JUDGMENT - (1) This revision application was referred first to a Division Bench by Mr. Justice Chandrachud and the Division Bench referred it to a Full Bench, because they found that there was some conflict between two decisions of two Division Benches on the question as to the proper construction of Section 70(b) of the Bombay Tenancy and Agricultural Lands Act read with Section 85 thereof.

(2) The matter arose out of a suit filed by the plaintiffs alleging that the plaintiffs and the sole defendant were co-tenants of a field bearing Survey No. 139, but on 20-6-1962 the defendant obstructed the plaintiffs cultivation contending that he had been declared the purchaser of the field by the Tenancy Court after the tillers day under the said Act. The plaintiffs case was that the decision to declare the defendant as the purchaser tenant was taken behind their back and without hearing them, and that they should have been declared the purchasers along with the defendant. The plaintiffs alleged in the suit that they were in possession and claimed an injunction against the defendant restraining him from interfering with their possession. The defendant on his part alleged that he was the sole tenant and the plaintiffs had no right to appeal. A preliminary issue came to be raised as to whether the Civil Court had jurisdiction to try the suit in view of the provisions of Sections 70 and 85 of the Tenancy Act. The Civil Judge relying upon a decision of this Court in Sidhrata Bujanga Gujare v. Rachappa Bhujanga Gujare, Special Civil Appln. No. 3059 of 1956 (Bom), decided by a Division Bench on 24-1-1957 held that Section 70 contemplated a decision by the Revenue Court of the dispute between a landlord and tenant only and not between two persons both of whom claimed to be the owners of the tenancy rights. Therefore, the case did not fall within the ambit of Section 70 (b) of the Act and the Civil Court would have jurisdiction to try the suit.

(3) Undoubtedly the question that arises is a question which will govern a large number of a cases and for that very reason we also find that the question is dealt with in a very large number of decisions of this Court to some of which we shall presently refer. In the decision which was relied upon by the Civil Judge the plaintiff had claimed a declaration that the defendant, his brother was not a tenant and had dispossessed the plaintiff, though the defendant had absolutely no interest in the tenancy. It was argued by Counsel before the Division Bench that such a question raised by the plaintiff was a question whether the plaintiff was an exclusive owner of the tenancy lands in dispute and whether the defendant had no interest in the tenancy whatsoever. Such a claim, it was urged, raised a question of title and not of tenancy and, therefore, the provisions of Section 70 of the Tenancy Act would not be attracted. That contention prevailed with the Division Bench, and they observed;

"By Section 70 one of the duties/imposed on the Mamlatdar is to decide whether a person is a tenant or a protected tenant. That, in our view, contemplates a decision by the Mamlatdar of a dispute between a landlord and a tenant and not between two persons who claimed to be the owners of certain tenancy rights."

In so far as the Division Bench held that the question "whether a person is a tenant or a protected tenant" falls under Section 70 because it raises a dispute between a landlord and a tenant, one can take no exception. But then follows the further observation which has caused an acute debate at the Bar, viz., that the question under S. 70 does not relate to a dispute "between two persons who claimed to be the owners of certain tenancy rights."

(4) Before we go to the decisions, we may say a word as to the provisions of law, which should govern the question. Section 85 (1) says 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, decide

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