( 1 ) ). These two appeals arise out of Special Civil Suit No. 16 of 1967 decided by the Court of the Civil Judge (Senior Division) at Baroda. The facts of the case briefly stated are as under.

( 2 ) THE plaintiff filed the present suit against the defendants for recovery of possession of agricultural lands on the allegation that prior to 1st April 1957 he was the tenant in respect of those lauds and had become their deemed purchaser under the Bombay Tenancy and Agricul- tural Lands Act 1948 He further alleged that in 1965 he was disposse- ssed. In defence it was contended that the plaintiff was not the tenant prior to 1st April 1957 and that therefore he had not become the deemed purchaser under the provisions of the Tenancy Act. It was next contended that he had surrendered the lands to the landlords on 1st April 1957 and had been working on the land since then as the landlords servant. The learned trial Judge held that the plaintiff was the tenant prior to 1st April 1957 and that he had become the deemed purchaser on that date under sec. 32-G of the Tenancy Act. It was also held that he was wrongfully dispossessed by the defendant-landlords. He therefore passed in favour of the plaintiff decree for possession.

( 3 ) THAT decree is challenged by defendants Nos. 7 and 9 to 12 in First Appeal No. 3 of 1972 and by defendants Nos. 1 to 6 and 8 in First Appeal No. 717 of 1976. The learned trial Judge raised the issues. Later on he amended the issues and raised Issue No. 5-A relating to the past tenancy of the plaintiff. By his order Ex. 12 dated 18th November 1968 he referred that issue to the Mamlatdar under sec. 85a of the Tenancy Act. On 30th August 1969 the Mamlatdar made the order returning the reference to the Civil Court without deciding it because according to him he had no jurisdiction to decide whether plaintiff was a tenant prior to 1st April 1957. The order of the Mamlatdar was received on 20th November 1969 The Mamlatdar relied upon the decision of the Supreme Court in MUSSAMIYA IMAM HAIDER BAX RAZVI V. RABARI GOVINDBHAI RATNABHAI AND OTHERS 10 G. L. R 421 to which we shall shortly refer. Thereafter the trial Court proceeded with the suit and decided it in favour of the plaintiff.

( 4 ) SEC. 70 (b) of the Tenancy Act before it was amended in 1973 by Gujarat Act 5 of 1973 provided:"70 For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar : (a ). . . . . . . . . . . . . (b) to decide whether a person is a tenant or a protected tenant (or a permanent tenant ). . . . . . . . . . . . . . . . . This unamended section was interpreted by the Supreme Court in Mussamiyus case (supra ). It was held that there was nothing in the language of sec. 70 or sec. 85 of the Tenancy Act to suggest that the jurisdiction of the Civil Court was expressly or by necessary implication barred to decide the question whether a person was a tenant and had become the statutory owner of lands in his possession. Therefore according to the Supreme Court upon the true construction of sec. 70 (b) as it was prior to its amendment in 1973 the jurisdiction of the Civil Court by virtue of the provisions of sec. 85 of that Act was barred in cases where the tenant claimed present tenancy and not where the claim made by the tenant was based upon past tenancy. Now the trial Court decided the suit on 27th September 1971. In view of the decision of the Supreme Court in Mussamiyas case (supra) the trial Court had then the jurisdiction to decide whether the plaintiff was the tenant prior to 1st April 1957.

( 5 ) HOWEVER by Gujarat Act 5 of 1973 sec. 70 (b) and sec. 85a were amended. Amended sec. 70 (b) reads as follows:"70 For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar. (a ). . . . . . . . . . . (b) to decide whether a person is or was a tenant or a protected tenant or a permanent tenant". It is clear that amended sec. 70 (b) confers