BAI HAJRABIBI Vs. SHAIKH HAMED HUSEIN

JUDGEMENT

(1.) This Revision Application is directed against an order passed by the Civil Judge Junior Division Olpad rejecting an application of the plaintiff for deleting issues Nos. 3 5 and 6 and not referring them to the Mamlatdar for his decision under the provisions of the Bombay Tenacy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act ). The suit in which this order was made was filed by the plaintiff against the defendant for recovery of possession of certain lands situate within the jurisdiction of the Court of the Civil Judge Junior Division Olpad. The plaintiff alleged that the defendant was a tenant of the plaintiff in respect of the suit lands and that since the defendant had denied the title of the plaintiff in respect of the suit lands the plaintiff was entitled to recover possession of the suit lands from the defendant. The defendant in his written statement denied that the plaintiff was the sole and exclusive owner of the suit lands and contended that the suit lands belonged to the plaintiff and the defendants wife and that the plaintiff was therefore not entitled to recover possession of the suit lands from the defendant. The defendant also contended that the suit lands were agricultural lands to which the provisions of the Tenancy Act applied and that being a tenant in respect of the suit lands from the plaintiff and the defendants wife the defendant must be deemed to have become the owner of the suit lands from 1 April 1957 under the provisions of the Tenancy Act. The plaintiff of course denied that the suit lands were governed by the Tenancy Act and contended that the suit lands being grass lands the provisions of the Tenancy Act did not apply to the suit lands. On these pleadings between the parties various issues were raised by the learned trial Judge of which issues Nos. 3 5 and 6 were as follows:

(2.) Mr. I. C. Bhatt learned advocate appearing on behalf of the plaintiff contended in regard to Issues Nos. 3 and 6 that it was not necessary to decide these two issues since even if the suit lands were agricultural lands and the Tenancy Act therefore applied to them the defendant having denied the plaintiffs title the tenancy of the defendant had come to an end and the plaintiff was therefore entitled to recover possession of the suit lands from the defendant and such claim for recovery of possession was within the jurisdiction of the Civil Court. These two issues should therefore argued Mr. I. C. Bhatt be deleted and should not be referred to the Mamlatdar for his decision. This contention of Mr. I. C. Bhatt was based on the premise that even in cases governed by the Tenancy Act the landlord can terminate the tenanCy of the tenant on the ground of foreiture by disclaimer of landlords title by the tenant and that the Civil Court has jurisdiction to entertain a claim for recovery of possession on such ground. Mr. I. C. Bhatt sought to support this contention by relying on two unreported decisions of the High Court of Bombay which it must be conceded lend considerable support to this contention. I shall presently examine these decisions but speaking for myself I must humbly confess that if the Tenancy Act applies to the suit lands I do not see how having regard to the provisions of sec. 29 of the Tenancy Act any claim for recovery of possession of the suit lands can be maintained by the plaintiff against the defendant in the Civil Court whatever be the ground for termination of tenancy-whether it be denial of the plaintiffs title or any other ground. Of course if these decisions bind me I would have to take the view in favour of the contention of Mr. I. C. Bhatt but for reasons which follow I find that I am free to consider myself not bound by these decisions.

(3.) The first decision relied on by Mr. I. C. Bhatt was a decision of a Division Bench of the High Court of Bombay consisting of Shah & Vyas JJ. in Special Civil Application No. 2178 of 1955. In that case certain applications were filed by the landlord against the tenants before the Mamlatdar for recovering possession of lands in the possession of the tenants on the ground that the tenants had denied the landlords title. The tenants set up title in themselves and contended that the landlord was not the owner of the lands and there was no relationship of landlord and tenant between them. Some of the applications were heard by the Mamlatdar at Broach while the other applications were heard by the Mamlatdar at Ankleshwar. The Mamlatdar at Broach held that the tenancy Court had jurisdiction to hear the applications; but a contrary view was taken by the Mamlatdar at Ankleshwar. Appeals were thereupon preferred to the Deputy Collector Broach Division The Deputy Collector held that the question of ownership of the lands was in issue between the parties and to be decided before the effect of the denial of title upon the alleged tenancy could be considered. The Deputy Collector expressed an opinion that it was not within the competence of the Tenancy Court to go into complicated question of ownership of land and such questions had to be left to be decided by the Civil Court. Against the orders passed by the Deputy Collector Revision Applications were filed before the Revenue Tribunal The Revenue Tribunal agreed with the view of the Deputy Collecctor and observed that without deciding the question of ownership of the lands it could not be said that the landlord was the owner and that the tenants had denied his title and that the question of ownership of the lands should therefore be decided by the Civil Court. The landlord applied to the High Court under Article 227 of the Constitution against the orders passed by the Revenue Tribunal. The applications were heard by a Division Bench consisting of Shah and Vyas JJ. and by a judgment delivered on 16th July 1956 Shah J. as he then was held that the view taken by the Deputy Collector and the Revenue Tribunal was correct and that the proper procedure to be followed in cases of such a nature wherein claims made by persons alleging that they are landlords for recovery of possession against persons alleged to be tenants substantial issues of title to land have to be decided would be to stay the proceedings before the Mamlatdar and to send an issue to the Civil Court and after the issue is decided by the Civil Court to proceed to hear and dispose of the proceeding before the Mamlatdar. The learned Judge also held after considering the provisions of secs. 3 and 14 of the Tenancy Act and sec. 111 of the Transfer of Property Act that even in cases where the tenancy Act applied the landlord would be entitled to recover possession of land from the tenant on the ground of denial of the landlords title as provided in sec. 111(g) of the Transfer of Property Act and that sec. 14 of the Tenancy Act would not stand in the way of termination of the tenancy on such ground. The learned Judge accordingly directed that the proceedings before the Mamlatdar should be stayed and that the Mamlatdar should raise an issue as regards the title to the lands and send the papers to the nearest competent Civil Court for adjudication of that issue and after the adjudication was received from the Civil Court the Mamlatdar should proceed to hear and decide the issues as to tenancy or protected tenancy. Mr. I. C. Bhatt strongly relied on this decision and contended that two propositions were laid down in this decision namely (1) that the denial by the tenant of the landlords title even in cases where the Tenancy Act applied afforded a ground for termination of the tenancy; and (2) that in cases where the tenant disputed the title of the landlord and the question of title was put in issue the Mamlatdar cannot decide the question of title but should refer that question for the determination of a Civil Court. Mr. I. C Bhatt agreed that this decision did not lay down the proposition that in a case where a landlord made a claim for recovery of possession against a tenant on the ground that the tenancy of the tenant had come to an end by reason of his denial of the landlords title such a claim could even where the Tenancy Act applied be taken cognizance of by the Civil Court. This position Mr. I. C. Bhatt had to concede because it was clear that even though the claim made by the landlord against the tenants in the case before Shah and Vyas JJ. was for recovery of possession on the ground of denial by the tenants of the landlords title and applications for recovery of possession were made before the Mamlatdar all that the learned Judges directed was that the proceedings before the Mamlatdar should be stayed until question of title was determined by the Civil Court and that the Mamlatdar should proceed further after the adjudication on the question of title was received from the Civil Court. This direction clearly postulated that the Mamlatdar had jurisdiction to entertain the applications and if the Mamlatdar had jurisdiction to entertain the applications it was obvious that the Civil Court had no such jurisdiction. This decision therefore did not go all the way the argument of Mr. I. C. Bhatt wished it to go though it went a part of the way.