KOLI SONA DEVA DECD Vs. SHAH SOMALAL MATHURDAS

JUDGEMENT

(1.) The suit from which is second appeal arises was instituted by the plaintiff-respondent in the Court of the Civil Judge (J. D.) Deobar by Sihori for recovering possession of a land called Vidma Advatvalu bearing S. No. 1186 admeasuring about 15 acres and for other incidental reliefs inter alia alleging that the suit land was mortgaged with him under a mortgage-deed executed by the Jagirdars of Vadadi Pati of village Sihori and that since the said mortgage was with possession he entered into a contract with the father of the appellants on 20th July 1950 by which the latter had agreed to cultivate the mortgaged land on partnership basis. Since the plaintiff was not paid his share from the crop of the year 1953-54 certain proceedings were taken before the revenue authorities. In those proceedings it was found by the Mamlatdar that there was no relationship of landlord and tenant between the parties and that therefore no share from the crop can be given to the plaintiff. It appears that thereafter there arose some disputes about the mutation in the record of rights. The respondents claimed to have the land mutated to their names and that was resisted by the plaintiff. The Aval Karkun decided by an order dated 7-11-57 that the respondents names should be entered as holders of land till the plaintiff establishes his right in a Civil Court. An appeal was preferred against that order and it was during the pendency of the appeal that the plaintiff filed the suit. The appeal was dismissed by the Prant Officer saying that since the suit was filed no useful purpose would be served by deciding the appeal on merits. The averments in the plaint are that the respondents were his partners in cultivation of his land and that under the terms of that contract since they have failed to give his share in the crop he was entitled to restoration of his land from the defendants.

(2.) The appellants who were defendants in the suit resisted the suit on various grounds. One of those grounds with which we are concerned in this appeal was that they were permanent holders of the land and the authority to decide that question is the State Government under sec. 2(4) of the Bombay Merged Territories and Areas (Jagirs Abolition) Act 1953 hereafter to be referred to as the `Act. According to them since the decision of the State Government is final the Civil Court has no jurisdiction to entertain and try the suit.

(3.) Of the various issues raised by the trial Court issue No. 1 relating to the jurisdiction of the Civil Court was decided as a preliminary issue. The learned Civil Judge found that the Civil Court had no jurisdiction to try the suit which involved the question as to whether the defendants were permanent holders in respect of the land in question in view of sec. 2(4) of the Act and that way he dismissed the suit making no order as to costs. Feeling dissatisfied with that order passed on 17th January 1959 by Mr. S. J. Sheth Civil Judge (Junior Division) Deodar the plaintiff preferred Civil Appeal No. 10 of 1959 in the Court of District Judge at Palanpur. The learned District Judge however was of the view that while it is true that the question whether the defendants in the suit were permanent holders or not can be decided by the State Government and that the decision of the State Government would be final in that respect having regard to sec. 2(4) of the Act it cannot be said that the jurisdiction of the Civil Court to entertain the suit was taken away. He therefore set aside the order of dismissal of the suit and remanded the suit back to the trial Court for further trial according to law. That order further says that if the lower Court finds that the question whether the respondents are permanent holders with regard to the disputed land is not decided finally by the competent authorities then it would be open for it to stay further proceedings of the suit and to direct the parties to obtain the proper orders from the competent authorities on that question. After receiving those orders the lower Court shall dispose of the suit finally according to law. Aggrieved by that decision the plaintiff has come in appeal.