( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4478 OF 2006 Bhusawal Municipal Council, through its Incharge Chief Officer Shri Madhukar s/o Kadu Ingale. PETITIONER VERSUS Shri Chintaman s/o Bhagwan Phalak RESPONDENT ..... Mr. S.B. Gorde Patil, advocate for the petitioner. Mr. V.J. Dixit, Senior Counsel, instructed by Mr. L. V. Sangit, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 18th June, 2009] PER COURT : 1. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the parties. 2. By this petition, the petitioner challenges ( 2 ) order rendered by the learned Civil Judge (J.D.), Bhusawal passed on an application (Exh-16) in suit bearing R.C.S. No. 129/2001 as well as order dated 7th January, 2006 rendered by the learned District Judge, Jalgaon, in Misc. Civil Appeal No. 120/2004. By the impugned orders, both the Courts below held that the civil Court has no jurisdiction to try the suit filed by the petitioner – Municipal Council. 3. The petitioner – Municipal Council gave land in question i.e. Survey No. 16, admeasuring 18 acres 4 gunthas (Gat No. 21) situated at village Khedi (Bk.) to the respondent for cultivation as a tenant. The tenancy was created in 1951. It was a contractual tenancy. The annual rental was Rs. 11/- and thus, the respondent became ordinary tenant of the said land. In the year 1968-69, the respondent restored possession of 7 acres 20 gunthas land to the petitioner and continued to retain rest of 13 acres 30 gunthas land with him. This part of the land is the subject matter of the dispute. The respondent applied for determination of price of the said land under section 32-G of the Bombay Tenancy and ( 3 ) Agricultural Lands Act, 1948 (for short, “the BT&AL Act”). His application was granted by the Tenancy Tribunal in Tenancy Case No. 2/1988. The tenancy appeal preferred by the petitioner was dismissed. The petitioner thereafter filed revision application No. 105/1993 which was allowed by the Maharashtra Revenue Tribunal (M.R.T.). A writ petition filed by the respondent bearing writ petition No. 5535/1995 was dismissed by this Court on 1st December, 1995. 4. It is in the wake of above factual background that the petitioner filed suit (R.C.S. No. 129/2001) for recovery of possession in respect of the land in dispute and for arrears of the rent/compensation, etc. The petitioner asserted that as per the concurrent decisions of the M.R.T. and this Court in writ petition No. 5535/1995, the provisions of the Tenancy Act could not be applied to the tenancy which was originally created in the year 1951. The petitioner further asserted that the land in dispute was required for bonafide use in order to implement certain social welfare measures. The land in dispute is now within the municipal limits. The ( 4 ) petitioner further alleged that the respondent became defaulter and is not legally entitled to continue possession over the disputed land. 5. The respondent filed an application (Exh-16) whereby it was urged that preliminary issue about jurisdiction of the civil Court may be first decided. The respondent asserted that in view of section 85 of the BT&AL Act, the civil Court has no jurisdiction to deal with the suit for eviction/ejectment in respect of tenanted land. Consequently, the respondent sought dismissal of the suit on the preliminary ground of lack of jurisdiction. By the impugned orders, the trial Court as well as the first Appellate Court held that the civil Court has no jurisdiction to try the suit and, therefore, dismissed the suit itself. 6. Heard learned counsel for the parties. 7. The neat question is whether the suit itself could be dismissed at the preliminary stage on the ground of lack of jurisdiction. It is well settled that ( 5 ) ordinarily, the civil Court will have jurisdiction to try all the suits unless the same are specifically or impliedly barred under the special enactment or otherwise. The bar of jurisdiction is not to be easily inferred. What was necessary for the learned Civil Judge and the first Appellate Court was to consider is as to whether there is inherent lack of jurisdiction with the civil Court. The jurisdictional issue is required to be dealt with on strength of the pleadings of the plaintiff. It does not depend on the say of the defendant. The pleadings of the petitioner/plaintiff categorically indicated that the provisions of the BT&AL Act were not attracted to the lease transaction and, therefore, the respondent/defendant could not claim umbrella of protection to retain the possession. In other words, nature of the pleadings adopted by the petitioner goes to show that the respondent was a contractual tenant, had committed defaults in making payment of the rent and that tenancy stood terminated due to his conduct as well as by efflux of time as contemplated under the provisions of section 108 of the Transfer of Property Act. It is on basis of such ( 6 ) pleadings that the jurisdictional issue could be considered. 8. Section 85 of the BT&AL Act is resorted to by both the Courts below in order to reach the findings that the civil Court has no jurisdiction to deal with the suit. It is necessary to notice that section 85A is not properly considered by both the Courts below. The civil Court has no jurisdiction to decide the issues which are required to be dealt with by the Tenancy Tribunal. The procedure is envisaged in section 85A wherever such issues are required to be referred to the appropriate Tenancy Tribunal. The question whether the respondent continued to remain as ordinary tenant is the issue which could be framed if there is sufficient material to raise such issue. It could have been referred to the Tenancy Tribunal for purpose of determination. Instead of doing so, the civil Court dismissed the suit by isolatedly considering the provision of only section 85 of the BT&AL Act. Consistently, the same error seems to have been committed by the first Appellate Court. The decree of ( 7 ) eviction may not be passed by the civil Court if it is found that the tenancy rights of the respondent are still in existence. Under these circumstances, the impugned judgements and orders are quite unsustainable being perverse. 9. In the result, the writ petition succeeds and is allowed. The impugned judgements and orders are quashed. The suit is restored to its original position. The civil Court may frame appropriate issues including issue about the jurisdiction available to it to pass eviction decree, and if any such issue is required to be referred to the Tenancy Tribunal, then the same may be referred in accordance with law. It is made clear, however, that both the parties may be heard while framing issues and before making reference of any issue to the Tenancy Tribunal. The Rule is made absolute accordingly. [ V.R. KINGAONKAR ] JUDGE ( 8 ) NPJ/WP4478-06