HUSEIN MIYA DOSUMIYA Vs. CHANDUBHAI JETHABHAI

JUDGEMENT

(1.) THE question that arises in this revision application is with regard to the Jurisdiction of the Civil Court to maintain a suit in which an order made by the Mamlatdar under the Bombay Tenancy Act has been challenged as 'ultra vires', and the brief facts which lead up to this revision application may be stated.

(2.) AN application was made by the landlords, who are the opponents, for possession against their tenant who is the petitioner, under Section29 of the Tenancy Act to the Mamlatdar, and a consent order was taken on August 24, 1948, by which the petitioner agreed to hand over possession to the opponents. It is the case of the petitioner that thereafter there was a fresh tenancy agreement between him and the opponents and that was in July 1949, and by reason of this fresh tenancy agreement the petitioner continued to remain on the land and the landlords never took possession of it. It is further the case of the petitioner that in July 1950 he exchanged with the consent of the landlords 3 acres and 11 gunthas of the land demised to him with the same area which had been demised to another tenant. On February 15, 1952, the landlords applied to execute the order of August 24, 1948. On March 13, 1952, the petitioner filed an application before the Mamlatdar setting out the facts to which attention has already been drawn that he was a tenant under a new tenancy agreement and he should not be dispossessed. On March 17, 1952, the Mamlatdar ordered the petitioner to hand over possession to the landlords in execution of the order of August 24, 1948. On March 20, 1952, in execution of the order of August 24, 1948, the landlords took possession from the petitioner. On March 22, 1952, the petitioner applied to the Mamlatdar under Section 29 (1) for possession alleging that he was a tenant of the opponents, and on August 9, 1952, the Mamlatdar made an order in favour of the petitioner and he directed that possession should be given on August 16, 1952. On August 15, 1952, the opponents filed this suit in the Civil Court contending that the order passed by the Mamlatdar on August 9, 1952, was invalid and 'ultra vires' and asking for an injunction against the petitioner preventing him from taking possession of the land from them. A preliminary issue was raised in this suit as to whether the Civil Court had jurisdiction to maintain the suit. The learned Civil Judge has decided this issue in favour of the opponents, and the petitioner has come in revision.

(3.) NOW Mr. Purshottam's contention is that inasmuch as the petitioner's application was under Section 29 (1) and inasmuch as the order of the Mamlatdar was under Section 70 by which he held that the petitioner was a tenant, the order passed by the Mamlatdar is clearly an order for the purposes of the Act and it cannot be challenged in a civil Court under Section 85 which ousts the jurisdiction of the civil Court to settle, decide or deal with, any question which is by or under the Act required to be settled, decided or dealt with by the Mamlatdar or the other authorities set up under the Act. It is further pointed out that under Sub-secction (2) of Section 85 no order of the Mamlatdar or of the other authorities shall be questioned in any civil or criminal Court. It is clear that the jurisdiction of the civil Court has been only ousted in respect of valid orders made by the Mamlatdar. It is only when the Mamlatdar makes an order with Jurisdiction, or, in other words, makes an order for the purposes of the Act or an order required by the Act, that that order cannot be questioned in a civil Court. If the Mamlatdar while passing a valid order deals with any of the matters Under Section 70, then those matters cannot be dealt with by the civil Court. But if the order made by the Mamlatdar is not for the purposes of the Act or not required by the Act and the order is incompetent or 'ultra vires', then the order is a nullity and it can be challenged in a civil Court. Mr. Purshottam does not dispute that proposition, indeed he cannot do so, but his contention is that looking to the plaint in this suit filed by the opponents it is clear that on the face of the plaint the order of the Mamlatdar is with jurisdiction and the mere submission made by the plaintiffs that that order is 'ultra vires' cannot affect the jurisdiction of the Court. We have carefully looked at the plaint, Mr. Purshottam has read out the original to us, and really what the case of the plaintiffs comes to is this that the Mamlatdar having directed that the plaintiffs were entitled to possession under the order of August 24, 1948, it was not competent to the Mamlatdar, even under an application made by the tenant under Section 29 (1), to dispossess trie landlords and to give possession of the land to the tenant. It is on this ground that the order of the Mamlatdar is challenged as invalid and 'ultra vires'.