1. The applicant filed a possessory suit in the Mamlatdar's Court at Vadgaon under Bom. Act II of 1906 on a rent note. The defendant obtained an adjournment, and subsequently filed a suit in the civil Court against the applicant, for a declaration that he was a permanent tenant. The Mamlatdar held, in view of the remarks in Moti Jagta v. Indurai (1927) 30 Bom. L.R. 98, that it was a suitable case for the exercise of his powers under Section 5(1) of the Act, and referred the matter to the civil Court, as he thought that the question would be more properly dealt with by that Court. There is no appearance for the opponent.
3. It is argued by the applicant that the suit in the civil Court having been filed, not previously to the possessory suit but subsequently, Section 26 has no application, the ruling of this Court in Moti Jagta v. Indurai has not been properly understood, and the view taken by the Mamlatdar would, in effect, frustrate the object of the Act.
4. The civil suit has been filed subsequently to the possessory suit and the proceedings are not previous proceedings under Section 26(b), which has, therefore, no application. The facts in Moti Jagta v. Indurai were different. There the party who alleged that he was a permanent tenant filed a suit in the civil Court first and the landlord filed his suit in the Mamlatdar's Court under Bom, Act. II of 1906 subsequently, and the decision went no further than that Section 26 of the Act did not require that a civil suit should be terminated in order to bar the jurisdiction of the Mamlatdar but that the pendency of the civil suit previous to the proceedings before the Mamlatdar sufficed to oust his jurisdiction.
5. The decision of the Mamlatdar in the present case, although it refers to Section 26 and Moti Jagta's case is, however, expressly under Section 5 and because he thinks that the question of permanent tenancy between the parties will be more properly and suitably dealt with in the proceedings in the civil Court pending on the date of his order, although initiated subsequently to the filing of the possessory suit. From that view we see no reason to differ. It is clearly advisable to avoid a possible conflict between the two Courts. At the same time, the wording of Section 26 clearly shows that the defendant in a possessory suit cannot ipso facto by filing a suit in the civil Court oust the jurisdiction of the Mamlatdar. It seems to us in such cases a question for the Mamlatdar, whether he should proceed to decide the possessory suit or whether, as he thought in the present case, he should decide not to proceed further with the suit in his Court because the question would be more suitably dealt with by the civil Court.
6. It is pointed out for the applicant that he or his pleader was entitled to a hearing before the Collector. In this contention he is right: Ganpati v. Maruti : (1925)27BOMLR1115 In view of our previous remarks, however, it would be futile to order a re-hearing before the Collector.
7. The rule is discharged. No order as to costs.