SHIVAJI NARAYAN Vs. PEEKA LOKAPPA

JUDGEMENT

(1.) This is a second appeal arising out of a suit filed by the appellant for the Shivaji Narayan vs. Peeka Lokappa (20.06.1951 -BOMHC) Page 2 of 6 ji Narayan vs. Peeka Lokappa (20.06.1951 -BOMHC) Page 2 of 6 recovery of possession of land from the respondent upon the ground that he wanted the land for personal cultivation. The tenant was protected by the present Tenancy Act and that was why the landlord filed a suit giving a reason which would enable him to obtain possession of the property from the tenant after the expiration of the contractual tenancy. The only contention taken up at the trial, which it is necessary to state for the purpose of the present appeal, is whether the Court had jurisdiction to try the suit. The objection was based upon Section 85, Bombay Tenancy and Agricultural Lands Act, 1948. That section says: 'No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be fettled, decided or dealt with by the Mamlatdar or Tribunal a Manager, the Collector or the Bombay Revenue Tribunal in appeal or revision or the Provincial Government in exercise of their powers of control" The words from this section which are relied upon were, "required to be... decided .. by the Mamlatdar." The contention of the respondent was that the Mamlatdar was required by or under the Act to decide the question as to whether the appellant was entitled to order evicting the respondent under the provisions of the Act-

(2.) Sub-section (2) of Section 29, Bombay Tenancy and Agricultural Lands Act, 1948, provides that "'No landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar, For obtaining such order ho shall make an application in the prescribed form." If this application is an application of the nature of a suit stating the reasons for which the landlord claims that he is entitled to evict the tenant notwithstanding the provisions of the Tenancy Act, then the appeal must fail. The reason is that under Section 70 of the Act, there are certain duties planed upon the Mamlatdar. One of the duties is as mentioned in Clause (o) to decide such other matters as may be referred to him by or under this Act. If the application which a landlord is to make to a Mamlatdar under Section 29, Sub-section (2), is an application of the nature of a suit seeking to evict the tenant, then in that case it is the duty of the Mamlatdar under Section 70, Sub-Section (o), to decide that application and give the landlord an order of possession or refuse the application. And in that; case under Section 85 of the Act the jurisdiction of the civil Court to entertain the suit will be barred.

(3.) If, on the other hand, Section 29, Sub-section (2), means that a landlord has, before going to the Mamlatdar, to sue in the civil Court and obtain a decree for possession and then make an application to the Mamlatdar in the prescribed form under Section 29 (2) with a view to obtaining execution of the decree, then in that case the civil Court will have jurisdiction.