Section 85 - A of the Bombay Tenancy Act, 1948 does not require that the question as to whether a person is a tenant under that Act must be referred to the authorities under it in every case, even though it may have already been decided by those authorities in previous proceedings between the same parties in respect of the same land.

Headnote:
BOMBAY TENANCY ACT, 1948 - SECTION 85 - A - REFERENCE TO AUTHORITIES UNDER THE ACT - NOT REQUIRED IN EVERY CASE - ISSUE ALREADY DECIDED BY AUTHORITIES IN PREVIOUS PROCEEDINGS BETWEEN SAME PARTIES IN RESPECT OF SAME LAND.
Fact of the Case:

The plaintiff-landlord filed a suit for possession of his half share in land and mesne profit. The first defendant-tenant contended that the court had no jurisdiction to decide whether he was a tenant under the Bombay Tenancy Act and hence an issue in that behalf should be referred to the competent authorities under that Act for decision. The trial court declined to make the Reference on the ground that that issue had already been decided against the present petitioner on 18-10-1960 by the authorities under the said Act in proceedings under Section 88 - C between the same parties in respect of the same land initiated by the plaintiff - landlord, and directed that the hearing of the suit be proceeded with.
Finding of the Court:

The court held that the question of applicability of the Bombay Tenancy Act had to be decided in proceedings under Section 88 - C of the Act and that Section 85 - A does not require that the question as to whether a person is a tenant under that Act must be referred to the authorities under it in every case, even though it may have already been decided by those authorities in previous proceedings between the same parties in respect of the same land.
Issues: 1. Did the question in regard to the applicability of the Bombay Tenancy Act fall to be decided in proceedings under Section 88 - C thereof? 2. Does Section 85 - A require that the question as to whether a person is a tenant under that Act must be referred to the authorities under it in every case, even though it may have already been decided by those authorities in previous proceedings between the same parties in respect of the same land?
Ratio Decidendi: 1. The question of applicability of the Bombay Tenancy Act had to be decided in proceedings under Section 88 - C of the Act because the tenancy authority had to first decide whether the land in question was agricultural land within Section 2 (8) of the Act, and in the proceedings under Section 88 - C between the parties in respect of this very land, the tenancy authority had held that the major portion being grass land, the Bombay Tenancy Act was not applicable to it. 2. Section 85 - A does not require that the question as to whether a person is a tenant under that Act must be referred to the authorities under it in every case, even though it may have already been decided by those authorities in previous proceedings between the same parties in respect of the same land, because the words "and decide such issues" in sub - section (2) clearly negative a Reference in cases in whose issues have already been decided by the competent authority under the Act in earlier proceedings between the same parties in respect of the same land.
Final Decision: The court dismissed the Revision Petition with costs.

JUDGMENT - 1. This is a Revision Application from the order of the Civil Judge, Junior Division, Kagal, declining to make a Reference to the authorities under the Bombay Tenancy Act, 1948, under Section 85 - A thereof, of the issue as to whether the present petitioner is a tenant within the meaning of that Act. The plaintiff - landlord had filed the suit in that Court for possession of his half share in land bearing S. No. 84/1 and for mesne profit. By his written statement, the first defendant - tenant had, inter aliaa, contended that the court had no jurisdiction to decide whether he was a tenant under the Bombay Tenancy Act and hence an issue in that behalf should be referred to the competent authorities under that Act for decision. The trial court declined to make the Reference on the ground that that issue had already been decided against the present petitioner on 18-10-1960 by the authorities under the said Act in proceedings under Section 88 - C between the same parties in respect of the same land initiated by the plaintiff - landlord, and directed that the hearing of the suit be proceeded with. It is against that order that the first defendant - tenant has approached this Court in Revision.

2. Various elaborate arguments have been advanced by Mr. Sali on the Petitioners behalf, but it is not necessary to deal with all of them. Only two narrow questions arise : (1) Did the question in regard to the applicability of the Bombay Tenancy Act fall to be decided in proceedings under Section 88 - C thereof; and (2) Does Section 85 - A require that the question as to whether a person is a tenant under that Act must be referred to the authorities under it in every case, even though it may have already been decided by those authorities in previous proceedings between the same parties in respect of the same land.

3. As far as the first question is concerned, in my opinion, the question had to be decided in proceedings under Section 88 - C. I do not agree with Mr. Sali that in those proceedings the tenancy authority had only to consider two things viz. (a) whether the land was less than the economic holding of 16 acres; and (b) whether the total annual income thereof was less than Rs. 1500/-. The authority concerned had first to decide whether the land in question was agricultural land within Section 2 (8) of the Act. In the proceedings under Section 88 - C between the parties in respect of this very land the tenancy authority has in terms held by his Order dated 18-10-1960 that the major portion being grass land, the Bombay Tenancy Act was not applicable to it. From that decision it necessarily follows that the first defendant was not a "tenant" within the meaning of Section 2 (18) of the Act,as he sought to contend in the present suit. I am not concerned with the merits of that decision. Moreover, there was an appeal filed by the present petitioner against that decision which was dismissed by the Deputy Collector on 30th June 1969. I do not accept the petitioners contention that the Mamlatdars order dated 25-11-1965 in proceedings which were initiated in the ordinary course under Section 32 - G holding that, in view of the minority of the plaintiff - landlord, the Tillers Day was postponed necessarily, implied a decision to the contrary viz. that the land was agricultural land. In view of the finding that the landlord was a minor, no other question arose in those proceedings and the short order dated 25-11-1965 shows that the question as to whether the said land was agricultural land was, in fact, not decided or even considered by the tenancy officer.

4. As far as the second question formulated by me above is concerned, on first impression, Section 85 - A does seem to suggest that a Reference must be made to the tenancy authorities each time a question under the Act arises, but on a close scrutiny of the language used in that section I have come to the conclusion that I am not driven to a construction which would lead to such an op

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1971 Supreme(Bom) 18

IN THE HIGH COURT OF BOMBAYVimadalal J.R, J.Appellants: Vithoba Rama RandiveVs.Respondent: Dhairyasinharao Bhayasaheb Ghatge and Anr.Civil Revn. Appln. No. 883 of 1969Decided On: 30.01.1971Counsels: For Appellant/Petitioner/Plaintiff: M.V. Sali, Adv.For Respondents/Defendant: V.D. Govilkar, Adv.