ivil Appeal No 9979 of 1983
From the Judgment and Order dated 8121982 of the Patna High Court in CR No 377 of 1980 R
MP Jha for the Appellants
DP Mukharjee for the Respondents
The Judgment of the Court was delivered by 973 SHARMA J
The dispute in the present appeal by special leave is in regard to certain premises in the town of Ranchi in Bihar which belongs to the appellants and in which a cinema is running
The contesting respondents have been occupying the property under a registered lease for a period of 20 years which expired on 3171971
They served a notice on the appellants on 1671971 claiming the right to contin ue in possession after 3171971 as tenants from month to month
The appellants did not accept the claim and filed before Munsif Ranchi a case purporting to be an application under section 12 of the Bihar Buildings Lease Rent and Evic tion Control Act 1947 hereinafter referred to as the Act
The respondents contested the application and raised several points in defence which were rejected by the learned Munsif
The appellants  application was allowed and an appeal therefrom filed by the respondents was dismissed by the Judicial Commissioner Ranchi
The respondents then moved the Patna High Court in its revisional jurisdiction inter alia contending that the appellants  application under section 12 of the Act before the Munsif was not maintain able
The plea was accepted by the High Court and the deci sion of the court below was set aside
According to the appellants  case the property earli er belonged to Ms Ganapathi Properties Pvt Limited the predecessor in title of the appellants
The company had granted the lease in favour of one SM Ganguli who on his death was succeeded by his legal representatives
There was due attornment of the tenancy and the lessees were liable to vacate the premises on 317
197 1
Their further case of induction of some of the respondents as sub tenants has been disbelieved and in view of the findings of fact in the case it is not necessary to deal with this aspect now
Apart from pleading that the application under section 12 was not maintainable and the allegations contained therein were incorrect the respondents also stated that the heirs of late SN Ganguli had formed a partnership as a result of which a new month to month tenancy was created and the respondents therefore were not liable to eviction
The parties differed on several questions of fact which in view of the findings of the trial court and the appellate court are not necessary to be detailed
The parties led full evidence both oral and documentary
on the disputed issues and after an elaborate trial the learned Munsif accepted the appellants  case that they are the successors in interest of the lessor company and the legal representatives of late SN Ganguli the original lessee continued as tenants under the lease after due attornment and were liable to eviction after the expiry of the lease 974 period on 317
The court accordingly directed the respondents to vacate the premises
On appeal by the respondents the learned Judicial Commissioner Ranchi agreed with the findings of the learned Munsif on merits and concluded in paragraph 48 of thejudg ment thus Therefore from the facts stated above it appears that the present landlords and tenants are the heirs and successors of the original lessor and the lessee respectively
That being so according to the terms of the deed of lease Ext 4 1 have no hesitation in saying that the deed of lease Ext 4 is subsisting and the parties are having the relationship of lessors and lessees and also landlords and tenants respectively
No month to month tenan cy had been created
 He however modified the decision of the trial court in so far the learned Munsif had directed that his order would be executed and the respondents would be evicted from the premises on their failure to vacate within the time allowed
The learned Judicial Commissioner confined his decision to deciding the issues between the parties and granting one month s time to the respondents appellants before him for vacating the premises and further held that the appellants would have to make another application under section 123 of the Act for evicting the respondents if they did not vacate within the time allowed by court
The respondents challenged the decision in CR No 377 of 1980 R before the Patna High Court
The learned Judge who heard the case held that in absence of a month s notice under section 121 from the tenant the application of the appellants was not maintainable before the Munsif and the entire proceeding was mis conceived
It was pointed out that in the circumstances the appropriate remedy of the appellants was to file a suit under section 11 of the Act
Before proceeding further it will be helpful to examine the provisions of the section 12 which is quoted below 12
Extension of period limited by lease
1 If a tenant in possession of any building held on a lease for a specified period in tends to extend the period limited by such lease he may give the landlord at least one month before the expiry of the period limited by the lease a written notice of 975 his intention to do so and upon the delivery of such notice the said time shall subject to the provision of section 11 be deemed to have been extended by double the period covered by the original lease subject to a maximum of one year
2 Where the landlord to whom notice has been given under sub section 1 wishes to object to the extension demanded by the tenant on one or more of the grounds mentioned in sub section 1 of section 11 or on the ground that the landlord has any other good and sufficient cause for terminating the lease on the expiry of period limited thereby he may within fifty days of the delivery of such notice appeal to the court in that behalf and the Court after hearing the parties may termi nate the lease or extend the same for such period as it deems proper in the circum stances
Provided that the tenant shall not in any case be allowed to remain in possession of the building beyond the period permissible under sub section 1
3 If the tenant fails to vacate the building on the termination of the lease or as the case may be on the expiry of the period fixed by the Court under sub section 2 the Court shall on an application by the land lord pass an order for ejectment which shall be executed as a decree and may further order that the tenant shall pay to the landlord such amount as may be determined by it as daily compensation
It has been contended on behalf of the appellants that an application under section 12 of the Act before the civil court was maintainable and the High Court was in error in holding otherwise
The argument is that both the remedies ie by an application under section 12 of the Act as also by way of a suit are open to a landlord after the expiry of the period of a fixed term tenancy and it is for him to choose which course to follow
Mr Kameshwar Prasad the learned counsel appearing on behalf of the respondents urged that on the expiry of such a tenancy the only remedy is to file a suit and in any event section 12 is wholly inapplicable in the facts of the case as the respondents by their notice did not seek an extension of the term of tenancy
He asserted that according to their case in the notice a fresh tenancy had come into 976 existence
The notice therefore was not one under section 12 of the Act at all
We do not consider it necessary to decide the question as to whether a landlord after the expiry of the period of a fixed term lease is entitled to move the Court by an application under section 12 of the Act because even on assuming the argument of the respondents to be correct the appellants should succeed
In view of the circumstances of the present case as discussed below the proceeding arising out of the appellant s application before the learned Munsiff should be treated as a suit and his decision as a decree
It has to be kept in mind that it is the same court before which both a suit under section 11 and an application under section 12 are to be filed
The Bihar Buildings Lease Rent and Eviction Control Act refers to several authorities for decision of different issues one of them being Control ler as defined in section 2b of the Act and another Court as the court of general jurisdiction under the Code of Civil Procedure 1908 as defined in section 2bb
So far the determi nation and redetermination of fair rent or issuing appro priate directions relating to amenities in the premises and several other matters are concerned the power is vested in the Controller
But as regards the question of dealing with the eviction of tenants under section 11 and extension of period of lease under section 12 the civil court is the proper forum
In the present case it is the Civil Court Ranchi which is the appropriate court either for filing a suit for eviction under section 11 or making an application under section 12
There is thus no difficulty so far the jurisdiction of the court is concerned
The question is whether the petition which was filed by the appellants as an application under section 12 should be treated as a plaint and the impugned proceeding as the one in a suit followed by an appeal and a second appeal
With the assistance of learned counsel for the par ties we have gone through the relevant papers in the case and are satisfied that both the parties dealt with every aspect of the case from their respective angles elaborately and led their full evidence both oral and documentary and the case was tried by the learned Munsif in the same manner as the trial of an eviction suit
The decision of the learned Munsif is also a detailed one considering every relevant question in the case
The respondents filed a regular appeal from the decision before the District Judge Ranchi designated as Judicial Commissioner and he also went into the entire controversy thoroughly
The respondents lost the case once more and moved the High Court but in civil revision application instead of second appeal presum ably because the Judicial Commissioner after deciding the disputed issues in favour of the present appellants instead of confirming the decree of 977 the Munsif directed them to file a fresh application under section 123 for a formal decree of eviction
The judgment of the High Court indicates that the scope in which the argu ments by the parties were addressed was the same as in a second appeal and the decision also was accordingly given
The findings on the disputed issues of fact between the parties were concurrently recorded against the tenants by the first two courts and it was not open to the High Court to reverse them under section 100 CPC We have also gone through the judgments of the first two courts on this aspect and considered the criticism of Mr Kameshwar Prasad learned counsel for the respondents appearing before us and we do not find any error therein
In these circumstances it is wholly immaterial as to whether the application original ly filed by the appellants before the Munsif was not in the form of a plaint specially when the necessary verification was also there at the foot of the petition
The only differ ence may be as to the amounts of court fees payable by the appellants in the first court and by the respondents before the Judicial Commissioner and the High Court but that should not come in the way in construing the correct nature of the proceeding
A similar approach was adopted in several cases decided by some High Courts and we would like to refer to three decisions in this regard
In Madho Bibi vs Hazari Mal Marwari AIR 1929 Patna 141 a suit was dismissed as against one of the defendants who in the proceeding of execution of the decree filed an objection to an attachment order under Order XXI Rule 58 CPC which was recorded under that Rule only
The court proceeded under that Rule and after making inquiries reject ed the claim
When a revision application was filed before the High Court it was held that the objection petition though wrongly preferred under Order XXI Rule 58 must be treated as one under section 47 and the order passed by the court would have the effect of a final order under section 47 which would be appealable as a decree and against which no revision would lie
In another decision by the same Court in Hazari Lal vs Ramjiwan Ramchandra and others AIR 1929 Patna 472 the Division Bench held that a defendant against whom a suit is dismissed is nevertheless party to the suit and an objection petition though described by him as one Under Order XXI Rule 58 CPC is such as would fall under section 47 and so the decision on it is appealable and a regular suit is barred
In Lachhoo vs Munnilal Babu Lal AIR 1935 Allaha bad 183 it was observed that in considering whether an application is under section 47 or not the court must examine the substance of the application to find out its true nature and should not be guided solely by the heading given to it by a party
The principle is well established that the exercise of a power will be referable to a 978 jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory and there is no reason to exclude the application of this rule to judi cial proceedings
In a case dealing with compulsory retire ment this Court in MR Singh vs The Chief  Commissioner Admn Manipur and others   observed that if power can be traced to a valid power the fact that the power is purported to have been exercised under a non exist ing power does not invalidate the exercise of the power
If it is assumed that an application under section 12 of the Act is not maintainable in the facts and circumstances of the present case in our opinion the proceeding has to be treated as a suit and the judgment of the learned Munsif as a decree therein
A further question may arise as to the effect of the Judicial Commissioner Ranchi declining to pass a formal decree of eviction and directing the appel lants to make an application under section 123 of the Act for that purpose
Can this Court restore the decree of the trial court in absence of an appeal by the appellants before the High Court We think that we can and we should
The question does not affect the substantive right of the parties as the controversy was concluded by the first appellate court in favour of the appellants
What was left was only procedural in nature and inconsistent with our decision to treat the proceedings as a suit
The occasion for filing an applica tion under section 123 can arise only where the matter is covered by section 12 and as we have made an assumption in favour of the respondents that section 12 has no application to the present case there is no point in asking the appellants to file such an application
As mentioned in article 142 of the Constitution of India this Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it and the present case is a most appropriate one for exercise of such power
Accordingly we set aside the judgment of the High Court and restore the decree passed by the Munsif Ranchi
The re spondents are directed to restore peaceful possession of the premises in question to the appellants within one month from today failing which the appellants shall be entitled to execute the decree in accordance with law
The appeal is allowed but the parties are directed to bear their own costs throughout
RSS Appeal allowed


Summary:
The appellants are the heirs of one A who was the tenant of the land in question for about three decades before the Bombay Tenancy and Agricultural Land Act 1948 was enacted
Though he was entitled to purchase the land on satisfaction of certain conditions it was admitted before the authori ties that he did not satisfy the conditions
The landlords claimed possession of the land
A was already possessed of land beyond the ceiling area prescribed by Sec
32A of the Act and he therefore did not claim to have purchased the land in accordance with the provisions of the Act
Since in such cases
32P provides that the former tenant would be summarily evicted and the land would be surrendered to the landlord the land in question went to the landlords
The appellants claimed that on a partition in the family of the landlords the land in question was allotted to some of the respondents and A purchased the same for Rs 3000 on 361960
It was contended that the land holding of A was within the ceiling area following the partition in 1959 between him and his sons
Suppressing the sale of the land and without impleading the appellants the respondents moved the authorities in 1963 for recognising their claim
The Agricultural Land Tribunal and the Additional Mamlatdar upheld the claim of the respondents relying on an enquiry under Section 32G wherein the right of A as a tenant was negatived
the appel lants filed an appeal before the collector who remanded the matter to the Mamlatdar
The Additional Mamlatdar observed that since the tenant had purchased the land from the land lords the proceeding was fit to be dropped and it would be appropriate to deal with the case under Section 84C which provided holding of an enquiry to decide the validity of the transfer
After such enquiry the Agricultural Lands Tribunal held that the purchase made on 361960 by A was lawful and upheld the claim of the appellants
This was confirmed on appeal and one of the respondents filed a revision applica tion before the 239 Revenue Tribunal
The Tribunal held that the land owned by A did not belong to the joint family and his sons had no share therein and so the alleged partition could not be accepted or recognised
And in 1960 A was possessed of land beyond the ceiling area and was not entitled to purchase further land from respondents
The appellant moved the High Court under Article 227 of the Constitution
The High Court re jected the petition
This appeal by Special Leave is against the High Court s Judgment
Dismissing the appeal HELD The ban on transfers which may affect the ceiling law is more severe under the Bombay Tenancy and Agricultural Lands Act directs that no sale of land shall be valid in favour of a person who will after such sale hold land exceeding two thirds of the ceiling area deter mined under the Maharashtra Agricultural Lands Ceiling on Holdings Act 1961
The fact that on the death of A in 1962 his earlier holdings were inherited by his heirs and the respective holdings therefore came below the ceiling area is immaterial because the disputed land was purchased by A himself in 1960
It has to be remembered that as has been held by the Revenue Tribunal the other lands exclusively belonged to A and exceeded the ceiling area
The sale on 361960 must therefore be held to be illegal and inopera tive
241G H 242A