SHANTABAI RAMCHANDRA GHATGE Vs. PANDURANG RAMCHANDRA MANDLIK

JUDGEMENT

(1.) THE dispute in this appeal relates to four lands Survey No. 1442/2 admeasuring 3 acres 4 gunthas assessed at Rs. 20-7-0, Survey No. 1445/2 admeasuring 1 acre and 1/2 guntha assessed at Rs. 7-4-0, Survey No. 1442/1 admeasuring 3 acres and 4 gunthas at Rs. 20-7-0, and Survey No. 1445/1 admeasuring 1 acre 1/2 guntha assessed at Rs. 7-4-0, situate within the limits of the Municipal Borough of Kolhapur. The heirs of original defendant No. 1 and original defendant No. 2 are the appellants; respondents Nos. 1 and 2 are the original plaintiffs, and respondents Nos. 3 and 4 are the original defendants Nos. 3 and 4. the plaintiffs respondents Nos. 1 and 2 had leased these lands to one Bhiva, the father of defendants Nos. 1 and 2, and one Gundu Jadhav on 12th October 1950 for a period of 10 years under a Kabulayat at an annual rental of Rs. 1000/ -. The period stipulated in the Kabulayat expired on 11th October 1960. The plaintiffs then applied under Section 29 (2) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called "the Act"), being Case No. 2068 of 1957, but the application was dismissed. Thereafter, the plaintiffs started another proceeding being an application under Section 88-C of the Act being Case No. 285 of 1961. This application was decided on 19th February, 1963 and the application was dismissed on the ground that the lands were governed by Section 43-C of the Act, but the Act did not apply as the lands were within the limits of the Municipal Borough. Thereafter, the plaintiffs started a third proceedings being an application under Section 29 (2) read with Section 25 (2) of the Act being Case No. 184 of 1962-63. This application also came to be dismissed by the tenancy authorities on the ground that the lands in dispute were the lands growing natural grass and, therefore, the authority under the Act had no jurisdiction to deliver possession under Section 29 (2) of the Act. It is necessary to notice here that this application was decided ex parte. We do not know under what circumstances the competent authority under the Act was required to proceed ex parte. It is, however, common ground that the decision was ex parte. The effect of this decision was that the application filed by the landlords for possession of the lands treating the opponents in that application as tenants was dismissed. Thereafter, the plaintiffs served the defendants with a notice terminating the tenancy and claimed possession. The defendants having failed to comply with the notice, the plaintiffs filed the present suit, out of which this appeal arises, for possession. The defendants resisted the suit contending that the lands were the agricultural lands, that they were tenants in the lands under the Act and that therefore, a reference should be made to the Tenancy Court for decision as to whether or not they were tenants under the Act. The learned trial Judge, however, found that in the ex parte proceeding under Section 29 (2) of the Act, the tenancy authorities had already decided that the lands were grass lands and that the Tenancy Court had no jurisdiction and, therefore, it was not necessary to make a further reference. The learned Judge, therefore, raised the issues on merits and finding against the defendants, passed a decree for possession. Defendants Nos. 1 and 2 then went in appeal to the District Court in Civil Appeal No. 414 of 1965. The learned District Judge also took the view that the tenancy authorities having held that the lands were grass lands and therefore the Tenancy Court had no jurisdiction, the decision operated as res judicata. He, therefore, found that the Civil Court had jurisdiction and it was not necessary to make a reference. In the result, he confirmed the decree passed by the trial Court and dismissed the appeal with costs. Being aggrieved by this judgment and decree, the heirs of original defendant No. 1 and original defendant No. 2 have approached this Court in second appeal.

(2.) THE main question that is agitated before me in this appeal is whether the issue whether the appellants-defendants are tenants under the Bombay Tenancy and Agricultural Lands Act, 1948 requires to be decided by a competent authority under Section 85-A of the Act.

(3.) THE argument advanced on behalf of the appellants-defendants is that in the case No. 184 of 1962-63 filed by the respondents-landlords under Section 29 (2) read with Section 25 (2) of the Act, there was no finding recorded by the competent authority on the question whether or not the appellants defendants were tenants under the Act, that assuming that such a finding was recorded, the application of the landlords being dismissed and that decision being in favour of the appellants-defendants, they could not have appealed against that finding, and that therefore such a finding would not operate as res judicata. The learned Counsel Mr. Samant, appearing on behalf of the respondents Nos. 1 and 2, has, however, contended that the essence of the decision in the case No. 184 of 1962-63 was that the appellants-defendants were not tenants under the Act, that therefore, it must be taken that he competent authority had recorded a finding on the question whether or not they were tenants under the Act, that the decision regarding the status of the appellants-defendants was a decision under Section 4 of the Act, and that the same being appealable under Section 74 of that Act, it operated as res judicata.