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Shantabai Ramchandra Ghatge and ors. Vs. Pandurang Ramchandra Mandlik and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 983 of 1966
Judge
Reported inAIR1973Bom203; (1973)75BOMLR79
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 2(18), 4, 70 and 74
AppellantShantabai Ramchandra Ghatge and ors.
RespondentPandurang Ramchandra Mandlik and ors.
Appellant AdvocateD.M. Parulekar and ;M.R. Kotwal, Advs.
Respondent AdvocateR.G. Samant and ;N.S. Shrikhande, Advs.
Excerpt:
a) the case examined the applicability of section 70 of the bombay tenancy and agricultural lands act, 1948 - the court held that the finding of the authority that it had no jurisdiction to grant relief did not amount to finding on status of a person ; b) the case examined the conditions under which the decision on the status of a person was appealable within the framework of the bombay tenancy and agricultural lands act, 1948 - the court held that only a decision that a particular person was a deemed tenant strictly falling under section 4 of the act, would be appealable under section 74 (1) (a) of the act - - the defendants having failed to comply with the notice, the plaintiffs filed the present suit, out of which this appeal arises, for possession. (2) whether the opponents have.....1. the dispute in this appeal relates to four lands survey no. 1442/2 admeasuring 3 acres 4 gunthas assessed at rs. 20-7-0, survey no. 1445/2 admeasuring 1 acre and 1/2 guntha assessed at rs. 7-4-0, survey no. 1442/1 admeasuring 3 acres and 4 gunthas at rs. 20-7-0, and survey no. 1445/1 admeasuring 1 acre 1/2 guntha assessed at rs. 7-4-0, situate within the limits of the municipal borough of kolhapur. the heirs of original defendant no.1 and original defendant no.2 are the appellants; respondents nos. 1 and 2 are the original plaintiffs, and respondents nos. 3 and 4 are the original defendants nos. 3 and 4. the plaintiffs respondents nos. 1 and 2 had leased these lands to one bhiva, the father of defendants nos. 1 and 2, and one gundu jadhav on 12th october 1950 for a period of 10 years.....
Judgment:

1. The dispute in this appeal relates to four lands Survey No. 1442/2 admeasuring 3 acres 4 gunthas assessed at Rs. 20-7-0, Survey No. 1445/2 admeasuring 1 acre and 1/2 guntha assessed at Rs. 7-4-0, Survey No. 1442/1 admeasuring 3 acres and 4 gunthas at Rs. 20-7-0, and Survey No. 1445/1 admeasuring 1 acre 1/2 guntha assessed at Rs. 7-4-0, situate within the limits of the Municipal Borough of Kolhapur. The heirs of original defendant No.1 and original defendant No.2 are the appellants; respondents Nos. 1 and 2 are the original plaintiffs, and respondents Nos. 3 and 4 are the original defendants Nos. 3 and 4. the plaintiffs respondents Nos. 1 and 2 had leased these lands to one Bhiva, the father of defendants Nos. 1 and 2, and one Gundu Jadhav on 12th October 1950 for a period of 10 years under a Kabulayat at an annual rental of Rs. 1000/-. The period stipulated in the Kabulayat expired on 11th October 1960. The plaintiffs then applied under Section 29 (2) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called 'the Act'), being Case No. 2068 of 1957, but the application was dismissed. Thereafter, the plaintiffs started another proceeding being an application under Section 88-C of the Act being Case No. 285 of 1961. This application was decided on 19th February, 1963 and the application was dismissed on the ground that the lands were governed by Section 43-C of the Act, but the Act did not apply as the lands were within the limits of the Municipal Borough. Thereafter, the plaintiffs started a third proceedings being an application under Section 29 (2) read with Section 25 (2) of the Act being Case No. 184 of 1962-63. This application also came to be dismissed by the tenancy authorities on the ground that the lands in dispute were the lands growing natural grass and, therefore, the authority under the Act had no jurisdiction to deliver possession under Section 29 (2) of the Act. It is necessary to notice here that this application was decided ex parte. We do not know under what circumstances the competent authority under the Act was required to proceed ex parte. It is, however, common ground that the decision was ex parte. The effect of this decision was that the application filed by the landlords for possession of the lands treating the opponents in that application as tenants was dismissed. Thereafter, the plaintiffs served the defendants with a notice terminating the tenancy and claimed possession. The defendants having failed to comply with the notice, the plaintiffs filed the present suit, out of which this appeal arises, for possession. The defendants resisted the suit contending that the lands were the agricultural lands, that they were tenants in the lands under the Act and that therefore, a reference should be made to the Tenancy Court for decision as to whether or not they were tenants under the Act. The learned trial Judge, however, found that in the ex parte proceeding under Section 29 (2) of the Act, the tenancy authorities had already decided that the lands were grass lands and that the Tenancy Court had no jurisdiction and, therefore, it was not necessary to make a further reference. The learned Judge, therefore, raised the issues on merits and finding against the defendants, passed a decree for possession. Defendants Nos. 1 and 2 then went in appeal to the District Court in Civil Appeal No. 414 of 1965. The learned District Judge also took the view that the tenancy authorities having held that the lands were grass lands and therefore the Tenancy Court had no jurisdiction, the decision operated as res judicata. He, therefore, found that the Civil Court had jurisdiction and it was not necessary to make a reference. In the result, he confirmed the decree passed by the trial Court and dismissed the appeal with costs. Being aggrieved by this judgment and decree, the heirs of original defendant No.1 and original defendant No.2 have approached this Court in second appeal.

2. The main question that is agitated before me in this appeal is whether the issue whether the appellants-defendants are tenants under the Bombay Tenancy and Agricultural Lands Act, 1948 requires to be decided by a competent authority under Section 85-A of the Act.

3. The argument advanced on behalf of the appellants-defendants is that in the case No. 184 of 1962-63 filed by the respondents-landlords under Section 29 (2) read with Section 25 (2) of the Act, there was no finding recorded by the competent authority on the question whether or not the appellants defendants were tenants under the Act, that assuming that such a finding was recorded, the application of the landlords being dismissed and that decision being in favour of the appellants-defendants, they could not have appealed against that finding, and that therefore such a finding would not operate as res judicata. The learned Counsel Mr. Samant, appearing on behalf of the respondents Nos. 1 and 2, has, however, contended that the essence of the decision in the case No. 184 of 1962-63 was that the appellants-defendants were not tenants under the Act, that therefore, it must be taken that he competent authority had recorded a finding on the question whether or not they were tenants under the Act, that the decision regarding the status of the appellants-defendants was a decision under Section 4 of the Act, and that the same being appealable under Section 74 of that Act, it operated as res judicata.

4. I first propose to deal with the question as to whether the decision recorded by the competent authority in the case No. 184 of 1962-63 could be treated as a finding regarding the status of the appellants-defendants under the Act. I have already pointed out that the decision of the competent authority was an ex parte decision. The respondents-landlords had approached the competent authority under Section 29 (2) read with Section 25 (2) of the Act on the footing that the appellants were tenants under the Act. The decision was an ex parte decision. Naturally, therefore, there could be no question of any contention being raised by the appellants on the question whether or not the appellants were tenants. It, however, appears that the competent authority suo motu raised the question whether the lands in respect of which the respondents-landlords had applied for possession under Section 29 (2) of the Act were the lands governed by the Act, and the competent authority came to the conclusion that the lands being grass lands in which grass grew naturally, the Act did not govern such lands and, therefore, the competent authority had no jurisdiction to order delivery of possession under Section 29 (2) of the Act. A reference to the judgment of the competent authority at Ex. 42 would show that the competent authority raised the following points for consideration:-

'(1) Whether the applicants are the landlords and the opponents are the tenants?

(2) Whether the opponents have failed to pay the rent since 1954-1955 to 1959-60?

(3) Whether the tenancy is terminated by a valid notice under Sections 14 and 25?

(4) Whether the lands are agricultural lands and the tenancy Court has jurisdiction to grant possession?

(5) Whether the tenants prove that they have not committed the defaults and their forfeiture of tenancy be relieved?'

and after considering the evidence, recorded its findings in the affirmative on the first three points and in the negative on the 4th and 5th points. It is, therefore, quite clear that the competent authority found that there was a relationship fo landlord and tenant between the parties and that the tenancy was validly terminated by a notice under Sections 14 and 25 of the Act. There was no issue raised on the question of status of the appellants-defendants under the Act. The relationship of landlord and tenant between the parties which was found proved and which was covered by the very first point was the relationship in general and not the tenancy under the Act. It is in view of these facts and circumstances that we are to see whether the decision amounts to one regarding the status of the appellants-defendants under the Act.

5. Now, it is needless to say that in order to find out whether the competent authority had jurisdiction to order delivery of possession under Section 29 (2) of the Act, if it was necessary to determine any question of fact under that Act, the competent authority had jurisdiction to determine such a question. Accordingly, in order to find out whether the competent authority had jurisdiction to grant the necessary relief to the landlords-respondents under Section 29 (2) of the Act, the competent authority thought to find out whether the lands of which possession was sought were governed by the Act. The question as to whether or not the lands were the lands in which grass grew naturally was a question of fact and the competent authority had jurisdiction to decide it in order to find out whether it could order delivery of possession under Section 29 (2) of the Act. It was for this purpose that the competent authority went into the question as to whether or not the lands were governed by the Act and ultimately came to the decision that the lands being the lands in which grass grew naturally, it had no jurisdiction to order delivery of possession under Section 29 (2) of the Act. In such a case, it is extremely difficult to hold that the essence of the decision was that the appellants were not tenants under the Act. It is no doubt true that the lands in dispute being found not to be governed by the Act, the ultimate effect of such a decision would be that the appellants were not tenants under the Act. But the whole question is whether that could be the finding recorded by the competent authority even by implication. In this connection, it is necessary to remember that there may be cases where the Act applies and on the evidence the competent authority may come to a finding that a person claiming the status of a tenant is not a tenant under the Act. In such a case, it is possible to hold that the decision recorded by the competent authority amounts to a finding that the person claiming the status of a tenant under the Act is not a tenant under the Act. But in cases where the competent authority, after having determined the question which is necessary to be determined in order to find out whether it has jurisdiction to grant any relief claimed under the Act, determines such a question and finds that because the Act does not apply, it has no jurisdiction to grant the relief claimed, it is extremely difficult to hold that such a decision would amount to a finding on the status of a person who claims to be a tenant under the Act. The learned Counsel Mr. Samant has argued that the finding that the lands in dispute were the lands in which grass grew naturally and therefore were not the lands governed by the Act was a finding necessary in order to find out whether or not the appellant-defendants were tenants under the Act, and the finding as to whether or not the appellants were tenants under the Act was necessary in order to record the final conclusion, viz., the dismissal of the application of the respondents-landlords. According to him, therefore, the competent authority must be held to have recorded a finding that the appellants-defendants were not tenants under the Act and that finding being an integral part of the final decision, viz., the dismissal of the application, the essence of the decision must be held to be that the appellants were not tenants under the Act. I cannot agree. As I have already indicated, the finding of the competent authority that the lands were grass lands was necessary in order to find out whether the competent authority had jurisdiction to entertain the application under Section 29 (2) of the Act and the finding as to whether or not the competent authority had jurisdiction to grant the relief. The most, therefore, that can be said in favour of the respondents-landlords is that the finding on the question whether or not the lands in dispute were governed by the Act was a finding which was an integral part of the final decision. I cannot agree with the argument that the competent authority did record a finding that the appellants-tenants were not tenants under the Act or that such a finding was an integral part of the final decision, viz., the dismissal of the application filed by the respondents-landlords.

6. Assuming, however, that the essence of the decision as contended by the learned Counsel Mr.Samant is that the competent authority had recorded a finding that the appellants-defendants are not tenants under the Act, the question arises whether such a finding can be said to have been recorded by the competent authority having jurisdiction to do so, so that the finding could be binding on the tenants. I have already pointed out that in the instant case the respondents-landlords had approached the competent authority treating the appellants-defendants as tenants under the Act. They wanted the relief of possession under Section 29 (2) of the Act on the footing that the appellants-defendants were tenants under the Act. The appellants-defendants being ex parte, there was none to raise the question as to whether or not the lands in dispute were grass growing lands and therefore not governed by the Act. However, the competent authority suo motu raised that question and recorded a finding that the lands being the lands in which grass naturally were not governed by the Act and therefore it had no jurisdiction to order delivery of possession under Section 29 (2) of the Act. It seems to me, therefore, that once the competent authority came to the conclusion that the Act under which it had jurisdiction to decide any question required to be decided under the Act did not apply to the lands, inasmuch as they were lands in which grass grew naturally, it could have no jurisdiction to record any finding either positively or negatively under the Act. If, therefore, the decision recorded by the competent authority is treated to be one amounting to a finding that the appellants-defendants were not tenants under the Act, such a finding would be a finding recorded by an authority which had no jurisdiction under the Act. If that is so, then such a finding being one without jurisdiction could not be binding on the appellants-defendants.

7. In support of his arguments, the learned counsel also referred to two decisions in Vithoba Ram v. Dhairyasinharao, : AIR1972Bom122 and another is an unreported decision in Spl. Civil Appln. No. 1800 of 1965 decided on 10-2-1970 (Bom). In the first case, there was an earlier proceeding under Section 88-C of the Act in respect of a land between the same parties and the competent authority had come to the conclusion that the land being grass growing land, was not governed by the Act. The learned Judge who decided that case has observed thus : -

'From that decision it necessarily follows that defendant No.1 was not a 'tenant' within the meaning of Section 2 (18) of the Act, as he sought to contend in the present suit.'

Relying on these observations, the learned Counsel has argued that similarly in the present case also, from the decision in the earlier case that the lands were grass growing lands not governed by the Act, it necessarily follows that the appellants-defendants were not tenants under the Act. In that case also, after having failed to obtain a certificate under Section 88-C of the Act, the landlord filed the suit for possession against the tenant and the question arose whether it was necessary to make a reference to the competent authority under Section 85-A of the Act in order to decide the issue whether or not the defendant was a tenant under the Act, and this Court came to the conclusion that because the question was already decided in the proceeding under Section 88-C of the Act that the land was not governed by the Act and therefore it followed that the defendant was not a tenant, it was not necessary to make a reference under Section 85-A of the Act. But in that case the question whether or not such a finding recorded by the competent authority after having come to the conclusion that the Act did not apply could be a finding with jurisdiction and therefore binding on the parties, was never raised.

8. The facts in the second case which is unreported were slightly different. In that case, the respondent-landlord had made an application under Section 70 (b) of the Act against the petitioner-tenant for a declaration that the land was a grass land therefore was not governed by the Act. The trial Court recorded a finding in favour of the landlord and granted the declaration. In appeal, the Deputy Collector dismissed the application on the ground that such a declaration could not be granted by the competent authority under the Act. In revision before the Maharashtra Revenue Tribunal, the Tribunal held that the tenants were not the tenants of the suit land under the Act and restored the order of the trial Court. The tenants then came to this Court in Special Civil Application No. 1800 of 1965 under Article 227 of the Constitution of India, and one of the arguments advanced on behalf of the tenants was that the landlord could not adopt inconsistent stand and seek a negative declaration about the tenancy on the basis that the land was not governed by any of the provisions of the Tenancy Act, and the learned Judge who decided the application took the view that the landlord was justified in approaching the competent authority under Section 70 (b) of the Act for appropriate declaration because the only forum for the negative declaration about the tenancy rights claimed by the tenant under the Tenancy Act was the Court of the Mamlatdar. In this case also, the question whether or not the finding, recorded by the competent authority, that the tenant was not a tenant under the Act could be taken to be finding recorded with jurisdiction, when the competent authority after coming to the conclusion that the land was a grass land held that the Act did not apply, was not raised. In fact, it was not necessary to raise it because there was no question of application of the principle of res judicata involved in that case. It seems to me, therefore, that this case also does not help the respondents-landlords.

9. I am, therefore, of the opinion, that the essence of the decision recorded by the competent authority in case No. 184 of 1962-63 is not that the competent authority had held the appellants-defendants not to be tenants under the Act; the essence of the decision is that the lands in dispute being grass lands, the Act does not apply and, therefore, the competent authority has no jurisdiction to order delivery of possession under Section 29 (2) of the Act.

10. The learned Counsel Mr. Samant also relied on the aforesaid two decisions in : AIR1972Bom122 and Spl. Civil Appln. No. 1800 of 1965 decided on 10-2-1970 (Bom), cited above, in order to show that even though the competent authority in such cases holds that the Act does not apply, the finding recorded by it that therefore the tenant is not a tenant under the Act is a finding which must be held to have been recorded with jurisdiction. I have already pointed out that in : AIR1972Bom122 , the question as to whether or not such a finding recorded by a competent authority after it comes to the conclusion that the Act does not apply can be treated to be a finding recorded with jurisdiction was not raised, and in the second case, it was not necessary to raise it. I, therefore, do not think that either of these two decisions is an authority for the proposition that a finding recorded by a competent authority regarding the status of a person whether or not he is a tenant under the Act is a finding recorded with jurisdiction, even though the competent authority holds that the Act does not apply and therefore it has no jurisdiction to grant the relief claimed by the applicant-landlord or tenant. I am inclined to think that in a case where in order to find out whether or not it has jurisdiction to grant any relief under the Act, the competent authority determines any question under the Act and then comes to the conclusion that the Act does not apply and therefore it has no jurisdiction to grant any relief prayed for under the Act, any other finding recorded by it under the Act would be a finding without jurisdiction. It is needless to point out that there may be cases where the Act applies and therefore the competent authority has jurisdiction to grant the relief prayed for, but for some other reasons the competent authority holds that a person is or is not a tenant under the Act, in such cases the finding whether or not a person who claims that status is or is not a tenant, would be a finding recorded by the competent authority with jurisdiction. I am, therefore, of the opinion that even assuming that the decision in case No. 184 of 1962-63 did in essence amount to a finding that the appellants-defendants were not tenants under the Act, still that finding being recorded by the competent authority having no jurisdiction to record it, because the Act did not apply, would be a finding without jurisdiction and, therefore, not binding on the appellants-defendants.

11. Lastly, even assuming that the decision in case No. 184 of 1962-63 amounted to a finding that the appellants were not tenants under the Act and that the finding was recorded by the competent authority having jurisdiction to do so, still the question arises whether the appellants-defendants could have any remedy by way of appeal under the Act. In this connection, the learned Counsel Mr. Samant has argued that if the decision in Case No. 184 of 1962-63 is held to be one amounting in essence to a finding that the appellants-defendants are not tenants under the Act, such a decision would be a decision under Section 4 of the Act and, therefore, appealable under Section 74 (1) (a) of the Act. In fact, he has gone a step further and has argued that every decision under Section 4 of the Act. In this connection, he has also pointed out that so far all the Courts under the Act have treated every such decision being a decision under Section 4 of the Act. The learned counsel Mr. Parulekar, appearing on behalf of the appellants-defendants, has, however, argued that every decision under Section 70 (b) of the Act cannot be a decision under Section 4 of the Act and, therefore, appealable under Section 74 (1) (a) of the Act. A decision under Section 70 (b) of the Act, so the learned Counsel argues, in order that it should come under Section 4 of the Act, must be a decision regarding the status of a person who is a deemed tenant. In other words, if a person claiming the status of a tenant under the Act goes to the competent authority alleging that he is a person lawfully cultivating land belonging to another person who is not cultivating it personally and that he himself is not one coming under the clause (a) (b) or (c) of that section, and the competent authority finds in his favour or against him on all the aforesaid points and holds him to be a tenant or not a tenant under Section 4 of the Act, then only such a decision would be appealable under Section 74 (1) (a) of the Act. If, on the other hand, a person claiming the status of a tenant under the Act goes to the competent authority alleging that (1) he is a person who holds land on lease or a protected tenant or a permanent tenant, then such a decision would not be a decision under section 4 of the Act, inasmuch as such a decision would be a decision under Section 2 (18) (b) and (c) of the Act. I think that there is some force in the arguments advanced by the learned Counsel Mr. Parulekar.

12. Section 2 (18) of the Act defines 'tenant'. It says thus : -

'2 (18) 'tenant' means a person who holds land on lease and includes -

(a) a person who is deemed to be a tenant under Section 4 ;

(b) a person who is a protected tenant; and

(c) a person who is a permanent tenant.'

It is, therefore, clear that the definition of a tenant is inclusive. It contemplates four categories of tenants : (1) Persons who hold lands on leases, (2) Persons who are deemed to be tenants under Section 4, (3) persons who are protected tenants, and (4) Persons who are permanent tenants. Section 4 of the Act does not define a tenant. It only says that if a person is found lawfully cultivating any land belonging to another person and the owner is not cultivating it personally and the person who is lawfully cultivating it is not a member of the owner's family or his servant on wages etc., or is family or his servant on wages etc., or is not a mortgagee in possession, then such a person would be deemed to be a tenant under that section. Obviously, therefore, if holding al and on lease and is also neither a protected tenant nor a permanent tenant, but claims to be lawfully cultivating the land and comes under Section 4 of the Act, then such a person, even though he is not a contractual tenant or a permanent tenant or a protected tenant, still would be deemed to be a tenant under that section. It is not doubt true that every person holding a land tenant or a permanent tenant is also a person lawfully cultivating the land belonging to another person. But that does not mean that therefore every such person would come under Section 4 of the Act. All these persons are separately provided for under Section 2 (18) (b) and (c) of the Act. Section 2 (18) (a) makes provision for persons lawfully cultivating lands belonging to others within the meaning of Section 4 of the Act by incorporating it in Section 2 (18) (a) of the Act. If, therefore, a competent authority decides that a person is or is not a tenant under the Act because he holds or does not hold land on lease, it is not possible to say that therefore such a decision of the competent authority decides that a person is or is not a tenant under the Act because he holds or does not hold land on lease, it is not possible to say that therefore such a decision of the competent authority would also come under Section 4 of the Act. Such a decision, in my opinion, would be one under Section 2 (18) under the clause 'means a person who holds land on lease' of the Act. Likewise, if the competent authority holds that a particular person is or is not a protected tenant or is or is not a permanent tenant, such a decision would be under Section 2 (18) (b) or 2 (18) (c) as the case may be, of the Act.

13. Now, admittedly Section 74 of the Act does not make the decision under Section 70 (b) appealable. The only decision regarding the status of a person whether or not he is a tenant under the Act which is made appealable under Section 74 of the Act, is a decision under Section 4 of the Act. (Vide Section 74 (1) (a) of the Act). A decision under Section 2(18) clause 'who holds land on lease' on under clause (b) or (c) of that section is not made appealable under Section 74. Admittedly, in the instant case, the finding of the competent authority that the appellants-defendants are not tenants under the Act, if it is treated to be finding regarding the status of the appellant-defendants, is not a finding holding the appellants-defendants deemed tenants. In fact, it is not disputed before me that they are contractual tenants holding the land on lease. It is because the land is not governed by the Act and therefore the Act does not apply that the argument is that the finding would be that they are not tenants of the lands. Surely, therefore, such a finding or decision cannot be treated to be one under Section 4 of the Act and, therefore, in my opinion, it would not be appealable.

14. The learned Counsel Mr. Samant has not been able to draw my attention to any authority of this Court in support of his proposition that every decision under Section 70 (b) of the Act is a decision under Section 4 of the Act and, therefore, it is appealable under Section 74 (1) (a) of the Act, whether or not it is a decision under Section 4 of the Act. The learned Counsel Mr. Parulekar, however, has drawn my attention to a reported decision of the Gujarat High Court in Sureshchandra Store v. K. K. Shrotriya, (1970) 11 Guj LR 821. The High Court has observed in that case that Section 74 (1) of the Act nowhere specifies an order under Section 70. Unless an order under Section 70 (b) adjudicating the question whether a person is a tenant or a permanent tenant is treated as one under Section 4 or Section 32-G, an appeal against the decision under Section 70 (b) would not be competent. An order under Section 4 would only be in those cases where a person is deemed to be a tenant, though he could not be holding on a contractual lease. The Legislature has failed to provide any appeal against such an adjudication as to whether a person was a tenant or a permanent tenant. When the Legislature keeps a lacuna, it is not open to the Court to fill up the lacuna on any assumed intention of the Legislature. The Deputy Collector has no appellate jurisdiction under Section 74 (1). I respectfully agree with these observations. In my opinion, every decision on the status of a person under the Act cannot be treated to be a decision under Section 4 of the Act and, therefore, appealable under Section 74 (1) (a) of the Act. Only a decision that a particular person is a deemed tenant, strictly coming under Section 4 of the Act, would be appealable under Section 74 (1) (a) of the Act. In the instant case, therefore, even if I hold that the decision in case no. 184 of 1962-63 amounts to a finding that the appellants are tenants under the Act, it cannot be treated as a decision under Section 4 of the Act and, therefore, the appellants-defendants could not have appealed against that decision. The most that can be said in favour of the respondents-plaintiffs is that such a decision is a decision under the clause 'means a person who holds land on lease' of Section 2 (18) of the Act, which decision is not appealable under Section 74 of the Act. I am, therefore, of the opinion that the appellants-defendants could not have appealed against the order of dismissal of the application filed by the respondents-landlords for possession under Section 29 (2) read with Section 25 (2) of the Act.

15. In this view of the decision of the competent authority in case No. 184 of 1962-63, I hold that the decision does not operate as res judicata. In this connection, my attention is also drawn to the decision of the Division Bench of this Court in Ramchandra Shankar Deshpande v. Onkar Chindu Patil, Spl. Civil Appln. No. 995 of 1959, decided on 16-10-1959 (Bom). In that case, the petitioner had made an application to the Mamlatdar for obtaining possession of the land on the ground that he required it bona fide for personal cultivation. The application was opposed by the respondent. The respondent contended that he was a permanent tenant and that consequently the petitioner was not entitled to obtain possession of the land from him. The Mamlatdar did not accept his contention that he was a permanent tenant. He, however, came to the conclusion that the income from the land was not the principal source of maintenance of the petitioner and, therefore, he dismissed the application. The petitioner did not appeal against that order. The opponent, however, appealed to the Prant Officer against the finding that he was not a permanent tenant. The Prant Officer held that the opponent was a permanent tenant and the finding was confirmed by the Revenue Tribunal. It was argued in that case that no appeal lay to the Prant Officer against the finding given by the Mamlatdar, that the opponent was not a permanent tenant. That argument was accepted by the Division Bench of this Court observing thus in the judgment : -

'The Mamlatdar dismissed the application made by the petitioner for obtaining possession of the land. He did not make any order against the opponent Under Section 74 of the Bombay Tenancy & Agricultural Lands Act, an appeal lies against an order made under Section 29. As, however, no order under this section was passed against the opponent, he could not file an appeal against the order dismissing the petitioner's application. It has, however, been urged by Mr. Rane, who appears on behalf of the opponent, that the opponent could file an appeal against the finding recorded against him. No appeal can, however, lie only against a finding given by the Mamlatdar. The appeal lies only against the order made by the Mamlatdar under one of the sections specified in Section 74. Mr. Rane has also urged that the finding recorded by the Mamlatdar, that the petitioner was not a permanent tenant, may be held to be res judicata. As, however, the application made by the petitioner was dismissed and as no order was made against the opponent, any findings recorded by the Mamlatdar against the opponent will not be binding upon him and would not operate as res judicata.'

I respectfully agree with the view taken by the learned Judges of this Court in the aforesaid case. Applying the principle underlying these observations, I find that in the present case also the decision in case No. 184 of 1962-63 cannot operate as res judicata. The result, therefore, is that the decision in case No. 184 of 1962-63 not being binding on the appellant-defendants, reference has become necessary to the competent authority under Section 85-A of the Act for decision regarding the status of the appellant-defendants under the Act.

16. The appeal, therefore, succeeds. The decree passed by the trial Court as confirmed by the lower Appellate Court is hereby set aside, and the record and proceedings of the suit are hereby remitted back to the trial Court with a direction that the trial Court should raise the necessary issues on the pleading of the parties and should make a reference to the competent authority under Section 85-A of the Act with respect to those issues which are required to be decided by the competent authority under the Act. On receipt of the findings, the trail Court should dispose of the suit according to law. No order as to costs in this appeal. As regards the costs in the lower Courts, they would abide the final decision in the suit.

17. Appeal allowed.


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