( 1 ) ). . . . . . . . . . . . .

( 2 ) THE question posed is whether the jurisdiction of the Civil Court to grant an interim order as regards possession in relation to agricultural lands is ousted by reason of clause (nb) of sec. 70 read with sec. 85 of the Bombay Tenancy and Agricultural Lands Act of 1948 here inafter called the Act.

( 3 ) CLAUSE (nb) was introduced in sec. 70 of the Act by Gujarat Act V of 1973. Before the introduction of the said provision it was well settled for more than 7 or 8 years that a Civil Court had jurisdiction to pass appropriate interim orders in pending suits as regards possession even in cases where one of the parties claimed to be a tenant. This point was urged at length before J. B. Mehta J. in C. R. A. No. 273 of 1967 (Parmar Misrikhan v. Damaji Virji Gaman) and it was decided therein that a Civil Court had undoubted jurisdiction to pass appropriate interim orders as regards possession notwithstanding the fact that one of the parties to the suit claimed to be a tenant. It was argued before J. B. Mehta J. that having regard to the observations made by M. R. Mody J. in Mohan Moti v. Indravadan 4 G. L. R. 387 at page 394 the Civil Court had no jurisdiction to grant interim orders in such matters. After quoting the ralevant passage from the decision in Mohan Motis Case (supra) J. B. Mehta J. has observed as under :mr. Sheth strongly relied upon this paragraph to urge that it is Dot open to the Civil Court to consider even a prima facie case when this issue of tenancy is involved which can be decided only by the competent authorities under the Act. We do not agree with Mr. Sheths reading of this decision of Mr. Justice Mody. The short question which Mody J. had to deal with was whether a prima facie case was necessary to be proved before a reference was to be made to the competent authorities under the Act and his answer was that as soon as a plea was raised about the tenancy the question was exclusively within the jurisdiction of the competent authorities under the Act and a civil Court had no jurisdiction. It is in this context that Mody J. emphasised this aspect that it was mere raising of this plea which excluded jurirsdiction of the Civil Court to determine such an issue and it was not open to the Civil Court to go into the question whether there was any prima facie case or that the contention was rightly or wrongly raised. That view of Mody J. was clearly based on the interpretation of the aforesaid Dhondi Tukarams case and is clearly as per the settled law on this question. The question before me is not however as to when the reference ought to be made. There can be no dispute that once that plea is raised the Civil Court would have to refer this question for determination to the competent authority under the Act. What Mr. Sheth contends is that the civil Courts jurisdiction is excluded even for granting an interlocutory relief. In fact the entire approach of Mr. Sheth in this connection is wholly misconceived. The civil Court while considering the question of an interim injunction had only to consider a prima facie case alongwith the other relevant factors of balance of convenience etc. for exercising its discretion in passing this interlocutory order It was for this limited purpose that the civil Court bad gone into the question as to who was prima facie in possession. Both the Courts found that actual physical possession prima facie was with the plaintiff and the plaintiff having a prima facie case and as balance of convenience was in his favour he was threatened with irreparable loss unless interim relief was granted. All the observations which the lower Court has made are only from that limited consideration and the Civil Court never purported to decide the question of tenancy Mr. Sheth argued that the factum of possession was one of the fact in issue for determining the issue of tenancy and once the Legislature left the issue of tenancy to the Civil Court this incid