Full Judgment Text
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PETITIONER:
PARMAR KANAKSINH BHAGWANSINH (DEAD) BY L.R’S.
Vs.
RESPONDENT:
1. MAKWANA SHANABHAI BHIKHABHAI & 2. MAKWANA PRABATBHAI
DATE OF JUDGMENT08/12/1994
BENCH:
VENKATACHALA N. (J)
BENCH:
VENKATACHALA N. (J)
SAHAI, R.M. (J)
CITATION:
1995 SCC (2) 501 JT 1995 (1) 103
1994 SCALE (5)169
ACT:
HEADNOTE:
JUDGMENT:
VENKATACHALA, J.:
1. This civil appeal by special leave is directed against
the Judgment and Decree dated 29th November, 1977 rendered
by a single Judge of the Gujarat High Court in Second Appeal
No. 348 of 1973, which arose out of Regular Civil Suit No.
921 of 1966 filed in the Court of Joint Civil Judge, Baroda
(Civil Court) by the appellant herein as plaintiff against
respondents 1 and 2 herein - defendants 1 and 2 for
redemption of suit properties which were mortgaged as
security for certain monies borrowed by the plaintiff from
defendant-l under two deeds of mortgage executed in the year
1961
2. Plaintiff filed the suit for redemption of the said
mortgages in the year 1966. Defendant-2, brother of
defendantI had been joined in that suit on the allegation
that the latter was put in possession of mortgage properties
by the former subsequent to the coming into existence of the
mortgages. That suit was resisted by the defendants, each of
them having filed separate written statements which in sub-
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stance did not differ from each other. The defence in those
written statements was that defendant-l and his family
members had become tenants of the suit properties in the
year 1959-1960 and had continued to be such tenants at the
time of mortgage deeds executed in respect of those
properties in the year 1961 and thereafter. It was also
claimed therein that they had become owners of the said
properties when the plaintiff in the year 1962 sold those
properties to defendant-1 by receiving a sum of Rs.4,400/-
as consideration for the sale. Even if the sale of said
properties in favour of defendant-l, it was asserted
therein, was not proved, they continued to be tenants of the
said properties on the date of suit as they were tenants
even before the date of coming into existence of the
mortgages. The issue relating to their claim that they were
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tenants of the said properties - the agricultural lands, as
urged therein, had to be referred by the Civil Court to the
Mamlatdar under section 85-A of the Bombay Tenancy and
Agricultural Lands Act, 1948 - "the BT&AL Act" for recording
his finding thereon and the suit had to be stayed pending
receipt of the finding thereon so that the suit may be
finally disposed of on the basis of such finding. The Civil
Court notwithstanding the defence of the defendants taken
in their written statements that the suit had to be stayed
for obtaining the finding on their claim of tenancy under
the BT&AL Act, framed the issues in the suit on the basis of
the pleadings of the parties and after trial .recorded its
findings thereon. Such findings were firstly, that the
defendants had failed to prove that the suit properties were
sold in favour of defendant-l subsequent to the giving of
security of those properties in his favour under the
mortgage deeds; secondly, that the defendants had failed to
prove the past tenancy of the suit properties on its view
that what was pleaded by them in the written statements was
tenancy prior to the date of filing of the suit; and
thirdly, that the mortgages of the suit properties were
mortgages by ’conditional sale. On the basis of findings so
recorded by the Civil. Court, it also made a preliminary
decree in favour of the plaintiff for redemption of the suit
properties. Though the defendants filed an appeal in the
Court of the District Judge, Baroda against the said
preliminary decree that appeal came to be dismissed on
August 17, 1972 affirming the judgment and decree of the
Civil Court.
3. However, the defendants questioned the judgments and
decrees of the trial court and the appellate court by filing
a second appeal against the same in the High Court of
Gujarat. A learned single Judge of the High Court, who heard
the second appeal, while upheld the concurrent findings of
the courts below that the deeds of mortgage executed by the
plaintiff in respect of the suit properties in favour of
defendant-l were mortgages by conditional sale and the
defendants had failed to prove that there was sale of the
suit properties in their favour subsequent to the coming
into existence of the said mortgages, found that the
defendants had raised in their written statements the plea
that they were tenants not only prior to the date of suit
but also at the time of the filing of the suit and having
regard to that plea the suit ought to have been stayed by
the Civil Court and the issue of tenancy should have been
referred to the Mamlatdar for obtaining a finding from him
thereon both under section 85-A of the BT&AL Act as it stood
before its amendment at the time of filing of the suit
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and as it stood after its amendment after the filing of the
suit. Consequently, the learned single Judge set aside the
judgments and decrees of the trial court and the appellate
court relating to the issue of tenancy raised by the
defendants in the suit and remanded the case to the Civil
Court (trial court) directing it to refer the issue of such
tenancy to the Mamlatdar, Baroda for his determination and
to stay all further proceedings in the suit till he got the
finding from the Mamlatdar on that tenancy issue and
thereafter to proceed to dispose of that suit in the light
of that finding and the other findings recorded by the
appellate court (District Judge). It is the Judgment and
Order of the learned single Judge of the High Court by which
he allowed the Second Appeal and remanded the suit, which is
appealed against in this Civil Appeal of the plaintiff as is
stated at the outset.
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4. No controversy is raised in this appeal as regards
the findings of the Civil Court that the deeds of mortgage
executed by the plaintiff in respect of the suit properties
were mortgages by conditional sale. Specific case pleaded by
the plaintiff in the plaint as regards possession of the
suit properties held by tenants was that their possession
which was with the plaintiff was given to defendant-l on the
execution of the deeds of mortgage by conditional sale in
his favour. In any event, it was not the case of the
plaintiff that defendant-l was a tenant of the suit
properties and hc surrendered his possession of the suit
properties either expressly or impliedly and the possession
so obtained by the plaintiff was re-delivered to defendant-l
in pursuance of the mortgages by conditional sale executed
in his favour.
5. However, the arguments addressed before us on behalf of
the plaintiff- appellant in support of the appeal by learned
Senior Counsel Mr. S.K. Dholakia were these: That
defendant-l - respondent-l although was in possession of the
suit properties - agricultural lands at the time of
execution of the deeds of mortgage by conditional sale in
his favour because of the coming into existence of such
mortgages there occurred merger of lease-hold rights of
defendant-l in suit properties when he obtained those
properties as mortgage security under the said mortgages
and as a consequence he became a mortgagee in possession of
those properties. According 10 him a mortgagee in possession
being a person who cannot be deemed to be a tenant under
section 4 of the BT&AL Act it was not open to the defendants
to claim that they were the tenants of suit properties and
if that be so question of raising issue of tenancy by the
Civil Court in the suit before it did not arise at all nor
was it necessary to refer such issue to the Mamlatdar under
section 85-A of the BT&AL Act and stay the suit till receipt
of the finding on such issue as was directed by the High
Court in its judgment under appeal. In support thereof, he
sought to place reliance on the decisions of this Court in
Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa
Malaga and Others [AIR 1976 SC 1565] and Gambangi
Appalaswamy Naldu and Others v. Behara Venkataramanayya
Patro [AIR 1984- SC 1728]. Even otherwise. it was argued by
him that the Civil Court before whom the plaintiff had filed
the suit for redemption of the suit properties could not
have driven the plaintiff to the forum of Mamlatdar merely
because the defendants had raised the plea that they were
tenants of the suit properties - agricultural lands.
According to him when the plaintiff had not admitted that
the defendants
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were tenants of the suit properties, it was not open to the
defendants to force the plaintiff who had a right to choose
his forum to file a suit to go before another forum on the
plea that jurisdiction lay before another forum, that is,
Mamlatdar. In this regard support was sought from the
decision of this Court in Raizada Topandas and Another v.
M/s. Gorakhram Gokalchand [AIR 1964 SC 1348]. He,
therefore, urged that the High Court was not justified in
upsetting the concurrent finding of the trial court and the
appellate court that the defendants failed to prove their
tenancy and remanding the case to the trial court directing
it to refer the issue of tenancy to the Mamlatdar and stay
the suit till the receipt of the finding in that regard from
the Mamlatdar and then dispose of the suit. Hence, the
Judgment and Order of the High Court, according to him, was
liable to be interfered with and set aside.
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6. However, learned counsel appearing for the defendants
- respondents sought to refute the arguments advanced on
half of the plaintiff- appellant.
7. Questions which arise for our consideration and
decision in the light of the aforesaid arguments of learned
counsel for the contesting parties admit of their
formulations thus:
(1). Does the lease-hold of a tenant (lessee) in a
property merge in mortgage security if the same property is
given by the landlord (lessor) to the tenant (lessee) as a
mortgage security under a mortgage by conditional sale, as
would debar the tenant from desisting the suit of the
landlord - mortgagor for recovery of possession of such
property by obtaining a decree for redemption of the
mortgage ? (2). When a plea of tenancy is raised with regard
to suit property, an agricultural land, by a defendant who
claims to be a tenant of such property under the BT&AL Act
and seeks a reference of that issue by the Civil Court to
the Mamlatdar under that Act for obtaining a finding
thereon, can the Civil Court decide such issue by itself and
proceed to decide the suit on the basis of the finding
thereon ?
As the said questions could be dealt with appropriately
with reference to the statutory provisions which bear upon
them, it would be convenient to advert to such statutory
provisions here.
The Transfer of Property Act, 1882 (TP Act)
"111. A lease of immoveable property
determines -
(a) ....
(b) ....
(c) ....
(d) in case the interests of the lessee
and the lessor in the whole of the property
become vested at the same time in one person
in the same right ..... "
Bombay Tenancy and Agricultural Lands Act,1948
(BT&AL Act)
"2. In this Act, unless there is
anything repugnant in the subject or context,
(18) ’tenant’ means a person who
holds land on lease and include -
(a) a person who is deemed to be
tenant trader section 4;
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(b) a person who is a protected tenant; and
(c) a person who is a permanent tenant;
and the word ’landlord’ shall be construed
accordingly."
"4. A person lawfully cultivating any land
belonging to another person shall be deemed to
be a tenant if such land is not cultivated
personally by the owner and if such person is
not -
(a) a member of the owner’s family, or
(b) a servant on wages payable in cash or
kind but not in crop share or a hired labourer
cultivating the land under the personal
supervision of the owner or any member of the
owner’s family, or
(c) a mortgagee in possession."
"70. For the purposes of this Act the
following shall be the duties and functions to
be performed by the Mamlatdar -
(a) to decide whether a person is an
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agriculturist;
(b) to decide whether a person is a tenant
or a protected tenant (or a permanent tenant);
(c) to decide such other matters as may be
referred to him by or under this
"85. (1). 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 Mamlatdar or Tribunal, a Manager, the
Collector or the Maharashtra Revenue
Tribunal in appeal or revision or the State
Government in exercise of their powers of
control.
(2). No order of the Mamlatdar, the
Tribunal, the Collector or the Maharashtra
Revenue Tribunal or the State Government made
under this Act shall be questioned in any
Civil or Criminal Court.
Section 85A, as it stood before the
amendment of this Act by Gujarat Act No.5 of
1973 w.e.f. 3rd March, 1973:
"85A. (1). If any suit instituted in any
Civil Court involves any issues which are
required to be settled, decided or dealt with
by any authority competent to settle, decide
or deal with such issues under this Act
(hereinafter referred to as the ’competent
authority’) the Civil Court shall stay the
suit and refer such issues to such competent
authority for determination.
(2). On receipt of such reference from
the Civil Court, the competent authority shall
deal with and decide such issues in accordance
with the provisions of this Act and shall
communicate its decision to the Civil Court
and such court shall thereupon dispose of the
suit in accordance with the procedure
applicable thereto .... "
Section 85A, as it came into force after
it was amended by Gujarat Act No.5 of 1973
w.e.f 3rd March, 1973 :-
"85A. (i) If any suit instituted, whether
before or after the specified date, in any
Civil’ Court involves any issues which are
required to be settled, decided or dealt with
by any authority competent to settle, decide
or deal with such issues. under this Act
(hereinafter referred to as the ’competent
authority’) the Civil Court shall stay the
suit and refer such issues to such competent
authority for determination. ’ ’
9. We shall now proceed to deal with
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the aforesaid questions.
Question (1):
10. Interests of the lessee and the lessor in the whole of
the property become vested at the same time in one person in
the same right because of section 11 l(d) of the T.P. Act.
What is enunciated in section 111 (d) of the T.P. Act cannot
be doubted is the doctrine of merger. Merger takes place
when a lesser estate is merged or drowned in a greater
estate. Lease- hold held by a tenant or a lessee being a
lesser estate and the right of reversion of the landlord
(lessor) being a higher estate, the lessee’s lease-hold
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right in respect of the property merges in reversion when
that right of reversion, i.e., the landlord’s (lessor’s)
right of reversion comes to the tenant or lessee which
happens when the landlord having a right to sell his
reversion to the tenant holding the lease-hold sells the
whole of it to the tenant (lessee). But, in view of the
arguments advanced on behalf of the plaintiff- appellant,
what has to be seen is if the landlord of a property, the
lease-hold of which is already with the tenant, gives that
very property as mortgage security to the tenant (lessee) by
executing a mortgage by a conditional sale for the amount
borrowed by him from the latter, does merger of lease-hold
right in that mortgage security occur. When the landlord
mortgages the lease-hold property of the tenant to the
tenant himself, he does not part with the right of reversion
which he has in respect of that property. If that be so,
merger of lease-hold estate in reversion cannot arise,
inasmuch as, there cannot be any inconsistency or
incompatibility in one person being the tenant and also the
mortgagee of the same property, for in that event instead of
the tenant paying rent to the landlord he may adjust it
against the amount claimable by him as a mortgagee from the
landlord. Moreover, if a lessee of a property takes a
mortgage of the sum property from the landlord, it would be
unreasonable to attribute to a tenant the intention to
surrender the tenancy and to invoke the sophisticated
doctrine of implied surrender as has been held by the
Gujarat High Court in Patel Atmaram Nathudas v. Babubhai
Keshavlal, AIR 1975 Guj. 120.
11. In the present case, as has already been pointed out
by us, the plaintiff- appellant did not claim that the
defendants or any of them were in possession of the suit
properties as tenants and there was a surrender by them of
the possession either expressly or impliedly as would make
the Court to come to the conclusion that the possession of
the suit properties with the defendants was surrendered by
them pursuant to the mortgage by conditional sale executed
in their favour. If that be the position, there can be no
bar for the defendants to claim the right to continue in
possession of the suit properties as tenants under the BT&AL
Act even if the plaintiff could obtain a decree for
redemption of the suit properties, which relief was sought
in the suit. The decision of this Court in Shah Mathuradas
case (supra) and G. Appalaswamy case (supra) sought to be
relied upon by learned counsel for the appellant - plaintiff
in support of his arguments that there was a merger of the
leasehold right of the tenant in the suit properties when he
took mortgages of those properties from the landlord as
would deny him the right to continue in possession of those
properties as a tenant, instead of supporting his argument
would go against it, as we shall presently point out. Shah
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Mathuradas case (supra) was that where the respondent had
executed a mortgage in favour of the appellant respecting a
premises of which he was a tenant. It was agreed under the
terms of the mortgage deed that no interest need be paid by
the respondent since the premises, the possession of which
was given to the tenant pursuant to the mortgage was to be
enjoyed in lieu of interest payable on the mortgage. When
suit for redemption of the premises was filed by the
respondent the appellant claimed, that after redemption, he
was entitled to remain in possession of the premises because
of the subsistence of his previous tenancy right. This Court
held that the mortgage deed established beyond doubt that
there was no subsistence or continuation of lease in that
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there was delivery of possession by the tenant to the
landlord immediately before the mortgage and redelivery of
possession to the tenant of the premises made by the
landlord was pursuant to the mortgage as a mortgagee and not
as a tenant. Secondly, this Court held that the appellant
was not entitled to retain after redemption possession of
the mortgage-property by reason of his previous right to be
in its possession as a tenant. In the present case as we
have pointed out earlier, when no surrender of possession of
the suit properties had taken place before the coming into
existence of mortgages in favour of the lessor - mortgagor,
when no redelivery of possession had been given pursuant to
the mortgage to the-tenant, the decision under consideration
can be of no assistance to the appellant. Since the
following observations in the said case confirm the view we
have taken on non-merger, they can be excerpted:
"For a merger to arise, it is necessary
that a lesser estate and a higher estate
should merge in one person at one
and the same time and in the same right, and
no interest in the property should remain
outside. In the case of a lease the estate
that is in the lessor is a reversion. In the
case of a mortgage the estate that is
outstanding is the equity of redemption of the
mortgagor. Therefore, there cannot be a merger
of lease and mortgage in respect of the same
property since neither of them is a higher or
lesser estate than the other."
13. Coming to G. Appalaswamy case (supra) which
considered the question whether a sitting tenant who took
property by a possessory or usufructuary mortgage in his
favour was liable to deliver physical possession upon
redemption to the mortgagor (former lessor). This Court
dealing with the said question said that all depends upon
whether there was an implied surrender of the lessee’s
rights when the usufructuary mortgage was executed in his
favour by the lessor-mortgagor and only if an implied
surrender of lossee’s rights could be inferred then the
mortgagor would be entitled to have delivery of physical
possession upon redemption but not otherwise. Dealing with
the question of non-merger this Court approved the ratio of
the decision in Shah Mathuradas (supra) thus:
"In our view there can be no merger of a
lease and a mortgage, even where the two
transactions are in respect of the same
property. It is well-settled that. for a
merger to arise, it is necessary that lesser
estate and a higher estate should merge in one
person at one and the same time and in the
same right and no interest in the property
should remain outstanding. In the case of a
lease, the estate that is outstanding in the
lessor is the reversion; in the case of a
mortgage, the estate that is outstanding is
the equity of redemption of the mortgagor.
Accordingly, there
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cannot be a merger of a lease and a mortgage
in respect of the same property since neither
of them is a higher or lesser estate than the
other. Even if the rights of the lessee and
the rights of the mortgagee in respect of a
property were to be united in one person the
reversion in regard to the lease and the
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equity of redemption in regard to the
mortgage, would be outstanding in the owner of
the property and accordingly, there would not
be a complete fusion of all the rights of
ownership in one person."
13. Hence, the lease-hold of a tenant (lessee) in a
property does not merge in mortgage security of that
property, even if it is given .to him by the landlord
(lessor) on a mortgage by conditional sale as would debar
the tenant from desisting the suit of the landlord mortgagor
for recovery of possession of such property by obtaining
decree for redemption of the mortgage.
Question (2):
14. The argument which was strenuously advanced on behalf
of the appellant - plaintiff was that in a suit for
redemption filed by the mortgagor in a Civil Court in
respect of property notwithstanding the plea of the
defendants’ claim that they were tenants of that property
under the BT&AL Act and under the provisions of that Act the
issue of tenancy had to be referred by the Civil Court to
the Mamlatdar for recording a finding thereon and the Civil
Court can proceed to dispose 0 the suit only on the basis of
the finding received from the Mamlatdar, the Civil Court
itself can record its finding on the issue of tenancy and if
the finding to be recorded had to go against the claim of
tenancy, it would be permissible for the Civil Court to
grant the decree for redemption sought by the plaintiff in
the said suit. Support was sought for the argument from the
decision of this Court in Topandas case (supra).
15. We find it difficult to accept the said argument and
the aforesaid decision of this Court relied upon in support
thereof can render no assistance. The only question which
arose for decision in Topandas case (supra) was whether on a
proper interpretation of section 28 of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 - "the Rents
Control Act", the Court of Small Causes, Bombay had
exclusive jurisdiction in dealing with the suit out of which
the appeal had arisen. There, the respondent - a partnership
firm was in possession as a tenant of a shop at Mulji Jetha
Market, Bombay. It instituted a suit in the Bombay City
Civil Court (not the Court of Small Causes, Bombay) praying
for a declaration that it was in lawful possession of the
shop and the appellants had no right to enter into or remain
in possession of the shop and for grant of an injunction
restraining the appellants from interfering with the
respondent’s possession. The plaint averments were that
appellant- 1 (defendant- 1) had appointed the respondent as
his commission agent for the sale of the appellants’ cloth
in the shop in question. The agreement was to remain in
force for a period of four years. Pursuant to the said
agreement, the respondent had allowed the appellants, their
family members, servants and agents to visit the shop only
for the purpose of looking after the business of commission
agency. The appellants, despite being asked not to visit the
shop after the expiry of the period in the concerned
agreement, they continued to visit the shop and were
preventing the respondent from having access to its various
articles such as stock-in-trade,
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books of account, furniture, fixtures etc. Thus according to
the plaint, the appellants who .were merely licensees, had
no right to enter into the shop after the expiry of the
period of licence envisaged in the agreement. The defence of
the appellants (defendants) in substance was that the
agreement on which reliance was placed by the respondents in
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their suit was a sham agreement and that the appellants in
reality were the tenants of the shop and the relationship
between the respondents and appellants was that of the
landlord and tenant. The further plea taken in the written
statement by the appellants was that as the question
involved in the suit related to the possession of premises
as between a landlord and his tenant, the Court of Small
Causes, Bombay, alone had jurisdiction to try the suit. The
appeal in this Court had arisen out of the finding recorded
on that issue and in dealing with that matter this Court
had. to consider the true effect of sub-section (1) of
section 28 of the Rents Control Act to find whether it means
that a defendant if raises a claim or question as to the
existence of relationship of landlord and tenant between
him and plaintiff the jurisdiction of the Civil Court is
ousted even though the plaintiff pleaded that there is only
exclusive jurisdiction to decide the case with the Court of
Small Causes, Bombay. Dealing with the matter this Court
referred. to the general principle which covers the question
of jurisdiction at the inception of suits which was not
disputed, thus:
"The plaintiff chooses his forum and files
his suit. If he establishes the correctness
of his facts he will get his relief from the
forum chosen. If ... he frames his suit in a
manner not warranted by the facts, and goes
for his relief to a court which cannot grant
him relief on the true facts, he will have his
suit dismissed. Then there will be no question
of returning the plaint for presentation to
the proper court, for the plaint, as framed,
would not justify the other kind of court to
grant him the relief ..... If it is found,
on a trial on the merits so far as this issue
of jurisdiction goes, that the facts alleged
by the plaintiff are not true and the facts
alleged by the defendants are true, and that
the case is not cognizable by the. court,
there will be two kinds of orders to be
passed. If the jurisdiction is only one
relating to territorial limits or pecuniary
limits, the plaint will be ordered to be
returned for presentation to the proper court.
If, on the other hand, it is found that having
regard to the nature of the suit it is not
cognizable by the class of court to which the
court belongs, the plaintiff’s suit will have
to be dismissed in its entirety."
16. By referring to the material portion of section 28 of
the Rents Control Act the argument made on behalf of the
appellants was found by this Court to be untenable by
stating thus:
"... We do not think that the section says
or intends to say that the plea of the
defendant will determine or change the forum.
It proceeds on the basis that exclusive
jurisdiction is conferred on certain courts to
decide all questions or claims under the Act
as to parties, between whom there is or was a
relationship of landlord and tenant. It does
not invest those courts with exclusive power
to try questions of title such as questions as
between the rightful owner and a trespasser or
a licensee, for such questions do not arise
under the Act. If, therefore, the plaintiff in
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his plaint does not admit a relation which
would attract any of the provisions of the Act
on which the exclusive jurisdiction given
under S.28 depends, we do not think that the
defendant by his plea can force the plaintiff
to go to a forum where on his
113
averments he cannot go. The interpretation
canvassed for by the appellants will give rise
to anomalous results; for example, the
defendant may in every case force the
plaintiff to go to the Court of Small Causes
and secondly, if the Court of Small Causes
finds against the defendant’s plea, the plaint
may have to be returned for presentation to
the proper court for a second time .....
when one has regard to the provisions in Part
II it seems reasonably clear that the
exclusive jurisdiction conferred by S.28 is
really dependent on an existing or previous
relationship of landlord and tenant and on
claims arising under the Act as between such
parties."
18. As seen from the above observations this Court has
held that it did not think that the section concerned says
or intends to say that the plea of the defendant will
determine or change the forum. But, if the provisions of the
BT&AL Act which bear on the question of matters to be
decided by the Mamlatdar are seen, they give no room for one
even to think that those matters could be decided by a Civil
Court when a question is raised in that behalf even by a
defendant in a suit.
19. Section 70 of the BT&AL Act to which we have adverted
already imposes a duty on the Mamlatdar to decide whether a
person is an agriculturist or a tenant or a protected tenant
or a permanent tenant when such person claims to be so under
that Act. Further, section 85 of the BT&AL Act to which also
we have already adverted, in unequivocal terms says that in
deciding any issue which is required to be decided by the
Mamlatdar under the BT&AL Act no Civil Court has
jurisdiction to decide it. Furthermore, section 85A, as it
stood prior to its amendment by Gujarat Amendment Act No.5
in the year 1973 and as stands thereafter, requires that if
any suit instituted in Civil Court involves the question of
tenancy of ’present’ or ’past’, as the case may be, the same
being required to be decided or dealt with by an authority
competent under the BT&AL Act, the Civil Court has to stay
the suit and refer the issue to such competent authority for
determination and after receiving the decision thereon to
dispose of the suit in accordance with such decision. Thus,
the provisions in the BT&AL Act give no scope or room to
think that the plea of tenancy if raised by the defendants
in a suit in a Civil Court, the same could be decided by the
Civil Court. Thus we are constrained to answer the question
in the negative by agreeing with the view expressed by the
single Judge of the High Court in this regard in his
Judgment and Order under appeal.
20. Consequently, the Judgment and Order under appeal
does not call for our interference.
21. In the result, we dismiss this appeal with costs.
113