1. This revisional application is directed against the order of the learned Civil Judge, Junior Division, Jaysingpur, in Regular Civil Suit No. 66 of 1961 referring the issue as to the tenancy of the respondents in the suit land to the Tahsildar, Shirol.
2. The dispute in this suit relates to land admeasuring 21 acres 5 gunthas out of survey No. 60 at village Kavathesar in Shirol taluka. A long history has been narrated in the revisional petition about the litigation pertaining to this land. It is not necessary to go into this history. It appears that the suit land originally belonged to one Bala Maharaj. There were prolonged disputes and litigation about this land and ultimately on April 4, 1961 the father of the petitioners took possession of the suit land through the Mamlatdar, Shirol and a Kabjepatti was executed. The case of the petitioners is that they and their father were obstructed in the enjoyment of this land by the respondents on June 22, 1961 and hence the father of the petitioners filed the aforesaid suit No. 66 of 1961 in the Court of the Civil Judge, Junior Division, Jaysingpur. The father of the petitioners died during the pendency of the suit and the petitioners were brought on record in his place. This suit is for a permanent injunction against respondents Nos. 1 to 6, who were defendants Nos. 1 to 6 in the suit and defendant No. 7, the father of respondents Nos. 7 and 8, restraining them from interfering with the petitioners' possession and enjoyment of the suit land. Respondents Nos. 1 to 6 and original defendant No. 7 contended that they were the tenants of the suit land and on their application the following issue was raised and ordered to be referred to the Mamlatdar, Shirol:
Do the defendants Nos. 1 to 7 prove that they are the tenants of the suit land as contended in para. No. 2 of their written statement
It is this order dated March 9, 1971 that is sought to be impugned in the present application.
3. There were two grounds on which the judgment and order of the learned Civil Judge was sought to be assailed by Mr. Patankar, who appeared for the petitioners. The first ground urged by Mr. Patankar was that this issue had already been decided by the tenancy Court and hence it should not have been raised and referred again. It appears that on March 14, 1962 the trial Court framed certain issues in this suit and referred the tenancy issue to the tenancy Court. The reference was numbered as No. 424 of 1962. The tenancy Court held that it had no jurisdiction to decide the matter referred to it. There was no appeal from this decision. There were further proceedings in this connection and it was ultimately held by the tenancy authorities that this order was binding and no rehearing could take place. The contention of Mr. Patankar was that, in view of this, it has already been decided that the tenancy Court has no jurisdiction to decide this issue and the principle of res judicata applies. In my view, this contention cannot be upheld. Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Bombay Tenancy Act) runs as follows:
(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 issues 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.
There is an Explanation to this section which is not material for the present ease. On a plain reading of this section it appears to ml that once the Civil Court raises an issue and refers it to the tenancy Court for its determination, the tenancy Court is bound to determine that issue. When the Civil Court refers that issue to the tenancy Court there is necessarily an implied finding that the question in the issue is one which is required to be settled, decided or dealt with by any authority competent to do so under the Bombay Tenancy Act. Once the issue is referred it is not open to the tenancy authority to say that it has no jurisdiction to decide the issue referred to it. When an order for reference is made it is open to the party, who desires to challenge it to do so, but in the absence of such a challenge or in the event of such a challenge being negatived, there is a binding decision that the issue requires to be settled, decided or dealt with by the tenancy Court. To construe the section in a different manner could lead to startling results. If, in the opinion of the Civil Court there is an issue arising in a suit before it which requires to be determined by the tenancy authority under Section 85A of the Bombay Tenancy Act, the Civil Court has no jurisdiction to determine or deal with such an issue. If the tenancy Court to whom the issue is referred were to be permitted to hold that it has no jurisdiction to decide the issue which is referred to it, the result could very well be that neither the tenancy Court nor the Civil Court would be competent to decide the issue. To give such construction to the provisions of Section 85A would lead to absurd results. I am supported in the view which I am taking by the decision of a Division Bench of this Court in Mohanlal v. Maharashtra Rev. Trib : (1962)64BOMLR485 where the question concerned the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (hereinafter referred to as the 'Tenancy Act of 1958')- The provisions of Section 125(2) of that Act are in pari materia with the provisions of Section 85A (2) of the Bombay Tenancy Act. It was held that the Revenue Courts cannot question the making of a reference by the Civil Courts under Section 125 of the Tenancy Act of 1958. There the revenue authorities had held that the Civil Court had no jurisdiction to make the reference as it did under Section 125 of the Tenancy Act of 1958 and it was held that the revenue Courts cannot question the decision of the Civil Court particularly in view of the specific provisions of Section 125(2) of the Tenancy Act of 1958. It has been observed by my learned brother Bhasme J. in Dattu Ganu Gurav v. Raghunathrao Ganpatrao Patil (1970) Special Civil Application No. 1822 of 1965, decided by Bhasme J., on March 30, 1970 (Unrep.) that under Section 85A(2) of the Bombay Tenancy Act, on receipt of a reference, the competent authority has to deal with and decide the issue in accordance with the provisions of the said Act and thereafter the competent authority must communicate its decision to the Civil Court. In my view, therefore, the decision of the tenancy Court in reference No. 424 of 1962 that it had no jurisdiction to decide the issue referred to it was itself a decision without jurisdiction or, in any event, of no legal effect and cannot constitute res judicata.
4. [The rest of the judgment is not material to this report.]