SMT. KAZI NAJMUNISSA BEGUMversusYUSUF KHAN & ORS.

               SMT. KAZI NAJMUNISSA BEGUM
                                                                            A
                            v.
                    YUSUF KHAN & ORS.

                       SEPTEMBER 21, 1989

      [MURARI MOHAN DUTT AND K.N. SAIKIA, JJ:J                              B

      Hyderabad Tenancy and Agricultural Lands Act, 1950: Sections
2(r), (u), (v), 31, 32, 34-37, 87-95-Exc/usive jurisdiction of the
Tenancy Authorities under the Act-Competent Authority to decide
issue on merits.

     The appellant/plaintiff instituted a suit for declaration of title,    0
possession and mesne profits of the suit property. The respondents/
defendants 1 and 2 resisted the suit mainly on the ground that they were
tenants of one Sirajuddin who had allegedly acquired title to the suit
property on the basis of a gift in favour of his wife. The Trial Court
decreed the suit holding that Sirajuddin had no right or title and that     D
the defendants were trespassers. The High Court rejected the defen-
dants' appeal and the special leave therefrom was rejected by this
Court.

     The decree-bolder moved an Execution Petition for possession.
The respondents objected to the execution on the ground that they were      E
tenants and could not, therefore, be dispossessed in execution of the
decree of the Civil Court. The objection was rejected and the High
Court rejected the appeal therefrom.

      Thereafter, when the Execution Petition was set down for pro-
ceeding further, once again the respondents raised the plea of tenancy,     F
and this time the Executing Court raised an issue of tenancy and refer·
red the same to the Tenancy Court for determination. The appellant
appealed to the High Court. The High Court observed that 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   G
open to the judgment debtors 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 Hydera-
bad Tenancy and Agricultural Lands Act, 1950 for declaration of bis
tenancy rights observed that, if that was so, then the Competent            H
                                   217
      218         SUPREME COURT REPORTS                [1989] Supp. 1 S.C.R.

A
      Authority under the Tenancy Act would have to decide the issue on its
      own merits and in accordance with law irrespective of and regardless of
      all observations, if any, touching upon such a claim of tenancy in the
      civil proceedings between the parties. The High Court also observed
      that the question of tenancy was not directly in issue between the parties
      in the civil proceedings and the judgment debtor No. 2 was not debar-
      red from instituting proceedings under the Tenancy Act before the
      Competent Authority. The High court allowed the revision petition, set
      aside the order of the Executing Court referring the issue of tenancy,
      and directed the Executing Court to proceed further with the Execution
      Petition.

(C      Before this Court it was contended that the High Court committed
  a serious error while setting aside the order of the Executing Court
  referring the issue of tenancy to the Tehsildar, at the same time allow-
  ing the proceedings under the Tenancy Act before the Tehsildar pro-
  ceed 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
D in holding that the competent authority should decide the issue of
      tenancy in accordance with law irrespective of and re~ardless of all
      observations made in the suit and the appeal.

            Disposing of the appeal, this Court,

E           HELD: (1) The Tenancy Act had amended the law regulating the
      relations of land-holders and tenants of agricultural land and the alie-
      nation ofsuch land. [221B]

            (2) Thou2h it could he said that when the person who inducted
      the tenants on the land was found to be a trespasser on the date of the
f     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, and the fact that the appellant has already preferred
      an appeal from the order of the competent authority, the Court was
      not inclined to interfere with the order of the High Court appealed
(ii   against. l222D-E]

            Latchaiah v. Subrahmanyam, [1967] 3 SCR 712, referred to.

          (3) It will now be open to the appellant to place the decisions
    rendered in her favour by the Civil Courts before the competent
Iii authority bearing the appeal and to _proceed in accordance with the
    provisions of the Tenancy Act. [222F]
             SMT. K.N. BEGUM v. YUSUF KHAN ISAIKIA, J.]                 219

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4003
of 1989;                                                                       A


     From the Judgment and Order dated 17.12.1986 of the Bombay
High Court in Civil Revision A. No. 270 of 1983.

      R.S. Hegde and N. Ganpathy for the Appellant.                            B

      The Judgment of the Court was delivered by

     K.N. 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        c
Court of Civil Judge (Senior Division), Aurangabad for declaration of
title, possession and mesne profits of the suit property. The respon-
dents 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
acquired title to the suit property by a deed of gift executed by              D
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             I
and rejcted; and it was held that the gift of the ~uit property by             E
Hasmuddin in favour of Waliunnissa was not proved. Their application
for leave to appeal therefrom to the Supreme Court was also rejected.

       The decre~-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               F
execution on the ground that they were tenants and could not, there-
fore, be dispossessed in execution of the decree of the Civil Court. The
Executing Court rejected this objection and directed the Darkhast to
proceed. The defendants' Civil Appeal No. 264 of 1977 therefrom was
also rejected by the High Court. Thereafter when the aforesaid Dark-
hast No. 20 of 1967 was set down for proceeding further, once again            G
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, thatthe ·Executing Court was
not justified in raising an issue of tenancy, as such an issue did not arise
    220         SUPREME COURT REPORTS              [1989] Supp. l S.C.R.

A 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
B
  judgment debtor Nos. l & 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
  referred to as 'the Tenancy Act') for declaration of his tenancy rights
c 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 accordance with law irrespective of and regardless
  of all observations, if any, touching upon such a claim of tenancy in the
  civil proceedings between the parties, viz. Special Suit No. 32 of 1964
D 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 pendig since the year 1967
E it was expected that the competent authority would decide the pro-
  ceedings expeditiously. Accordingly the High Court allowed the revi-
  sion 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 referred issue No. 1 to the Tenancy Tahsildar or Mamlatdar
  under Section 99(a) of the Tenancy Act and the Executing Court was
  directed to proceed further with the Special Darkhast No. 20 of 1967 in
F
  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
G referring the issue of tenancy to the Tahsildar, at the same time allow-
  ing 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 irrespective of and regardless of all
H observations made in the suit and the appeal.
            SMT. K.N. BEGUM v. YUSUF KHAN [SAIKIA, J.]               221

      In course of arguments, the learned counsel for the appellant has      A
stated that the competent authority under the Tenancy Act, during the
pendency of this special leave petition, has already PilSSed 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.                                                                 B

      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 ins. 2(u) of the Tenancy Act, means
the relationship of land-holder and tenant. "Tenant" as defined in s.
2( v) means an asami shikmi who holds land on lease and includes a
person who is deemed to be a tenant under the provisions of the
                                                                             c
Tenancy Act. As defined ins. 2(r) "protected tenant" means a person
who is deemed to be a protected tenant under the provisions of ss. 34
to 37. Under s. 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           D
Tenancy Act deals with procedure of taking possession. Under sub-
section ( 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 possession. Under sub-section (2) thereof, no
land-holder shall obtain possession of any land or dwelling house held       E
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 sub-           F
section ( 1) of section 30, nothing contained in this Act shall be con-
strued 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 ss. 34 to 46 deals with rights of protected tenants.
Chapter IX of the Tenancy Act in ss. 87 to 95 deals with Constitution        G
 of Tribunal; Procedure and Powers of Authorities; Appeals etc. Chap-
 ter 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, decided or dealt
 with by the Tahsildar, Tribunal or Collector or by the Board of             H
    222         SUPREME COURT REPORTS               [19S9J Sapp; 1 S.C.R.

A Revenue or Government. (2) No order of the Tahsildar, Tribunal 01
  Collector or of the Board of Revenue or Government made.under this
  Act, shall be questioned in any Civil or Criminal Court.'' Section 104
  en.joins the Act to prevail over other enactments and says: "This Act
  and any rule, order or notification made or issued thereunder shall
B 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
C on the ground of inconsistency with or abridging of any of the rights
  conferred by Part III of the Constitution and it would b~ so notwith-
  standing 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
ID Latchaiah v. Subrahmanyam, [1967] 3 SCR 712, 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 con-
     tinue to have a right to be on the land against the will of the true
     owner, yet, taking into consideration the exclusive nature of jurisdic-
     tion of the Tenancy authorities under the Tenancy Act, the abvoe
 IE provisions, and the fact that the appellant has already preferred an
     appeal from the order of the competent 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 pro-
     ceed in accordance with the provisions of the Tenancy Act. If ulti-
 J!' mately 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 1s disposed of as above, with no order as to costs.

    R.S.S.                                             Appeal disposed of.