PULMATI SHYAMLAL MISHRA Vs. RAMKRISHAN GANAPRASAD BAJPAI

JUDGEMENT

(1.) Mr. Tipnis, however, contends that Defendant No. 5 is claimed to have been the tenant of the agricultural land survey No. 85-A, and no decree for partition in respect thereof can be passed unless the extent of its partibility is first ascertained, an issue as to his tenancy is framed for that purpose, and finding thereon is called for from the Mamlatdar as required under section 85-A of the Tenancy Act.

(2.) Section 85 of the Tenancy Act expressly ousts the jurisdiction of the Civil Court to try any issue of tenancy or a matter triable by any of the authorities under the Act, and section 85-A requires the Court to remit such an issue, if it arises, for trial to the Mamlatdar, and suspend the trial of the case till the finding thereon is certified by the Mamlatdar. The implementation of the Act being entrusted to the revenue officers, exclusive jurisdiction seems to have been vested in them to decide all questions arising thereunder, to avoid delay and ensure uniformity in standards and approaches. The Court has no choice indeed if an issue of tenancy, in fact, arises in any case. Ordinarily, an issue of tenancy must be held to arise if the interested defendant raises a plea to that effect in the written statement. The truth or falsity of any such plea can be adjudicated only at the end of the trial by the Mamlatdar, and not by the Civil Court, at the stage of pleading or framing of issue, not withstanding loud assertions by the other party to the contrary.

(3.) Rather than raise an issue of tenancy, the trial Judge in this case framed an issue as to its necessity, and finally found that no such issue was called for. We find the trial Judge to be right, though for different reasons. To begin with, Defendant No. 5 himself has not specifically raised the plea of his being the tenant. He has left the defence of the case entirely to his father Defendant No. 1, implying as if he did not have any independent interest-wherein apart from what his father has. Defendant No. 1 has, no doubt, pleaded Defendant No. 5's tenancy in his written statement obviously as part of his over-all defence. Defendant No. 5, along with others, has merely adopted the same, under Purshis filed through the common lawyer, in its entirity without adding anything of his own and without indicating how and when the lease of the land was given to him, and if it is reflected in any village or tenancy records at all. Defendant No 5 never displayed any interest throughout the trial in getting an issue to this effect framed and remitted for trial to the Mamlatdar, though Mr. Tipnis was at pains in emphasising it before us in this appeal at this late stage. Defendant No. 5 has thus chosen to allow his defence to sink or sail with that of Defendant No. 1. That Defendant No. 1 was not disputing his tenancy does not explain this apatal spathy and inaction. Admission of Defendant No. 1 cannot be of any avail to Defendant No. 5, to resist, at any rate. Plaintiff's alternative relief of partition of this land, along with other property between Plaintiff No. 1 and Defendants Nos. 2 to 8 as the heirs of the husband of the deceased Sukharanabai.