KALICHARAN BHAJANLAL BHAYYA Vs. BAI MAHALAXMI

JUDGEMENT

(1.) This is an appeal against the decision of the learned Assistant Judge Baroda who confirmed the decree of the trial Court passed against the appellant and dismissed his appeal with costs.

(2.) On the 26th March 1954 the plaintiff filed suit No. 366 of 1953 in the Court of the learned Joint Civil Judge (Junior Division) Baroda for possession of S. No. 825/1 situate within the Borough Municipal limits of Baroda and for mesne profits. According to the plaintiff the land in suit was leased to the 1st defendant under a rent note dated June 12 1952 at an annual rent of Rs. 40.00. Under that rent note the 1st defendant was bound to hand over possession of the land on May 16 1953 The 1st defendant however failed to deliver up possession of the land to the plaintiff and also failed to pay the rent. According to the plaintiff there was no privity of contract between her and 2nd defendant who according to her was a mere trespasser and was joined as a party to the suit only to prevent any future obstruction by him. The 1st defendant did not appear at the trial and therefore an ex parte decree was passed against him. By his written statement Ex. 8 the 2nd defendant raised a number of pleas viz. that the rent note dated June 12 1952 was collusive and was not binding upon him; that he was in possession of the land not as a tenant of the plaintiff but as a tenant from the original owner one Bai Amathi with whom he had an arrangement that he should cultivate the land during his life time and that he was therefore a permanent tenant of the land. The 2nd defendant also claimed protection under the Bombay Tenancy and Agricultural Lands Act 1948 hereinafter referred to as the Act and challenged the jurisdiction of the Court to try the suit. The learned trial Judge held that the land in question was not governed by the Act and that therefore no question as to the 2nd defendant being a protected tenant nor the question that a Civil Court had no jurisdiction to try the suit arose. He rejected the 2nd defendants plea that the rent note was either collusive or unenforceable or that 2nd defendant was a permanent tenant. In view of these findings he decreed the suit of the plaintiff and directed that possession of the land in suit should be handed over to her. The 2nd defendant thereupon filed Civil Appeal No. 132 of 1955 in the Court of the learned Assistant Judge at Baroda. The learned Assistant Judge held that the Civil Court had jurisdiction to try the suit; that the 2nd defendant was not a tenant or a permanent tenant of the original owner Bai Amathi or of the plaintiff; that the 2nd defendant was in possession of the land as a trespasser and the plaintiff therefore was entitled to possession and mesne profits as ordered by the trial Court. The learned Assistant Judge dismissed the 2nd defendants appeal and directed payment of the costs to the plaintiff. It is against this judgment and decree that the present appeal has been filed.

(3.) Before we proceed to deal with the question raised by Mr. Barot before us it would be convenient to set out a few pertinent dates. The suit was filed on March 26 1954 and was decreed against both the defendants on June 29 1955 An appeal against the judgment and decree passed by the trial Court was filed before the learned Assistant Judge Baroda on August 6 1955 and that appeal was dismissed confirming the decree passed by the trial Court on September 29 1956