SOMABHAI KANJIBHAI BARIA Vs. PATEL PARSHOTTAMDAS JAMNADAS D

JUDGEMENT

(1.) Respondent Patel Parshottamdas has died. The appellants have filed an application to bring the legal representatives on record. Ghanshamdasbhai Parshottamdas Patel, son of the deceased Patel Parshottamdas Jamnadas has also made an application independently on the basis of will said to have been executed by his father. Without going into the inter se rights of the legal representatives of Patel Parshottamdas Jamnadas, we bring Ghanshamdasbhai Parshottamdas Patel on record to represent his estate for the purpose of the disposal of these appeals. The inter se rights, if any, would be decided in an appropriate proceedings.

(2.) The three appeals are being disposed of by a common order. The appellants initially were tenants of respondent. The lands are watan lands. Though the appellants remained in possession from the year 1939, since the lands being watan lands, they are not directly governed by the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "the Tenancy Act") as extended to the State of Gujarat. The Gujarat Patel Watans Abolition Act, 1961, abolished the watans with effect from 1-4-1963. Subsequently, re-grant was made in favour of the respondent on 23-3-1966. In the meanwhile, the respondent terminated the tenancy of the appellants with effect from 31-3-1961 and filed present civil suit for possession on 14-8-1962.

(3.) The appellants contended that Civil Court has no jurisdiction to decide the question whether the appellants are tenants under the respondent and that they are not liable to ejectment on the basis of termination of tenancy. The Civil Court relying upon Sec. 88 of the Tenancy Act, held as preliminary issue, that the appellants are tenants and that, therefore, until the question of termination of tenancy has been duly determined by the Mamlatdar, the Civil Court has no jurisdiction. Accordingly, the Civil Court dismissed the suit. On revision, the learned single Judge of the High Court, by judgment dated 15-4-1977, held that for application of Sec. 88 of the Tenancy Act, read with Sec. 9 of Watan Act, 1961, two conditions must be satisfied, namely, the lease should have been lawfully made and such a lease must be subsisting on the appointed date, namely, 1-4-1963. Though there was a lease, since it was determined as effective from 31-3-1961, there was no subsisting lease. Therefore, the Civil Court was wrong in its conclusion that the tenancy Court has jurisdiction to determine the rights of the tenancy between the parties and accordingly reversed the decree and remitted the matter for trial according to law. Thus, these appeals by special leave.