LexISHVERLAL THAKORELAL ALMAULA versus MOTIBHAI NAGJIBHAI
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A B c D E F G H 367 ISHVERLAL THAKORELAL ALMAULA v. MOTIBHAI NAGJIBHAI August 10, 1965 (K. N. WANCHOO, J. C. SHAH AND J. R. MUDHOLKAR, JJ.J Bombay Tenancy and Agricultural Lands Act 67 of 1948-Proviso to s. 43C-lntroduced by Bombay Act 13 of 1956-Whether protect$ tenants In suits filed after enactment of BOJmbay Act 33 pf 1952- Ss. 70 and 85-Jurisdlction of Civil Courts-Scope of-ProviSo-If a substantive provision. In June 1939, the appellant granted tenancy of certain lands for agri- cultural purposes, at first to the respondent's father, and later to the resM pondent. The tenancy was continued from year to year under fresh agreements. After serving a notice on the respondent in November 1955 to deliver vacant possession of the lands in March 31, 1956, the appellant filed a suit for ejectment. The trial court decreed the appel- lant's claim, but in appeal the District Judge reversed this decision ~n the ground that under the· proviso to s .. 43C, of the Bombay Tenancy and Agricultural Lands Act 67 of 1948, the respondent was a protected tenant within the meaning of that Act, read with the Bombay Tenancy Act, 1939; and that the civil court had no jurisdiction to grant a decree for possession of the land in dispute. An appeal to the High Court was dismissed. In the appeal to this Court, HELD: (per Shah and Wanchoo, JJ.) (i) The provi>o to s. 43C aiforts protection to the tenant if the tenant bad the protection of the Act of 1948 as originally enacted, notwithstand- ing that the protection was taken away by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952. Protection of the proviso to 1. 43C must be given to the tenant even in cases where it is claimed in a lllit filed before the amending Act of 1956 was enacted, if the suit is not finally disposed of. [376 G-H] Pat•/ Maganbhai Jethabhai v. Somabhai Sursang, (1958) 60 Bom. LR. 1383, approved. The proper function of a proviso is to except or qualify som..thing enacted in the substantive clause, which but for the proviso would be within that clause. But the question is one of interpretation of the proviso; there is no rule that the proviso must always be restricted to the ambit of the main enactment and it may at times amount to a substantive provision, [373 F, G] (ii) The order passed by the District Judge dismissing the suit could not be sustained. Under s. 85A, introduced into Act 67 of 1948 by Act 13 of 1956, even in a suit properly instituted in the civil court, if any issue arises which is required to be decided by the revenue court, such issue shall be referred for trial to that court, and the suit shall be disposed of in the light of that decision. The District Judge should have referred the questi.>ns re- lating to the tenancy and its determination wbich arose in the suit, to be 368 SUPRl!MB COURT ltEPORTS [ 1966] 1 S.C.R. tried by the Mamlatdar u a revenue court and should not have proceeded A to dilposc of the suit. (378 C.D, HJ Pandurang Hari v. Shanker Maruri, 62 Bom. L.R. 873 and Kalicharan Bha/anlal Bhayya v. Roi Malw/axmi and Anr., 4 Guj. L.R. 145, copgidcrcd. (per :-.ludbolk.ar, J. di.Jseming) The benefit of the proviso to s. 43C would be available only to a person who is or claims to be a tenant or protected tenant under the Act. Under s. 70, the question whether or nol a penoo is a protected tenant is to be determined by the Mamlatdar acting B u a revenue court and by virtue of s. 85 ( 1) no civil court has jurisdie- tion to consider such a claim. No sooner such a claim is malie before a civil court, it must stay it• hands and refer the question to the Mamlal- dar, who has exclusive jurisdic:ion to adjudicate on the facts in issue between the parties as well 39 to detennine the effect of the various prnviaions of law bearing on the point. [379 F-380 CJ It is not open to this court to examine for itself the various enactment>, C comt111C tho provisions, and state its conclusions as to their applicability to the present case. The jurisdiction to do any of these things in ao appeal of thil kind ii barred by the combined operation of ss. 70(b) and 85(1). (381 CJ Paika DcuaTlt Bhan.fl• v. Rajeshwar Bala/I A wari, (1958) Bom. LR. 8 (P.B.), re~rred to. C1v1L APPELLA TB JUR!SDICTION : Civil Appeal No. 210 of 1%3. Appeal by special leave from the judgment and order dated April 30, 1959 of the Bombay High Court in second appe.!I No. 439 of 1959. S. T.
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