PATHAN MURTAZAKHAN DADAMKHAN AND ORS. versus JATHAN PIRKHAN AMDUMIYAN (DEAD) BY LRS.

Citation: [1993] 2 S.C.R. 578 · Decided: 23-03-1993 · Supreme Court of India · Bench: K. RAMASWAMY, R.M. SAHAI · Disposal: Dismissed
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Judgment (excerpt)

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A 
PATHAN MURTAZAKHAN DADAMKHAN AND ORS. 
v. 
J'ATHAN PIRKHAN AMDUMIYAN (DEAD) BY LRS. 
MARCH 23, 1993 
B 
[K. RAMASWAMY AND R.M. SAHA!, JJ.) 
Code of Civil Procedure, 1908: 
Section JOO-Second appeal-Raising of fresh plea during-f'ermis-
c sibility of. 
Section 9-Civi/ Courts-Bar of jurisdiction. 
Bombay Tenancy Ac4 1939: Sections 2A, 85-A. 
D 
The appellants' predecessor was inducted as an usufructuary 
mortgagee of certain fields. On th.e expiry of redemption period the respoo-
dents filed a suit for redemption which was decreed subject to payment of 
damages for improvements. On appeal, the District Court confirmed the 
redemption decree but set aside the decree for damages. Io second appeal, 
(be appellants raised a new plea: that they were deemed tenants by opera-
E lion of Section 2-A of the Bombay Tenancy Act, 1939. It was also contended 
y 
,,o their behalf that Section 85-A of the Act ousted the jurisdiction of the 
Civil Court to decide the dispute of tenancy rights In pending suit. 
Rejecting both the contentions the High Court confirmed the decree -
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of the appellate court. Against the judgment of the High Court an appeal 
·,.was filed In this Court. 
Dismissing the appeal, this Court, 
..,... 
HELD: 1. The plea based on Section 2·A was sought to be raised for 
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the llrst time In second appeal before the High Court. It was neither raised 
In the pleadings nor argued either before the triiil Court or the appellate 
courf. Therefore, the High Court rightly did not permit the appellants to 
raise tbe plea of a deemed tenancy as the said claim needs Investigation 
...,.... 
based on factnal foundation which was lacking. Consequently, the question 
whether under Section 85-A the Civil Court had jurisdiction or not need 
H not be gone into. (580 D·E, S79 Fl 
578 
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P.M. DADAMKHAN v. P.P. AMDUMIYAN 
579 
Salman Raje v. Madhavsang Benesang, l!..R. 1963 Guj. 722, dted. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1890 of 
1974. 
From the Judgment and Order dated 6.8.1973 of the Gujarat High 
A 
Court in Second Appeal No.98 of 1973. 
B 
M.V. Goswami for the Appellants. 
S.K. Dholakia and P. Narasimhan for the Respondents. 
The following Order of the Court was delivered: 
This appeal under Article 136 is against the judgment of the High 
Court of Gujarat in Second Appeal No.98 of 1973 dated Ailgust 6, 1973. 
c 
The appellants' predecessor was inducted in Field Nos.439 and 676 as .an 
usufructuary mortgagee in the year 1945. On expiry of .the period of 
redemption prescribed therein, that is, 25 years, the suit/for redemption D 
was filed in 1970 by the respondents. The trial court decreed the suit 
subject to payment of damages for improvements. On appeal, the District 
Court confirmed the decree for redemption but set aside the decree for 
damages. In second appeal, the High Court confirmed the decree of the 
appellate court. Thus this appeal. 
In the High Court, the appellants sought two contentions, namely, by 
operation of Section 2-A which was brought by way of amendment of 
Section 48 to the Bombay Tenancy Act, 1939, the mortgagee became a 
deemed tenant. It was not permitted to argue as is not a pure question of 
E 
law but is a mixed question of law and fact which need investigation of F 
facts. It was neither raised in the pleadings nor argued either before the 
trial court or the appellate court. Therefore, the question raised in the 
second appeal for the first time was disallowed The second question 
namely, the jurisdiction of the civil court to declare the tenancy rights by 
operation of the Amendment Act sm which brought Section 85-A on 
statute with retrospective effect. It ousted the jurisdiction of the civil court G 
to decide the dispute of tenancy rights in pending suit. This contention too 
was negatived as when the Amendment Act came into force, the second 
appeal was pending and therefore the High Court held that the civil court 
was not ousted to exercise the jurisdiction and to refer the matter to the 
Revenue Court for jurisdiction fot adjudication whether the appellants H 
580 
SUPREME COURT REPORTS 
(1993) 2 s.c 'l. 
A were or were not deemed tenants. The same contention was reiterated 
before us. Placing reliance on a Division Bench judgment of the Gujarat 
High Court in Salman Raje v. Madhavsang $enesang, reported in ILR 1963 
Guj.722, Shri M.V. Goswami, the learned counsel for the appellants con-
tended that by operation of Section 2-A, the appellants are deeme
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