JOSHI CHHAGANLAL GARBADDAS DECD Vs. RAISING KHODASING

JUDGEMENT

(1.) In this Second Appeal the main question of law that arises is whether an issue regarding tenancy arises in the present suit and is required to be referred to the tenancy court under the Bombay Tenancy and Agricultural Lands Act.

(2.) The appellant is the original plaintiff who had liked the suit for redemption of the mortgage property being agricultural land. The suit was centested on the ground that there was an absolute sale and not in mortgage. However the plea of the defendants was negatived and it was held that the suit transaction was a mortgage and the preliminary decree for redemption was passed. The First Appeal to the District Court and the Second Appeal to the High Court failed. thereafter proceedings for fInal decree were taken before the trial court. At that stage the respondents-defendants raised a new contention based on sec. 25A of the Bombay Tenancy and Agricultural Lands Act 1948 which gives protection to a tenant who becomes usufructuary mortgagee of the same land and it provides that if any Land is mortgaged by a landlord by way of a usufructuary mortgage to a tenant cultivating such-land the tenancy of such land shall be in abeyance during the period the mortgage subsists and after the expiry of the said period it shall by lawful to the tenant to continue to hold the land on the terms and conditions on which he held it before the mortgage was created. The defendants therefore raised a contention that there were tenants cultivating the suit land prior to the creation of the usufructuary mortgage and therefore on redemption of the usufructuary mortgage the tenancy is revived and no decrees for actual possession can be passed in the redemption suit.

(3.) the learned trial Judge held that -the defendants failed to prima facie prove that they were tenants of the suit land prior to the mortgage transaction and therefore rejected the contention and passed the final decree. In the appeal of the defendants the learned Assistant Judge held that the issue regarding tenancy was required to be referred to the tenancy court. Therefore the final decree of the trial court was reversed by remanding the matter to the trial court with the following two issues the returned to the tenancy Court