MOTIBHAI TRICUMBHAI DESAI Vs. CHHAGANBHAI AMTHABHAI DESAI

JUDGEMENT

(1.) . The plaintiff is the owner of agricultural lands bearing Survey Nos. 931, 933, 940, 930, 929, 932/1, 932/2 -3, 934/1 and 934/2. The defendants were the tenants of the plaintiff of those lands. The defendants failed to pay the rent due by them for the years 1948 -49 and 1949 -50. The plaintiff then filed an application before the Mamlatdar for an order in ejectment against the defendants for non -payment of rent for the said two years. The Mamlatdar passed an order directing defendants Nos. 1 and 2 to pay one -third of the crop share valued at Rs. 989 -5 -0 within 15 days failing which it was declared that the tenancy was liable to be terminated. This order was passed on December 5, 1951, and was communicated to the defendants on December 17, 1951. On December 29, 1951, defendants Nos. 1 and 2 preferred an appeal to the District Deputy Collector, Kaira, Nadiad Prant. That appeal was heard and decided on February 2, 1952, and intimation of dismissal of the appeal was given on February 11, 1952. In the meanwhile, on February 6, the Mamlatdar passed an order observing that on December 5, 1951, the defendants were directed to pay Rs. 989 -5 -0 within 15 days of the receipt of the order failing which the tenancy in respect of the said lands will be terminated, and instead of paying up the dues within the specified time, the defendants preferred an appeal to the District Deputy Collector, Kaira, Nadiad Prant, which was dismissed on February 2, 1952, and the dues had not been paid to the plaintiff. The Mamlatdar, therefore, passed an order terminating the tenancy of the defendants in respect of the suit lands and directed that the possession of the suit lands be delivered to the plaintiff. In enforcement of this order, the plaintiff obtained possession of the suit lands on February 7, 1952, from the tenants. Against this order dated February 6, 1952, the defendants preferred an appeal to the District Deputy Collector, contending that payment of the amount directed by the order dated December 5, 1951, was in fact made within the period prescribed by the order and that the defendant could not therefore be evicted from the land. That appeal was allowed on August 2, 1952, by the District Deputy Collector. The District Deputy Collector observed that a stay order was passed on December 29, 1951, directing stay of enforcement of the order of the Mamlatdar pending decision of the appeal. He also observed that the Mamlatdar was wrong in handing over possession to the plaintiff without 'giving 15 days' time' to the defendants for payment. The plaintiff then filed Civil Suit No. 243 of 1952 in the Court of Civil Judge, Junior Division, Nadiad, against the defendants for a declaration that the order passed by the District Deputy Collector in Tenancy Appeal No. 150 of 1952 on August 2, 1952, was ultra vires and without jurisdiction and for a permanent injunction restraining the defendants from taking possession of the suit lands from the plaintiff.

(2.) THE suit was resisted by the defendants, who contended inter alia that the order of the District Deputy Collector was not ultra vires. The contention raised by the defendants was upheld and the plaintiff's suit was dismissed with costs. In appeal to the District Court, the order of the trial Court was confirmed.

(3.) SECTION 74 of the Bombay Tenancy and Agricultural Lands Act provides that: An appeal against the orders of the Mamlatdar and Tribunal may be filed to the Collector in the following cases: (a) ... (b) ... (l) an order under Section 25,