ALIMIYA MIRUMIYA SAIYED Vs. KASAI MOHMEDHUSEN IBRAHIM

JUDGEMENT

(1.) S. No. 36 of Taiyabpura in Kapadwanj Taluka of Kaira District was sold by respondents Nos. 1 to 9 by a registered sale deed to the petitioner on 29th March 1957. In 1967 respondents Nos. 1 to 9 filed against the petitioner Regular Civil Suit No. 45 of 1967 in the Court of the Civil Judge Junior Division at Kapadwanj for a declaration that the sale in respect of S. No. 36 was not binding on them. The petitioner filed his written statement and resisted the suit. One of the contentions which he raised in that suit was that in any case he had been a tenant in respect of the land in question prior to its sale by respondents Nos. 1 to 9 in his favour on 20th March 1957 and that therefore he had become a deemed purchaser of the land in question. One of the issues which the learned Trial Judge raised was whether the petitioner was the tenant in respect of the land in question prior to 20th March 1957 and under sec. 85A of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act for the sake of brevity) he referred that issue to the Mamlatdar Kapadwanj. The Mamlatdar decided the issue on merits by his order dated 28th February 1969 He held that the petitioner was not the tenant in respect of the land in question prior to 20th March 1957. The petitioner appealed against that decision to the Deputy Collector at Anand who did not decide the appeal on merits but dismissed it on the ground that the reference made by the Civil Court to the Mamlatdar was incompetent. He recorded that conclusion because in light of the decision of the Supreme Court in Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai and others A.I.R. 1969 Supreme Court 439 the issue whether the petitioner was a tenant could not be decided by the Mamlatdar under sec. 70th) of the Tenancy Act. The petitioner challenged that decision in a revision application which he filed in the Gujarat Revenue Tribunal. The Revenue Tribunal modified the order made by the Deputy Collector and held that the order made by the Mamlatdar was incompetent and directed the Mamlatdar to return the reference to the Civil Court unanswered

(2.) It is that order of the Revenue Tribunal which is challenged by the petitioner In this petition.

(3.) Mr. Shah who appears for the petitioner has relied upon amended sec. 70(b) and sec. 85A of the Tenancy Act and contended that the Mamlatdar had the jurisdiction to decide the reference which was made to him by the Civil Court. Sec. 70 (b) was amended by Gujarat Act 5 of 1973. It reads as follows:-For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar