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Ratanchand Balaram Shah and ors. Vs. Kumar Gangabai Shelgonda Patil - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 181 of 1971
Judge
Reported inAIR1973Bom179; (1972)74BOMLR735
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 85, 85-A and 87
AppellantRatanchand Balaram Shah and ors.
RespondentKumar Gangabai Shelgonda Patil
Appellant AdvocateK.J. Abhyankar, Adv.
Respondent AdvocateH.D. Gole, Adv.
Excerpt:
bombay tenancy and agricultural lands act (bom. lxvh of 1948), sections 85a, 85, 10, 87 -- 'suit' in section 85a whether means only suit instituted by presentation of plaint.;the word 'suit' in section 85a of the bombay tenancy and agricultural lands act, 1948, includes all proceedings in which a claim is made or remedy is sought in a court of law and will include execution proceedings.;mohan moti v. indravadan [1903] 4 guj. l.r. 387 agreed with.;gajadhar ramchandra v. abdul (1967) 70 bom. l.r. 59 disapproved.;govinda radha tambe v. pandharinath balaji tambe (1970) special civil application no. 1496 of 1966, decided by deshpande j., on september 16 1970(unrep.) arjuna pundalika lawand v. mahadeo shivram lawand (1970) special civil application no. 1191 of 1965, decided by bhasme, j., on.....s.k. desai, j.1. this is a revision application against the decision of the learned extra assistant judge, kolhapur in b. a. d. r. appeal no. 1 of 1970 filed in the dist. court at kolhapur. that was an appeal against the decision and order passed by the learned civil judge, junior division kagal, on 3rd april 1970 in award darkhast no. 4 of 1965. the learned extra assistant judge by his judgment and order dated 18th february 1971 dismissed the appeal with costs and confirmed civil judge junior division, kagal. being aggrieved by the above decision of the learned extra assistant judge, revision application. by an order made on 11th october 1971 gatne, j. referred the matter to a division bench and in these circumstances it has come up for hearing before us.2. the narrow point arising for.....
Judgment:

S.K. Desai, J.

1. This is a revision application against the decision of the learned Extra Assistant Judge, Kolhapur in B. A. D. R. Appeal No. 1 of 1970 filed in the Dist. Court at Kolhapur. That was an appeal against the decision and order passed by the learned Civil Judge, Junior Division Kagal, on 3rd April 1970 in Award Darkhast No. 4 of 1965. The learned Extra Assistant Judge by his judgment and order dated 18th February 1971 dismissed the appeal with costs and confirmed Civil Judge Junior Division, Kagal. Being aggrieved by the above decision of the learned Extra Assistant Judge, revision application. By an order made on 11th October 1971 Gatne, J. referred the matter to a Division Bench and in these circumstances it has come up for hearing before us.

2. The narrow point arising for determination in the revision application is the meaning to be given to the expression 'suit instituted in any Civil court' occurring in Section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Bombay Tenancy Act). The question is whether by this expression the Legislature intended to mean only a suit instituted by presentation of a plaint as provided in the Code of Civil Procedure or whether it encompasses all other proceedings before a Civil Court in which any right claimed or any claim is made or prosecuted or a remedy pursued by a process of law.

3. In order to appreciate the rival contentions, a few facts may be stated:

4. On 27th October 1949 Jeejabai, the Opponent before us, started proceedings under the Bombay Agricultural Debtors Relief Act, 1947 (Bombay Act No. XXVIII of 1947) for adjustment of her debts. The various proceedings so started were numbered as Consolidated Case No. 2205 of 1949, and ultimately on 13th November 1964 an award was passed by the B. A. D. R. Court in those proceedings. Thereafter the said applicant filed an execution application for execution of the said award in the Court of the Civil Judge, Junior Division at Kagal. The execution Application was numbered as Award Darkhast No. 4 of 1966. In this Darkhast the Opponent-Applicant prayed for actual possession of the lands described in the execution application. The Petitioners before us were some of the respondents to the Darkhast Application. In that application Jeejabai alleged that the lands which were in possession of several persons who were shown in the Record of Rights as tenants, and it was urged that they had been inducted on the lands after the proceedings under the B. A. D. R. Act, were commenced and, accordingly, the tenancies, if any, were hit by the doctrine of lis pendent.

5. The petitioners before us fall into three Groups. Petitioners Nos. 1, 2 and 3 were in possession of lands bearing Survey nos. 505/1, 495/3 and 490/2. By their written statements (Exhibits 45 and 46) they had contended that these lands were in their possession, having been taken on lease from the original mortgagee, and that they have been cultivating the same since the year 1945. Accordingly they claimed protection under the provisions of the Bombay Tenancy Act. The remaining Petitioners are the heirs of one Nana Rama and one Balgonda Shivgonda Patil. Nana Rama and Balgonda had put in a joint written statement (Exhibit 44) contending that they were in possession of the lands bearing Revision Survey Nos. 484/4 and 486/6 respectively. It was urged that the said lands had been taken on lease from the original mortgagee, and that they were cultivating the same before the year 1948. Accordingly these two persons also sought protection under the Bombay Tenancy Act.

6. Before the learned Civil Judge, Junior Division, Kagal, issues were framed as Exhibit 49 and out of these issues. Issues Nos. 6, 8, 11 and 13 were directed to be tried as preliminary issues. These issues related to the question of referring the contentions pertaining to the tenancies for decision to the appropriate authority under the Bombay Tenancy Act.

7. By his order dated 11th January 1969 the learned Civil Judge, Junior Division, Kagal, held that there was no bar to the trial of these issues by the Civil Court. he accordingly ordered that all issues, including the issues regarding the tenancies arising in the proceedings before him, would be tried and decided by the Court and were not to be referred to the appropriate authority under the Bombay Tenancy Act. Thereafter, further hearing took place and the learned Civil Judge found on the material before him that the tenancy of Nana Rama had come into existence after 27th October 1949. Similarly, he found that Balgonda Patil was cultivating the land, Rev. Survey No. 484/6 since 1957-58 only. As far as Petitioners Nos. 1 to 3 are concerned, it was also found that they had started cultivating the lands in their possession some time after 1949-50. In short it was found that all the Petitioners had been inducted as tenants after the B. A. D. R. proceedings were commenced by the Opponent-Applicant. In respect of one other tenant the finding was to the contrary; but in this revision application we are not concerned with him or with the lands in his possession. As far as the Petitioners are concerned, by his order dated 3rd April 1970, the learned Civil Judge, Junior Division, Kagal, directed delivery of actual possession of the Petitioners to the Opponent-Applicant. Being aggrieved by this order, an appeal was preferred to the District Forum, Kolhapur, being B. a. D. R. Appeal No.1 of 1970, which was disposed of by the learned Extra Assistant Judge, Kolhapur, on 18th February 1971.

8. The only point which appears to have been urged before the learned Extra Assistant Judge was that the learned Civil judge ought to have referred the question of tenancies to the authority under the Bombay Tenancy Act and ought not to have decided the same himself. This was negatived by the learned Extra Asstt. Judge Division, Kagal. It may be mentioned that both the learned Civil Judge and the learned Extra Assistant Judge relied upon the judgment of Padhya. J. in Gajadhar Ramchandra Agarwal v. Abdul Munag Mahamudmiya, (1968) 70 BoomLR 59. In the above case, Padhye, J. was dealing with Section 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (Act XCIX of 1958). But the wording of that section is very similar to the wording of Section 85-A of the Bombay Tenancy Act, and there is no material difference between the two.

9. Mr.Abhyankar on behalf of the Petitioners urged that the view taken by Padhye. J. in the above decision that the word 'suit' in Section 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, has to be given a restricted meaning and would not include an execution proceeding, is erroneous. He submitted that the attention of Padhye. J. was not drawn to Section 124 of the said Act, and if Section 125 was construed with reference to the bar of jurisdiction imposed by Section 124. Padhye. J. would not have come to the conclusion that a strict meaning ought to be given to the word 'suit', restricting it only to civil proceedings which are commenced with the institution of a plaint. According to Mr. Abhyankar, Padhye. J. ought to have considered the equivalent sections of the Bombay Tenancy Act viz., Sections 85 and 85-A. According to Mr. Abhyankar, if Section 85-A is considered historically and logically then it is quite clear that a wider meaning ought to be conferred on the expression 'suit instituted in any Civil Court' occurring in Section 85-A and not the narrower meaning. In support of his contention Mr. Abhyankar relied upon the decision of the Gujarat High Court in Vaswa Mohan Moti v. Indravadan Kuberdas Sampatram, (1963) 4 Guj LR 387. he also relied upon the observations in two unreported Bombay decisions, viz., that of Deshpande. J. in Spl. Civil Appln. No. 1396 of 1966 (decided on 18-9-1970) (Bom) and of Bhasme, J. in Spl. Civil Appln. No. 1191 of 1965 (decided on 21-4-1970) (Bom).

10. In order to understand fully the points involved in this revision application the relevant portion of Section 70 and Sections 85 and 85-A of the Bombay Tenancy Act may be fully set out :-

'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 at any time in the past, a tenant or a protected tenant or a permanent tenant.

... .... ... ..... ...... .......'

85. (1) No Civil Court shall have jurisdiction to settle decide or deal with any questions (including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him) which is by or under this Act required to be settled, decided or dealt with the Mamlatdar or Tribunal a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision of the State Government in exercise of their powers of control.

(2) No order of the Mamlatdar the Tribunal, the Collector or the Maharastra Revenue Tribunal or the State Government under this Act shall be questioned in any Civil Court or Criminal Court.

Explanation - For the purposes of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdars' Courts Act, 1906.'

'85-A. (1) If any suit instituted in any Civil Court involves any issues which are required to be settled decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the competent authority) the Civil Court shall stay the suit and refer such issue to such competent authority for determination.

(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

Explanation - For the purpose of this section, a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdars' Courts Act, 1906.'

11. It may be mentioned that Section 85-A was introduced in the Bombay Tenancy Act by Section 46 of Bombay Act XIII of 1956; it is therefore, both historically and positionally subsequent to Section 85 came up for consideration before a Division Bench of this Court in Dhondi Tukaram v. Dadoo Piraji, 55 BomLR 663 = AIR 1954 Bom 1001. After considering the bar imposed by Section 85 of the Bombay Tenancy Act, Gajendragadkar, J. (as he then was) observes in this judgment that

'Section 85 (1) clearly 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 deals with by the Mamlatdar, or by the other tribunals or authorities mentioned in the Act.'

It was accordingly held that Section 70 made the Mamlatdar the forum of exclusive jurisdiction for the determination of the questions mentioned in that section. It was further observed that whenever parties are at issue on the tenant or a protected tenant, the only tribunal that can decide this question is the Mamlatdar and no other. In the above decision the Division Bench considered what the Civil Court has to do when a plea is taken before it that the defendant or opponent in the proceeding is a tenant or a protected tenant. It was observed that the proper procedure in such a case was not to dismiss the suit straightway but to direct the party who raises the plea to obtain a decision from the Mamlatdar within a reasonable time. It was further observed that the Legislature should have provided for transfer of such cases, and the attention of the Legislature was expressly drawn to this aspect of the matter. It is pursuant to these observations that Section 85-A came to be introduced in the Bombay Tenancy Act in 1956.

12. It was urged by Mr. Abhyankar on behalf of the Petitioners that in Gajadar Ramchandra Agarwal's case : (1968)70BOMLR59 attention of Padhye. J. was obviously not drawn to S. 124 and also to the historical position with regard to Ss. 85 and 85-A which are the corresponding sections in the Bombay Tenancy Act. As Padhye. J. himself observes, the word 'suit' may assume different colours in different contexts. In some cases a wider meaning is to be given to the expression and in others a narrower meaning has to be given. The actual meaning to be given would depend upon the wording of the section and the ambit of the statute. Mr. Abhyankar urged that bearing in mind the bar of jurisdiction provided under Section 85 of the Bombay Tenancy Act, it is the wider meaning which ought to be conferred on the expression 'suit instituted in any Civil Court' occurring in Section 85-A and not the narrower meaning.

13. Padhye. J. in Gajadhar Ramchandra Agarwal's case, : (1968)70BOMLR59 referred to an earlier Bombay decision in Khairunnisa v. Municipal Corpn., : (1965)67BOMLR903 . In the case a Division Bench of this Court was considering an application filed before the Motor Accidents Claims Tribunal under Section 110 of the Motor Vehicles Act, 1939. The word 'suit' occurring in Section 527 of the Bombay Municipal Corporation Act, 1888, had come up for consideration before the Division Bench. The Motor Accidents Claims Tribunal had held that the application for compensation filed before it was in the nature of a suit. The Bombay Municipal Corporation was the Opposite Party to a claim before the Tribunal, which had held that since a notice under Section 527 of the Bombay Municipal Corporation Act had not been served on the Municipality, the application was liable to be dismissed. The Division Bench was hearing an appeal from the decision of the Tribunal dismissing the application. A number of decisions were cited before and considered by the Division Bench. In certain matters, as observed by the division Bench, the word 'suit' has been given a narrower meaning, viz., a proceeding commenced with the institution of a plaint as provided in the Code of Civil Procedure; in other cases the word 'suit' has been given an extended meaning to include restitution applications, execution proceedings as also petitions to set aside awards. After considering these cases the Division Bench observes as follows : -

'It is not doubt true that these cases illustrate that the word 'suit' is capable of having a very wide connotation and may include, depending upon the context, any legal proceeding commenced by one person against another in order to enforce a civil right.'

However, it does not necessarily follow that the word 'suit' must be given such a wider meaning wherever it occurs. In order to determine the ambit of the words used, the Courts must consider the object which the provision was intended to achieve.

14. Before Padhye. J. reliance was placed upon Section 127 of the Bombay Tenancy and Agricultural Land (Vidarbha Region) Act, 1958. In that section, which is identical to Section 87 of the Bombay Tenancy Act, the words 'suit or other legal proceeding' have been used, and it was argued that since the words 'or other legal proceeding' were omitted in Section 125 of that Act, the Legislature intended to restrict the operation of that Section only to suits before Civil Courts and the word could not be taken to include 'other legal proceedings' which may be pending before the civil Courts. This argument found favour with Padhye. J.

15. Sections 70, 85 and 85-A of the Bombay Tenancy Act came up for consideration before a single Judge of the Gujarat High Court in (1963) 4 Guj LR 387. In that case Mody. J. of the Gujarat High Court was considering a revision application from an order of the Civil Judge, Junior Division Sankheda, who had held that Section 85-A of the Bombay Tenancy Act (as applicable to the State of Gujarat) referred to suits only and had no application to matters other than suits. In his judgment Mody. J. considered the scheme of the Bombay Tenancy Act and interpreted Sections 85 and 85-A with reference to the scheme of the said Act and the historical perspective. Before him it had been contended that Section 85 of the said Act applied to suits only and not to legal proceedings other than suits. The argument was based upon the expression 'suit' occurring in isolation in Section 85-A, and S. 85 was sought to be construed with reference to S. 85-A which followed it. Mody. J. rejected the submissions made before him in this behalf and held that Section 85 could not be construed with reference to the wording of Section 85-A which followed it, both positionally and historically, but that Section 85-A was required to be construed with reference to the preceding section viz. Section 85. Ultimately it was held that by the word 'suit' in Section 85-A the Legislature intended to mean and include not only a suit as instituted under the Code of Civil Procedure, but any proceeding whereby a claim was made or a remedy sought in a Court of Law.

16. Reference may be made at this juncture to the two unreported judgments of our high Court in which the decision of Padhye. J. in Gajadhar Ramchandra Agarwal's case : (1968)70BOMLR59 has been referred to. Both these judgments were cited by Mr. Abhyankar on behalf of the Petitioners before us. The first of these unreported judgments is that of Deshpande J. in Govind Radha Tambe v. Pandharinath Balaji Tambe, Spl. Civil Appln. No. 1396 of 1966 (D/- 18-9-1970) (Bom). In that case the Civil Judge, Junior Division Shrirampur, made a reference to the Mamlatdar under Section 85-A (1) of the Bombay Tenancy Act. This reference was made in a day (sic) application filed by Respondent Pandharinath before the Civil Judge seeking to be put in possession under O. 21, R. 96 of the civil P. C. The petitioners in that case claimed to have been in possession as tenants and on this plea the reference was made. The decision of the Mamlatdar was given in due course and the order of the Mamlatdar was subsequently taken in appeal before the District Deputy Collector, who decided in favour of the occupants. In revision the Maharashtra Revenue Tribunal, set aside the order of the District Deputy Collector on the ground that the reference by the Civil Court to the Mamlatdar under Section 85-A (1) was incompetent. According to the Revenue Tribunal, it was not open for a Civil Court to make any such reference in execution proceedings. In his judgment Deshpande. J. observes as follows : -

'The observations of the Maharashtra Revenue Tribunal that the executing Court is incompetent to make any reference under Section 85-A (1) also is not correct.'

The attention of Deshpande. J. was drawn to the judgment in Gajadhar Ramchandra Agarwal's case. : (1968)70BOMLR59 , but he preferred to follow another earlier unreported ruling viz. of Chainani. C. J. in S. Civil Appln. No. 1352 of 1963, (decided on 4-12-1964) (Bom).

17. The second case cited by Mr. Abhyankar was the decision of Bhasme, J. in Arjuna Pundalika Lawand v. Mahadeo Shivram Lawand, Spl. Civil Appln. No. 1191 of 1965, D/- 21-4-1970 (Bom). That Special Civil Application was also from a decision of the Maharashtra Revenue Tribunal which had passed an order holding that a reference made by the Civil Judge in obstructionist proceedings to the Mamlatdar of Khatav was incompetent and that the executing Court should be informed accordingly. Bhaseme. J. also refers to the decision of Chainani, C. J. in Special Civil Application No. 1352 of 1963 and according to Bhasme. J. Chainani. C. J. in that judgment had taken the view that an executing Court was competent to make such a reference under Section 85-A (1). Bhasme, J. however, after referring to the judgment in Gajadhar Ramchandra Agarwal's case : (1968)70BOMLR59 decided the Special Civil Application before him on a narrower point viz. whether the Revenue authorities could question the propriety of a reference made by a Civil Court under Section 85-A of the Bombay Tenancy Act. In his view once a reference was made, it was not open for the Revenue authorities to question the same. In this view of the matter, Bhasme. J. quashed the order of the Revenue Tribunal but declined to go into the wider question viz. whether under Section 85-A a reference could be made by a Civil Court in a proceeding other than a suit (in the strict meaning of the term).

18. Although there are stray observations in these two judgments which would support the view being canvassed by Mr. Abhyankar, the only two judgments which would have a direct bearing on the question being canvassed before us are of Padhye. J. in (1968) 4 Guj LR 387.

19. Mr. Gole on behalf of the Respondent-Application urged three submissions. It was urged by him in the first instance that Section 85-A is the main section which would govern Section 85 also, and both these sections should be restricted to 'suits' simpliciter and would not apply to legal proceedings other than suits. Secondly, it was urged that reading Sections 85-A and 87 together, the expression 'suit' in Section 85-A must be given its narrower meaning particularly when the Legislature in Section 87 had used the expression 'suit or other legal proceeding'. Thirdly, it was submitted that the provisions of Sections 85 and 85-A of the Bombay Tenancy Act were restrictive of the jurisdiction of Civil Courts and, therefore, such restrictions should be construed strictly and where should be construed strictly and where two meanings are possible, narrower and wider, the narrower meaning should be given to such restrictive provisions.

20. We do not find much substance in the second contention of Mr. Gole, although a similar argument based on a comparative provision of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, found favour with Padhye. J. Many a time it has been said that a document or an Act is its best dictionary and the meaning to be given to a word or expression occurring at one place in an enactment or a document must be the same as to be found given to it at another place. The argument that since in Section 87 the Legislature has used the expression 'suit or other legal proceeding' and, therefore, when it has used in Section 85-A the word 'suit' simpliciter, it cannot be taken to mean 'suit or other legal proceeding', but must be given the stricter meaning, does appear attractive at first blush. However, in our opinion, the meaning to be given to the word 'suit' in Section 85-A will have to be determined with reference to Section 85 and not with reference to Section 87 of the Bombay Tenancy Act.

21. The first of the three submissions that Section 85-A should be construed first and thereafter Section 85 should be interpreted and that the bar imposed by Section 85 has to be considered with reference to the construction put on Section 85-A also appears to be unsound. historically Section 85, which contains the bar of jurisdiction on Civil Courts, was enacted when the Act was originally enacted i.e. in 1948. Section 85-A was brought on the statute book in 1956, following the observations in Dhondi Tukaram Mali's case 55 BomLR 663 = AIR 1954 Bom 100. Section 85 will have to be construed primarily and Section 85-A will have to be interpreted in the light of the construction we put on Section 85 and not the other way about.

22. It is also not possible to agree with the third submission made by Mr. Gole. Undoubtedly, if two interpretations were possible to be given to Section 85, then since it is a provision which restricts the jurisdiction of the Civil Courts, a narrower interpretation may have to be preferred. However, unfortunately for Mr. Gole, Section 85 is clear and unambiguous. In our opinion, the bar of jurisdiction contained in Section 85 applies to all legal proceedings before a Civil Court. In all these proceedings whenever a question arises which is required under the Bombay Tenancy Act to be dealt with by the Mamlatdar or any other authority provided under the Bombay Tenancy Act, the Civil Court's jurisdiction is ousted. According to Mr. Gole, his submissions were strengthened by reason of the Explanation to Section 85. By this Explanation Mamlatdars' Courts are brought within the purview of the expression 'Civil Court' occurring in Section 85. In our view, the Explanation has no bearing on the point arising for consideration before us. The term 'Civil Court' is not defined in the Bombay Tenancy Act, 1948. The Civil Courts in the State are indicated by the Bombay civil Courts Act, 1869 (Act XIV of 1869). The Courts mentioned in the said Act would not include Mamlatdars' Courts and the Explanation has obviously been introduced in the section to include them. By reason of this Explanation, in all proceedings before the Civil Courts as provided in the Bombay Civil Courts Act, 1869, as well as before the Mamlatdars' Courts, whenever a question arises which has under the Bombay Tenancy Act to be dealt with by an authority under that Act, the bar of Section 85 would come into force.

23. Once the true meaning and effect of Section 85 if understood, then there is not much difficulty in construing the word 'suit' or the expression 'suit' instituted in any Civil Court' occurring in Section 85-A. By reason in Section 85, difficulties were fell in disposing of proceedings pending in Civil Courts. These difficulties were set out by Gajendragadkar. J. (as he then was) in Dhondi Tukaram Mali's case. 55 BomLR 663 = AIR 1954 Bom 100. It was observed that the proper course in such a case was for the Court to stay the proceedings for a reasonable time and ask the party which had raised the issue or plea to move the Mamlatdar or the appropriate authority under the Bombay Tenancy Act to obtain a decision. Pursuant to the observations made in the judgment in that case, Section 85-A was introduced which provided for a direct reference by the Civil Court itself to the competent authority under the Bombay Tenancy Act. This context and the background would require that the enabling machinery or procedure introduced in Section 85-A should be available in all matters in which there was a bar of jurisdiction provided for by reason of Section 85. It is not possible to hold that Section 85 provides for a bar of jurisdiction in respect of all matters before the Civil Courts and that S. 85-A contains the enabling machinery for making a reference only in respect of suits. Equally absurd, in our opinion, is the plea that since suits (and not other legal proceedings) are mentioned in Section 85-A, the bar of jurisdiction in Section 85 should be restricted only to suits. Proper and harmonious construction of these two sections would require that the expression 'suit' in Section 85-A should be given its wider meaning to include all legal proceedings before the Civil Courts.

24. In our view, the construction put on Section 85-A in Vaswa Mohan Moti's case 4 Guj LR 387 by the Gujarat High Court is the proper interpretation, and the word 'suit' must be construed as including all proceedings in which a claim is made or remedy is sought in a Court of law and would undoubtedly include execution proceedings.

25. In this view of the matter it is obvious that such of the issues as were framed pertaining to the petitioners before us and their plea of being tenants could not have been tried and decided by the learned Civil Judge and had necessarily to be referred to the appropriate authority under the Bombay Tenancy Act.

26. In our opinion, it will be necessary in this view of the matter to set aside and quash that part of the order of the learned Civil Judge which directed actual possession of the petitioners' lands to be given to the opponent-applicant (Jeejabai). It is unnecessary to disturb the rest of the order.

27. Accordingly the portions of the order of the learned Civil Judge dealing with Revision Survey Nos. 505/1, 495/3, half share in survey No. 490/2, survey Nos. 484/4 and 484/6 are set aside. In the first three of the said lands as noted earlier in the judgment, petitioners Nos. 1, 2 and 3 are concerned, Survey No. 484/4 is in possession of the heirs of the deceased Nama Rama. Survey No. 485/6 is in possession of Balgonda Patil. s far as the other lands affected by the said order are concerned, they are not the subject-matter of this revision application, and hence our order will not affect those lands and the darkhast will be deemed disposed of qua those lands.

28. The Darkhast will continue to remain alive as far as the above 5 lands are concerned. The learned Civil Judge will refer those of the issues framed by him pertaining to the petitioners' claim of being tenants in respect of these lands to the appropriate authority under the Bombay Act. The learned Civil Judge will dispose of the Darkhast in so far as these five lands are concerned after receipt of the findings in respect of those issues by the appropriate authority under the Bombay Tenancy Act.

29. Mr. Gole points out that the Respondent-Applicant has been kept out of her lands since a long time and that, therefore, the matter may be expedited. It is hoped that the learned Civil Judge, Junior Division, Kagal, will make a reference to the appropriate authority under the Bombay Tenancy Act immediately on the papers being received by him and that the appropriate authority would dispose of the reference as expeditiously as possible, preferably within three months of the receipt of the reference from the learned Civil Judge.

30. The learned Civil Judge, Junior Division Kagal, and the learned Extra Assistant Judge Kolhapur, had given their decisions following the judgment of Padhye. J. in : (1968)70BOMLR59 , as they were bound to do. In these circumstances the fair order as to costs would be to direct the parties before us to bear their own costs of the appeal before the learned Extra Assistant Judge and of this revision application before us. There will be an order accordingly.

31. Order accordingly.


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