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PETITIONER: PARMAR KANAKSINH BHAGWANSINH (DEAD) BY L.R’S.

       Vs.

RESPONDENT: 1.  MAKWANA  SHANABHAI BHIKHABHAI &  2.  MAKWANA  PRABATBHAI

DATE OF JUDGMENT08/12/1994

BENCH: VENKATACHALA N. (J) BENCH: VENKATACHALA N. (J) SAHAI, R.M. (J)

CITATION:  1995 SCC  (2) 501        JT 1995 (1)   103  1994 SCALE  (5)169

ACT:

HEADNOTE:

JUDGMENT: VENKATACHALA, J.: 1.    This civil appeal by special leave is directed against the  Judgment and Decree dated 29th November, 1977  rendered by a single Judge of the Gujarat High Court in Second Appeal No.  348 of 1973, which arose out of Regular Civil Suit  No. 921 of 1966 filed in the Court of Joint Civil Judge,  Baroda (Civil  Court) by the appellant herein as plaintiff  against respondents  1  and  2  herein -  defendants  1  and  2  for redemption  of  suit  properties  which  were  mortgaged  as security  for certain monies borrowed by the plaintiff  from defendant-l under two deeds of mortgage executed in the year 1961 2.     Plaintiff filed the suit for redemption of  the  said mortgages   in  the  year  1966.  Defendant-2,  brother   of defendantI  had been joined in that suit on  the  allegation that the latter was put in possession of mortgage properties by the former subsequent to the coming into existence of the mortgages. That suit was resisted by the defendants, each of them having filed separate written statements which in sub- 105 stance did not differ from each other. The defence in  those written  statements  was  that defendant-l  and  his  family members  had  become tenants of the suit properties  in  the year  1959-1960 and had continued to be such tenants at  the time  of  mortgage  deeds  executed  in  respect  of   those properties  in  the year 1961 and thereafter.  It  was  also claimed  therein  that they had become owners  of  the  said properties  when the plaintiff in the year 1962  sold  those properties  to defendant-1 by receiving a sum of  Rs.4,400/- as  consideration  for the sale. Even if the  sale  of  said properties  in  favour  of  defendant-l,  it  was   asserted therein, was not proved, they continued to be tenants of the said  properties  on the date of suit as they  were  tenants even  before  the  date  of coming  into  existence  of  the mortgages. The issue relating to their claim that they  were

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tenants of the said properties - the agricultural lands,  as urged therein, had to be referred  by the Civil Court to the Mamlatdar  under  section  85-A of the  Bombay  Tenancy  and Agricultural Lands Act, 1948 - "the BT&AL Act" for recording his  finding thereon and the suit had to be  stayed  pending receipt  of  the  finding thereon so that the  suit  may  be finally disposed of on the basis of such finding. The  Civil Court  notwithstanding the defence  of the defendants  taken in  their written statements that the suit had to be  stayed for  obtaining the finding on their claim of  tenancy  under the BT&AL Act, framed the issues in the suit on the basis of the  pleadings of the parties and after trial .recorded  its findings  thereon.  Such  findings were  firstly,  that  the defendants had failed to prove that the suit properties were sold  in favour of defendant-l subsequent to the  giving  of security  of  those  properties  in  his  favour  under  the mortgage deeds; secondly, that the defendants had failed  to prove  the past tenancy of the suit properties on  its  view that what was pleaded by them in the written statements  was tenancy  prior  to  the  date of filing  of  the  suit;  and thirdly,  that  the mortgages of the  suit  properties  were mortgages by ’conditional sale. On the basis of findings  so recorded  by  the Civil. Court, it also made  a  preliminary decree in favour of the plaintiff for redemption of the suit properties.  Though  the defendants filed an appeal  in  the Court  of  the  District  Judge,  Baroda  against  the  said preliminary  decree  that  appeal came to  be  dismissed  on August  17,  1972 affirming the judgment and decree  of  the Civil Court. 3.     However, the defendants questioned the judgments  and decrees of the trial court and the appellate court by filing a  second  appeal  against the same in  the  High  Court  of Gujarat. A learned single Judge of the High Court, who heard the  second appeal, while upheld the concurrent findings  of the courts below that the deeds of mortgage executed by  the plaintiff  in  respect of the suit properties in  favour  of defendant-l  were  mortgages  by conditional  sale  and  the defendants  had failed to prove that there was sale  of  the suit  properties  in their favour subsequent to  the  coming into  existence  of  the  said  mortgages,  found  that  the defendants  had raised in their written statements the  plea that  they were tenants  not only prior to the date of  suit but  also at the time of the filing of the suit  and  having regard  to that plea the suit ought to have been  stayed  by the  Civil Court and the issue of tenancy should  have  been referred  to the Mamlatdar for obtaining a finding from  him thereon both under section 85-A of the BT&AL Act as it stood before its amendment at the time of filing of the suit 106 and as it stood after its amendment after the filing of  the suit.  Consequently, the learned single Judge set aside  the judgments  and decrees of the trial court and the  appellate court  relating  to  the  issue of  tenancy  raised  by  the defendants  in the suit and remanded the case to  the  Civil Court (trial court) directing it to refer the issue of  such tenancy  to the Mamlatdar, Baroda for his determination  and to stay all further proceedings in the suit till he got  the finding  from  the  Mamlatdar  on  that  tenancy  issue  and thereafter  to proceed to dispose of that suit in the  light of  that  finding  and the other findings  recorded  by  the appellate  court (District Judge).  It is the  Judgment  and Order of the learned single Judge of the High Court by which he allowed the Second Appeal and remanded the suit, which is appealed against in this Civil Appeal of the plaintiff as is stated at the outset.

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4.      No controversy is raised in this appeal  as  regards the  findings of the Civil Court that the deeds of  mortgage executed by the plaintiff in respect of the suit  properties were mortgages by conditional sale. Specific case pleaded by the  plaintiff in the plaint as regards possession   of  the suit  properties held by tenants was that  their  possession which was with the plaintiff was given to defendant-l on the execution  of the deeds of mortgage by conditional  sale  in his  favour.  In  any  event, it was not  the  case  of  the plaintiff  that  defendant-l  was  a  tenant  of  the   suit properties  and hc surrendered his possession of  the   suit properties either expressly or impliedly and the  possession so obtained by the plaintiff was re-delivered to defendant-l in  pursuance of the mortgages by conditional sale  executed in his favour. 5.   However, the arguments addressed before us on behalf of the plaintiff- appellant in support of the appeal by learned Senior   Counsel  Mr.  S.K.  Dholakia  were   these:    That defendant-l - respondent-l although was in possession of the suit  properties  -  agricultural  lands  at  the  time   of execution  of the deeds of mortgage  by conditional sale  in his  favour  because of the coming into  existence  of  such mortgages  there  occurred merger of  lease-hold  rights  of defendant-l  in  suit  properties  when  he  obtained  those properties  as mortgage  security under the  said  mortgages and as a consequence he became a mortgagee in possession  of those properties. According 10 him a mortgagee in possession being  a  person who cannot be deemed to be a  tenant  under section 4 of the BT&AL Act it was not open to the defendants to  claim that they were the tenants of suit properties  and if  that be so question of raising issue of tenancy  by  the Civil  Court in the suit before it did not arise at all  nor was it necessary to refer such issue to the Mamlatdar  under section 85-A of the BT&AL Act and stay the suit till receipt of  the  finding on such issue as was directed by  the  High Court  in its judgment under appeal. In support thereof,  he sought  to place reliance on the decisions of this Court  in Shah  Mathuradas  Maganlal and Co.  v.  Nagappa  Shankarappa Malaga  and  Others   [AIR  1976  SC   1565]   and  Gambangi Appalaswamy  Naldu  and Others  v.  Behara  Venkataramanayya Patro [AIR 1984- SC 1728]. Even otherwise. it was argued  by him that the Civil Court before whom the plaintiff had filed the  suit  for redemption of the suit properties  could  not have driven the plaintiff  to the forum of Mamlatdar  merely because  the defendants had raised the plea that  they  were tenants  of  the  suit  properties  -  agricultural   lands. According  to him when the plaintiff had not  admitted  that the defendants 107 were tenants of the suit properties, it was not open to  the defendants to force the plaintiff who had a right to  choose his forum to  file a suit to go before another forum on  the plea  that jurisdiction lay before another forum,  that  is, Mamlatdar.  In  this  regard support  was  sought  from  the decision of this Court in Raizada Topandas and  Another   v. M/s.    Gorakhram  Gokalchand  [AIR  1964  SC  1348].    He, therefore,  urged that the High Court was not  justified  in upsetting the concurrent finding of the trial court and  the appellate  court that the defendants failed to  prove  their tenancy and remanding the case to the trial court  directing it  to refer the issue of tenancy to the Mamlatdar and  stay the suit till the receipt of the finding in that regard from the  Mamlatdar  and  then dispose of the  suit.  Hence,  the Judgment and Order of the High Court, according to him,  was liable to be interfered with and set aside.

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6.     However, learned counsel appearing for the defendants -  respondents  sought to refute the arguments  advanced  on half of the plaintiff- appellant. 7.      Questions  which  arise for  our  consideration  and decision in the light of the aforesaid arguments of  learned counsel   for   the  contesting  parties  admit   of   their formulations thus:     (1).  Does  the  lease-hold of a tenant  (lessee)  in  a property merge in mortgage security if the same property  is given  by the landlord (lessor) to the tenant (lessee) as  a mortgage  security under a mortgage by conditional sale,  as would  debar  the  tenant from desisting  the  suit  of  the landlord  -  mortgagor for recovery of  possession  of  such property  by  obtaining  a  decree  for  redemption  of  the mortgage ? (2). When a plea of tenancy is raised with regard to suit property,  an agricultural land, by a defendant  who claims  to be a tenant of such property under the BT&AL  Act and  seeks a reference of that issue by the Civil  Court  to the  Mamlatdar  under  that  Act  for  obtaining  a  finding thereon, can the Civil Court decide such issue by itself and proceed  to  decide  the suit on the basis  of  the  finding thereon ?      As the said questions could be dealt with appropriately with  reference to the statutory provisions which bear  upon them,  it  would be convenient to advert to  such  statutory provisions here. The Transfer of Property Act, 1882 (TP Act)               "111.   A   lease   of   immoveable   property               determines -               (a)  ....               (b)  ....               (c)  ....                   (d)  in case the interests of  the  lessee               and  the lessor in the whole of  the  property               become  vested at the same time in one  person               in the same right  .....  "               Bombay Tenancy and Agricultural Lands Act,1948               (BT&AL Act)                       "2.  In  this  Act,  unless  there  is               anything repugnant in the subject or context,                         (18)  ’tenant’  means a  person  who               holds land on lease and include -                         (a)  a  person who is deemed  to  be               tenant trader section 4;               108               (b) a person who is a protected tenant; and               (c) a person who is a permanent tenant;               and  the  word ’landlord’ shall  be  construed               accordingly."                   "4. A person lawfully cultivating any land               belonging to another person shall be deemed to               be  a  tenant if such land is  not  cultivated               personally by the owner and if such person  is               not -               (a)  a member of the owner’s family, or               (b)  a   servant on wages payable in  cash  or               kind but not in crop share or a hired labourer               cultivating   the  land  under  the   personal               supervision of the owner or any member of  the               owner’s family, or               (c) a mortgagee in possession."                   "70.  For  the purposes of  this  Act  the               following shall be the duties and functions to               be performed by the Mamlatdar -                   (a)  to  decide  whether a  person  is  an

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             agriculturist;                   (b) to decide whether a person is a tenant               or a protected tenant (or a permanent tenant);                   (c) to decide such other matters as may be               referred to him by or under this                   "85.  (1).  No  Civil  Court  shall   have               jurisdiction  to settle, decide or  deal  with               any  question  which is by or under  this  Act               required to be settled, decided or dealt  with               by the Mamlatdar or Tribunal, a Manager,   the               Collector    or    the   Maharashtra   Revenue               Tribunal  in appeal or revision or  the  State               Government  in  exercise of  their  powers  of               control.                    (2).  No  order  of  the  Mamlatdar,  the               Tribunal,  the  Collector or  the  Maharashtra               Revenue Tribunal or the State Government  made               under  this  Act shall be  questioned  in  any               Civil or Criminal Court.                    Section  85A,  as  it  stood  before  the               amendment  of this Act by Gujarat Act No.5  of               1973 w.e.f. 3rd March, 1973:                    "85A. (1). If any suit instituted in  any               Civil  Court  involves any  issues  which  are               required to be settled, decided or dealt  with               by  any authority competent to settle,  decide               or  deal  with  such  issues  under  this  Act               (hereinafter  referred  to as  the  ’competent               authority’)  the  Civil Court shall  stay  the               suit  and refer such issues to such  competent               authority for determination.                    (2).  On receipt of such  reference  from               the Civil Court, the competent authority shall               deal with and decide such issues in accordance               with  the  provisions of this  Act  and  shall               communicate  its decision to the  Civil  Court               and such court shall thereupon dispose of  the               suit   in   accordance  with   the   procedure               applicable thereto  ....  "                    Section 85A, as it came into force  after               it  was  amended by Gujarat Act No.5  of  1973               w.e.f 3rd March, 1973 :-                    "85A. (i) If any suit instituted, whether               before  or  after the specified date,  in  any               Civil’  Court  involves any issues  which  are               required to be settled, decided or dealt  with               by  any authority competent to settle,  decide               or  deal  with  such issues.  under  this  Act               (hereinafter  referred  to as  the  ’competent               authority’)  the  Civil Court shall  stay  the               suit  and refer such issues to such  competent               authority for determination. ’ ’ 9.    We shall now proceed to deal with 109 the aforesaid questions. Question (1): 10.   Interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the  same right because of section 11 l(d) of the T.P.  Act. What is enunciated in section 111 (d) of the T.P. Act cannot be  doubted  is the doctrine of merger. Merger  takes  place when  a  lesser  estate is merged or drowned  in  a  greater estate.  Lease-  hold held by a tenant or a lessee  being  a lesser  estate and  the right of reversion of  the  landlord (lessor)  being  a higher estate,  the  lessee’s  lease-hold

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right  in respect of the property merges in  reversion  when that  right  of reversion, i.e., the  landlord’s  (lessor’s) right  of  reversion  comes to the tenant  or  lessee  which happens  when  the  landlord  having a  right  to  sell  his reversion  to  the tenant holding the lease-hold  sells  the whole  of  it to the tenant (lessee). But, in  view  of  the arguments  advanced on behalf of the  plaintiff-  appellant, what  has to be seen is if the landlord of a  property,  the lease-hold  of which is already with the tenant, gives  that very property as mortgage security to the tenant (lessee) by executing  a mortgage by a conditional sale for  the  amount borrowed  by him from the latter, does merger of  lease-hold right  in that mortgage security occur.  When  the  landlord mortgages  the  lease-hold  property of the  tenant  to  the tenant himself, he does not part with the right of reversion which  he  has in respect of that property. If that  be  so, merger  of  lease-hold  estate in  reversion  cannot  arise, inasmuch   as,   there  cannot  be  any   inconsistency   or incompatibility in one person being the tenant and also  the mortgagee of the same property, for in that event instead of the  tenant  paying rent to the landlord he  may  adjust  it against the amount claimable by him as a mortgagee from  the landlord.  Moreover,  if  a lessee of  a  property  takes  a mortgage of the sum property from the landlord, it would  be unreasonable  to  attribute  to a tenant  the  intention  to surrender  the  tenancy  and  to  invoke  the  sophisticated doctrine  of  implied  surrender as has  been  held  by  the Gujarat  High  Court in Patel Atmaram Nathudas  v.  Babubhai Keshavlal, AIR 1975 Guj. 120. 11.    In the present case, as has already been pointed  out by  us,  the  plaintiff- appellant did not  claim  that  the defendants  or  any of them were in possession of  the  suit properties  as tenants and there was a surrender by them  of the  possession either expressly or impliedly as would  make the  Court to come to the conclusion that the possession  of the  suit properties with the defendants was surrendered  by them  pursuant to the mortgage by conditional sale  executed in  their favour.  If that be the position, there can be  no bar  for  the defendants to claim the right to  continue  in possession of the suit properties as tenants under the BT&AL Act  even  if  the  plaintiff  could  obtain  a  decree  for redemption  of the suit properties, which relief was  sought in  the suit. The decision of this Court in Shah  Mathuradas case  (supra) and G. Appalaswamy case (supra) sought  to  be relied upon by learned counsel for the appellant - plaintiff in  support of his arguments that there was a merger of  the leasehold right of the tenant in the suit properties when he took  mortgages  of those properties  from the  landlord  as would deny him the right to continue in possession of  those properties  as a tenant, instead of supporting his  argument would go against it, as we shall presently point out. Shah 110 Mathuradas  case (supra) was that where the  respondent  had executed a mortgage in favour of the appellant respecting  a premises of which he was a tenant.  It was agreed under  the terms of the mortgage deed that no interest need be paid  by the  respondent since the premises, the possession of  which was  given to the tenant pursuant to the mortgage was to  be enjoyed  in lieu of interest payable on the mortgage.   When suit  for  redemption  of  the premises  was  filed  by  the respondent the appellant claimed, that after redemption,  he was entitled to remain in possession of the premises because of the subsistence of his previous tenancy right. This Court held  that the mortgage deed established  beyond doubt  that there  was no subsistence or continuation of lease  in  that

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there  was  delivery  of possession by  the  tenant  to  the landlord  immediately before the mortgage and redelivery  of possession  to  the  tenant  of the  premises  made  by  the landlord was pursuant to the mortgage as a mortgagee and not as  a tenant. Secondly, this Court held that  the  appellant was  not entitled to retain after redemption  possession  of the mortgage-property by reason of his previous right to  be in  its  possession as a tenant. In the present case  as  we have pointed out earlier, when no surrender of possession of the  suit properties had taken place before the coming  into existence of mortgages in favour of the lessor -  mortgagor, when no redelivery of possession had been given pursuant  to the mortgage to the-tenant, the decision under consideration can  be  of  no  assistance to  the  appellant.   Since  the following observations in the said case confirm the  view we have taken on non-merger, they can be excerpted:                   "For  a merger to arise, it  is  necessary               that  a  lesser  estate and  a  higher  estate               should merge in one person at one               and  the same time and in the same right,  and               no  interest  in the  property  should  remain               outside.  In  the case of a lease  the  estate               that  is in the lessor is a reversion. In  the               case   of  a  mortgage  the  estate  that   is               outstanding is the equity of redemption of the               mortgagor. Therefore, there cannot be a merger               of  lease and mortgage in respect of the  same               property since neither of them is a higher  or               lesser estate than the other." 13.      Coming  to  G.  Appalaswamy  case   (supra)   which considered  the question whether a sitting tenant  who  took property  by  a possessory or usufructuary mortgage  in  his favour  was  liable  to  deliver  physical  possession  upon redemption  to the mortgagor (former lessor).    This  Court dealing  with the said question said that all  depends  upon whether  there  was  an implied surrender  of  the  lessee’s rights  when the usufructuary mortgage was executed  in  his favour  by  the  lessor-mortgagor and  only  if  an  implied surrender  of  lossee’s rights could be  inferred  then  the mortgagor  would  be entitled to have delivery  of  physical possession upon redemption but not otherwise.  Dealing  with the question of non-merger this Court approved the ratio  of the decision  in Shah Mathuradas (supra) thus:                   "In  our view there can be no merger of  a               lease  and  a  mortgage, even  where  the  two               transactions  are  in  respect  of  the   same               property.   It  is well-settled  that.  for  a               merger  to arise, it is necessary that  lesser               estate and a higher estate should merge in one               person  at  one and the same time and  in  the               same  right  and no interest in  the  property               should  remain outstanding.  In the case of  a               lease,  the estate that is outstanding in  the               lessor  is  the reversion; in the  case  of  a               mortgage,  the estate that is  outstanding  is               the  equity  of redemption of  the  mortgagor.               Accordingly, there               111               cannot  be a merger of a lease and a  mortgage               in respect of the same property since  neither               of them is a higher or lesser estate than  the               other.  Even if the rights of the  lessee  and               the  rights of the mortgagee in respect  of  a               property  were to be united in one person  the               reversion  in  regard  to the  lease  and  the

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             equity   of  redemption  in  regard   to   the               mortgage, would be outstanding in the owner of               the property and accordingly, there would  not               be  a  complete fusion of all  the  rights  of               ownership in one person." 13.     Hence,  the  lease-hold of a tenant  (lessee)  in  a property  does  not  merge  in  mortgage  security  of  that property,  even  if  it is given .to  him  by  the  landlord (lessor)  on a mortgage by conditional sale as  would  debar the tenant from desisting the suit of the landlord mortgagor for  recovery  of possession of such property  by  obtaining decree for redemption of the mortgage. Question (2): 14.    The argument which was strenuously advanced on behalf of  the  appellant  -  plaintiff was  that  in  a  suit  for redemption  filed  by  the mortgagor in  a  Civil  Court  in respect   of  property  notwithstanding  the  plea  of   the defendants’  claim that they were tenants of  that  property under the BT&AL Act and under the provisions of that Act the issue  of tenancy had to be referred by the Civil  Court  to the Mamlatdar for recording a finding thereon and the  Civil Court can proceed to dispose 0 the suit only on the basis of the  finding  received from the Mamlatdar, the  Civil  Court itself can record its finding on the issue of tenancy and if the  finding to be recorded had to go against the  claim  of tenancy,  it  would be permissible for the  Civil  Court  to grant  the decree for redemption sought by the plaintiff  in the said suit.  Support was sought for the argument from the decision of this Court in Topandas case (supra). 15.    We find it difficult to accept the said argument  and the aforesaid decision of this Court relied upon in  support thereof  can render no assistance.  The only question  which arose for decision in Topandas case (supra) was whether on a proper  interpretation  of section 28 of the  Bombay  Rents, Hotel and Lodging House Rates Control Act, 1947 - "the Rents Control  Act",  the  Court  of  Small  Causes,  Bombay   had exclusive jurisdiction in dealing with the suit out of which the appeal had arisen. There, the respondent - a partnership firm was in possession as a tenant of a shop at Mulji  Jetha Market,  Bombay.  It instituted a suit in  the  Bombay  City Civil Court (not the Court of Small Causes, Bombay)  praying for  a declaration that it was in lawful possession  of  the shop and the appellants had no right to enter into or remain in  possession  of the shop and for grant of  an  injunction restraining   the  appellants  from  interfering  with   the respondent’s  possession.  The plaint averments  were   that appellant- 1 (defendant- 1) had appointed the respondent  as his  commission agent for the sale of the appellants’  cloth in  the  shop in question. The agreement was  to  remain  in force  for  a  period of four years. Pursuant  to  the  said agreement, the respondent had allowed the appellants,  their family  members, servants and agents to visit the shop  only for the purpose of looking after the business of  commission agency. The appellants, despite being asked not to visit the shop  after  the  expiry  of the  period  in  the  concerned agreement,  they  continued  to  visit  the  shop  and  were preventing the respondent from having access to its  various articles such as stock-in-trade, 112 books of account, furniture, fixtures etc. Thus according to the  plaint, the appellants who .were merely licensees,  had no  right  to enter into the shop after the  expiry  of  the period of licence envisaged in the agreement. The defence of the  appellants  (defendants)  in  substance  was  that  the agreement on which reliance was placed by the respondents in

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their  suit was a sham agreement and that the appellants  in reality  were the tenants of the shop and  the  relationship between  the  respondents  and appellants was  that  of  the landlord  and tenant. The further plea taken in the  written statement  by  the  appellants  was  that  as  the  question involved  in the suit related to the possession of  premises as  between  a landlord and his tenant, the Court  of  Small Causes, Bombay, alone had jurisdiction to try the suit.  The appeal in this Court had arisen out of the finding  recorded on  that  issue and in dealing with that matter  this  Court had.  to  consider  the true effect of  sub-section  (1)  of section 28 of the Rents Control Act to find whether it means that  a defendant if raises a claim or question as  to   the existence  of   relationship of landlord and tenant  between him  and  plaintiff the jurisdiction of the Civil  Court  is ousted even though the plaintiff pleaded that there is  only exclusive jurisdiction to decide the case with the Court  of Small  Causes,  Bombay. Dealing with the matter  this  Court referred. to the general principle which covers the question of  jurisdiction  at the inception of suits  which  was  not disputed, thus:                   "The plaintiff chooses his forum and files               his  suit.  If he establishes the  correctness               of  his facts he will get his relief from  the               forum  chosen. If ... he frames his suit in  a               manner  not warranted by the facts,  and  goes               for  his relief to a court which cannot  grant               him relief on the true facts, he will have his               suit dismissed. Then there will be no question               of  returning the plaint for  presentation  to               the  proper court, for the plaint, as  framed,               would  not justify the other kind of court  to               grant  him the relief  .....  If it is  found,               on a trial on the merits so far as this  issue               of  jurisdiction goes, that the facts  alleged               by  the plaintiff are not true and  the  facts               alleged  by the defendants are true, and  that               the  case  is not cognizable  by  the.  court,               there  will  be  two kinds  of  orders  to  be               passed.  If  the  jurisdiction  is  only   one               relating  to territorial limits  or  pecuniary               limits,  the  plaint  will be  ordered  to  be               returned for presentation to the proper court.               If, on the other hand, it is found that having               regard  to  the nature of the suit it  is  not               cognizable by the class of court to which  the               court belongs, the plaintiff’s suit will  have               to be dismissed in its entirety." 16.    By referring to the material portion of section 28 of the  Rents  Control Act the argument made on behalf  of  the appellants  was  found  by this Court  to  be  untenable  by stating thus:                   "... We do not think that the section says               or  intends  to  say  that  the  plea  of  the               defendant will determine or change the  forum.               It  proceeds  on  the  basis  that   exclusive               jurisdiction is conferred on certain courts to               decide  all questions or claims under the  Act               as to parties, between whom there is or was  a               relationship  of landlord and tenant. It  does               not  invest those courts with exclusive  power               to try questions of title such as questions as               between the rightful owner and a trespasser or               a  licensee, for such questions do  not  arise               under the Act. If, therefore, the plaintiff in

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             his  plaint  does not admit a  relation  which               would attract any of the provisions of the Act               on  which  the  exclusive  jurisdiction  given               under  S.28 depends, we do not think that  the               defendant by his plea can force the  plaintiff               to go to a forum where on his               113               averments  he  cannot go.  The  interpretation               canvassed for by the appellants will give rise               to   anomalous  results;  for   example,   the               defendant   may  in  every  case   force   the               plaintiff  to go to the Court of Small  Causes               and  secondly,  if the Court of  Small  Causes               finds against the defendant’s plea, the plaint               may  have to be returned for  presentation  to               the  proper  court for a  second  time   .....               when one has regard to the provisions in  Part               II   it  seems  reasonably  clear   that   the               exclusive  jurisdiction conferred by  S.28  is               really  dependent on an existing  or  previous               relationship  of  landlord and tenant  and  on               claims  arising under the Act as between  such               parties." 18.     As seen from the above observations this  Court  has held  that it did not think that the section concerned  says or  intends  to  say that the plea  of  the  defendant  will determine or change the forum. But, if the provisions of the BT&AL  Act  which  bear on the question  of  matters  to  be decided by the Mamlatdar are seen, they give no room for one even to think that those matters could be decided by a Civil Court  when  a question is raised in that behalf even  by  a defendant in a suit. 19.    Section 70 of the BT&AL Act to which we have adverted already imposes a duty on the Mamlatdar to decide whether  a person is an agriculturist or a tenant or a protected tenant or a permanent tenant when such person claims to be so under that Act. Further, section 85 of the BT&AL Act to which also we have already adverted, in unequivocal terms says that  in deciding  any issue which is required to be decided  by  the Mamlatdar   under   the  BT&AL  Act  no  Civil   Court   has jurisdiction to decide it.   Furthermore, section 85A, as it stood  prior to its amendment by Gujarat Amendment Act  No.5 in the year 1973 and as stands thereafter, requires that  if any suit instituted in Civil Court involves the question  of tenancy of ’present’ or ’past’, as the case may be, the same being  required to be decided or dealt with by an  authority competent  under the BT&AL Act, the Civil Court has to  stay the suit and refer the issue to such competent authority for determination  and after receiving the decision  thereon  to dispose of the suit in accordance with such decision.  Thus, the  provisions  in the BT&AL Act give no scope or  room  to think  that the plea of tenancy if raised by the  defendants in a suit in a Civil Court, the same could be decided by the Civil Court. Thus we are constrained to answer the  question in  the negative by agreeing with the view expressed by  the single  Judge  of  the  High Court in  this  regard  in  his Judgment and Order under appeal. 20.     Consequently,  the Judgment and Order  under  appeal does not call for our interference. 21.   In the result, we dismiss this appeal with costs. 113