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

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

The plea of deemed tenancy under Section 2-A was neither pleaded nor argued before the trial or first appellate court and requires investigation of facts; hence, its introduction for the first time in second appeal before the High Court was not permitted. Consequently, the question of Civil Court’s jurisdiction under Section 85-A became academic and need not be examined.

Parties
Appellants: Pathan Murtazakhan Dadamkhan and others; Respondents: J'athan Pirkhan Amdumiyan (Dead) by LRs
Jurisdiction
India
Judgment Date
23 March 1993
Procedural Posture
Civil Appeal / Appeal Under Article 136 From the Judgment of the Gujarat High Court in Second Appeal No.98 of 1973
Outcome
Appeal dismissed
Legal Topics
Redemption of Mortgage, Usufructuary Mortgagee, Deemed Tenancy, Jurisdiction of Civil Court, Improvements to Property
Civil Procedure Tenancy Law Redemption of Mortgage Usufructuary Mortgagee Deemed Tenancy Jurisdiction of Civil Court Improvements to Property

Case Brief

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Parties

Pathan Murtazakhan Dadamkhan and others

Appellants

J'athan Pirkhan Amdumiyan (Dead) by LRs

Respondents

Procedural Posture

Civil Appeal / Appeal Under Article 136 From the Judgment of the Gujarat High Court in Second Appeal No.98 of 1973

Legal Issues

  1. 1 Whether the appellants could raise for the first time in second appeal the plea of being deemed tenants under Section 2-A of the Bombay Tenancy Act, 1939.
  2. 2 Whether Section 85-A of the Bombay Tenancy Act, 1939 ousted the Civil Court's jurisdiction to decide the tenancy rights in pending suits.

Ratio Decidendi

The plea of deemed tenancy under Section 2-A was neither pleaded nor argued before the trial or first appellate court and requires investigation of facts; hence, its introduction for the first time in second appeal before the High Court was not permitted. Consequently, the question of Civil Court’s jurisdiction under Section 85-A became academic and need not be examined.

Court Disposition

Appeal dismissed

Orders

  • Appeal is dismissed without costs.