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

                                                                                    .~
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-
    sibility of.
c
          Section 9-Civi/ Courts-Bar of jurisdiction.

          Bombay Tenancy Ac4 1939: Sections 2A, 85-A.

           The appellants' predecessor was inducted as an usufructuary
D    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
     of the appellate court. Against the judgment of the High Court an appeal
F ·,.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
    the llrst time In second appeal before the High Court. It was neither raised
G   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
    '
    )_



                           P.M. DADAMKHAN v. P.P. AMDUMIYAN                        579

                  Salman Raje v. Madhavsang Benesang, l!..R. 1963 Guj. 722, dted.        A
                  CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1890 of
          1974.

               From the Judgment and Order dated 6.8.1973 of the Gujarat High
          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:                        c
                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.
          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.
                                                                                         E
                 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
          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
                                                                                   _j'



    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 deemed
  tenants. Once the appellants are deemed tenants, the Revenue Court has
B to decide that issue. The second appeal is a continuation on the suit and
  therefore, the High Court is not right in rejectmg the claims of the
  appellants. It is not necessary to express any opinion O!! the correctness of
  the judgment of the Division Bench of the Gujarat High Court. Suffice it
  to say that the appellants had not specifically pleaded that the appellants
C are deemed tenants by operation of Section 2-A of the Act. What was
  pleaded in the written statement was that initially the appellants' predeces-
  sor was continuing as cultivating tenant. But by virtue of the mortgage, their
  tenancy right merged in the right as usufructuary mortgagee. On redemp-
  tion pre-existing tenancy rights get revived. But that plea was not pursued.
D A new plea based on Section 2-A was sought to be raised for the first time
  in the High Court. The High Court rightly did not permit the appellants
  to raise the plea of a deemed tenancy as the said claim needs investigation
  based on factual foundation which was lacking. Once the right of tenancy
   is not permitted to be raised, the question of construction of Section 85-A
  whether the Civil Court had jurisdiction or not is an academic issue.
E Accordingly, we are not going into that question. The learned counsel for
   the appellants also contended that the appellants are entitled to the im-
   provements. The High Court did not go into that question as the same was
   not canvassed and the decree of the appellate court is quite right. We
   cannot go into that question which is accordingly rejected. The appeal, is
   accordingly dismissed but in the circumstances without costs.

     T.N.A                                                   Appeal dismissed.