the  Executing Court  raised an issue of tenancy and referred the  same  to the Tenancy Court for determination. The appellant moved the High Court in Civil Revision Application No. 270 of 1983 and the  High  Court observed, inter alia,  that  the  Executing Court  was not justified in raising an issue of tenancy,  as such an issue did not arise 220 at  all the Court having found on evidence that  Waliunnissa had  no  title to the suit property and her  son  Sirajuddin could  not have inherited it as an heir of Waliunnissa,  and as  such there could be no question of creation  of  tenancy interest  by  those who themselves had no  title;  that  the judgment  debtors’  earlier objection to  execution  on  the ground  of their claim of tenancy was also rejected; and  it was not open to the judgment debtor Nos. 1 & 2 to once again raise  an issue of tenancy before the Executing Court  which ought  to  have rejected the same contention. Even  so,  the High  Court  having  noted that judgment debtor  No.  2  had already filed an independent proceeding under the  Hyderabad Tenancy  and Agricultural Lands Act, 1950  (hereinafter  re- ferred  to  as  ’the Tenancy Act’) for  declaration  of  his tenancy  rights in the suit land observed that, if that  was so, then the competent authority under the Tenancy Act would have  to decide the issue "on its own merits and in  accord- ance with law irrespective of and regardless of all observa- tions, if any, touching upon such a claim of tenancy in  the civil proceedings between the parties, viz. Special Suit No. 32 of 1964 and Appeal No. 824 of 1967". The High Court  also observed  that the question of tenancy was not  directly  in issue between the parties in the aforesaid civil proceedings and  the judgment debtor No. 2 was not, therefore,  debarred from  instituting proceedings under the Tenancy  Act  before the  competent  authority. The High Court  further  observed that as the execution proceedings had been pending since the year 1967 it was expected that the competent authority would decide  the proceedings expeditiously. Accordingly the  High Court allowed the revision and set aside the impugned  order dated  April 28, 1983 passed by the Executing Court  in  the said  Special Darkhast No. 20 of 1967 to the extent  it  re- ferred  issue  No. 1 to the Tenancy Tahsildar  or  Mamlatdar under  Section  99(a) of the Tenancy Act and  the  Executing Court  was  directed  to proceed further  with  the  Special Darkhast No. 20 of 1967 in the light of those observations.     In this appeal the appellant assails the Judgment of the High  Court on the grounds, inter alia, that the High  Court

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committed a serious error, while setting aside the order  of the  Executing Court referring the issue of tenancy  to  the Tahsildar,  at the same time allowing the proceedings  under the Tenancy Act before the Tahsildar to proceed in the  face of  the  fact that the judgment debtors’  objection  on  the basis of their tenancy was already rejected by the Executing Court;  and in holding that the competent  authority  should decide the issue of tenancy in accordance with law irrespec- tive of and regardless of all observations made in the  suit and the appeal. 221     In  course  of arguments, the learned  counsel  for  the appellant has stated that the competent authority under  the Tenancy  Act,  during  the pendency of  this  special  leave petition, has already passed an order in favour of  judgment debtor  No.  2  and the appellant has also  since  filed  an appeal therefrom before the appellate authority. In view  of this  subsequent  development we have to examine  the  legal position qua the Tenancy Act.     The  Tenancy  Act  had amended the  law  regulating  the relations  of land-holders and tenants of agricultural  land and the alienation of such land. "Tenancy" as defined in  s. 2(u)  of  the Tenancy Act, means the relationship  of  land- holder  and tenant. "Tenant" as defined in s. 2(v) means  an assami shikmi who holde land on lease and includes a  person who  is  deemed to be a tenant under the provisions  of  the Tenancy Act. As defined in s. 2(r) "protected tenant"  means a  person who is deemed to be a protected tenant  under  the provisions  of ss. 34 to 37. Under s. 31 of the Tenancy  Act no interest of a tenant in any land held by him as a  tenant shall  be  liable to be attached or sold in execution  of  a decree or order of a Civil Court. Section 32 of the  Tenancy Act deals with procedure of taking possession. Under subsec- tion  (1) thereof, a tenant or an agricultural  labourer  or artisan entitled to possession of any land or dwelling house under  any  of the provisions of this Act may apply  to  the Tahsildar in writing in the prescribed form for such posses- sion.  Under sub-section (2) thereof, no  land-holder  shall obtain  possession of any land or dwelling house held  by  a tenant except under an order of the Tahsildar, for which  he shall  apply in the prescribed form. Under sub-section  (3), on  receipt of an application under sub-section (1) or  sub- section  (2) the Tahsildar shall, after holding an  enquiry, pass such order thereon as he deems fit. Section 33 provides that the Tenancy Act is not to affect the rights, privileges of  tenant under any other law. Save as provided in  subsec- tion (1) of section 30, nothing contained in this Act  shall be construed to limit or abridge the rights or privileges of any  tenant  under any usage or law for the  time  being  in force  or  arising ’out of any contract,  grant,  decree  or order  of a court or otherwise howsoever. Chapter IV in  ss. 34 to 46 deals with rights of protected tenants. Chapter  IX of  the Tenancy Act in ss. 87 to 95 deals with  Constitution of  Tribunal; Procedure and Powers of  Authorities;  Appeals etc.  Chapter  XI  contains  the  Miscellaneous  provisions. Section 99, dealing with Bar of Jurisdiction provides:  "(1) Save  as  provided  in this Act no Civil  Court  shall  have jurisdiction  to  settle, decide or deal with  any  question which is by or under this Act required to be settled, decid- ed or dealt with by the Tahsildar, Tribunal or Collector  or by the Board of 222 Revenue or Government. (2) No order of the Tahsildar, Tribu- nal  of Collector or of the Board of Revenue  or  Government made.under  this  Act, shall be questioned in any  Civil  or

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Criminal Court." Section 104 enjoins the Act to prevail over other enactments and says: "This Act and any rule, order  or notification  made  or issued thereunder shall  have  effect notwithstanding anything inconsistent therewith contained in any  other enactment with respect to matters  enumerated  in List II in the Seventh Schedule to the Constitution of India or  in  any instrument having effect by virtue of  any  such other enactment." The Tenancy Act was inserted in the  Ninth Schedule  to the Constitution at Entry 36. Article 3  lB  of the  Constitution  of  India gives full  protection  to  the Tenancy  Act and its provisions in the Schedule against  any challenge  on the ground of inconsistency with or  abridging of any of the rights conferred by Part III of the  Constitu- tion and it would be so notwithstanding any judgment, decree or order of any court or Tribunal to the contrary.     Though  after  the  decree of the civil  court,  on  the authority  of Latchaiah v. Subrahmanyarn, [1967] 3 SCR  712, it  could  be  said that when the person  who  inducted  the tenants on the land was found to be a trespasser on the date of  the induction, the tenants could not continue to have  a right to be on the land against the will of the true  owner, yet,  taking  into  consideration the  exclusive  nature  of jurisdiction  of the Tenancy authorities under  the  Tenancy Act,  the above provisions, and the fact that the  appellant has already preferred an appeal from the order of the compe- tent  authority, we are not inclined to interfere  with  the impugned  order, as it will now be open to the appellant  to place  the  decisions rendered in her favour  by  the  Civil Courts before the competent authority hearing the appeal and to proceed in accordance with the provisions of the  Tenancy Act. If ultimately the judgment debtor No. 2 is held to have been  or not to have been a tenant, it will be open for  the appellant  to  proceed accordingly further  in  the  Special Darkhast No. 20 of 1967 as directed by the High Court.  This appeal is disposed of as above, with no order as to costs. R.S.S.                                         Appeal   dis- posed of. 223