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
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
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
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
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