PANDURANG RAMCHANDRA MANDLIK Vs. SHANTIBAI RAMCHANDRA GHATGE

JUDGEMENT

(1.) This plaintiffs' appeal by special leave is from the judgment of the High Court of Bombay in Second Appeal No. 983 of 1966 setting aside the judgment of the courts below and remanding the case to the trial court for hearing with a direction to refer the issue regarding tenancy to the tenancy authorities.

(2.) The appellants are the owners of land bearing R. S. Nos. 1442 and 1445, situate at kasba Karvir, within the municipal limits of Kolhapur. The said land was leased out to the father of respondent Nos. 1 and 2 and the husband of respondent Nos. 3 and 4 on October 12, 1950 for a period of ten years. The appellants had filed Revision Civil Suit No. 298 of 1964 against the respondents for possession thereof, mesne profits and for damages. It was averred in the plaint that the appellants had earlier initiated proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as 'the Act', and in the said proceedings it was held that the provisions of the Act were not applicable to the land inasmuch as only grass grew thereon naturally. It was further averred that on expiry of the period of lease the appellants terminated the tenancy under the provisions of the Land Revenue Code and filed the aforementioned suit. The respondent Nos. 1and 2 contested the suit contending, inter alia, that the civil court had no jurisdiction inasmuch as the Act was applicable to the land; and that they having not been in wrongful possession thereof, the notice of termination was invalid. The learned trial court tried the issues regarding the applicability of the Act, jurisdiction of the civil court, and estoppel, out of the issues framed, as preliminary issues and by order dated March 16, 1965 fixed the date for hearing of the other issues and on that date the respondent Nos. 1 and 2 being absent, after recording the appellants evidence, by Judgment dated July 17, 1965 decreed the suit in favour of the appellants. The respondents' appeal therefrom having been dismissed by the District Judge, they took Second Appeal No. 983 of 1966 to the High Court of Bombay, and the learned single Judge has set aside the judgment of the trial Court as affirmed by the lower appellate court, and remanded the case back to the trial court with a direction that it should raise the necessary issues on the pleadings of the parties and should make a reference to the competent authority under S. 85A of the Act with respect to those issues which are required to be decided by the competent authority under the Act and on receipt of the findings, dispose of the suit according to law. The appellants' application for leave to appeal under the Letters Patent having been rejected by the High Court, they have obtained special leave to appeal.

(3.) Mr. S. B. Bhasme, the learned counsel for the appellants submits, inter alia, that the appellants' application under S. 29(2) read with S. 25(2) of the Act, being case No. 184 of 1962-63 having been dismissed by the tenancy authorities on the ground that only natural grass grew thereon therefore the authority had no jurisdiction to deliver possession thereof under S. 29(2) of the Act, that finding should act as res judicata, wherefore, remitting of the case by the High Court to the trial court for hearing and deciding after making a reference to the competent authority, under S. 85A of the Act with respect to those issues which are required to be decided by the competent authority under the Act, would be barred; and that in the facts and circumstances of the case the civil court itself has jurisdiction to decide the issues which have been directed to be referred to the civil court.