Bombay High Court
Inacio Mariano Dias And Ors. vs Smt. Palmira Valadares on 20 January, 1995
Equivalent citations: 1996(5)BOMCR416
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
JUDGMENT T.K. Chandrashekhara Das, J.
1. Rule. By consent heard forthwith.
2. The plaintiffs, in a suit for permanent injunction restraining the defendant from trespassing in the suit property or otherwise obstructing the enjoyment of the property are the revision petitioners herein.
3. The petitioners filed an injunction application along with the Suit No. 167/92 and interim injunction restraining the defendant. The petitioners' case is that the suit property originally belonged to the Communidade of Carambolim surveyed under Nos. 280/1 and 288/1. The petitioners claimed that they are in exclusive possession of the property as tenants since 1954-1957. In an auction by the Communidade in 1954-1957 of the suit property which is a cashew garden, one Smt. Maria took the suit property on rent and sub-leased the same to the petitioners No. 1 to 3 and predecessors of the plaintiffs No. 4 and 5. Since the time of the said auction the petitioners claim that they used to pay rent to the Communidade till 1971.
4. In 1971 the suit property was again put to auction and the defendant herein bid the auction to Rs. 3026/- per annum at the instance of one Shri Betsabe Valadares who is the Procurator of the Communidade of Carambolim and her brother-in-law by dubious means. The petitioners however were not allowed to take part in the auction. But notwithstanding the auction by the aforesaid defendant the petitioners continued to be in possession of the suit property as tenants thereof so far because as per the Government Circular dated 24-2-1971 there was a direction from the Government to the Communidade not to disturb the lease of the lessees who were in possession for the last two or three years and further directed to cancel the auction held during 1970 or thereafter. The petitioners also claimed that on the basis of the notice issued by the Communidade the rent for the years 1972, 1973 and 1974 has been paid at the rate of Rs. 802/- per annum at the rate which was being given by them. Therefore inspite of the fact that the defendant had participated in the auction in the year 1971 the auction has not come into effect and the petitioners' possession of the property continued intact.
5. However on 18-8-92 the petitioners received a notice from the Talathi of Carambolim for mutation entry in the survey records on the ground that the defendant had been declared as tenant of the suit property by the Jt. Mamlatdar by his order dated 15-7-92. The petitioners filed an appeal against the judgment and order dated 15-7-1992. That appeal is pending. It is further the case of the petitioners that on 14-10-1992 at about 11.00 a.m. the defendant attempted to interfere with the suit property and started digging of the property surveyed under No. 280/1 and also cut two or three dried cashew trees. Though the petitioners prevented them, they apprehend that the defendant will again obstruct and pluck cashews from the suit property.
6. The respondent resisted the application for injunction claiming tenancy of the suit property. She claims that she was declared as tenant by the Jt. Mamlatdar under section 7 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter called the Act). The respondent also denied the possession of the petitioners. The trial Court dismissed the application for injunction of the petitioners on the ground that the relief sought by them in the injunction application cannot be granted by the Civil Court as the same relief can be granted by the Mamlatdar under section 8-A of the Act in Cr. A. 359/92 dated 19-10-92. Against this order the applicant filed an appeal before the Addl. District Judge, Panaji in Misc. Civil Appeal No. 153/92. The Addl. District Judge also took the same view of the trial Court and dismissed the appeal. The applicant thus came to this Court to challenge the order passed by the lower Appellate Court.
7. The question therefore now called upon to be decided by me is whether the Civil Court is barred from entertaining an injunction suit restraining the defendant who is also claiming tenancy of the property under the same landlord in view of the said section 8-A read with section 58(2) of the Act.
8. Several points have been argued in support of the contention of the Revision petitioners as were argued in the courts below. The respondent also countered these arguments. Various decisions have been cited across the bar supporting the arguments of both sides. The same team of lawyers who appeared for the petitioners in the lower courts have appeared before this Court also. Both sides have meticulously and vehemently argued their case. However the moot question in this case as indicated above is whether a suit for injunction is maintainable at the instance of a tenant against a person who also put rival claim in respect of the property as tenant.
9. Before passing on to the relevant question it is necessary to enumerate certain provisions contained in the Act. The purpose of the Act as postulates from the preamble is to regulate the terms of tenancy in respect of an agricultural land. In other words the Act was brought about to regulate the relationship between the tenant and the landlord in respect of the agricultural land in the State. Section 2 of the Act deals with the definition. Section 2(12) defines 'landlord' which means a person under whom a tenant holds land on lease. Section 2(20) defines 'rent; as meaning any consideration in money or kind or both, paid or payable by a tenant on account of the use or occupation of the land held by him but shall not include the rendering of any personal service or labour. Sub-section (22) of section 2 defines 'tenancy' as meaning the relationship of landlord and tenant and section 2(23) defines 'tenant' as meaning a person who on or after the date of commencement of this Act holds land on lease and cultivates it personally and includes a person who is (or was) deemed to be a tenant under this Act.
10. Chapter II of the Act deals with the security of tenure of a tenant. Some of the sections in this Chapter are relevant for the purpose of the case in hand, namely, section 7, 8, 8-A, 9, 10, 11 and 12. Section 7 deals with "question of tenancy" and reads as under:-
"If any question arises whether any person is (or was) a tenant or should be deemed to be a tenant under this Act the Mamlatdar shall, after holding an inquiry, decide such question."
We have already noticed that the definition of tenancy means the relationship between the tenant and the landlord. Section 8 of the Act reads as follows:-
"Bar to eviction and restoration of possession (1) No tenancy of any land shall be terminated and no person holding land as a tenant shall be liable to be evicted therefrom save as provided under this Act."
This section puts a restriction on eviction of a tenant. The eviction of a tenant, according to this section shall not be made otherwise than in the manner provided under the Act. The manner under which a tenancy can be terminated and the tenant can be dispossessed has been dealt with under section 9. The modes of termination of tenancy either by the tenant or landlord have been detailed in that section. Section 10 deals with surrendering the tenancy right by a tenant and termination of tenancy by landlord on various grounds is dealt with in section 11. Section 12 has made special provisions regarding termination of tenancy for non-payment of rent. Reading all these sections namely sections 9, 10, 11 and 12 would go to indicate that the termination of tenancy or dispossession of the property can be done either by the tenant or by the landlord as provided under the Act. Therefore the relief introduced through section 8 against the eviction and restoration of possession is to be granted by the Mamlatdar certainly against the landlord who dispossesses or threatens to dispossess the tenant through the means otherwise than those mentioned in these sections. In other words, landlord cannot evict the tenant without resorting to the aforesaid sections or if at all he was evicted not in the manner provided under the above sections, the possession should be restored by the Mamlatdar to the tenant under the provisions of the Act. How such restoration of possession or threatened dispossession should be dealt with is enumerated in section 8-A. Considering the tone and tenor of the entire Chapter II and on a close scrutiny of the above section, it can be seen that the relief provided under section 8-A in favour of the tenant can be granted by the Mamlatdar only against the landlord and not against any other person. The reliefs provided under section 8-A are akin to the reliefs under section 38 of the Specific Relief Act. Section 8-A(1) can be invoked by a tenant whose possession is threatened by a landlord by approaching the Mamlatdar for an order safeguarding his right to possession. Pending such application under section 8-A(1) the tenant can move for an order of ad-interim injunction restraining the landlord from dispossessing the tenant or otherwise causing injury until final disposal of the proceedings under section 8-A(1) as provided under Order 39, Rules 1 and 2 Civil Procedure Code. Section 8-A(3) gives power to the Mamlatdar to even issue ad-interim ex-parte injunction against the landlord restraining him from dispossessing the tenant. Section 8-A(4) gives another effective remedy to the tenant who was actually dispossessed by the landlord and to restore the possession of the land to him. Therefore the reliefs provided under the Act in favour of the tenant can be granted only against the landlord by the Mamlatdar and not against any other person other than the landlord, except those persons who step into the shoes of the landlord. Learned Counsel for the respondent vehemently argues that the words occurring in sub-section (2) of section 8-A: "..... direct the landlord or any person claiming through him......" gives strong indication that any person authorised or recognised by the landlord also can be injuncted by the Mamlatdar. I do not think that section 8-A admits of such a construction. "Claiming through him" only means any person claiming the right of the landlord by devolution or assignment, etc., but not an alleged tenant claiming rival tenancy under the landlord as we find in this case. Therefore the argument of the learned Counsel that section 8-A can be invoked by the Mamlatdar against any person other than the landlord cannot be accepted.
11. Normally, as a rule the bar of Civil Court cannot be inferred or enlarged but only a restricted meaning could be attributed. Now let us refer to section 58 of the Act. Section 58(2) says that save as provided in this Act, no Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar, Tribunal, Collector or Government, and no order passed by these authorities under this Act shall be questioned in any Civil or Criminal Court. As per this section what has been excluded from the jurisdiction of the Civil Court is the matter which has to be settled, decided or dealt with by the Mamlatdar under this Act. Matter to be dealt with under section 8-A as I already found is a matter arising between landlord and tenant. Both the courts below have erroneously found that the relief sought in the suit is the relief which can be granted, settled or dealt with by the Mamlatdar. As I pointed out earlier, the reliefs provided under section 8-A can be exercised only against the landlord and not against any other person including those persons who set up rival tenancies. Threatened dispossession of the petitioners by the respondent is not a matter to be settled or decided or dealt with by the Act.
12. As far as possible any exclusion of the jurisdiction of the Civil Court under any statute should be interpreted in a narrow compass. It is held by the Supreme Court in Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh, thus:-
"In dealing with the question whether Civil Courts' jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary Civil courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of Civil courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statue provides for certain remedies may not by itself necessarily exclude the jurisdiction of the Civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute."
In the case of H.H. The Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v. The State of Rajasthan and others, the Supreme Court says in dealing with the Industrial Disputes Act thus:-
"Section 86 of the Act excludes the jurisdiction of the Civil Courts and must be strictly construed."
The same principle has been reiterated by the Supreme Court in the case of Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai and others, . Unless the above principle of interpretation as enunciated by the Supreme Court is not strictly followed, it will lead to an anomalous situation. For example, as in this case if section 8-A is given an interpretation in the line as given by the courts below, jurisdiction of Civil Court is deemed to have been ousted, in all cases where tenant's dispossession is threatened by a stranger other than landlord, asserting that he is the real tenant under the landlord. However such liberal interpretation cannot be given to section 8-A. Therefore courts below committed a grievous error of law in holding that Civil Court has no jurisdiction to entertain the suit. Viewed in this perspective, I hold that the Civil Court has got jurisdiction to entertain the suit and relief can be granted according to law including the interim relief.
13. In the result the Civil Revision Application is allowed. The orders of the courts below are set aside. There shall be an interim injunction restraining the respondent from trespassing or in any way interfering with the possession and enjoyment of the suit property by the applicants till the Injunction Application No. 359/92 dated 19-10-1992 is disposed of. Matter is remanded back to the trial Court to consider afresh the injunction application on merit and pass appropriate order according to law. Rule accordingly made absolute to the extent indicated above.
There shall be no order as to costs.