1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4899 OF 1993 Mrs.Jeroo Porus Karai ...Petitioner vs. 1 Khadi & Village Industries Commission 2 Bharatiya Tad Gud Shipla Bhavan ...Respondents Mr.K.Y.Mandlik for the petitioner Mr.A.H.Gokhale i/b M/S.Siganporia And Dalvi for the respondents CORAM :A.S.OKA,J. DATE : MARCH 17, 2010 JUDGMENT : 1 The petitioner is the original plaintiff no.1 and the respondents are the defendants. A suit for possession was filed by the petitioner in the Court of Civil Judge Junior Division, Dahanu. The case made out in the plaint is that the uncle of the petitioner was the owner of the landed property consisting agricultural survey no.11/2, 12/5/2, 16/1/1 and 168/6A admeasuring 1 acre and 22 gunthas at Village Agar (Dahanu) and buildings bearing Village Panchayat Nos. 323,324 and 325 standing on a land bearing non-agricultural survey nos. 163/6 abutting Dahanu-Agar Main Road. According to the case of the petitioner, her uncle executed a lease dated 1 st April 1959 in favour of the first respondent in respect of the premises consisting of the dwelling house and building as well as the aforesaid agricultural lands . It is stated that a fresh agreement was entered into between the petitioner and the first respondent on 1 st April 1969. It is contended that under the terms of the lease, the first respondent had agreed to pay electricity charges in respect of the dwelling house nos.323,324 and 325. It is alleged that the first respondent carried out 2 unauthorised and illegal construction as well as alterations in the demised premises. Various details of the alleged construction have been pleaded in the plaint. In paragraph 7 of the plaint it is specifically asserted that the provisions of Bombay Rents, Hotel and Lodging House Rates Control) Act, 1947 (hereinafter referred to as the said Act) are not made applicable to village Agar and therefore, the suit property is not governed by the provisions of the said Act of 1947. Notice to quit was issued to the first respondent and thereafter, a suit for possession was filed. 2 The suit was contested by the respondents by filing the written statement. Apart from other contentions, the respondents came out with a case that the provisions of said Act of 1947 were not applicable to the village in which the suit property was situated. Additional written statement was filed by the respondents contending that the suit has been filed against the first respondent in the incorrect name. 3 The trial Court framed as many as 11 issues. The first six issues were on merits of the contentions raised in the suit and the 7 th issue was the applicability of the provisions of the said Act of 1947 to the suit property. The 9 th issue was whether the Court had jurisdiction to try the suit in respect of the agricultural lands forming a part of the suit property. The suit was dismissed by the Judgment and Decree dated 20 th March 1989. Though evidence was adduced by the parties on all the issues, the trial Court decided only the issue no.7. The learned trial Judge held that the respondents were entitled to protection of the said Act of 1947. The trial Court proceeded to dismiss the suit on the ground that the suit was not filed under the 3 provisions of the said Act of 1947. Though in paragraph 4 of the Judgment, the trial Court observed that the issue no.9 regarding jurisdiction of the Court to entertain the suit in respect of the agricultural land does not survive, in paragraph 6 of the Judgment an observation has been made by the learned trial Judge that his Court has no jurisdiction to try the suit in respect of the agricultural lands. 4 An appeal was preferred by the petitioner. Only one point for determination was framed which reads thus : 1 Whether the findings of the trial Court on all issues are essential ? 5 By the impugned Judgment and Decree dated 21 st July 1993, the appeal was partly allowed. The learned Additional District Judge after setting aside the decree of the trial Court directed the trial Court to frame an issue, if required, in respect of the tenancy rights between the parties. The learned trial Judge was directed to refer the said issue to the Tenancy Court for recording a finding on the said issue of tenancy. The Appellate court directed the Trial court to decide the rest of the issues. The learned District Judge permitted the parties to adduce additional evidence. 6 The submission of the learned counsel for the petitioner is that the Appellate Court has not decided the main issue which was answered by the trial Court regarding applicability of the provisions of the said Act of 1947 to the suit property. He submitted that the parties had adduced evidence on all issues and therefore, it was necessary for the Appellate Court to deal with all the issues arising in the suit. He invited my attention 4 to the ground taken by the petitioner in the Memorandum of Appeal before the District Court. He invited my attention to the various grounds and in particular ground 14. The learned counsel for the respondent supported the impugned Judgment and decree. He submitted that in the plaint, possession has been claimed by the petitioner in respect of the agricultural lands and therefore, in view of the provisions of the said Act of 1947, the Appellate Court was justified in passing the order of remand. He pointed out that the issue has been already framed in form of Issue no.9 as regards the jurisdiction of the trial Court to entertain the suit in respect of the agricultural lands. 7 I have carefully considered the submissions. Perusal of the Judgment of the trial Court shows that a finding has been recorded that the provisions of the said Act of 1947 will be applicable to the suit property though in paragraph 6 of the Judgment, the learned trial Judge has held that the Court was not having jurisdiction to entertain and try the suit for possession of the agricultural lands. 8 Perusal of the plaint shows that the suit proceeds on the assumption that the provisions of the said Act of 1947 are not applicable to the suit property. Therefore, the suit has been filed under the General Law on determination of the tenancy by a notice under section 106 of the Transfer of Property Act,1882. Perusal of the Judgment of the Appellate Court shows that there is no point for determination framed as regards applicability of the provisions of the said Act of 1947 to the suit property. Perusal of the impugned Judgment of the Appellate Court shows that the said issue has not been answered by the Appellate Court. The suit is not filed by 5 the petitioner invoking jurisdiction under section 28 of the said Act of 1947. If it is held that the provisions of the said Act of 1947 are applicable to the suit property, the suit will not be maintainable in as much as the tenant will be protected by the said said Act of 1947. In such a case, there will be no occasion to frame an issue of tenancy and to refer it to the Tribunal under the Bombay Tenancy and Agricultural Lands Act, 1948. In such a case the suit will have to be dismissed as not maintainable. The submission of the learned counsel for the petitioner is that in such a case, the suit can be treated as one under section 28 of the said Act of 1947. The said submission cannot be accepted for the simple reason that the suit filed by the petitioner proceeds on assumption that the provisions of the said Act of 1947 are not applicable to the suit property. If it is held that the provisions of the said Act of 1947 are applicable to the suit property, the suit for eviction will be maintainable provided existence of any of the grounds of eviction under the said Act of 1947 is pleaded by the petitioner. 9 In the circumstances, impugned Judgment and Order will have to be set aside and the Appellate Court will have to be directed to hear and decide the appeal afresh. If the Appellate Court comes to the conclusion that the provisions of the said Act of 1947 are not applicable to the suit property, in such a case, the Appellate Court will have to decide the other issues as the evidence has already been adduced by the parties on all the issues. While doing so, the Appellate Court will decide as to whether a reference to the Tribunal under the said Act of 1948 will be necessary. The Appellate Court will also consider whether a Civil Court has jurisdiction to pass a decree in respect of possession of agricultural lands let 6 out to the respondent no.1 10 Hence, I pass the following order : i) Impugned Judgment and order dated 21 st July 1993 is quashed and set aside. ii)Civil Appeal no.186 of 1989 is restored to the file of the Appellate Court i.e the Court of the District Judge at Palghar . iii)The Appellate Court will hear the appeal afresh in the light of the observations made in this Judgment. iv)The appeal shall be heard as expeditiously as possible and in any event within a period of six months from the date on which writ of this order is received by the Appellate Court. v) All contentions of the parties on merits are kept open. vi)Rule is partly made absolute in above terms with no order as to costs. JUDGE2