SHIRAJUDDIN BADARALI Vs. SOMAJI FULAJI

JUDGEMENT

(1.) Opponents Nos. 1 and 2 to this petition had filed a suit praying for a declaration that a notice dated 26-4-58 issued by the Mamlatdar was illegal and praying for an injunction restraining the Mamlatdar and his agents or servants from disturbing their possession of the suit land. The Joint Civil Judge Senior Division Ahmedabad held that the suit land is a service Inam land useful to Government assigned for the remuneration of the services of a Patel. The learned Judge also held that under sec. 88 of the Bombay Tenancy and Agricultural Lands Act 1948 which will hereinafter be referred to as the Act nothing in the provisions of the Act applies to lands belonging to or held on lease from the government. He also referred to the Explanation to sec. 88 of the Act which reads as follows :-

(2.) But according to the learned Judge this explanation was added by sec. 15 of Act LXIII of 1958 and section 21 of Act LXIII of 1958 provided that the amendment made by sec 15 shall be deemed to have been made and to have come into force on the date on which the Bombay Tenancy and Agricultural Lands (Amendment) Act 1955 came into force. This date is 1-8-56. The learned Judge therefore held that the plaintiffs rights as protected tenants were created long before 1-8-56 and they were not affected by sec. 89 (2) (b) of the Act. He also held that the civil Court has no jurisdiction to decide whether the plaintiffs are tenants or not and that the Court has to make a reference under section 85A of the Act to the Mamlatdar to decide that issue. He therefore made a reference to the Mamlatdar under sec. 85A of the Act to decide whether the plaintiffs are tenants or not of the suit land.

(3.) In revision it is contended that this order is a failure to exercise jurisdiction or a material irregularity in the exercise of jurisdiction. Two preliminary points were raised by the learned counsel for the opponents Nos. 1 and 2. He contends that by sending the issue regarding tenancy to the Mamlatdar the Court had finally decided conclusively one of the questions involved in that suit and therefore the decision which amounts to a decree is appealable.