LAWS(BOM)-1952-12-2

DHONDI TUKARAM Vs. DADOO PIRAJI

Decided On December 08, 1952
DHONDI TUKARAM Appellant
V/S
DADOO PIRAJI Respondents

JUDGEMENT

(1.) IT is true that an inference as to permanent tenancy is a mixed question of law and fact and could foe raised in second appeal. But the facts found from which the inference in favour of a party claiming to be a permanent tenant is sought to be raised must be regarded as binding in second appeal, though the question as to what inference should be raised from those facts must be regarded as a question of law. In the present case on the facts found it is impossible to raise a presumption under Section 83 of the Land Revenue Code in favour of defendants 1 and 2. Admittedly there is no Miras Patra in favour of defendants 1 and 2, and the question that defendants 1 and 2 were mirasdars was not argued before the learned appellate Judge. Even though the question as to the jurisdiction of the civil Courts to entertain and decide a suit relating to tenancy and protected tenancy was not argued in the lower appellate Court, Mr. Shukhtankar on behalf of defendants 1 and 2 has contended before me that once defendants 1 and 2 raised a contention that they were tenants and not liable to be evicted, the civil Court had no jurisdiction to decide the suit. The learned trial Judge held on the evidence that defendants 1 and 2 were trespassers in the year 1944, and not tenants as contended by them. He also held that defendants 1 and 2 not being tenants cannot be held to be protected tenants as defined under the Act, and the question of notice to them did not arise, and the Court's jurisdiction was not barred. As I stated earlier, the learned appellate Judge was not invited to consider the question as to the jurisdiction of the civil Courts to entertain and decide the case once defendants 1 and 2 raised a question as to tenancy or protected tenancy.

(2.) BUT the question being one as to the jurisdiction of the Court to proceed to a hearing of a suit, even though not canvassed in the lower appellate Court must be decided by this Court. Mr. Shukhtankar relies upon Section 70, Bombay Tenancy and Agricultural Lands Act, 1948, which provides 'inter alia';

(3.) I have an impression that numerous cases have come before this Court, some of which have been decided by Division Bench of this Court, in which contentions have been raised by the defendants that they were tenants or protected tenants, and the Court decided that the defendants were mere trespassers and therefore not entitled to the status of protected tenants, and therefore the Court was entitled to pass decrees in ejectment on the footing that they were trespassers : see the judgment of Weston and Dixist JJ. in -- 'ramchan-dra Atmaram v. Ramchandra Laxman', S. A. No. 335 of 1943, D/- 14-10-1949 (Bom) (A), and judgments in -- 'laxmibal Govind Ambekar v. Maina', S. A. No. 1201 of 1950, D/- 15-7-1952 (Bom) (B) and -- 'ibrahim Vajirsaheb v. Noormahomed', S. A. Nos. 874 and 875 of 1950, D/- 25-10-1950 (Bom) (C) and -- 'jethalal Babar Bhatt v. Chhota Ran-chhodas Baria', S. A. No. 684 of 1952, D/- 18-11-1952 (Bom) (D ). If the contention advanced by Mr. Sukhtankar is correct, all those cases must be deemed not to be correctly decided. It is true that the contention was not raised in those cases in the form in which Mr. Sukhtankar is seeking to raise a contention before me in this case. Mr. Sukhtankar has after this judgment was commenced to be delivered sought to rely upon a decision of my Lord the Chief Justice in--'trimbak Sopana v. Gangaram', AIR 1953 Bom 241 (E), in which an identical contention was sought to be raised, and it is claimed that it was decided that once a contention is raised by the defendant, in a civil suit filed" against him on the footing that he is a trespasser, that he as a tenant as defined by the Bombay Tenancy and Agricultural Lands Act, the civil Courts lost jurisdiction to try the suit.