BHIMAJI SHANKAR KULKARNI Vs. DUNDAPPA VITHAPPA UDAPUDI ANOTHER

JUDGEMENT

(1.) On April 19, 1951, the plaintiff-appellant instituted a suit in the Court of the Second Joint Civil Judge, Junior Division at Bagalkot, for possession of the suit properties or redemption of a mortgage and the taking of accounts on the allegation that defendant No. 1 was the usufructuary mortgagee under a mortgage deed dated - June 28, 1945 (Ex. 43). The defendants pleaded that the transaction of June 28, 1945 was an advance lease and not a mortgage, and they were 'protected tenants' within the meaning of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) hereinafter referred to as the Act. On March 4, 1953, the trial Court passed the following decree:

(2.) On behalf of the appellant. Mr. Patwardhan contended that the jurisdiction of a Civil Court depends upon the allegations made in the plaint, the Civil Court has full jurisdiction to try a suit for recovery of possession of agricultural lands on redemption of a mortgage and the Mamlatdar has no jurisdiction to try such a suit, the plea in the written statement that the defendants were protected tenants did not oust the jurisdiction of the Civil Court to try the suit and the Civil Court should have tried and decided the incidental issue whether the defendants were mortgagees or protected tenants, instead of referring the issue to the Mamlatdar. On behalf of the respondents. Mr. Gopalakrishnan disputed these contentions, and contended that the High Court rightly referred the issue for the decision of the Mamlatdar.

(3.) The suit lands are agricultural lands within the meaning of the Bombay Tenancy and Agricultural Lands Act, 1948. The Act was passed with a view to amend the law relating to tenancies of agricultural lands and to make certain other provisions in regard to those lands. 'Land' as defined in S. 2(8) of the Act covers land used for agricultural purposes including the site of dwelling houses occupied by agriculturists for the purposes inter alia of S. 29. Sections 2(10) (A), 4 and 4-A define "permanent tenants", "tenants" and "protected tenants" respectively. Section 29(2) provides that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar, and for obtaining such order, he must make an application in the prescribed form within a certain time. By S. 29 (4), the landlord taking possession of any land or dwelling house except in accordance with the provisions of sub-s. (2), is liable to forfeiture of crops, penalties and costs. Section 70 (b) provides that for the purposes of the Act, one of the duties and functions to be performed by the Mamlatdar is "to decide whether a person is a tenant or a protected tenant or a permanent tenant." Section 85 (1) provides that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by the Act required to be settled decided or dealt with by the Mamlatdar. Section 85A reads: