ORDER : - A suit was filed by the opponent against the petitioner for possession in the civil Court. The opponents contention was that the petitioner was a trespasser. The defence taken up by the petitioner was that he was not a trespasser, but a protected tenant. The learned Civil Judge, Junior Division, came to the conclusion that the issue as to whether the defendant was a trespasser or a protected tenant was an issue which was triable under S.70(b), Bombay Tenancy Act by the Mamlatdar, and he had no jurisdiction to try the issue. Therefore, he ordered the plaintiff to present the suit to the proper Court. In coming to this conclusion, the learned Judge expressed an opinion that he was convinced that the defendant was a trespasser, but inasmuch as, in the view of the learned Judge, he had no jurisdiction, he did not pass any decree in favour of the plaintiff. The matter was taken in appeal to the learned .Assistant Judge, Ahmednagar, and the learned Assistant Judge held that the Court had jurisdiction to decide whether the defendant was a tenant or a trespasser, and he remanded the matter for disposal to the trial Court.

2. Now, the jurisdiction of the civil Court is ousted under S.85 of the Tenancy Act, and that section 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 (I am quoting the material part of the section), and under S.70(b), one of the duties and functions of the Mamlatdar is to decide whether a person is a tenant or a protected tenant. A very interesting argument has been advanced by Mr. Tarkunde, and his contention is that a suit against a trespasser is only cognisable by the civil Court, and therefore, if an issue arises in such a suit as to whether the defendant is a trespasser or a protected tenant, it is for the civil Court to decide that issue: if the defendant is a trespasser, the civil Court has jurisdiction to pass a decree for possession; if, on the other hand, the civil Court comes to the conclusion that the defendant is a protected tenant, then the Court would have no jurisdiction and the suit would have to be dismissed or sent to the Mamlatdar to dispose of it according to law.

Mr. Tarkundes further contention is that it is only to those issues which the Mamlatdar is required to determine in a proceeding which should be filed before the Mamlatdar that S.70(b) has any application. Now, under S.29(2), no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. Therefore, if a landlord wants to obtain possession from his tenant, he cannot approach a civil Court, but must go to the Mamlatdar. Mr. Tarkunde says that, when a landlord files such an application, the Mamlatdar has jurisdiction to decide any issues that arise in such an application, but that, when a person files a suit against a trespasser, that is not a proceeding of which the Mamlatdar can take cognisance, and as it is only the civil Court that can take cognisance, any issue that arises in such proceedings or such suit can legitimately, be tried by the civil Court without olfending the provisions of S.29(2).

Now, if this argument was sound, really no occasion would ever arise for the Mamlatdar to decide the issue as to whether a person is a tenant or a protected tenant, because, if a person could only go to the Mamlatdar in those cases where he admitted that the defendant was a tenant or a protected tenant, then the issue as to whether the person was a tenant of a protected tenant would not arise. Such an issue can only arise when there is a dispute as to the status of the particular person, and it is only when an allegation is made that the person is not a tenant or a protected tenant that the Mamlatdar would be called upon to try such an issue. Now, it is clear that the question whether a person is a tenant or a protected tenant is not a jur

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