Judgment - Shah, J.

1. The plaintiff filed Suit No. 408 of 1949 in the Court of the Civil Judge (junior Division) at Shahapur against the two defendants for a decree for possession of certain lands from the defendants, together with future mesne profits and costs. It was the plaintiffs ease that the defendants were his tenants, that ho called upon the defendants to vacate and deliver possession on the expiration of the month of March 1949, and the defendants having failed to deliver possession he filed the suit.

2. The defendants by their written statement contended inter alia that the suit lands were agricultural lands, that they were protected tenants under the Bombay Tenancy and Agricultural Lands Act (67 of 1948), and that the Court had no jurisdiction to entertain the suit.

3. The learned trial Judge held that the Court had jurisdiction notwithstanding the Bombay Tenancy and Agricultural Lands Act (67 of 1948), and passed a decree in favour of the plaintiff directing the defendants to deliver possession of the suit lands to him, together with future mesne profits to be ascertained under Order 20, Rule 12, Civil P. C.

4. An appeal was preferred by the defendants to the District Court; but the appeal was summarily dismissed by the learned Assistant Judge at Belgaiim. Defendant 1 has come to this Court in second appeal.

5. It is urged on behalf of the appellant by Mr. Ehasme that the civil Court had no jurisdiction to proceed with the suit once a contention was raised by the appellant that he was a protected tenant. In support of that contention he relied upon Section 70(b) and Section 85, Bombay Tenancy and Agricultural Lands Act, 1948. Section 70(b) pro-vides :

"For the purposes of this Act, the following shall be the duties and functions to be performed by the Mamlatdar........

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

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, or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Bombay Revenue Tribunal In appeal or revision or me State Government in exercise of their powers of control."

Ex facie, by the operation of Section 70 and Section 85, Bombay Tenancy and Agricultural Lands Act, 1948, the jurisdiction of the civil Court to decide whether the defendants were tenants or protected tenants must be regarded as excluded and the Mamlatdar alone must be regarded as competent to decide that question. That is the view which has been taken by a Division Bench of this Court in -- Dhondi Tukaram v. Dadoo Piraji, AIR 1954 BOm 100 (A). Mr. S. M. Shah, on behalf of respondent 1, has, however, contended that the defendants having raised two contentions, viz. (i) that the lands were agricultural lands, and (ii) that the defendants were protected tenants, the question whether the lands were agricultural lands has to be decided by the civil Court, and it is only after the civil Court decides the question whether the lands were agricultural lands that any question of staying the suit for the decision whether the defendants were protected tenants on the authority of the decision in -- Dhondi Tukaram v. Dadoo Piraji, (A), arose.

He also urged that the civil Court having decided that the lands were not agricultural lands, the defendants could not in law be tenants, and no question of staying the suit survived. In my view, there is no substance in that contention. It is true that the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, apply only 10 tenancies of agricultural lands. But that does not mean that in adjudicating upon the contention raised in a civil suit that the defendant is a tenant or a protected tenant, the jurisdiction to decide the question whether a particular land is agricultural land remains vested in the civil Court, and only the question whether the defendant is a tenant of that land is to be decided by the M

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