Case: Dewaji Vs. Ganpatlal

The respondent, Ganpatlal, was the owner of Field Survey No. 56, measuring 25 acres 4 gunthas, in Yeotmal District. It appears that the respondent used to lease the land to the defendant Dewaji - appellant before us and hereinafter called the appellant- on yearly lease. For the year 1950-5l he gave the land to the appellant on the condition that at the end of the year the lease will stand determined and the appellant will hand over possession. On May 7, 1951, the respondent served a notice on the appellant requiring him to vacate the land in suit. The appellant, however, continued to remain in possession. Thereupon the respondent filed a suit on September 17, 1951, praying for possession, damages and mesne profits. On November 15, 1951, the Berar Regulation of Agricultural Leases Act, 1951 (Madhya Pradesh No. XXIV of 1951) - hereinafter called the 195l Act - came into force , Section 16 of which provides asas otherwise provided in this Act, no Civil Court shall entertain any suit instituted, or application made, to obtain a decision or order on any matter which a Revenue officer is by or under this Act, empowered to determine, decide or dispose of.One of the pleas which the appellant took was that he had been recorded as a protected tenant under the 1951 Act and that the Civil Courts had no jurisdiction to eject him in view of Section 8 of that Act. The Trial Court held that the appellant was not a protected tenant under Section 3 (3) of the 1951 Act and the Civil Court had jurisdiction.4. The appellant then appealed to the District Judge and the Additional District Judge held that the Civil Court had jurisdiction. He observed that"there is nothing in this Section(Section 16 of the 1951 Act) to suggest that the powers of the Civil Court were in any way curtailed in regard to the question whether a particular person was a tenant or not under Section 3 of the Act. Moreover, there is nothing in that Act to show that it was intended to apply to suits which were pending at the date when this Act came into force".By the time the appeal was heard by the Additional District Judge, Section 16 of the 1951 Act had been substituted by Sections 16, 16A and 16B by the Berar Regulation of Agricultural Leases (Amendment) Act 1953 - hereinafter called the 1953 Act.Before the Additional District Judge the appellant relied on these Sections and asserted that the determination of the question whether a person is a tenant or not was, under the 1953 Act, a matter entirely within the jurisdiction of the Revenue Courts and the jurisdiction of the Civil Courts had been ousted. The learned Additional District Judge repelled the argument and held at the 1953 Act did not affect pending proceedings. The learned Additional District Judge hereupon dismissed the appeal.6. The appellant then appealed to the High Court. The appeal first came up for hearing before Vyas, J. By an order dated August 21, 1957, he held that in view of the amendments made by the 1953 Act, "it is not for the Civil Court to decide but for the Revenue Officer to determine whether in the year 1951-52 also the defendant was paying to his landlord every week by way of rent one-third share in the produce of the garden and was his lessee for that year also." He further observed that "if the answer to this question is in the affirmative, the defendant would be entitled to all the benefits of a protected tenancy, as observed by the learned Chief Justice in Paika v. Rajeshwar, 1957 Nag LJ 344= (AIR 1957 Bom 239  ) (FB). In the result he set aside the judgment and decree passed by the learned Additional District Judge andthe record and proceedings in this case be sent to the Revenue Officer that is, the Sub-Divisional Officer, Yeotmal, and the said Revenue Officer is directed to decide whether the defendants averment is right or otherwise, namely, that even after the expiry of the year 1950-51, that is, even after 31st March, 1951, the defendant used t o pay to his landlord, the plaintiff, every week by way of rent one-third share in the produce of the garden. The decision of the Revenue Officer shall be subject to the usual course of appeal and revision, and when the question which is referred to the Revenue Officer by this judgment is finally decided by the highest Revenue Authority, the finding shall be communicated to this Court. Until such time that this Court receives a finding upon the question mentioned above from the highest Revenue Authority, this appeal shall stand stayed. It shall be disposed of by this Court after the finding of the highest Revenue Authority is received by it.The Revenue Courts then remitted the finding. The Commissioner, which was the last Revenue Court gave a finding confirming the one as given by the Sub-Divisional Officer that the appellant was paying rent to the respondent for the year 1951-52.

Reasoning:
9. Having obtained leave, the respondent appealed under the Letters Patent. It was urged before the Letters Patent Bench on behalf of the appellant that the Bench could not deal with the question whether the 1953 Act applied to pending proceedings on the ground that this point had not been argued before the learned Single Judge. The Bench found no substance in this contention as the point had been raised before the learned Single Judges. The Bench further held that there was no bar to the question of application of the 1953 Act being allowed to beis true that the word "whenever" is wide but Section 16A uses the words "suit or proceeding" and these words do not ordinarily indicate appellate proceedings. Further, Section 16B uses the word "entertain" and not the words "entertain or try any suit" as contained in Section 15 (2) of the 1951 Act. If the intention was to affect pending proceedings, the word "try" along with the word "entertain" would have been used in Section 168 of the 1953 Act. It seems to us that the intention was not to apply the 1953 Act to pending appeals.Sections 16, 16A and 16B do not bar the jurisdiction of the Civil Courts in this case, the Letters Patent Bench was right in accepting the findings given by the Trial Court and the District Court in holding that the appellant was not a tenant for the year 1951-52.13. The learned Counsel then contends that it was not open to the Letters Patent Bench to decide this question of the applicability of Sections 16, 16A and 16B because Vyas, J., had decided to the contrary and had not given leave to appeal against his order.It seems to us that the order of Vyas, J., was interlocutory and it was not necessary for the respondent to obtain separate leave to appeal aginst this order. It was open to the Letters Patent Bench to decide all points decided by Vyas, J., in the interlocutory order dated August 21, 1957.The learned Counsel then urged that this was a new point and the Letters Patent Bench should not have allowed it to be taken. But we agree with the Bench that the point had been raised before the learned Single Judges. In view of this it is not necessary to decide whether a new point can be taken up in a Letters Patent appeal or not.