JUDGMENT - (1) The question referred to the Full Bench is whether, under the provisions of the Bombay tenancy and Agricultural Lands Act, 1948, the Mamlatdar can entertain and decide and decide an application filled by a landlord for a declaration that his opponent, who claims to be his tenant, is not a tenant under the said Act.

(2) There is no specific provision in the Act providing for such an application being made to the Mamlatdar, Section 70, however provides:

"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 a tenant or a protected tenant or a permanent tenant. It is therefore, the duty and function of the Mamlatdar to decide whether a person is a tenant The power to decide whether a person is a tenant. necessarily includes the power to decide that the person is not a tenant. This power is, however, too be exercised by the Mamlatdar, as stated in this section, for the purposes of the Act. In view of these words in the section, in Magaubhai Patel v. Bombay Revenue Tribunal Special Civil Appln No. 278 of 1957 the learned Judges were inclined to take the view that the Mamlatdar will have authority to decide the question whether a person is or is not a tenant. if that question arises in an application made under the Act, such as an application under section 29 of the Act, If this had been the intention of the legislature, it would have used some such words as In any proceeding under the Act or in any application made under the Act. The words used "For the purpose of this Act: are very much wider. The other difficulty in accepting this view is the exclusion of the jurisdiction of the Civil court in matters which, under the Act are to be decided by the Mamlatdar. Section 85 of the Act provides that 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 and the jurisdiction of the Civil court to determine such a question is ousted suit, section 85 of the Act. If therefore, in a civil suit, the question arises whether a person is a tenant or not, the civil court will have no jurisdiction to decide it section 85 of the Act, as amended in 1956 enables the Civil court to refer such a question to the Mamlatdar for determination. This amendment came into force with effect from 1st August 1956. Before that date the Civil court had no authority to refer any question for determination to the Mamlatdar. The only course open to it was to ask one or the other of the contending parties to make an application to the Mamlatdar and obtain his decision in the matter. It was so held by a division Bench of this court in Dhondi Tukaram v. Dadoo Piraji 55 Bom LR 663 It was held in that case that in a suit filed against the defendant for possession of agricultural lands on the footing that he is a trespasser, if he raises a plea that he is a tenant or a protected tenant, the proper procedure to adopt would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar and the application would be for a declaration that the applicant is a tenant. that a reference to the Mamlatdar is necessary in such cases was also recognised in Maganbhai case (Special Civil Appln No. 278 of 11957) In the last but one paragraph of the judgment in that case, it has been observed that if an issue arises in Civil suit as to whether a person is or is not a sub tenant (or a tenant) that issue would be one for the Mamlatdar to decide upon a reference by the Civil court. The Mamlatdar can therefore decide this question, even if it arises in a proceeding other than a proceeding under the Tenancy Act. If the Mamlatdar has jurisdiction to decide the question after it arises in a Civil court, he will also have jurisdiction to decide it before it arises in the Civil court . A party may frequently find it more convenient to approach the Mamalatdar

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