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PETITIONER: ISHVERLAL THAKORELAL ALMAULA

       Vs.

RESPONDENT: MOTIBHAI NAGJIBHAI

DATE OF JUDGMENT: 10/08/1965

BENCH: SHAH, J.C. BENCH: SHAH, J.C. WANCHOO, K.N. MUDHOLKAR, J.R.

CITATION:  1966 AIR  459            1966 SCR  (1) 367  CITATOR INFO :  RF         1977 SC 915  (8)  RF         1979 SC 653  (15)  R          1985 SC 582  (31)  RF         1989 SC 558  (11)  R          1989 SC2240  (12)

ACT: Bombay Tenancy and Agricultural Lands Act 67 of 1948-Proviso to  s.  43C-Introduced  by Bombay  Act  13  of  1956-Whether protects  tenants in suits filed after enactment  of  Bombay Act 33 of 1952--ss. 70 and 85-jurisdiction of Civil  Courts- Scope of-Proviso-If a substantive provision.

HEADNOTE: In June 1939, the appellant granted tenancy of certain lands for  agricultural  purposes, at first  to  the  respondent’s father,  and  later  to the  respondent.   The  tenancy  was continued  from year to year under fresh agreements.   After serving  a  notice  on the respondent in  November  1955  to deliver  vacant possession of the lands in March  31,  1956, the  appellant filed a suit for ejectment.  The trial  court decreed  the. appellant’s claim, but in appeal the  District Judge  reversed this decision -on the ground that under  the proviso  to s. 43C, of the Bombay Tenancy  and  Agricultural Lands Act 67 of 1948, the respondent was a protected  tenant within the meaning of that Act, read with the Bombay Tenancy Act,  1939; and that the civil court had no jurisdiction  to grant  a decree for possession of the land in  dispute.   An appeal to the High Court was dismissed. In the appeal to this Court, HELD : (per Shah and Wanchoo, JJ.) (i)  The proviso to s. 43C efforts protection to the  tenant if  the  tenant  had the protection of the Act  of  1948  as originally enacted, notwithstanding that the protection  was taken  away  by the Bombay Tenancy  and  Agricultural  Lands (Amendment) Act, 1952.  Protection of the proviso to s.  43C must  be  given  to the tenant even in  cases  where  it  is claimed in a suit filed before the amending Act of 1956  was enacted, if the suit is not finally disposed of. [376 G-H] Patel  Maganbhai  Jethabhai v. Somabhai Sursang,  (1958)  60 Bom.  L.R. 1383, approved.

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The  proper  function of a proviso is to except  or  qualify something  enacted in the substantive clause, which but  for the  proviso would be within that clause.  But the  question is  one of interpretation of the proviso; there is  no  rule that  the proviso must always be restricted to the ambit  of the  main  enactment  and  it  may  at  times  amount  to  a substantive provision. [373 F, G] (ii) The  order passed by the District Judge dismissing  the suit could not be sustained. Under  s. 85A, introduced into Act 67 of 1948 by Act  13  of 1956, even in a suit properly instituted in the civil court, if  any issue arises which is required to be decided by  the revenue  court,  such issue shall be referred for  trial  to that  court, and the suit shall be disposed of in the  light of  that decision.  The District Judge should have  referred the questions relating to the tenancy and its  determination which arose in the suit, to be 3 68 tried  by  the Mamlatdar as a revenue court and  should  not have proceeded to dispose of the suit. [378 C-D, H] Pandurang  Hari  v. Shanker Maruti, 62 Bom.   L.R.  873  and Kalicharan  Bhajanlal  Bhayya v. Rai Mahalaxmi and  Anr.,  4 Guj.  L.R. 145, considered. (per Mudholkar, J. dissenting) The benefit of the proviso to s. 43C would be available only to a person who is or  claims to be a tenant or protected tenant under the Act.  Under  s. 70,  the  question whether or not a person  is  a  protected tenant  is  to be determined by the Mamlatdar  acting  as  a revenue  court and by virtue of s. 85(1) no civil court  has jurisdiction  to  consider such a claim.  No sooner  such  a claim  is made before a civil court, it must stay its  hands and  refer the question to the Mamlatdar, who has  exclusive jurisdiction  ;Io adjudicate on the facts in  issue  between the  parties  as  well as to determine  the  effect  of  the various  provisions of law bearing on the point. [379  F-380 C] It  is  not  open to this court to examine  for  itself  the various  enactments, construe the provisions, and state  its conclusions  as to their applicability to the present  case. The  jurisdiction to do any of these things in an appeal  of this  kind is barred by the combined operation of ss.  70(b) and 85(1). [381 C] Paika Dasaru Bhangle v. Rajeshwar Balaji Awari, (1958)  Bom. L.R. 8 (F.B.), referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 210 of 1963. Appeal  by special leave from the judgment and  order  dated April 30, 1959 of the Bombay High Court in second appeal No. 439 of 1959. S.   T. Desai, S. N. Andley, Mohinder Narain, Rameshwar Nath and P.    L. Vohra, for the appellants. S.   S. Shukla, for the respondent. The Judgment of Wanchoo and Shah, JJ. was delivered by Shah, J. Mudholkar, J. delivered a dissenting Opinion. Shah,  J.  On June 18, 1939,  Ishverlal  Almaula-hereinafter called  ’the appellant’--granted for  agricultural  purposes tenancy  rights  in  land bearing Survey Nos. 52  &  158  at Kanbivaga in the town of Broach to Nagjibhai, father of  the respondent, and since that date the land continued to remain in  the possession of Nagjibhai and after his death  of  his son Motibhai By letter dated November 2, 1955 the  appellant terminated  the  tenancy and called upon the  respondent  to

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deliver vacant possession of the land on March 31, 1956, and filed on April 4, 1956 Suit No. 180 of 1956 in the Court  of the Civil Judge, Senior Division, at Broach for a decree  in ejectment against the respondent and for mesne profits.  The Civil  Judge decreed the appellant’s claim.  In  appeal  the District  Judge,  Broach reversed the decree  of  the  Trial Court and dismissed the suit.  He held that in view of the                             369 proviso  to  s. 43C incorporated in the Bombay  Tenancy  and Agricultural Lands Act 67 of 1948 by Bombay Act 13 on  1956, the  respondent continued by virtue of the amendment by  Act 13  of 1956 to remain a tenant, and the Civil Court  had  no jurisdiction to grant a decree for possession of the land in dispute.   In  reaching that conclusion  the  learned  Judge followed  the  decision of the Bombay High  Court  in  Patel Maganbhai Jethrbhai v. Sonzabhai Sursang.(1) A second appeal to  the High Court of Bombay was dismissed summarily.   With special leave, the appellant has appealed to this Court. Counsel  for the appellant raised two contentions in  suport of the appeal :               (1)   That the rights of the respondent in the               land  conferred  or recognised  by  virtue  of               Bombay Act 67 of 1948 were extinguished on the               enactment of Bombay Act 33 of 1952, and by the               amendments  made by Act 13 of 1956 (which  was               brought into force during the pendency of  the               suit)  those rights were not restored  to  the               respondent so as to prejudice the  appellant’s               claim to evict him; and               (2)   that  the Civil Court was  competent  in               the  suit filed by the appellant, to  grant  a               decree for possession of the land held by  the               respondent. Facts  which have a bearing on the question raised  in  this appeal and the relevant statutory provisions may be  briefly set  out.  The land in dispute is situate within the  limits of the Broach Borough Municipality.  Nagjibhai-father of the respondent  and after his death the respondent were  tenants of  the land since June 1939., the tenancy  being  continued year after year under fresh agreements.  Notice calling upon the respondent to vacate and deliver possession of the  land on March 31, 1956 was given in terms of s. 84 of the  Bombay Land Revenue Code, 1879.  The Bombay Tenancy Act 29 of  1939 was applied on April 11, 1946 to the area in which the  land is  situate,  and the name of Nagjibhai was entered  in  the Record  of  Rights as a protected tenant  under  the  Bombay Tenancy Act 29 of 1939 as amended by Bombay Act 26 of  1946. By the Bombay Tenancy and Agricultural Lands Act 67 of 1948, which  was  brought  into force on December  28,  1948,  the Bombay Tenancy Act 29 of 1939 stood repealed, subject to the -reservation that ss. 3, 3A and 4 of the (1)  (1958) 60 Bom.  L. R. 1383. 370 repealed  Act as modified by the Schedule to  the  repealing Act remained operative.  The status of the respondent  under the  Bombay Tenancy Act 29 of 1939 remained, even after  the repeal  of that Act, protected by virtue of s. 31 of Act  67 of 1948 as originally enacted. A  tenant  was  defined  in Act 67 of  1948  as  meaning  an agriculturist who holds land on lease and includes a  person who is deemed to be a tenant under the provisions of the Act [s. 2(18)].  "Land" was defined by s. 2(8) as "land which is used for agricultural purposes, and includes" amongst others sites  of  farm  buildings  and  sites  of  dwelling  houses occupied  by agriculturists.  Section 5 of the Act  provided

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that  no tenancy of any land shall be for a period  of  less than  ten  years, and that no tenancy  shall  be  terminated before  the expiry of the period of ten years except on  the grounds mentioned in s. 14.  Section 14 provided that :               "(1)  Notwithstanding  any  agreement,  usage,               decree or order of a Court of law, the tenancy               of  any  land held by a tenant  shall  not  be               terminated unless such tenant" has done acts or committed defaults specified in cls. (a) to (e).   It  may  be sufficient to state that under  s.  14  a notice  calling  upon  the  tenant  to  vacate  and  deliver possession  of  the  land  demised  on  the  expiry  of  the contractual period of the annual tenancy does not operate to determine  the  tenancy.   By sub-s. (2) of  s.  29  it  was enacted that a landlord shall not obtain possession of  land held  by  a tenant except under an order of  the  Mamlatdar. Chapter III dealt with the special rights and privileges  of protected   tenants.   By  s.  32  it  was   provided   that notwithstanding anything (to the) contrary in any law, usage or  contract,  a  protected  tenant shall  at  any  time  be entitled to purchase from the landlord the land held by  him as a protected tenant.  Section 34 prescribed certain  other restrictions  upon  the  landlord’s  right  to  determine  a protected tenancy.  The first sub-section gave liberty to  a landlord  to determine a protected  tenancy  notwithstanding anything contained in s. 14, by giving one year’s notice  in writing,  if the landlord bona fide required the  land,  (1) for cultivating personally, or (2) for any  non-agricultural use  of  his own purpose.  The Act also provided  a  special forum for determination of questions required to be settled, decided or dealt with by the Act. 371 By  s. 70 the duties of the Mamlatdar were  specified.   The section, in so far as it is material, provided :               "For  the purposes of thus Act, the  following               shall  In  be the duties and functions  to  be               performed by the Mamlatdar-               (a)               (b)   to  decide whether a person is a  tenant               or a protected tenant;"               Section 85 provided by its first subsection               "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  Collec-               tor  or the Bombay Revenue Tribunal in  appeal               or  revision or the Provincial  Government  in               exercise of their powers of control," and for the purpose of this section, a civil court  includes a Mamlatdar’s Court constituted under the Mamlatdars’ Courts Act,  1906.   Therefore,  by Act 67 of 1948  the  rights  of protected  tenants  acquired under the Bombay  Tenancy  Act, 1939,   were,  notwithstanding  the  repeal  of  that   Act, preserved, a tenancy agreement was to be for a period of not less than ten years, and the tenancy could not be determined before  the expiry of the period otherwise than for  reasons set out in s. 14, and possession of land demised to a tenant could  not  be obtained otherwise than by an  order  of  the Revenue Court under s. 29 (2).  A landlord could determine a protected  tenancy on the grounds mentioned in s. 34, but  a protected  tenant had a right to purchase the land  occupied by  him.  The jurisdiction of the Civil Court "to deal  with or decide any question which is by or under the Act required -to be dealt with, settled or decided by" the Revenue  Court

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was  excluded  and  the Revenue Courts  were  invested  with exclusive jurisdiction for the purpose of the Act to  decide several  questions including the question whether  a  person was a tenant or a protected tenant. When  Bombay  Act 67 of 1948 was brought into force  in  the town  of  Broach,  the respondent acquired  rights  which  a tenant  could  claim under that Act and his  rights  flowing from  the  status of a protected tenant  remained  expressly preserved.   But the legislature thereafter  enacted  Bombay Act 33 of 1952 with effect from January 12, 1953 and by  the amendment to s. 88 (which 372 excluded   lands   in  certain  areas   and   of   specified descriptions from the operation of ss. 1 to 87 of the Bombay Act 67 of 1948) lands situ-ate within all municipal boroughs constituted  under Act 18 of 1925 ceased to be  governed  by Act 67 of 1948.  Taking advantage of the amendment by Bombay Act 33 of 1952 the appellant purported to terminate as  from March 31, 1956 the tenancy by a notice in accordance with s. 84  of the Bombay Land Revenue Code, 1879, and commenced  an action  in  the  Civil Court for a  decree  for  possession. During  the pendency of the action, S. 88 was again  amended by Act 13 of 1956.  The Legislature by that Act repealed cl. (c)  of  S. 88 as it stood modified by Act 33  of  1952  and restricted  the exemption from the operation of the  Act  to lands  belonging to the Government and certain other  lands. The  effect  of the amendment was to restore to  tenants  of lands  within  certain municipal boroughs  (such  lands  not falling  within the description of lands described in s.  88 as amended and ss. 88A to 88C as inserted) the protection of the Bombay Tenancy and Agricultural Lands Act 67 of 1948  as originally enacted.  It is common ground that the land  with which  we  are  concerned  in this  appeal  is  not  of  the description  in ss. 88 and 88A to 88C of the Act as  amended by Act 13 of 1956. The Legislature also enacted by Act 13 of 1956 s. 43C  which by  the proviso sought to restore with retrospective  effect the  rights  which had been previously  acquired  under  the Bombay  Tenancy and Agricultural Lands Act 67 of 1948 on  or after December 28, 1948, notwithstanding that the Bombay Act 33 of 1952 had been made applicable to the area in which the land is situate.  Section 43C provided:               "Nothing   in   sections  32  to   32R   (both               inclusive) and 43 shall apply to lands in  the               areas within the limits of-               (a)   Greater Bombay,               (b)   a   municipal  corporation   constituted               under   the   Bombay   Provincial    Municipal               Corporation Act, 1949,               (c)   a  municipal borough  constituted  under               the Bombay Municipal Boroughs Act, 1925,               (d)   a  municipal district constituted  under               the Bombay District Municipal Act, 1901,               (e)   a cantonment, or                             373 .lm15 (f)  any area included in a Town Planning Schedule under the Bombay Town Planning Act, 1954 : Provided  ’that  if any person has acquired any right  as  a tenant  under this Act on or after the 28th December,  1948, the said right shall not be deemed to have been affected  by the  Bombay Tenancy and Agricultural Lands (Amendment)  Act, 1952, or (save as expressly provided in section 43D), by the Amending Act, 1955, notwithstanding the fact that either  of the  said Act has been made applicable to the area in  which

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such land is situate." The  decision in this appeal must primarily depend upon  the meaning and effect of the proviso to s. 43C.  The  enactment of  the proviso, it may be observed, illustrates how  clumsy drafting  obscures  the meaning of a statute.   The  proviso appears  to  be entirely out of place in the scheme  of  the substantive  part  of  s.  43C,  which  excludes  from   the operation  of  ss.  32 to 32R and 43,  lands  in  the  areas specified  in cls. (a) to (f), and cl. (c) specifies one  of such  areas  as "a municipal borough constituted  under  the Bombay Municipal Boroughs Act, 1925".  Sections 32 to 32R as inserted  by Act 13 of 1956 deal with the purchase of  lands held  by tenants on April 11, 1957, and to  related  matters and  s.  43 imposes restrictions on the  transfer  of  lands purchased by virtue of the right reserved under ss. 32,  32F or 32-0 or sold under ss. 32-P or 64 of the Act. The  proper  function of a proviso is to except  or  qualify something  enacted in the substantive clause, which but  for the proviso would be within that clause.  It may  ordinarily be  presumed  in construing a proviso that it  was  intended that  the enacting part of the section would  have  included the subject-matter of the proviso.  But the question is  one of interpretation of the proviso : and there is no rule that the  proviso must always be restricted to the ambit  of  the main  enactment.   Occasionally in a statute  a  proviso  is unrelated to the subject-matter of the preceding section, or contains matters extraneous to that section, and it may have then  to be interpreted as a substantive provision,  dealing independently with the matter specified therein, and not  as qualifying the main or the preceding section. By  the  substantive  clause of s. 43C the  tenants  do  not acquire  in  respect  of  lands  described  therein   rights conferred  by  ss.  32  to 32R : that  part  of  s.  43C  is therefore in the nature of a qualification or an  exception, and functions as a proviso to ss. 32 to 37 4 32R.   The  proviso to s. 43C goes on, not to carve  out  an exception  or  to impose a qualification  to  the  exclusion prescribed  by the main enactment, but deals with  a  matter which is unrelated thereto.   In tern-is it seeks to protect rights acquired or arising not under    ss. 32 to 32R (which were added by Act 13 of 1956) but under the principal Act 67 of 1948 on or after December 281, 1948, and those rights are protected not from the operation of the substantive part  of s. 43C, but from the operation of Act 33 of 1952, or of "the Amending Act of 1955".  It may be recalled that by Act 33 of 1952,  the Act ceased to apply to land within the  municipal boroughs,  but the intention disclosed by the proviso to  s. 43C  was to declare that all rights acquired by  persons  as tenants  under the principal Act were to continue to  remain available  to them in respect of lands within the  Municipal Boroughs  as  if  Act 33 of 1952 were  never  enacted.   The "Amending Act of 1955" is no other than Act 13 of 1956  [see the definition of "permanent tenant" in s. 2 (10A) added  to the  principal  Act  and s. 1(1) of Act 13  of  1956].   The Legislature  has by referring to the "Amending Act  of  1955 sought  also  to protect, save as expressly provided  in  s. 43D,   the   rights   acquired  under  Act   67   of   1948, notwithstanding  the amendments made by Act 13 of 1956.   By s.  48 of Act 13 of 1956, the scheme of exemption  from  the operation  of  the  Act of certain  provisions  thereof  was extensively amended in respect of different classes of land. Section  88  of  Act  67  of  1948  as  originally   enacted substituted  by  ss.  88, 88A, 88B, 88C  &  88D.   But  this modified scheme of exemption and other provisions of the Act

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were  by virtue of the proviso to s. 43C not to  affect  the rights  of tenants acquired on or after December  281.  1948 under Act 67 of 1948, same as expressly provided by s. 43D. Counsel  for the appellant, however urged that even  if  the proviso  to  s. 43C be read as  dealing  substantively  with matters  specified therein, it does not come to the  aid  of the respondent, because at the date when Act 13 of 1956  was enacted,  the  tenancy of the  respondent  stood  determined according  to law, as it then applied to the land,  and  the respondent  had  ceased to be a tenant.  In the  absence  of express enactment to the contrary, said counsel, the  rights of the appellant to obtain possession of the land  according to the law prevailing, from a person who was at the date  of the suit not a tenant, could not be deemed to be  restricted by  the  enactment of Act 13 of 1956.  In  support  of  this contention, counsel strongly relied upon s. 89(2)(b) of  Act 67 of 1948 which provided: 375               "But  nothing  in  this  Act  or  any   repeal               effected thereby-               (a)               (b)   shall save as expressly provided in this               Act, affect or be deemed to affect,               (i)   any  right, title, interest,  obligation               or  liability  already  acquired,  accrued  or               incurred before the commencement of this  Act,               or               (ii)  any   legal  proceeding  or  remedy   in               respect  of any such right,  title,  interest,               obligation  or liability or anything  done  or               suffered  before  the  commencement  of   this               Act,and   any   such  proceedings   shall   be               continued and disposed of, as if this Act  was               not passed." In  our  view sub-s. (2) of s. 89 which  incorporates,  with some variations, the provisions found in s. 7 of the  Bombay General Clauses Act 1 of 1904, relating to the operation  of provisions  which  repeal  statutes,  has  no  relevance  in considering  the effect of the amendments made by Act 13  of 1956.   Sub-section (2) of s. 89 in terms protects (save  as expressly  provided  in  the Act)  right,  title,  interest, obligation  or  liability  acquired,  accrued  or   incurred "before  the commencement of this Act" i.e. Act 67 of  1948, and  it also protects legal proceedings or remedies in  res- pect  of  any  such right, title,  interest,  obligation  or liability   or  anything  done  or  suffered   "before   the commencement  of this Act".  The appellant does not seek  to enforce  a  right  acquired before the Act 67  of  1948  was enacted,  and a suit instituted for a decree for  possession of lands pursuant to a determination of tenancy by a  notice in  1956  is  not  a suit in respect of  a  right  or  title acquired  or accrued "before the commencement of  this  Act" within the meaning of s. 89(2).  The argument of counsel  if based on the assumption that the expression commencement  of this Act means commencement of Act 13 of 1956, but for  that assumption  there  is  no warrant in  the  language  of  the statute. The alternative contention of counsel for the appellant that by  virtue  of s. 7 of the Bombay General Clauses Act  1  of 1904  also  legal  proceedings to  enforce  rights  acquired before  Act 13 of 1956 was passed were saved, has no  force. By  s.  7  of  the General Clauses  Act  the  repeal  of  an enactment shall not inter alia affect any right,  privilege, or  liability  acquired,  accrued  or  incurred  under   any enactment  so  repealed or affect any  investigation.  legal

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proceeding or remedy in respect of any such right, 376 privilege,   obligation,   liability  etc.  and   any   such investigation, legal proceeding or remedy may be  instituted or  continued  or enforced as if the repealing Act  had  not been  passed.  Act 13 of 1956 may in so far as it  seeks  to substitute  the new sections 88 and 88A to 88D for  the  old section 88 be regarded as a repealing enactment.  Section  7 of the Bombay General Clauses Act, however, applies only  if a  different  intention  does not appear,  and  a  different intention  clearly appears from the terms of the proviso  to s. 43C which state that the rights acquired by a person as a tenant  under Act 67 of 1948 on or after December  28,  1948 are  not  to  be deemed affected by Act  33  of  1952.   The proviso  therefore  by express enactment  saves  the  rights acquired  under  Act 67 of 1948 before Act 33  of  1952  was enacted.     The respondent became on the enactment of Act 67 of 1948 entitled as a tenant to the diverse rights conferred by that Act.  The right to claim that every contractual  tenancy  is statutorily extended for a period of ten years, the right to claim that the tenancy may not be determined otherwise  than in  circumstances  mentioned  in  s.  14,  and  in  case  of protected tenants subject to restrict jobs imposed by s. 34, the right not to be deprived of possession otherwise than by an order under s. 29(2), were some of those rights vested in the respondent before Act 33 of 1952 was enacted.  These and other  rights were restored to the  tenants  retrospectively from the. date on which Act 33 of 1952 was enacted by virtue of the express provision contained in the proviso to s. 43C. The  Legislature  having  restored  the  rights   originally granted  under Act 67 of 1948 with  retrospective  operation from the date on which Act 33 of 1952 was. enacted, a person sued, before Act 13 of 1956 was brought into force, could in a pending suit set up the defence that he is entitled to the rights of a re. ant or a protected tenant.     In  Patel Maganbhai lethabhat"s case(x) the Bombay  High Court held that the proviso to s. 43C affords protection  to the  tenant if the tenant had the protection of the  Act  of 1948   as  originally  enacted,  notwithstanding  that   the protection  was  taken  away  by  the  Bombay  Tenancy   and Agricultural Lands (Amendments) Act, 1952.  The Bombay  High Court also held that the protection of the proviso to s. 43C must  be  given  to the tenant even in  cases  where  it  is claimed in a suit filed before the amendment was enacted, if the  suit  is not finally disposed of.  We  agree  with  the Bombay  High  Court on both the questions decided  in  Patel Maganbhai Jethabhai’s case. (1). (1) (1958) 60 Born. L.R. 1383.                             37 7 But  the order passed by the District Judge  dismissing  the suit,  cannot  be  sustained.  The  learned  District  Judge passed  the  order  of dismissal  of  the  suit,  presumably because  a  similar  order was  passed  in  Patel  Maganbhai Jethabhai’s  case.(1)  It was assumed  in  patel  Maganbliai Jethabhai’s  case(1) that the Mamlatdar in whose  Court  the suit  was  instituted was competent to  decide  the  various issues relating to the rights claimed by the tenant.  It  is not  clear from the judgment in Patel Maganbhai  Jethabhai’s case(1) whether the suit was instituted in the Court of  the Mamlatdar exercising his power under s. 5 of the Mamlatdars’ Courts  Act  2  of  1906.  By s. 85 of  Act  67  of  1948  a Mamlatdar’s Court constituted under Act 2 of 1906 is a Civil Court, whereas a Mamlatdar exercising powers under s.  29(2) is  a  Revenue  Court.  In the present case,  the  suit  was

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properly  entertained  by  the Civil  Court  but  since  the enactment  of Act 13 of 1956 the Civil Court could  not  try certain  issues arising therein, because those  issues  were triable by virtue of s. 70 of Act 67 of 1948 exclusively  by the Revenue Court.  There is, however, nothing in Act 67  of 1948  which  prevents  continuation  of  the  suit   already instituted.   In such a suit the issues exclusively  triable by  the Revenue Court by the combined operation of ss. 70  & 85  will  have to be tried by the Manilatdar  as  a  Revenue Court, and a decree in ejectment against a tenant may, since the  enactment of Act 13 of 1956, not be made by  the  Civil Court.   The  proper procedure in such a case  is  that  the Civil  Court  should  refer to the Revenue  Court  all  such issues as are triable exclusively by that Court by virtue of the combined operation of ss. 70 & 85.  The Civil Court  may then  pass  such decree or order as is consistent  with  the adjudication of the Revenue Court.  If the Revenue Court  is of  the  view  that  the relation  of  landlord  and  tenant subsisted  and the tenancy had been duly determined  in  the manner  provided  by s. 14 or by s. 34 if the  tenant  is  a protected  tenant,  it may be necessary to obtain  from  the Revenue Court in an appropriate proceeding an order under s. 29(2). It  may be pertinent in this connection to refer to  s.  85A which  was added by Act 13 of 1956, The section, insofar  as it is material, provided :                "(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 (1)  [1958] 60 Bom.  L.R. 1383. 3 7 8               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.               Explanation.-For  purpose  of this  section  a               Civil  Court  shall  include  any  Mamlatdar’s               Court constituted under the Mamlatdars’ Courts               Act, 1906." Whatever  may have been the position before Act 13 of  1956, the  Legislature  has clearly expressed its  intention  that even  in a suit property instituted in the Civil  Court,  if any  issue  arises which is required to be  decided  by  the Revenue Court, the issue shall be referred for trial to that Court,  and  the suit shall be disposed of in the  light  of that  decision.   The  Legislature  has  therefore   clearly expressed itself that issues required under Act 6 7 of  1948 to be decided by a Revenue Court, even if arising in a civil suit  must  be decided by the Revenue Court and not  by  the Civil Court.  The view expressed by the Bombay High Court in Pandurang Hari v. Shanker Maruti(1) and by the Gujarat  High Court in Kalicharan Bhaianlal Bhayya v. Bai Mahalaxmi  widow of Trikamlal & Another, (2) that a suit properly  instituted in the Civil Court before Act 13 of 1956 is not liable to be dismissed  merely  because the rights  acquired  by  tenants

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under  Act  67  of  1948  are  retrospectively  restored  is correct, but we are unable to agree with the Bombay and  the Gujarat  High  Courts that the Civil Court is  competent  to adjudicate  upon  the  issues which are by Act  67  of  1948 required to be decided by the Revenue Court. The  finding recorded by the District Judge that  the  Civil Court had no jurisdiction to hear the suit and the  ultimate order  passed  by him dismissing the  plaintiff’s  suit  are therefore  not strictly accurate.  If the appellant  desired that   the  questions  relating  to  the  tenancy  and   its determination,  which  arose  in the suit be  tried  by  the Mamlatdar as a Revenue Court, which that authority alone was competent to decide, the District Judge should have referred to  the Revenue Court those questions for determination  and should  not have proceeded to dispose of the suit.   We  ac- cordingly set aside the decree passed by the High Court  and the (1) 62 Bom.  L. R. 873.                    (2) 4 Guj, L. R. 145.                             37 9 District Court and direct that the District Court do restore the  appeal to its original number and do proceed  according to law. It appears that before the District Court the appellant  had conceded  that the suit may in view of the judgment  of  the Bombay High Court in Patel Maganbhai jethabhai’s case(1)  be dismissed,  and he requested the District Court not to  pass an order for costs against him.  In the circumstances of the case, we direct the appellant’s legal representatives to pay the  costs of this appeal to the respondent.  The  costs  in the District Court will abide the event. Mudholkar, J. The facts as well as the two points raised  in the argument before us appear in the judgment prepared by my brother  Shah  and need not be repeated.  I agree  with  him that the District Court was in error in allowing the  appeal and  dismissing the present appellant’s suit for  possession of  the land in suit. in that suit the appehant’s  case  was that  he had terminated the respondent’s tenancy  by  giving him an appropriate notice to quit.  The substantial plea  of the  respondent  was that his tenancy was  governed  by  the Bombay Tenancy and Agricultural Lands Act, 1948 as it  stood on  the date of suit and that the combined effect of ss.  70 and  85  of that Act was to deprive the civil court  of  its jurisdiction to entertain the suit. In the arguments before us reliance was placed on his behalf in  particular on the proviso to s. 43C which was  added  by amendment Act 13 of 1956.  The learned counsel on the  other side  had  claimed  the  benefit of  the  provisions  of  s. 89(2)(h) of the Act which seeks to preserve certain  rights, titles etc., and exempts them from the operation of the Act. The  benefit  of the proviso to s. 43C of the Act  would  be available  only to a person who is or claims to be a  tenant or  protected  tenant  under the Act.  That  in  turn  would depend upon the effect of the various amendments to the  Act made  after  its enactment in 1948 till the  date  of  suit, including the effect of s. 89(2)(h) of the Act.  Section  70 of  the Act, however, provides that one of the duties to  be performed by the Mamlatdar (who acts as a revenue court)  is to  decide  whether  a person is a  tenant  or  a  protected tenant.  Obviously this must mean a claim to be a tenant  or a protected tenant under the Act.  Section 85 (1 provides :               "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

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(1)[1958] 60 Bom.  L.R. 1383. 380               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." It  would be seen from the two aforesaid provisions that  no sooner  such  a claim is made before a Civil Court  it  must stay  its  hands and refer that question to  the  Mamlatdar, acting as a revenue court for his decision [see Paika Dasaru Bhonglee v. Rajeshwar Balaji Awari(1)].  In order to  answer it,  the Mamlatdar will have to adjudicate on the  facts  in issue between the parties as well as to determine the effect of  the various provisions of law bearing on the point.   He gets  exclusive  jurisdiction  to  do  so  by  the  combined operation  of  the two provisions aforesaid in view  of  the fact  that  a  person claims to be  a  tenant  or  protected tenant.   If  the Mamlatdar finds that he is a tenant  or  a protected  tenant  he has to send his finding to  the  Civil Court  which  has to decide the suit in the  light  of  that finding.   If,  on  the other hand, his finding  is  to  the contrary,  the civil court will have to decide the  suit  on the  basis  that  the person does  not  possess  the  status claimed by him.  Initially, therefore, the matter has to  be decided  by the Mamlatdar and subject to the result  of  any appeal or revision under the Act his decision will be final. I  would, however, make it clear that when I say this  I  am not  considering whether finality attaches to a decision  of the Mamlatdar as to a jurisdictional fact. The  question required by the Act to be decided by the  Mam- latdar  may  be one of fact only or as is the  case  in  the appeal  before  us, a mixed question of fact and  law.   The civil  court  before which the suit was brought  raised  the following issues bearing upon it               (2)   Whether the provisions of Bombay Tenancy               and Agricultural Lands Act would be applicable               to the suit Survey Numbers ?               (3)   Whether  this Court has no  jurisdiction               to entertain suit in view of section 85 of the               Bombay Tenancy and Agricultural Lands Act ?               (5)   Whether  defendant proves that he  is  a               permanent tenant of the suit land (1)  [1958] Bom.  L.R. 8(F.B.)                             381 The  first  and  third of these had to  be  decided  by  the Mamlatdar and the second by the Civil Court in the light  of the findings of the Mamlatdar on the other two issues.   The limitations  placed on the jurisdiction of the  Civil  Court would necessarily extend to the entire hierarchy of  courts, including this Court before which the decision of the  Civil Court  can be challenged in appeal.  It is in the  light  of this  legal  position that I hold that  the  District  Court could  not  dismiss the appellant’s suit.  What  this  Court can,  however, do is only to set aside the judgment  of  the District  Court and remand the suit to the Civil Court  with the  direction that issues Nos. 2 and 5 be remitted  to  the Mamlatdar for his findings.  It is not open to this Court to examine  for  itself the various  enactments,  construe  the provisions   and   state  its  conclusions   as   to   their applicability to the case before us.  The jurisdiction to do any  of these things in an appeal of the kind before us  is, in  my view, barred by the combined operation of  ss.  70(b) and 85(1) of the Act. I would, therefore, allow the appeal, set aside the judgment of  all the courts below and remit the suit to the court  of

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first  instance  with  the direction that  it  should  remit issues  2  and  5 to the Mamlatdar  for  decision  and  upon receiving his findings, decide the suit on the basis of  his findings.  I would further direct that costs so far incurred shall  be  costs  in  the suit and  shall  abide  the  final decision of the lis.                            ORDER In  accordance with the opinion of the majority  the  decree passed by the High Court and the District Court is set aside and  the  appeal  remanded to the District  Court  with  the direction  that  it do restore the appeal  to  its  original number  and do proceed according to law.  Appellant’s  legal representatives  will  pay the costs of this appeal  to  the respondent.   Costs  in the District Court  will  abide  the event. Sup.CI/65---10 382