The Mamlatdar has exclusive jurisdiction to decide questions of tenancy or protected tenancy under Sections 70 and 85 of the Bombay Tenancy and Agricultural Lands Act, 1948.

Headnote:
TENANCY ACT - SECTION 70, 85, 89 - JURISDICTION OF CIVIL COURTS - TENANT OR PROTECTED TENANT - MAMLATDAR'S EXCLUSIVE JURISDICTION - PENDING PROCEEDINGS - SAVING OF RIGHTS.
Fact of the Case:

In a suit for possession of agricultural land, defendants 1 and 2 claimed to be mirasdars or permanent tenants, while defendant 3 was a tenant whose tenancy had been determined. The trial court rejected the plea of defendants 1 and 2 and decreed the plaintiff's suit. On appeal, defendants 1 and 2 contended that the civil court had no jurisdiction to try the suit as the question of tenancy or protected tenancy was exclusively within the jurisdiction of the Mamlatdar under Sections 70 and 85 of the Bombay Tenancy and Agricultural Lands Act, 1948.
Finding of the Court:

The court held that the civil court had no jurisdiction to entertain the plea of tenancy or protected tenancy raised by defendants 1 and 2, as the Mamlatdar had exclusive jurisdiction to decide such questions under Sections 70 and 85 of the Act. However, the court clarified that in such cases, the civil court should not dismiss the suit outright but should direct the party raising the plea to obtain a decision from the Mamlatdar within a reasonable time.
Issues: 1. Whether the civil court had jurisdiction to entertain the plea of tenancy or protected tenancy raised by defendants 1 and 2. 2. Whether the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, applied to the present suit.
Ratio Decidendi: 1. The court interpreted Sections 70 and 85 of the Bombay Tenancy and Agricultural Lands Act, 1948, and held that the Mamlatdar had exclusive jurisdiction to decide questions of tenancy or protected tenancy. The court reasoned that the purpose of the Act was to confer special benefits on tenants of agricultural lands, and Section 29 of the Act provided a specific procedure for landlords to obtain possession of agricultural lands, which required an order from the Mamlatdar. The court also noted that Section 70(b) made it the duty of the Mamlatdar to decide whether a person was a tenant or a protected tenant, and Section 85 barred civil courts from entertaining any question that was required to be settled, decided, or dealt with by the Mamlatdar under the Act. 2. The court examined Section 89 of the Act and held that the provisions of the Act did not apply to the present suit, as it was a pending proceeding that had been instituted before the commencement of the Act. The court noted that Section 89(2)(b)(ii) specifically provided that any legal proceeding in respect of rights that had accrued to the landlord prior to the Act should be continued and disposed of as if the Act had not been passed.
Final Decision: The court answered the reference question in the negative, holding that the civil court had jurisdiction to try the plea of tenancy or protected tenancy raised by defendants 1 and 2, as the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, did not apply to the present suit.

ORDER

Shah, J.

1. It is true that an inference as to permanent tenancy is a mixed question of law and fact and could foe raised in second appeal. But the facts found from which the inference in favour of a party claiming to be a permanent tenant is sought to be raised must be regarded as binding in second appeal, though the question as to what inference should be raised from those facts must be regarded as a question of law. In the present case on the facts found it is impossible to raise a presumption under Section 83 of the Land Revenue Code in favour of defendants 1 and 2. Admittedly there is no Miras Patra in favour of defendants 1 and 2, and the question that defendants 1 and 2 were mirasdars was not argued before the learned appellate Judge. Even though the question as to the jurisdiction of the civil Courts to entertain and decide a suit relating to tenancy and protected tenancy was not argued in the lower appellate Court, Mr. Shukhtankar on behalf of defendants 1 and 2 has contended before me that once defendants 1 and 2 raised a contention that they were tenants and not liable to be evicted, the civil Court had no jurisdiction to decide the suit. The learned trial Judge held on the evidence that defendants 1 and 2 were trespassers in the year 1944, and not tenants as contended by them. He also held that defendants 1 and 2 not being tenants cannot be held to be protected tenants as defined under the Act, and the question of notice to them did not arise, and the Courts jurisdiction was not barred. As I stated earlier, the learned appellate Judge was not invited to consider the question as to the jurisdiction of the civil Courts to entertain and decide the case once defendants 1 and 2 raised a question as to tenancy or protected tenancy.

2. But the question being one as to the jurisdiction of the Court to proceed to a hearing of a suit, even though not canvassed in the lower appellate Court must be decided by this Court. Mr. Shukhtankar relies upon Section 70, Bombay Tenancy and Agricultural Lands Act, 1948, which provides inter alia;

"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 agriculturist;

(b) to decide whether a person is a tenant or a protected tenant;........"

Section 85 of the Act is also relied upon by Mr. Sukhtankar; and that section provides in Sub- section (1):

"No 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 Bombay Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control."

Relying upon Sections 70 anl 85, Sub-section (1) of the Act, it is submitted that the combined effect of these two sections of the Act is to bar the jurisdiction of the civil Courts in respect of any question which the Mamlatdar is entitled to settle, decide or deal with. Now, Section 85, Sub-section (1), is a provision which excludes the jurisdiction of the civil Courts and must be strictly construed. Under Section 70 of the Act the duties and functions of the Mamlatdar set out are expressly stated to be "for the purpose of this Act." It is true that the jurisdiction of the civil Courts to decide, settle or deal with questions required to be decided by the Mamlatdar under the Act is excluded; and when Section 29, Sub-section (2), provides that a landlord shall not obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar, the jurisdiction of the civil Courts to pass orders in ejectment against tenants defined by the Act must be deemed to have been taken away. Undoubtedly by Section 70 of the Act the Mamlatdar is authorised to decide the question whether a person is a tenant or a protected tenant, provided it is a decision to be given for the purposes of the Act. If in proceedings under

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