Case: Bhimaji Shanker Kulkarni Vs. Dundappa Vithappa Udapudi And Anr

be open to the Civil Court to give any relief to the landlord by way of possession of the agricultural land. If, on the other hand, the Mamlatdar rejects the plea raised under the Tenancy Act, the Civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser. 6. In Dhondi Tukarams case, ILR (1953) Bom 969 : (AIR 1954 Bom 100 ), the Court expressed the hope that the legislature would make suitable amendments in the Act. The Bombay Legislature approved of the decision, and gave effect to it by introducing S. 85A by the amending Bombay Act XII of 1956.Section 85A proceeds upon the assumption that though the Civil Court has otherwise jurisdiction to try a suit, it will have no jurisdiction to try an issue arising in the suit, if the issue is required to be settled, decided or dealt with by the Mamlatdar or other competent authority under the Act, and on that assumption, S. 85A provides for suitable machinery for reference of the issue to the Mamlatdar for his decision.Now, the Mamlatdar has jurisdiction under S. 70 to decide the several issues specified therein "for the purposes of this Act, and before the introduction of S. 85A, it was a debatable point whether the expression "for the purposes of this Act meant that the Mamlatdar had jurisdiction to decide those issues only in some proceeding before him under some specific provision of the Act, or whether he had jurisdiction to decide those issues even though they arose for decision in a suit properly cognisable by a Civil Court, so that the jurisdiction of the Civil Court to try those issues in the suit was taken away by S. 85 read with S. 70. Dhondi Tukarams case, ILR (1953) Bom 969 : (AIR 1954 Bom 100 ), settled the point, and held that the Mamlatdar had exclusive jurisdiction to decide those issues even though they arose for decision in a suit properly cognisable by a Civil Court. The result was somewhat startling, for normally the Civil Court has jurisdiction to try all the issues arising in a suit properly cognisable by it. But having regard to the fact that the Bombay Legislature approved of Dhondi Tukarams case, ILR (1953) Bom 969 : (AIR 1954 Bom 100 ), and gave effect to it by introducing S. 85A, we must hold that the decision correctly interpreted the law as it stood before the enactment of S. 85A. It follows that independently of S. 85A. and under the law as it stood before S. 85A came into force, the Courts below were bound to refer to the Mamlatdar the decision of the issue whether the defendant is a tenant. 7. In Mudugere Rangaiah v. M. Rangaiah, ILR (1959) Mys 420, the plaintiff sued for a declaration that he is the kadim tenant in the suit land and prayed for a permanent injunction restraining the defendant from interfering with his possession. Both the plaintiff and the defendant claimed to be tenants under the same landlord. The defendant contended that the suit was not maintainable in a Civil Court in view of S. 46 of the Mysore Tenancy Act (Mysore Act No. XIII of 1952). The Mysore High Court held that the jurisdiction of the Amildar is limited to cases arising by or under the Mysore Tenancy Act, and the decisions that he is required to give under S. 32 of the Act were "for the purposes of the Act and the aforesaid suit did not arise under any of the provisions of the Act and the Civil Court had, therefore, the jurisdiction to decide all the points in dispute in the suit including the question of tenancy and no provision in the Act laid down that a Civil Court was not entitled to try civil proceedings involving the determination of any question falling within S. 32 of the Act, though the Amildar was the competent authority to settle, decide and deal with those questions, had they arisen in proceedings under the Act. Sections 32 and 46 of the Mysore Act are similar to Ss. 70and 85 of the Bombay Act, but there are many points of distinction between the scheme and legislative history of the Mysore Act and those of the Bombay Act. The Mysore High Court considered Dhondi Tukarams case, ILR (1953) Bom 969 : (AIR 1954 Bom 100 ), and also noted some of the points of distinction between the two acts. In the instant case, the question of interpretation of Ss. 32, 46 and other provisions of the Mysore Act does not arise, and we express no opinion on it. We must not be taken to express any opinion one way or the other on the correctness or otherwise of the decision in Mudugere Rangaiahs case, ILR (1959) Mys 420. 8. Mr. Patwardhan also contended that in the second appeal preferred by the plaintiff the High Court had no jurisdiction to set aside the finding of the first appellate Court given in favour of the appellant, namely, the finding that "nothing is due by the plaintiff to the defendants under the transaction, Exhibit 43. There is no substance in this contention. The first appellate Court recorded inconsistent findings. Having held that the Civil Court had no jurisdiction to determine whether defendant No. 1 was a mortgagee in possession or a tenant, the lower appellate Court should have stayed the suit pending decision of that question by the Mamlatdar, and until such a decision was given, the Court could not proceed on the footing that the transaction evidenced by Exhibit 43 was a mortgage and the defendant No. 1 was a mortgagee and hold that nothing was due by the plaintiff to the defendants under the transaction. The High Court had ample power to correct this error and to set aside this inconsistent finding in an appeal filed by the plaintiff, though the defendants had filed no appeal or cross-objections.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]4. With regard to suits and proceedings by a landowner for possession of agricultural lands, the combined effect of Ss. 29, 70, 85 and 85A of the Act is as follows: The Mamlatdar has exclusive jurisdiction to entertain an application by a landlord for possession of agricultural lands against a tenant, and the Civil Court has no jurisdiction to entertain and try a suit by a landlord against a tenant for possession of agricultural lands. The Mamlatdar has no jurisdiction to try a suit by a landowner for recovery of possession of agricultural lands from a trespasser or from a mortgagee on redemption of a mortgage, and the Civil Court has jurisdiction to entertain such a suit; but if the defendant to the suit pleads that he is a tenant or a protected tenant or a permanent tenant and an issue arises whether he is such a tenant, the Court must refer the issue to the Mamlatdar for determination, and must stay the suit pending such determination, and after the Mamlatdar has decided the issue, the Court may dispose of the suit in the light of the decision of the Mamlatdar5. Section 85A was introduced by Bombay Act XIII of 1956, which came into force on March 23, 1956 during the pendency of the second appeal in this case. The suit out of which this appeal arises was governed by the law as it stood before the introduction of S. 85A. But independently of S. 85A and before it came into force, the Bombay High Court in Dhondi Tukaram v. Hari Dadu, ILR (1953) Bom 969  : (AIR 1954 Bom 100  ), held that the effect of Ss. 70 (b) and 85 read in the light of the other provisions of the Act was that if in a suit filed against the defendant on the footing that he is a trespasser he raises the plea that he is a tenant or a protected tenant the Civil Court had no jurisdiction to deal with the plea, and the proper procedure was to refer the issue to the Mamlatdar for his decision and not to dismiss the suit straightway. The Court observed:"Therefore, we hold that in a suit filed against the defendant on the footing that he is a trespasser if he raises the plea that he is a tenant or a protected tenant, the Civil Court would have no jurisdiction to deal with that plea...We would, however, like to add that in all such cases where the Civil Court cannot entertain the plea and accepts the objection that it has no jurisdiction to try it, it should not proceed to dismiss the suit straightway. We think that the proper procedure to adopt in such cases would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar within a reasonable time. If the decision of the Mamlatdar is in favour of the party raising the plea, the suit for possession would have to be dismissed, because it would not be open to the Civil Court to give any relief to the landlord by way of possession of the agricultural land. If, on the other hand, the Mamlatdar rejects the plea raised under the Tenancy Act, the Civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser.6. In Dhondi Tukarams case, ILR (1953) Bom 969  : (AIR 1954 Bom 100  ), the Court expressed the hope that the legislature would make suitable amendments in the Act. The Bombay Legislature approved of the decision, and gave effect to it by introducing S. 85A by the amending Bombay Act XII of 1956.Section 85A proceeds upon the assumption that though the Civil Court has otherwise jurisdiction to try a suit, it will have no jurisdiction to try an issue arising in the suit, if the issue is required to be settled, decided or dealt with by the Mamlatdar or other competent authority under the Act, and on that assumption, S. 85A provides for suitable machinery for reference of the issue to the Mamlatdar for his decision.Now, the Mamlatdar has jurisdiction under S. 70 to decide the several issues specified therein "for the purposes of this Act, and before the introduction of S. 85A, it was a debatable point whether the expression "for the purposes of this Act meant that the Mamlatdar had jurisdiction to decide those issues only in some proceeding before him under some specific provision of the Act, or whether he had jurisdiction to decide those issues even though they arose for decision in a suit properly cognisable by a Civil Court, so that the jurisdiction of the Civil Court to try those issues in the suit was taken away by S. 85 read with S. 70. Dhondi Tukarams case, ILR (1953) Bom 969  : (AIR 1954 Bom 100  ), settled the point, and held that the Mamlatdar had exclusive jurisdiction to decide those issues even though they arose for decision in a suit properly cognisable by a Civil Court. The result was somewhat startling, for normally the Civil Court has jurisdiction to try all the issues arising in a suit properly cognisable by it. But having regard to the fact that the Bombay Legislature approved of Dhondi Tukarams case, ILR (1953) Bom 969  : (AIR 1954 Bom 100  ), and gave effect to it by introducing S. 85A, we must hold that the decision correctly interpreted the law as it stood before the enactment of S. 85A. It follows that independently of S. 85A. and under the law as it stood before S. 85A came into force, the Courts below were bound to refer to the Mamlatdar the decision of the issue whether the defendant is a tenant7. In Mudugere Rangaiah v. M. Rangaiah, ILR (1959) Mys 420, the plaintiff sued for a declaration that he is the kadim tenant in the suit land and prayed for a permanent injunction restraining the defendant from interfering with his possession. Both the plaintiff and the defendant claimed to be tenants under the same landlord. The defendant contended that the suit was not maintainable in a Civil Court in view of S. 46 of the Mysore Tenancy Act (Mysore Act No. XIII of 1952). The Mysore High Court held that the jurisdiction of the Amildar is limited to cases arising by or under the Mysore Tenancy Act, and the decisions that he is required to give under S. 32 of the Act were "for the purposes of the Act and the aforesaid suit did not arise under any of the provisions of the Act and the Civil Court had, therefore, the jurisdiction to decide all the points in dispute in the suit including the question of tenancy and no provision in the Act laid down that a Civil Court was not entitled to try civil proceedings involving the determination of any question falling within S. 32 of the Act, though the Amildar was the competent authority to settle, decide and deal with those questions, had they arisen in proceedings under the Act. Sections 32 and 46 of the Mysore Act are similar to Ss. 70and 85 of the Bombay Act, but there are many points of distinction between the scheme and legislative history of the Mysore Act and those of the Bombay Act. The Mysore High Court considered Dhondi Tukarams case, ILR (1953) Bom 969  : (AIR 1954 Bom 100  ), and also noted some of the points of distinction between the two acts. In the instant case, the question of interpretation of Ss. 32, 46 and other provisions of the Mysore Act does not arise, and we express no opinion on it. We must not be taken to express any opinion one way or the other on the correctness or otherwise of the decision in Mudugere Rangaiahs case, ILR (1959) Mys 4208. Mr. Patwardhan also contended that in the second appeal preferred by the plaintiff the High Court had no jurisdiction to set aside the finding of the first appellate Court given in favour of the appellant, namely, the finding that "nothing is due by the plaintiff to the defendants under the transaction, Exhibit 43. There is no substance in this contention. The first appellate Court recorded inconsistent findings.Having held that the Civil Court had no jurisdiction to determine whether defendant No. 1 was a mortgagee in possession or a tenant, the lower appellate Court should have stayed the suit pending decision of that question by the Mamlatdar, and until such a decision was given, the Court could not proceed on the footing that the transaction evidenced by Exhibit 43 was a mortgage and the defendant No. 1 was a mortgagee and hold that nothing was due by the plaintiff to the defendants under the transaction. The High Court had ample power to correct this error and to set aside this inconsistent finding in an appeal filed by the plaintiff, though the defendants had filed no appeal or cross-objections.