MOTI JAGTA Vs. INDURAI BHAURAI DESAI

JUDGEMENT

(1.) The question in this application is whether the words "has been" in Section 26, Clause (b), of the Mamlatdars Courts Act include the word "is" or only refer to past proceedings. The dispute between the present parties was whether the petitioner was or was not a permanent tenant of the opponents. The petitioner brought a suit in the civil Court for a declaration that he was a permanent tenant with consequential reliefs. The opponents sued, subsequently and during the pendency of the civil suit, in the Mamlatdar's Court for ejectment. The Mamlatdar held that the petitioner was not a permanent tenant and granted ejectment. The petitioner applies in revision, and it is argued on behalf of the opponents that the words "has been" cannot include a pending suit but only a decided suit.

(2.) This contention is, in our opinion, untenable. In a decided suit, the question as to recovery or disturbance of possession or dispossession would be res judicata, and no express clause such as Section 26(b) would be necessary. It follows that the words "has been" are used to include present proceedings, that is to say, proceedings that are pending, and therefore apply to the proceedings between the parties; and, in fact, Section 5, in any case, gives the Mamlatdar a clear discretion to refuse ejectment. It cannot for a moment be supposed that the Legislature contemplated that proceedings in the final tribunal to decide the question between the parties should be allowed to be disturbed by proceedings before a tribunal whose powers are much more limited, such as the Mamlatdar, which is created to prevent resort to force and not to interfere with the trial and decision by the civil Courts.

(3.) The order of the Mamlatdar was, therefore, without jurisdiction; and the application must be allowed, the rule made absolute and the order set aside, without prejudice to the remedy, if any, of the opponents in the civil suit which is now pending. Patkar, J.