JAWAHARLAL GULABCHAND Vs. SURAT DAIRY COMPANY LIMITED

JUDGEMENT

(1.) This civil revision application is directed against the order of the 2nd Joint Civil Judge (S. D.) Surat dated March 11 1960 in Civil Suit No. 649 of 1956 by which he has referred the question whether the defendant No. 1 was the tenant of the suit land under the Tenancy Act to the Mamlatdar Choryasi Taluka for decision under sec. 85 of the Bombay Tenancy and Agricultural Lands Act 1948 Bombay Act No. LXVII of 1948 hereinafter referred to as the Act.

(2.) The facts which give rise to this application are as under: The applicants are the owners of lands S. Nos. 62 61 and 63/2 at Moje Panas in Umra Taluka Choryasi with trees bungalows garage etc. standing on them. A lease was executed on February 1 1943 between the applicants and opponent No. 1 the Surat Dairy Company Ltd. through its managing agents opponent No. 2 of which original defendant No. 3 was the managing partner for a period of 10 years from February 1 1943 to May 30 1953 on an annual rent of Rs. 600.00. When the said lease was about to expire the applicants on May 6 1953 gave a notice to quit to the opponent Nos. 1 to 3 and as possession was not handed over Tenancy Suit No. 256/1953 was filed for getting possession. The said suit was dismissed on May 30 1955 on the ground of invalidity of notice. Appeal No. 83 of 1955 filed by the applicants against the said decision was also dismissed by the Prant Officer on December 8 1955 on the ground that opponent No. 1 being a commercial undertaking proceedings did not lie in the Tenancy Court in view of section 88(1)(b) of the Act. The applicants therefore filed the Civil Suit No. 649 of 1956 in the Court of the evil Judge (J.D.) for possession of the suit lands against opponents Nos. 1 to 3 and Nos. 4 and 5 who had entered into possession after the expiry of the lease. Defendant No 3 in that suit who was a partner of opponent No. 2 had died during the pendency of the suit and the heirs of the said defendant were joined as opponent No. 3. The contention of defendants Nos. 1 2 and 3 was that they were tenants of the suit property under the Tenancy Act and the Court had no jurisdiction to hear the suit. The contention of defendants Nos. 4 and 5 was that defendant No. 4 was a co-operative farming society and that defendant No. 1 had posted the suit lands with the land of defendant No. 4 and the defendant Nos. 4 and 5 were therefore in lawful possession of the same. The contention of the plaintiffs in that suit was that defendant No. 1 was a commercial and industrial undertaking and therefore under sec. 88 the provisions of the Act were not applicable and the said issue was resjudicata in view of the decision of the Prant Officer in Tenancy Appeal No. 83 of 1955. The trial Court has held that the decision of the Prant Officer did not operate as res judicata and it has referred the question whether defendant No. 1 was a tenant under the Act to the Mamlatdar Choryasi Taluka. The applicants have therefore filed this revision application under section 115 of the Civil Procedure Code.

(3.) Two questions which arise for my consideration are: