1. It is true that an inference as to permanent tenancy is a mixed question of law and fact and could foe raised in second appeal. But the facts found from which the inference in favour of a party claiming to be a permanent tenant is sought to be raised must be regarded as binding in second appeal, though the question as to what inference should be raised from those facts must be regarded as a question of law. In the present case on the facts found it is impossible to raise a presumption under Section 83 of the Land Revenue Code in favour of defendants 1 and 2. Admittedly there is no Miras Patra in favour of defendants 1 and 2, and the question that defendants 1 and 2 were mirasdars was not argued before the learned appellate Judge. Even though the question as to the jurisdiction of the civil Courts to entertain and decide a suit relating to tenancy and protected tenancy was not argued in the lower appellate Court, Mr. Shukhtankar on behalf of defendants 1 and 2 has contended before me that once defendants 1 and 2 raised a contention that they were tenants and not liable to be evicted, the civil Court had no jurisdiction to decide the suit. The learned trial Judge held on the evidence that defendants 1 and 2 were trespassers in the year 1944, and not tenants as contended by them. He also held that defendants 1 and 2 not being tenants cannot be held to be protected tenants as defined under the Act, and the question of notice to them did not arise, and the Court's jurisdiction was not barred. As I stated earlier, the learned appellate Judge was not invited to consider the question as to the jurisdiction of the civil Courts to entertain and decide the case once defendants 1 and 2 raised a question as to tenancy or protected tenancy.
2. But the question being one as to the jurisdiction of the Court to proceed to a hearing of a suit, even though not canvassed in the lower appellate Court must be decided by this Court. Mr. Shukhtankar relies upon Section 70, Bombay Tenancy and Agricultural Lands Act, 1948, which provides 'inter alia';
'For the purposes of this Act, the following shall be the duties and functions to be performed bythe Mamlatdar-
(a) to decide whether a person is an agriculturist;
(b) to decide whether a person is a tenant or a protected tenant;........'
Section 85 of the Act is also relied upon by Mr. Sukhtankar; and that section provides in Sub-section (1):
'No 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 or Tribunal, a Manager, the Collector or the Bombay Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.'
Relying upon Sections 70 anl 85, Sub-section (1) of the Act, it is submitted that the combined effect of these two sections of the Act is to bar the jurisdiction of the civil Courts in respect of any question which the Mamlatdar is entitled to settle, decide or deal with. Now, Section 85, Sub-section (1), is a provision which excludes the jurisdiction of the civil Courts and must be strictly construed. Under Section 70 of the Act the duties and functions of the Mamlatdar set out are expressly stated to be 'for the purpose of this Act.' It is true that the jurisdiction of the civil Courts to decide, settle or deal with questions required to be decided by the Mamlatdar under the Act is excluded; and when Section 29, Sub-section (2), provides that a landlord shall not obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar, the jurisdiction of the civil Courts to pass orders in ejectment against tenants defined by the Act must be deemed to have been taken away. Undoubtedly by Section 70 of the Act the Mamlatdar is authorised to decide the question whether a person is a tenant or a protected tenant, provided it is a decision to be given for the purposes of the Act'. If in proceedings under Sub-section (2) of Section 29 a contention is sought to be raised that the relation of landlord and tenant does or does not subsist between the parties, it would be for the Mamlatdar to decide the question whether a person alleged or claiming to be a tenant or a protected tenant is or is not such a tenant. Section 70 of the Act does not, however, profess to confer exclusive jurisdiction upon the Mamlatdar to decide questions set out in Cluses (a) to (o) of that section, whatever the nature of the proceeding; it merely imposes duties and sets out the functions of the Mamlatdar to be performed for the purposes of the Act. It would, therefore, appear that if in a matter filed in a civil Court a question did arise which if it had arisen in proceedings instituted under the provisions of the Bombay Tenancy and Agricultural Lauds Act, 1948, it would be the duty and the function of the Mamlatdar to decide, the jurisdiction of the civil Courts to decide or deal with that question cannot be regarded as barred. There does not appear any provision in the Bombay Tenancy and Agricultural Lands Act, 1948, which lays down that a civil Court is not entitled to try a civil proceeding which involves the determination of any question falling within Section 70, Clauses (a) to (o), which if it had arisen in a proceeding under the Act would have been settled, decided or dealt with by the Mamlatdar. Normally the jurisdiction of a civil Court depends upon its competence to decide a claim made by the claimant, and not upon the defence raised by the opponent; and the Court does not lose its jurisdiction merely by reason of a defence raised. In any case the cesser of jurisdiction can be effective only on proof of facts which deprive jurisdiction, and not merely by raising a plea of those facts.
3. I have an impression that numerous cases have come before this Court, some of which have been decided by Division Bench of this Court, in which contentions have been raised by the defendants that they were tenants or protected tenants, and the Court decided that the defendants were mere trespassers and therefore not entitled to the status of protected tenants, and therefore the Court was entitled to pass decrees in ejectment on the footing that they were trespassers : see the judgment of Weston and Dixist JJ. in -- 'Ramchan-dra Atmaram v. Ramchandra Laxman', S. A. No. 335 of 1943, D/- 14-10-1949 (Bom) (A), and judgments in -- 'Laxmibal Govind Ambekar v. Maina', S. A. No. 1201 of 1950, D/- 15-7-1952 (Bom) (B) & -- 'Ibrahim Vajirsaheb v. Noormahomed', S. A. Nos. 874 and 875 of 1950, D/- 25-10-1950 (Bom) (C) and -- 'Jethalal Babar Bhatt v. Chhota Ran-chhodas Baria', S. A. No. 684 of 1952, D/- 18-11-1952 (Bom) (D). If the contention advanced by Mr. Sukhtankar is correct, all those cases must be deemed not to be correctly decided. It is true that the contention was not raised in those cases in the form in which Mr. Sukhtankar is seeking to raise a contention before me in this case. Mr. Sukhtankar has after this judgment was commenced to be delivered sought to rely upon a decision of my Lord the Chief Justice in--'Trimbak Sopana v. Gangaram', (E), in which an identical contention was sought to be raised, and it is claimed that it was decided that once a contention is raised by the defendant, in a civil suit filed' against him on the footing that he is a trespasser, that he as a tenant as defined by the Bombay Tenancy and Agricultural Lands Act, the civil Courts lost jurisdiction to try the suit.
4. In view of the importance of the question, I think that this is a fit case which should be referred to a Division Bench for deciding whether on a contention raised by the defendant in a suit filed against him on the footing that he is a trespasser that he is a tenant or a protected tenant, whether the civil Court loses jurisdiction to try the suit by reason of the combined operation of Sections 70 and 85, Bombay Tenancy and Agricultural Lands Act, 1948?