SURATSING CHANDANMAL Vs. KANAKMAL HIRALAL MUNOT

JUDGEMENT

(1.) THIS is an appeal by the original plaintiff whose suit came to be dismissed by the Court of the Civil Judge, Senior Division, Ahmednagar. The suit was for a declaration of the ownership of the plaintiff of a certain land at Ahmednagar and the plaintiff claimed possession of the land from defendant No. 1, who resisted the suit inter alia on the ground that he was a tenant. There were other defences to the suit with which we are not concerned at this stage. The contention of the plaintiff was that defendant No. 1 was a trespasser and could not claim the benefit of the Bombay Tenancy Act. On the other hand, defendant No. 1 contended that he was not a trespasser but was a tenant and that his name was entered in the Record of Rights as a protected tenant. As there was a dispute between the plaintiff and defendant No. 1 on this point, on January 28, 1954, the learned trial Judge rightly decided to refer the matter to the Tenancy Court, which alone has jurisdiction to decide whether a person is a tenant or not. Accordingly it was ordered that defendant No. 1 should get a finding from the Tenancy Court within a period of two months, viz., April 1, 1954, on that issue.

(2.) THEREAFTER , it would appear that defendant No. 1 tendered in Court a certificate from the Mamlatdar of Ahmednagar, dated February 16, 1954, which is exh. 70 in this case and which is to the following effect: This is to certify that Shri Kanakmal Hiralal Munot of Ahmednagar is a protected tenant and a tenant in actual possession in Survey No. 158 of the village Kedgaon. This certificate was challenged on behalf of the plaintiff on the ground that it did not constitute a decision of the Mamlatdar as contemplated under Section 70 of the Bombay Tenancy Act. The main ground of the attack was that before issuing the certificate no notice was even issued to the plaintiff and the plaintiff was not given any opportunity to show that the defendant was not a protected tenant. On this point, the plaintiff gave evidence and deposed on oath that no notice was issued by the Mamlatdar. On the other hand, though defendant No. 1 was required to submit himself to cross -examination on this point, by plaintiff's application (exh. 67), he avoided the witness -box. It was common ground in the trial Court that the plaintiff had no notice of the proceedings, if any, before the Mamlatdar in connection with the certificate issued in favour of defendant No. 1, and even in this appeal that fact has not been challenged before us on behalf of defendant No. 1. The learned trial Judge, however, negatived the contention of the plaintiff and accepted the certificate as a valid finding of the Mamlatdar observing as follows: From the certificate given it is clear that defendant No. 1 has been entered on the land as a protected tenant. There being this finding already in his favour, it was not necessary to inquire into it anew. Nor are there any such provisions in the Act. In the result, this certificate produced by defendant No. 1 must be deemed to operate as a finding by the Mamlatdar in his favour. On this view of the case that the certificate of the Mamlatdar constituted a valid decision in defendant No. 1's favour, and as the plaintiff's suit was substantially one for possession, the trial Court came to the conclusion that the plaintiff's suit must be dismissed.

(3.) IN order to test this argument, it is necessary to refer to some of the provisions of the Tenancy Act. Under Section 70 of that Act the duties and functions to be performed by the Mamlatdar for the purposes of the Act are enumerated, and under Clause (6) of that section the Mamlatdar has power to decide whether a person is a tenant or a protected tenant or a permanent tenant. Section 71 deals with the commencement of proceedings before the Mamlatdar and states that, save as expressly provided by or under the Act, all inquiries and other proceeding's before the Mamlatdar shall be commenced by an application which shall contain certain particulars mentioned in that section. Section 72, which deals with the procedure which the Mamlatdar has to follow, provides, so far as is material, that in all inquiries and proceedings commenced on the presentation of an application under Section 71, the Mamlatdar shall exercise the same powers as the Mamlatdar's Court under the Mamlatdars' Courts Act, 1906, and shall, save as provided in Section 29, follow the provisions of the said Act, as if the Mamlatdar were a Mamlatdar's Court under the said Act and the application presented was a plaint presented under Section 7 of the said Act. The last part of Section 72 provides as follows:.Every decision of the Mamlatdar or the Tribunal shall be recorded in the form of an order which shall state reasons for such decision. In the case of an order made by the Mamlatdar under Section 4 of the Act, an appeal is provided for under Section 74(1)(a) of the Act and, under Section 85(2) of the Act, no order of the Mamlatdar made under the Act shall be questioned in any Civil or Criminal Court. It is clear, therefore, from these provisions of the Tenancy Act that though the Mamlatdar is constituted the forum of exclusive jurisdiction to decide whether a person is a tenant or a protected tenant or a permanent tenant, he must, in arriving at a decision on this question, follow the procedure laid down in the Act. It is equally clear from Section 72 that, in an enquiry held for this purpose, notice must be issued to the party who may be affected by that inquiry, and the decision of the Mamlatdar has to be recorded in the form of an order which must contain reasons for that decision. Unless that is done, it will be impossible for the appellate authority under Section 74 of the Act to test the correctness or otherwise of the order passed by the Mamlatdar. Judged in the light of these provisions, it is obvious that the so -called certificate issued by the Mamlatdar is no decision under Section 70(b) of the Act, and such a certificate cannot be accepted and acted upon as a valid decision by the civil Court.