ivil Appeal No 4003 of 1989
From the Judgment and Order dated 1712
1986 of the Bombay High Court in Civil Revision A No 270 of 1983
RS Hegde and N Ganpathy for the Appellant
The Judgment of the Court was delivered by KN 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 99a 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 section 2u of the Tenancy Act means the relationship of land holder and tenant
Tenant as defined in section 2v 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 section 2r protected tenant means a person who is deemed to be a protected tenant under the provisions of sections 34 to 37
Under section 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 sections 34 to 46 deals with rights of protected tenants
Chapter IX of the Tenancy Act in sections 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 madeunder 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 vs Subrahmanyarn   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
RSS Appeal dis posed of


Summary:
The appeallants are the tenants of certain intermediary landlords known as Girasdars
Respondents Nos 4 5 are the legal heirs of certain Girasdars from whom some of the appellants held lands on lease
Respondent No 9 is a Giras dar who is represented by the Assistant Custodian Evacuee Property
The other respondents being statutory authorities are formal parties
The dispute between the parties relate to the mode of allotment to the Girasdars which has arisen in the following circumstances
After the coming into force of the Saurashtra Land Reforms Act 1951 the respondents Girasdars as required by the Act filled in Form I showing therein the cultivable land in the estate as 135334 acres
The family of the Girasdars was treated as an A  class Girasdar
The Mahalkari Kutiana by his decision dated June 25 1959 held that the entire area comprising cultivable land formed part of the joint and undivided estate of all the Girasdars and on that basis he allotted to them three eco nomic units of land amounting to 60 acres
The Girasdars preferred an appeal against the said decision and in that appeal the Deputy Collector Porbander Respondent No 2 modified the allotment made by Mahalkari
He took the view that some of these Girasdars had separate or swang lands and thus entitled to separate allotments from swang lands out of their swang estate
A revision application was preferred before the Gujarat Revenue Tribunal against the decision of the Deputy Collec tor
The Tribunal agreed in principle with the Deputy Col lector that the Girasdars were entitled to separate allot ment both from the estate held jointly by them and also to separate allotments from the Estates separately by them
The Tribunal accordingly held that the Girasdars were entitled to three 79 economic units out of the aforesaid cultivable lands jointly held by them and some of them were entitled to separate allotments out of the lands separately held by them but included in the aforesaid area of 135334 acres
The tenants thereupon challenged the decision of the Tribunal before the High Court by means of a writ petition
The High Court held that in respect of the joint or Majmu estate of the concerned Girasdars they were liable to be treated as one unit and entitled to allotment as an A  class Girasdars and were thus entitled jointly to three economic holdings which came to 60 acres
The High Court affirmed the decision of the Tribunal in the case of Ali Khokhar Girasdars who had handed over 15 acres of land of the joint estate and directed that on the basis of joint holding the Girasdars were entitled to the balance area of 45 acres
It also upheld the decision of the Tribunal that some of the Girasdars were entitled to separate allotments as C  class Girasdars with respect to their separate hold ings
Thus the High Court treated the total holding of 135334 acres as partly joint and the remaining part com prised separate holdings of some of the Girasdars
The appellants tenants have appealed to this Court after obtaining special leave
Dismissing the appeal this Court HELD Judicial notice can be taken that much lesser hardship would be caused to a tenant whose land holding was substantially in excess of the economic holding if a part of that land were taken for allotment to the Girasdars than to a tenant whose excess holding was only marginal if a part of his land is taken for such allotment
85F The Revenue Tribunal in deciding as to whose excess land should be handed over by the tenants has proceeded on a just and equitable basis that it should touch only such tenants whose land substantially exceeds the economic holding and smaller tenants should not be asked to surrender any part of their holdings