Civil Courts lack jurisdiction over tenancy matters under Section 85 of the Tenancy Act, and suits filed after significant delays are time-barred.

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1 This appeal under Section 96 of the Code of Civil Procedure has been filed by the appellants who were the original plaintiffs before the Civil Court. On an application filed under Order VII Rule 11 by the original defendants 36 to 40, the Trial Court, i.e. the 10th Additional Civil Judge at Surat, by order dated 09.03.2015, entertained and allowed the application and dismissed the suit of the appellants.

2 Facts in brief are as under:

2.1 Special Civil Suit No. 631 of 2014 was filed by the appellants where they prayed for the following reliefs:

“(1) For a declaration that order declaring Zinabhai Dhanjibhai (predecessor of the defendant No.1 to 35as “Protected Tenant” is illegal.

(2) (i) Declaration that the Mutation Entry recording the name of defendant no. 1 to 35 with respect to the suit property is illegal (ii) declaration that the suit property has been owned by their (plaintiff) ancestor Atmaram Prabhubhai and they are the owners of the suit property and (iii) for possession of the suit property.

(3) Cancellation of all the registered sale deeds with respect to the suit property executed by the defendant no. 1 to 35 in favour of defendant no. 36 to 40 (Mark 3/19, 3/20 & 3/21 dated 23.05.2012, 23.05.2012 & 16.08.2012, respectively)

(4) Permanent injunction.”

2.2 Plaintiff No. 1 was the widow of one Pushpak Atmaram, whereas plaintiff No.2 was the widowed daughter-in-law of the plaintiff No.2. Plaintiff Nos. 3 and 4 were sons of plaintiff No.2, whose husband Manhar Atmaram (deceased) was the son of Pushpak Atmaram.

2.3 It was the case of the plaintiffs that the land bearing original survey No. 73/4 (new survey No. 73/3/1, Block No. 127) in village Bhumrad, Taluka : Surat, was originally purchased by their ancestor Atmaram Prabhudas in the year 1937 from one Dhanjibhai Govanbhai. The Mamlatdar on 05.06.1948 declared Zinabhai Dhanjibhai, predecessor of defendant Nos. 1 to 35 as a protected tenant. On the death of their ancestor Atmaram Prabhudas (Father-in-Law of plaintiff No.1) on 08.08.1950, name of Prabhudas Atmaram was entered as heir in 1957 in the revenue records. Pushpak Atmaram also expired on 17.05.1977 intestate.

2.4 The case of the plaintiff is that on the death of the protected tenants, their heirs’ names were mutated in the revenue records. On discovery of the sale deed made by the erstwhile protected tenant in favour of the plaintiff’s ancestors by which he was the owner in 1937 and by wrongful means the defendants 1 to 35 claimed to be protected tenants and by mutation of revenue entries in the revenue records on the basis of a proceeding under the Tenancy Act of their ancestors, the defendants No. 1 to 35 became wrongful owners and the subsequent sale of the lands by defendants No. 1 to 35 in favour of defendants 36 to 40 was bad. It was in this context that prayers were made to set aside tenancy proceedings and consequential sale deed in favour of defendants No.36 to 40.

2.5 Defendants No. 36 to 40 filed application under Order VII Rule 11 that the prayer to set aside tenancy proceedings vis-a-vis defendants 1 to 35 was barred by Section 85 of the Bombay Tenancy & Agricultural Lands Act, 1948. Moreover, after the death of Pushpak Atmaram on 17/05/1977 till October 2014, the plaintiffs had remained silent and even the sale deeds of defendants No.36 to 40 in the year 2012 could not be set aside as these were consequential reliefs to the main relief of setting aside the tenancy proceedings. The Trial Court dismissed the suit on the ground of gross delay and hence this appeal.

3 Mr.Utpal Panchal, learned counsel appearing for the appellants, would read the plaint before us and submit that once their ancestor Atmaram Prabhudas became owner of the lands in question by virtue of a sale deed in 1937, his son