Appeal No 92 of 59
Appeal from the judgment and order dated August 31 1956 of the Orissa High Court in second appeal No 151 of 1951
A V Viswanatha Sastri and T V R Tatachari for the appellant
M section K Sastri for respondents
674 1961
September 20
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This is an appeal by a certificate granted by the High Court of Orissa and it raises a short question about the scope and effect of the provisions of section 7 1 of the Orissa Tenants Protection Act 1948 Act III of 1948 hereafter called the Act
The appellant Magiti Sasamal sued the respondents Pandab Bissoi and others in the Court of the District Munsiff Berhampur for a permanent injunction restraining them from entering the suit lands belonging to the appellant
The appellants case was that the suit lands belonged to him and were in his personal cultivation for many years
In the year of the suit the appellant had cultivated the said lands as usual manured and raised paddy crop thereon after spending a large amount in that behalf According to the appellant the respondents had no manner of right or title to the said lands and had never cultivated them
From the notice given by them to the appellant however it appeared that the respondents wanted to enter upon the lands forcibly and to remove the standing crop therefrom
This they desired to do by setting up a false claim that they were the tenants of the lands and as such were entitled to the protection of the Act
The appel lant alleged that the respondents were local rowdies and were known for their high handed action in the neighbourhood
On these allegations the appellant claimed a permanent injunction against the respondents
The respondents admitted the title of the appellant to the lands in suit but pleaded that they were the tenants in respect of separate portions of the said lands
Their version was that they had cultivated their holdings and raised the paddy crop thereon in the year in question
According to them they had been in cultivating possession of their respective holdings as tenants long before September 1 1947 and so they were entitled to remain in possession as such tenants under the 675 they had filed petitions under the Act before the Sub Collector Berhampur claiming appropriate relief against the appellant
They urged that they were ever ready and willing to pay the Rajabhag as provided by the Act and they contended that the Suit was not maintainable in a civil court
On these pleadings the learned trial judge framed appropriate issues
Three issues of law had been framed by him on the pleas raised by the respondents
These issues were however not pressed at the hearing One of them namely issue 5 refers to the jurisdiction of the Court to try the suit in view of the provisions of the Act
Thus it if clear that the issue of jurisdiction was not pressed by the respondents at the trial
On the merits the learned trial judge considered the evidence and held that though the appellant was the owner of the property the respondents had proved that they were the tenants in possession of their respective holdings and that their possession was long before September 1 1947
On these findings the learned judge came to the conclusion that the appellant was not entitled to claim an injunction against the respondents and so he dismissed his suit
The matter was then taken by the appellant before the District Judge Ganjam Nayagarh
The learned District Judge considered the evidence led by the parties and reversed the conclusions of the trial court
He held that the onus was on the respondents to prove their possession of their respective holdings as tenants on or before the specified date and according to him they had failed to dis charge that onus
The question of jurisdiction was not raised before the appellate court by the respondents
Having held against the respondents on the merits the learned District Judge allowed the appeal set aside the decree passed by the trial court and directed that an injunction should be issued against the respondents as claimed by the appellant
676 The respondents then moved the High Court by second appeal  and the main point which they urged before the High Court was that the learned trial judge had no jurisdiction to entertain the suit having regard to the provisions of section 7 1 of the Act
The appellant pointed out to the High Court that this question of jurisdiction bad not been pressed before the trial court and had not been raised before the lower appellate court
Even so the High Court allowed the point to be raised and decided it in favour of the respondents
As a result of the finding that the civil court bad no jurisdiction to entertain the suit the second appeal preferred by the respondents has been allowed and the appellant s suit dismissed with costs throughout
It is against this decree that the appellant has come to this Court with the certificate granted by the High Court and the short point which has been raised before us on his behalf by Mr Viswanatha Sastri is that in holding that the present suit is outside the jurisdiction of the civil court the High Court has misconstrued the scope and effect of the Provisions of section 71 of the Act
The Act received the assent of the Governor General on February 5 1948 and was published on February 14194S
It is a temporary Act and by s14 it has been provided that it shall cease to have effect on April 15 1949 except is respects things done or omitted to be done before the expiration thereof
It has been passed in order to provide for temporary protection to certain classes of tenants in the Province of Orissa
Legislature thought that the said tenants deserved protection and so as a beneficent measure the Act has been passed
Section 2c of the Act defines landlord and section 2g defines a tenant
The main operative provision of the Act is contained in section 3
This Section provides that not withstanding anything contained in any other law for the time being in force or any express or implied agreement to the contrary but subject to the provisions of this Act 677 a person who on the first day of September 1947 was cultivating any land as a tenant shall continue to have the right to cultivate such land and it shall not be lawful for the landlord to evict the tenant from the land or interfere in any way with the cultivation of such land by the tenant
It would thus be seen that the Act purports to provide protection to tenants who were in possession of lands on the appointed day which is September 1 1947
The other sub sections of section 3 make material and subsidiary provisions in regard to the said protection
Section 71 reads thus  Any dispute between the tenant and the landlord as regards a tenant s possession of the land on the 1st day of September 1947 and his right to the benefits under this Act
or b misuse of the land by the tenant or c failure of the tenant to cultivate the land properly or d failure of the tenant to deliver to the landlord the rent accrued due within two months from the date on which it becomes payable or e the quantity of the produce payable to the landlord as rent shall be decided by the Collector on the application of either of the parties
The appellant contends that section 71 covers disputes between landlords and tenants which are specified under cls
a to e but it does not cover a dispute between the parties as to whether the relationship of landlord and tenant exists between them
It is only where such a relation ship is either admitted or established in a civil court that the specified disputes fall within the exclusive jurisdiction of the Collector on the other hand the respondents  case is that the dispute as to the status of the tenant is also included under section 71
The High Court has upheld the respondents  interpretation and Mr Viswanatha Sastri contends that this interpretation is based on a misconstruction of the section
It is true that having regard to the beneficent object which the Legislature had in view in passing the Act its material provisions should be liberally 678 construed
The Legislature intends that the disputes contemplated by the said material provisions should be tried not by ordinary civil courts but by tribunals specially designated by it and so in dealing with the scope and effect of the jurisdiction of such tribunals the relevant words used in the section should receive not a narrow but a liberal construction
While bearing this principle in mind we must have regard to another important principle of construction and that is that if a statute purports to exclude the ordinary jurisdiction of civil courts it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion
As the Privy Council has observed in Secretary of State vs Mask  Co 1 it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied
There can be no doubt that ordinarily a dispute in regard to the relationship between the parties such as that between a landlord and a tenant would be a dispute of a civil nature and would fall within the competence of the civil court
If the respondents contend that the jurisdiction of the civil court to deal with such a civil dispute has been taken away by section 7 1 we must enquire whether section 71 expressly takes away the said jurisdiction or whether the material words used in the section lead to such an inference or the scheme of the Act inescapably establishes such an inference
The relevance and materiality of both these principles are not in dispute
Let us then revert to section 7
It would be noticed that a 71 has expressly and specifically provided for five categories of disputes which are within the jurisdiction of the Collector and which must therefore be taken to be excluded from the jurisdiction of the civil court
On a reasonable construction of section 71 a dispute specified by section 71a would be a dispute between a tenant and a landlord in regard 1 1940 L R 67 1
A 222 236
679 to the former s possession of the land on September 1 1947
It is clear that the dispute to which section 71a refers is a narrow dispute as to the possession of the tenant on a specific date and his consequential right to the benefits of the Act
The same is the position with regard to the other categories of the dispute specified by section 71
In none of the said categories is a dispute contemplated as to the relationship of the parties itself
In other words section 71 postulates the relationship of tenant and landlord between the parties and proceeds to provide for the exclusive jurisdiction of the Collector to try the five categories of disputes that may arise between the landlord and the tenant
The disputes which are the subject matter of section 71 must be in regard to the five categories
That is the plain and obvious construction of the words any dispute as regards
On this construction it would be unreasonable to hold that a dispute about the status of the tenant also falls within the purview of the said section
The scheme of section 71 is unambiguous and clear
It refers to the tenant and landlord as such and it contemplates disputes of the specified character arising between them
Therefore in our opinion even on a liberal construction of section 71 it would be difficult to uphold the argument that a dispute as regards the existence of the relationship of landlord and tenant falls to be determined by the Collector under section 71
In this connection it would be relevant to take into consideration the provisions of section 72
This clause provides that the Collector may after making such enquiries as he may deem necessary order the tenant by a notice served in the prescribed manner and specifying the grounds on which the order is made to cease to cultivate the land
It is significant that the making of the enquiry and its mode are left to the discretion of the Collector
If a serious dispute as to the existence of the relationship of landlord and tenant between the parties had been covered by section 71 it is difficult to imagine that the 680 Legislature would have left the decision of such an important issue to the Collector giving him full freedom to make such enquiries as he may deem necessary
As is well known a dispute as to the existence of the relationship of landlord and tenant raises serious questions of fact for decision and if such a serious dispute was intended to be tried by the Collector the Legislature would have provided for an appropriate enquiry in that behalf and would have made the provisions of the Code of Civil Procedure applicable to such an enquiry
Section 72 can be easily explained on the basis that the relationship between the parties is outside section 71 and so the disputes that are covered by section 71 are not of such a nature as would Justify a formal enquiry in that behalf The provisions of sub sections
3 6 and 7 also indicate that the relationship between the parties is not and cannot be disputed before the Collector
The parties arrayed before him are landlord and tenant or vice versa and it is on the basis of such relationship between them that he proceeds to deal with the disputes entrusted to him by section 71
It is true that when the relationship of landlord and tenant is proved or admitted the disputes falling within the five categories enumerated in section 71 will have to be tried by the Collector
Let us take the present case itself to illustrate how section 71 will operate
In the suit filed by the appellant against the respondents the issue about the status of the respondents was framed and so it had to be tried by the civil court
In such a suit if the civil court holds that the relationship between the landlord and the tenant had not been established it may proceed to deal with the suit on the merits
If however it holds that the said relationship is established then the civil court cannot deal with the dispute between the parties if it falls within any one of the categories specified by section 71
In such a case having made the finding about the relationship between the parties the civil court will either dismiss the suit on the ground that it can give no relief to 681 the landlord or may if it is permissible to do so return the plaint for presentation to the Collector
What course should be adopted in such a case it is unnecessary for us to decide in the present appeal
All that we wish to emphasise is that the initial dispute between the parties about the relationship subsisting between them will still continue to be tried by the civil court and is outside the purview of section 71
In support of the argument that a dispute as to the existence of relationship as landlord and tenant should be taken to be included under section 71 reliance is placed on the provisions of section 81 of the Act
Section 81 provides that subject to the provisions of section 7 all disputes arising between landlord and tenant shall be cogniscible by the revenue court and shall not be cogniscible by the civil court
It must be pointed out that we are really not concerned with section 81 in the present appeal because even according to the respondents the present dispute between the parties attracted section 71 and should have been tried by the Collector and not by the civil court
However the question about the construction of section 81 has been incidentally raised before us
In appreciating the scope and effect of section 81 it is necessary to bear in mind the provisions of section 13 of the Act
The said section provides that the Act shall as far as may be read and construed
as forming part of the Madras Estates Land Act 1908 or as the case may be of the Orissa tenancy Act 1913
Therefore reading the provisions of section 81 and section 13 tog other it follows that all that section 8 1 provides is that except for the disputes covered by section 7 1 all disputes arising between landlord and tenant shall be cogniscible by the revenue court and to the trial of such disputes by the revenue court the relevant provisions of the Orissa Tenancy Act 1913 would apply
It is true that disputes to which section 81 applies are entrusted to the exclusive jurisdiction of the revenue courts and are excluded from the jurisdiction of civil courts but the effect of this 682 the other relevant provisions of the parent Act of which this temporary Act forms a part
Now if we turn to some of the relevant provisions of the parent Act it would be clear that when the revenue courts are given jurisdiction to try the disputes the enquiry held by them purports to be a formal enquiry to which the provisions of the Code of Civil Procedure may apply Vide section 192 of the Orissa Tenancy Act 1913
Similarly the provisions of section 2041 which provides for appeals contemplate appeals to the District Court and the High Court where questions of title are involved
These provisions illustrate the point that where serious disputes about title are entrusted to special tribunals usually the Legislature contemplates a formal en quiry and makes the provisions of the Code of Civil Procedure applicable to such an enquiry and provides for appropriate appeals
Now in regard to the order passed by the Collector under section 71 the only provision about appeals is that made by section 11 which provides that an appeal shall lie to the prescribed superior revenue authority whose decision shall be final and shall not be subject to any further appeal or revision
Departure made by the Legislature in providing only one appeal and that too in every case to the prescribed superior revenue authority clearly brings out that the disputes which are entrusted to the Collector under section 71 axe the simple disputes specified in the five categories and do not include a serious dispute like that of the relationship between the parties as landlord and tenant
 If such a dispute had been intended to be tried by the Collector the Legislature would have provided for a formal enquiry and would have prescribed appropriate appeals on the lines of sections 192 and 204 of the parent Act
In this connection we may in passing refer to the provisions of section 126 of the parent Act
This section deals with the jurisdiction of civil courts in matters relating to rent
Section 1263 provides for the institution of suits in civil courts on the 683 grounds specified by cls
a to g
Clause c deals with the ground that the relationship of landlord and tenant does not exist
This clause shows that if a dispute arose between the parties as to the existence of the relationship of landlord and tenant a suit in a civil court a contemplated is prescribed by section 1263 c
That also has some bearing on the construction of section 71 and it is for that limited purpose that we have referred to it
Therefore we are satisfied that the High Court was in error in holding that under a 71 of the Act it was competent to the Collector to try the issue between the appellant and the respondents whether or not the Respondents were the tenants of the appellant and that the civil court had no jurisdiction to entertain the said dispute
In the result the appeal must be allowed the order passed by the High Court set aside and that of the District Court restored with
costs throughout
Appeal allowed


Summary:
The appellant filed in the Civil Court a suit for permanent injunction restraining the respondents from entering the lands in suit on the allegation that the lands belonged to him and were in his cultivatory possession for many years and that the respondents had no right or title to them and had never cultivated them
The respondents contended that they were tenants of portions of the said lands and were in cultivating possession of the same as tenants
The question which arose for decision was whether having regard to the provisions of section 71 of the Orissa Tenants Protection Act 1948 the Civil Court had jurisdiction to entertain the suit which involved a dispute as to the relationship of landlord and tenant between the parties
Held that even on a liberal construction of section 71 of the Act it cannot be held that disputes as regards the existence of the relationship of landlord and tenant fall to be deter mined by the Collector under that section
Disputes which are entrusted to the Collector under section 71 are the simple disputes specified therein in the five categories and do not include a serious dispute as to the relationship between the parties as landlord and tenant
In the present case the suit was therefore within the jurisdiction of the Civil Court
Secretary of State vs Mask  Co 1940 LR 67 IA 222 referred to