MUSSAMIYA IMAM HAIDER BAX RAZVI v. RABARI GOVINDHAI RATNABHAI & Ors.

expired on ~lay 31, 1957. That is, there was no subsisting lci1Se on May II. !958 \11hich was the date of cessation of the management by the Court of Wards. rcspon- If there was no subsisting lease on' ~lay 11, 1958 the <lents v.·erc not tenants, and the High Court was right in its viev.· that statutory lhe respondents had failed to establish that they had become ov:ners of the land under s. 32 by virtue of the first proviso to s. 88. [796 R-E] tenancy (3) Section 70lb) of 1hc Act impose_< a duty on the Mamlatdar to decide whe[hcr a person Lr a tenant and not to decide whether a person was or "'as not a tenant in the past. In the present case, the contention of statutory O\lt'ncrship of the respondents v.·as based on the question \\1hether the resnondcnts "·ere tenanrs on July 28~ I 956 or on f\fay 11. 1958 and not whether they were tenants on lulv 11, 1958 the dale of the suit. The question would be therefore whether they were or \\'ere not tenants in the past. Further. the question was pul for1,1,·ard by the respondents not as an independent question hut as a reason for suhstan· tiating their plea of statutory ownership. Therefore. the plea of tenancy on the past two dates was a suh~idiary plc<t and the main pica was of statutorv O\\•ncrship and the jurisdiction of the civil court cannot be held to he barred hv virtue of the provision-; of '>S. 70 and 85, as there is no exclusion, exprc.~sly or hy necessary implication, of the juri!ldiction of the civil court to decide the question whether the rc'<;Pondcnts had ac quired title as stalutorv owners. Nor is the court barred for considering the question whether the provisions of the Act are or arc not applicahle to the suit li1.nd during i1. pi1.rlicular period. [796 H; 797 A-E; G-H] juri<;diction of rhe Scrreta1;v of State v. Mask & Co .. 67 I.A. 222, 236, referred to. . ' C D E "" F ( 4) Jn the \\Titten statement. the only plea set up on behalf of the respondents v.·as the ple;1 of tcnancv on Julv 28. 1956 which \vas the ·rne HiJ?h Court found that the tenancy basis of !-tatutorv owner, hip. was created on August 24, 1956 .and that the tenancy did not subsist on \fay 11, 1958 when there was a ccr; sation of rhe management by the G Court o·f Wards. ·1ncre was no plc;1 of any intervening act or transac- tion hetwecn \lay 11. 1958 and Julv 11. 1958, the date of suit. under \\'hich a fresh tenancy was created and "·hich \\'<~s date of the suit. There was thus no issue \Vhich survived for the dcci- <ion of the \iamlatdar under s. 85A of the Act. Therefore. the High Court should ha\"C dc:reed the ~uit and was in error in referring the issue whether the respondents \Vere tenant<; of the land on the date of suit :o the Mombtdar. [798 A-GJ • Civ11. APPFI.I.ATE Jt:RISDlf"'rtO~: Civil Appeals ~os. 312 subsistin.I.": on H and 313 of 1966. / MUSSAM!YA v. RABARI (Ramaswami, J.) • 787 A Appeals by special leave from the judgment and decree dated February 5, 1963 of the Gujarat High Court in Appeal No. 1009 of 1960 from original decree. B c D E F G H S. T. Desai, G. L. Sanghi, B. R. Agarwala and M. I. Patel, for the appellant (in C.A. No. 312 of 1966) and the respondent (in C.A. No. 313 of 1966). K. L. Hathi, for respondents Nos. 1 to 8 (in C.A. No. 312 of 1966) and the appellants (in C.A. No. 313 of 1966). N. S. Bindra and S. P. Nayar, for respondent No: 9 (in C.A. No. 312 of 1966). The Judgment of the Court was delivered by Ramaswami, J. These appeals are brought, by special leave, from the judgment of the High Court of Gujarat dated February 5 1963 in appeal No. 1009 of 1960 arising out of Civil Suit No. 64 of 1958 filed by Mussamiya Imam Haider Bax Razvi, appellant in Civil Appeal No. 312 of 1966 (h~reina.fter referred to as the plaintiff) against the respondents in Cml Appeal No. 312 of 1966 and the appellants (excepting the Charity Commis sioner) in Civil Appeal No. 313 of 1966 (hereinafter referred to as the defendants) . The lands in dispute are located in the village Isanpur and form part of a 'Devasthan' inam. The 'Sanads' were created in the name of the ancestors of the plaintiff as the Sarjudanashi of the estate of Shah Alam which was an estate consisting of 'Roza', a mosque, a grave-yard and several other properties. The estate was last held by the father of the plaintiff who expired on or about March 9, 1948 leaving behind him the plaintiff who was then a minor as his only heir. On August 26, 1948 the Collec- tor of Ahmedabad was appointed as the guardian of the proper ties of the plaintiff by an order of the District Court, Ahmedabad. Subsequently, on or about January 15, 1953, the then Bombay Government assumed management of the estate under the Court of Wards Act, 1905 (Bombay Act No. 1 of 1905) and appointed the Collector df Ahmedabad as the manager of the same. The case of the plaintiff is that the defendants fraudulently entered into a conspiracy with the Collector's subordinate staff for getting the first possession of the disputed lands. defendant wrote to the District Collector, Ahmedabad on July 25, 1956 representing that certain persons formed or will form a Co-operative Society for carrying on agriculture and therefore required the lands for that purpose. Defendants 1, 2, 3 and 5 also made applications for that purpose alleging that they were Jlabari, kept cattle and were residents of Ahmedabad but none of them had any agricultural land. On account of the fraud of tire defendants the Collector was prevailed upon to make an order In this connection • 788 SUPREME COURT REPORTS (1969) J S.CR. dated July 28, 1956 in breach of the provisions of ss. 63 and 64 of the Bombay Tenancy and Agricultural Lands Act (Bombay Act 67 of 1948), hereinafter referred to as the 'Act', and the Rules made thereunder granting possession of the lands to defendants who were neither carrying on agriculture on co-ope rative basis nor ever formed a Co-operative Society. It was con tended on behalf of the plaintiff that the lease granted to derendants was void and the plaintiff was entitled to a decree for recovery of possession of the lands from the defendants and also for a sum ol Ks. 1 U,000 for damages tor use and occupation of the land prior to the date of the suit and for future mcsne profics at the rate of Rs. 500 per month. The main written statement was filed by the first defendant and his contention was that the Civil Court had no jurisdiccion to hear the suit. le was said that z valid lease had been created in favour of the defendant~ and as a result of the coming into force of the Amending Act (Bom bay Act !\o. 13 of 1956) the defendants had become statutory owners of the lands in question. The suit came up for hearing before the 5th Joint Civil Judge, Senior Division at Ahmedabad who by his judgment dated July 30, 1960, held that the Civil Court had jurisdiction to hear the suit and the provisions of the Act did not apply to the suit lands and therefore the defendants were trespassers. The learned Judge accordingly granted a decree in favour of the plaintiff for recovery of possession of the lands from defendants 1 to 8. He al~o granted the plaintiff a decree for a sum of Rs. 10,000 as damages for use and occupa tion of the lands with interest at 6 per cent p.a. from August 1, 1956 till the date of the suit i.e., July 11. 1958. The learned Judge further ordered that the plaintiff was entitled to recover mcsnc profits to be detennincd under 0.20, r.12, Civil Proce dure Code. Defendants I to 8 took the matter in appeal to the High Court of Gujarat. being First Appeal No. I 009 of 1960. The High Court held : ( 1) that the defendants had failed to establish that they had become statutory owners of the suit lands on or before the date of the suit, (2) that° the plaintiff had failed to establish that the lease created either on July 28, 1956 or on August 24, 1956 was vitiated by fraud, and (3) that the Civil Court had no jurisdiction to deal with the question as to whether the defendants were or were not tenants from the date of the suit and this question could only be decided by the Revenue Authorities. For these reasons the High Court directed under s. 85A of the Act the following issue should be referred to the Mamlatdar having jurisdiction in the matter for his deci sion and that the officer shall communicate his decision, or, if there arc appeals from the decision, the final decision, to High Court as soon as possible. The issue was as follows : "Do the defendants prove that they are tenants of th~ lands in suit?• The High Court further directed that the hearing of the appeal A B c D E F G H • J MUSSAMIYA v. RABARI (Ramaswami, J.) 789 • A should stand adjourned until after the relevant communication was received from the Revenue Authorities. It is necessary at this stage to set out the relevant provisions time. Section 2 ( 18) of the Act as it stood at the material states : "2. In this. Act, unless there is anything repugnant the subject or context,- (18) 'tenant' means a person who holds land on lease and include- (a) a person who is deemed to be a tenant under section 4; (b) a person who is a protected tenant; and ( c) a person who is a permanent tenant; and the word 'landlord' shall be construed accordingly;" Section 32(1) is to the following effect : "32.(1). On the first day of April 1957 (herein after referred to as 'the tillers' day") every tenant shall, subject to the other provisions of this section and provisions of the next succeeding sections be deemed to have purchased from his landlord, free of all encum the land brances subsisting thereon on the said day, held by him as tenant, if (a) such tenant is a permanent tenant thereof and cultivates land personally; (b) such tenant is not a permanent tenant but cultivates the land leased personally; and ( i) the landlord has not given notice of termi nation of his tenancy under section 31; or (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtain ing; possession of the land; or landlord has not specified tenancy on any of the grounds in section 14, or has so tenancy but has not applied to the Mam latdar on or before the 31st day of March 1957 under section 29 for obtainirig posses sion of the lands. terminated terminated (iii) the B D E F ·G H • LI Sup. C.T.-69---4 Provided that if an application made 'by the landlord under section 29 for obtain- ) • 790 SUPREM~. COuRl REl'ORTS [1%9j IS.CR. ing possession of the land bas been rejected by the Marnlatdar or by the Collector in appeal or in revision by the Gujarat Reve nue Tribunal under the provisions of the Act, the tena'nt shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection 'is passed is hereinafter referred to 'the postponed date". Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub-section ( 3) of section 31 shall be deemed to have purchased the land on the 1st day of April 1958, if no separation of his share has been effected before the date mentioned in that proviso." Section 32-F reads as follows : "(I) J\otwithstanding any1hing conlained preceding sections.-- (a) where tlie landlord is a minor, or a widow or a person subject to any mental or physical disability or a serving member of the armed forces the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate tenancy under section 31. Provided that where a person of such cate gory is a member of a joint family, the provi- sions of this sub-section shall not apply if at least one member of the joint family is outside tlie categories mentioned in sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mam- latdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and vaiue of the land in the same proportion as tlie family share of that person in the entire joint property and not in a larger proportion. (b) Where the tenant is a minor or a widow or a person subject to any mental or physical dis- ability or a serving member of the armed force:s, then subject to the provisions of clause 0 A B c D E F G II A B c D E F G MUSSAM!YA v. RABARI (Ramaswami, J.) 791 • (a) , the right to purchase land under section 32 may be exercised- ( i) by the minor within one year from the date on which he attains majority; (ii) by the successor-in-title of the widow with in one year from the date on which her interest in the land ceases to exist; Provided that where a person of such cate gory is a member of a joint family, the provi sions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section un less before the 31st day of March 1958 joint family has share of such person in the been separated by metes and bounds and the Mamlatdar on inquiry share of such person in the land is separated, having regard to the area, assessment, classifi cation and value of the land, in the same pro portion as the share of that person in the entire joint family property, and not in a larger pro portion. . Section 63 ( 1 ) reads thus : is satisfied " . "63. ( 1) Save as provided in this Act,- ( a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is deliyered to the mortgagee, shall be valid in favour of a person who is uot an agri culturist (or who being an agriculturist will, after such sale, gift, exchange, lease or mortgage, hold land ex ceeding two-thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings Act, 1961, or who is not an agricultural labourer): Provided that the Collector or an officer autho rised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or inort gage, on such conditions as may be prescribed . Explanation.-For the purpose of this sub-section the expression 'agriculturist' includes any person who as H • \ • 792 SlJPRE:ME COURT REPORTS (I 969] I S C.R. a result of the acquisition of his land for any public pur- pose has been rendered landless, for a period not ex- ceeding ten years from the date possession of his land is takcu for such acquisition. ,, Section 70 is to the following effect "70. For the purposes of this Act the following shall be the duties and functions to be performed by Mamlatdar- ( a) to decide whether a person is an agriculturist; ( b) to decide whether a person is a tenant or a protected tenant (or a permanent tenant); ( c) to decide such other matters as may be referred to him by or under this Act." Section 85 states : jurisdiction " ( 1 ) '.\io Civil Court shall have 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 or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal appeal or revision or the State Government in exercise of their powers of control. (2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be ques tioned in any Civil or Criminal Court. Explanation.-For the purposes of this section a Civil Court shall include a Mamlatdar's Court consti tuted under the Mamlatdars' Courts Act, 1906." Section 85A provides as follows : "(1 ) If any suit instituted in any Civil Court volves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. (2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of • this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the • ... A B c D E G H - • A B c D E F G H • MUSSAMIYA v. RABARI (Ramaswami, !.) 793 • suit in accordance with the procedure applicable there to. Explanation.-For the purpose of this section a Civil Court shall include a Mamlatdar's Court consti tuted under the Mamlatdars' Courts Act, 1906." Section 8 8 reads "(l) Save as otherwise provided in sub-section (2), nothing in the foregoing provisions of this Act shall apply- ( a) to lands belonging to, or held on lease from, the Government; (c) (d) (b) to any area which the State Government may, from time to time, by notification in the Official Gazette, specify as being reserved for non-agri cultural or industrial development; to an estate or land taken . . . . . . . . . . . . under the management of the Court of Wards or of a Government Officer appointed in his official capacity as a guardian under the Guardians and Wards Act, 1890; to an estate or land taken under management by the State Government under Chapter IV or section 65 except as provided in the said Chapter IV or section 65, as the case may be, and in sections 66, 80A, 82, 83, 84, 85, 86 and 87 : Provided that from the date on which the land is released from management, all the fore going provisions of this Act shall apply there to; but subject to the modification that in the case of a tenancy, not being a permanent tenancy, which on that date subsists land- ( a) the landlord shall be entitled to terminate the tenancy under section 31 or under sec tion 33B in the case of a certificated land lord within one year from such date; and the expiry of the period during which the landlord or certi terminate ficated landlord is entitled to the tenancy as aforesaid, the tenant shall have the right to purchase the land under section 32 (or under section 33C in the case of an excluded tenant); and (b) within one year from " I • 794 Sl'PREME COl!RT REPORTS fl 969] I S.C.R. Rule 36 of the Bombay Tenancy and Agricultural Lands Rules, 1956 is to the following effect : "Conditions on which pem1ission for sale etc. of land under section 63 may be granted- ( I) The Collector or other officer authorized under the proviso to sub-section (I ) of section 63 shall not grant permission for the sale, gift, ex change, lease or mortgage of any land in favour of a person who is not either an agriculturist or an agricultural labourer or who, being an agri culturist, cultivates personally land not less than the ceiling area whether as owner or tenant or partly as owner and partly as tenant unless any of the following conditions are satisfied : - (a) such a person bona fide requires the land for a non-agricultural purpose; or (b) the land is required for the benefit of an industrial or commercial undcrtakini; or an educational or charitable institution; or ( c) such land being mortgaged, the mort gagee has obtained from the Collector a certificate that he intends to take the pro fession of an agriculturist and agrees to cul tivate the land personally: or ( d) the land is required by a Co-operative Society; or " The first question to be considered in this case is whether the High Court was right in taking the view that the plaintiff failed to establish that the lease created on August 24, 1956 It was contended by Mr. S. T. Desai on was vitiated by fraud. behalf of the plaintiff that the trial court had reached the finding that there was a conspiracy between the defendants and the Col lectorate staff and the Collector was induced hy fraud and mis representation to grant lease in favour of the defendant~. It was argued that there was no justification for the High Court interfere with the finding of the trial Judge on this point Mr. S. T. Desai took us through the relevant documentary evidence on this issue hut having perused that evidence, we are satisfied that the High Court was right in holding that the plaintiff had fraud or misrepreseniation not established that there was any made to the Collector or that there was a consniracv between the defendants and the Citv Deoutv Collector or his subordinates. In this connection, the High Court has referred to the circumstance that the offer made by the Collector in his letter, Ex. 51 embodi8S A B c D E F G H .l., MUSSAMIYA v. RABARI (Ramaswami, J.) 795 • A B c D E F G H the conditions which are capable of being explained on ground that the Collector was aware of the fact that there was no Co-operative Society in existence and that the defendants were not members of any C<H>perative Society. The High Court also referred to the application, Ex. 53 which contains an endorse ment of the City Deputy Collector that the defendants were given the lands for cultivation on co-operative basis. The High Court also referred to the circumstance that neither the plaintiff nor his personal guardian had appeared in the witness box to support the allegation of fraud. We are accordingly of the opinion that the High Court was right in expressing the view that the lease in favour of the defendants was not vitiated by fraud and Counsel on behalf of the plaintiff has been unable to make good his submission on this aspect of the case We pass on to consider the next question arising in this case, namely, whether the defendants had become statutory owners of the suit lands because of the provisions of s. 32, s. 32-F or s. 88 (1) of the Act. It is necessary to state at the outset that the Amending Act No. 13 of 1956 came into force on August l, 1956. It is not disputed by the parties that the Act as it stood before the Amending Act 13 of 1956, applied to the suit land. One of the sections which was amended by the Amending Act 13 of 1956 was section 88. One of the effects of the amend ment of s. 88 was that ss. 1 to 87 A were not applicable to "an the Court of estate or land taken under the management of Wards". So, it is not in dispute that after August 1, 1956 the provisions contained in ss. 1 to 87 A of the Act did not apply It is also admitted that after the cessation of to the suit lands. the management by the Court of Wards the provisions of the Act It has been found again became applicable to the suit lands. by the High Court upon examination of the evidence that Court of Wards withdrew its superintendence on May 11, 1958 when the order for the release of the management was actually the plaintiff attained passed and not on May 11, 1957 when It is evident therefore that the Act applied to the suit majority. lands before August I, 1956. that ss. I to 87 A did not apply during the period between August 1, 1956 and May 11, 1958 which was the date on which the management of the estate by the Court of Wards ceased, and that the provisions of the Act again applied to the suit lands after the cessation of such manage ment. On behalf of the defendants the argument was presented that there was a valid lease granted on July 28, 1956 and the defendants were tenants on April 1, 1957 i.e., the date of 'the tillers day' under s. 32 of the Act and accordingly the defen dants became statutory owners of the lands in suit under that sec tion. Mr. Hathi on behalf of the defendants challenged the find iiJg of the High Court that there was no valid lease created on July 28, 1956, but having gone through the relevant documentary ~ / / • 796 SlJl'ROIE COURT REPORTS [1969]; S.C:.R. and oral evidence, we are satisfied that the defendants have not substantiated their case that there was any valid lease of lands on July 28, 1956 and the High Court was right in taking the view that the lease was created only on the execution of the It follows from this finding 'Kabuliyat' dated August 24, 1956. that the defendants were not tenants on the 'tillers' day' men tioned in s. 32 of the Act. The other question which arises in this connection is whether the defendants became statutory owners because of the provisions contained in the first proviso to s. 88 of the amended Act. The High Court has found that the defendants were not subsisting tenants on May 11, 1958 which was the date on which there was a cessation of the management. The reason was that the 'Kabuliyat' dated August 24, 1956 was for a period of one year and having regard to the fact that the Act was not applicable to the plaintiff's estate from August l, 1956 to May II, 1958, the tenancy would expire on May 31, 1957 as provided for in the 'Kabuliyat' itself. The High Court therefore found that on the basis "that the tenancy was created by the 'Kabu!iyat' dated August 24, 1956, the tenancy came to an end on May 31. 1957, so that there was no subsisting tenancy on the date of the cessation of the management. If there was no subsisting lease on May 11, 1958. the .. High Court was right in taking the view that the defendants had foiled to establish that they had become statutory owners of the land by virtue of the first proviso to s. 88 of the new Act. We proceed to consider the next question arising in this ease, namely, whether the Civil Court had jurisdiction to decide the question whether the defendants were tenants of the suit lands on July 28, 1956 or on May 11, 1958 and whether the lease was created in favour of the defendants on July 28, 1956 as claimed by them or on August 24, 1956 as claimed by the plain tiff. Mr. Hathi addressed the argument that the question whether the defendants were tenants with effect from July 28, 1956 or thereafter was an issue which was expressly triable by a Revenue Court under s. 70 of the Act and the jurisdiction of the Civil It was argued that the i"ue of ownership Court was barred. was not the primary issue before the High Court and the main question was whether the defendants were or were not tenants of the suit lands on the material date. namely, July 28, 1956 or on Mav 11. 1958 and such a question lay within In other scope of the jurisdiction of the Revenue Authorities. words it was argued that the detennination of the question wheth~r the lease was created which subsisted after August I, 1956 or which subsisted also on May 11. 1958 was not a matter within the scope of the jurisdiction of the High Court. We are unable to accept the ar1rnment put forward hy Mr. Hathi as correct.· Section 70 (b) of the Act imposes a duty on the Mam;, latdar to decide whether a person ii- a tenant. hut the sub-section A. B c D· E G H - ' MUSSAMIYA V. RABARI (Ramaswami, !.) 797 • A B c D E F G H does not cast a duty upon him to decide whether a person was or was not a tenant in the past-whether recent or remote. The main question in the present case was the claim of the defendants that they had become statutory owners of the disputed lands be cause they were tenants either on the 'tillers' day' or on the date In of the release of the management by the Court of Wards. either case, the question for decision will be not whether the de fendants were tenants on the date of the suit but the question would be whether they were or were not tenants in the past. The question whether the defendants were tenants on July 28, 1956 or on May 11, 1958 was not an independent question but it was put forward by the defendants as a reason for substantiating their plea of statutory ownership. In other words, the plea of tenancy on the two past dates was a subsidiary plea and the main plea was of statutory ownership and the jurisdiction of the Civil Court cannot therefore be held to be barred in this case by virtue of the provisions of s. 70 of the Act read with the provisions of s. 85 of the Act. We are accordingly of the opinion that s. 85 read with s. 70 of the Act does not bar the jurisdiction of the Civil Court examine and decide the question whether the defendants had acquired the title of statutory owners to the disputed lands under In this context, it is necessary to bear in mind tl1e the new Act. important principle of construction which is that if a statute pur ports to exclude the ordinary jurisdiction of a Civil Court 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 Judi cial Committee observed in Secretary of State v. Mask & Co.( 1 ) "It is settled law that the exclusion of the jurisdic tion of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied." In our opinion, there is nothing in the language or context of s. 70 or s. 85 of the Act to suggest that the jurisdiction of the Civil Court is expressly or by necessary implication barred with regard to the question whether the defendants had become statu tory owners of the land and to decide in that connection whether the defendants had been in the past tenants in relation to the land on particular past dates. We are also of the opinion that the jurisdiction of the Civil Court is not barred in considering the question whether the provisions of the Act are applicable or not applicable to the disputed land during a particular period. We accordingly reject the argument of Mr. Hathi on this aspect of the case. 0---- - - - - - - - (!) 67 I.A. 222, 236. 798 SLl'RE~!E cot; RT REPORTS [1969] 1 SC.R It was said The next contention on behalf of the plaintiff is that the High Coun was in error in referrin~ lo the !vlmnlatdar under s. 85A of the Act, the issue whether "the defendants were tenants of the It was pointed out by Mr. S. T. Desai that th<: land in suit". High Court had rejected the contention of the defendants that the tenancy was created on July 28, 1956 but the defendants were tenants only with effect from August 24, 1956. The High Court has funher found that !here was no subsisting tenancy on May 11, 1958 when there was a cessation of the management of the Coun of Wards. The suit was brought by the plaintiff on July 11. 1958 and the argument put forward on behalf of plaintiff is that there was no plea on behalf of the defendants that there was any inlnvening ;ict, event or lransaction between Mav 11, .1958 and July 11, 1958 under which a fresh tenancy was In other words, the argument on behalf of the plaintiff created. was that the only plea set up on behalf of !he defendants was the plea of tenancy on July 28, 1956 which was the basis of plea of statutory ownership. there was no other plea of tenancy set up by the defendants subsequent to May 11, 1958 when the management of the Court of Wards ceased. Jn our opinion, the argument is well-founded and must be ac cepted as correct. On behalf of the defendants Mr. Hathi refer red to paragraphs 4 and 6 of the written statement of the first defendant dated September 18, 1958. but, in our opinion, both these paragraphs must be read together and the pica of tenancy in para 4 is based upon the claim of the defendants : that the; were "lawful tenants of the suit lands and they got this right be fore August 1. 1956". The plea of tenancy is therefore based upon the alleged lease of July 28, 1956 which is rolled up in the plea of substantive claim of statutory mmcrship. On a proper interpretation of the language of paragraphs 4 and 6 of the written statement we are satisfied that there is no independent plea of tenancy set up by the defendants as subsisting on the date of the suit and there was no issue which survived for being referred for the decision of the Mamlatdar under s. 85A of the Act. We arc accordingly of the opinion thai the High Court was in error in rcfcrrin~ anv fresh issue to the Mamlatdar but instead should have granted a decree to the plaintiff for recovery of possession nf the lands and also as to damages and rnesne profits as decreed by the trial court. For the reasons expressed we hold that Civil Appeal No. 312 of 1966 must be allowed and the judgment of the High Court <lated f'ebruarv 5, 1963 should be set aside and the decree o[ the 5th Joint Civil Judge. Senior Division at Ahmcdabad dated Julv 30. 1960 should be rcslored. Civil Appeal No. 313 of 1966 is dismissed. The plainlilf will be entitled to the costs o' A B c D E F G H MUSSAMIYA v. RAllARl (Ramaswami, J.) • A this Court (one set of hearing fees) but we do not propose to make any order with regard to the costs incurred by the parties in the High Court. The application filed by the defendants for leave to produce additional evidence in this Court is rejected. B V.P.S. C.A. 312 of 1966 allowed. C.A. 313 of 1966 dismissed. - • •