1. This is an application in revision filed by the original defendant against the rejection of his application by the trial Court that an issue as to whether he is a tenant or not should be raised and the matter be sent to the Mamlatdar in accordance with the procedure laid down in Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948, as amended by Act XIII of 195(3. The respondents, who are plaintiffs, filed Special Civil Suit No. 19 of 1957 on March 20, 1957, in the Court of the Civil Judge, Senior Division, at Kolhapur for possession of two lands bearing R. S. Nos. 582 and 583 admeasuring 6 acres 17 gunthas and 9 acres 34 gunthas respectively situated at Mouje Shirole, Taluka Hatkanangale, District Kolhapur. According to the plaintiffs, the said lands belonged originally to respondent No. 2, original plaintiff No. 2, who passed a gift-deed on February 26, 1949, in favour of respondent No. 1-plaintiff No. 1, reserving to himself the right of maintenance till his lifetime. In 1952, the petitioner-defendant was a tenant of the lands in suit. In the year 1952-53, plaintiffs kept joint Vahivat of the suit lands, keeping 1/4th share of the defendant. It is the allegation of the plaintiffs that defendant surrendered possession of the 3/4th share in the suit lands and Tenancy Case No. 42/52-53 was filed in the Court of the Mamlatdar, who gave possession of the 3/4th portion to plaintiff No. 1 on April 20, 1953, and a Kabja Patti was also given in pursuance thereof. Plaintiff No. 1 started cultivating the lands personally with the assistance of servants and was in possession for the years 1953 to 1956, The agricultural operations in the summer season of 1956 were done by plaintiff No. 1, but as the wife of plaintiff No. 1 suffered from tuberculosis, he had to go and stay with her at Miraj. It was then that defendant took advantage of the situation and entered into possession of the suit lands unauthorisedly and made an application to the Mamlatdar for getting his name entered in the Record of Rights and that application was recorded in the register of disputed entries. On this ground, the plaintiffs filed a suit for recovering possession on the basis that the defendant had taken possession of the suit lands by force.
2. The defendant resisted the suit on the ground that he was the tenant of the suit lands and the lands were in the Vahivat of the defendant as a tenant. According to him, the two survey numbers in suit and also R.S. No. 583, Hissa No. 1, admeasuring 24 acres and 26 gunthas, were in possession of defendant as a tenant of the plaintiff for the last 10 to 12 years. The defendant alleged that certain representations were made by the plaintiff that the properties were mortgaged by him and suits were being filed against the plaintiffs and, if decreed, the suit lands would be auctioned and the defendant would lose interest in the lands as a tenant. According to the defendant, the plaintiffs further represented that they would sell 15 acres from S. No. 583, Hissa No. 1, and pay off the debts and would keep the rest of the lands with the defendant as tenant and would not disturb his Vahivat, There was also a further representation that plaintiffs could not sell the lands unless surrendered by the defendant, as nobody would purchase them. Relying on these representations, according to the defendant, he signed a deed of surrender on the basis that it was to be a nominal or paper surrender. A statement that he had made the surrender was given by him and a document giving formal possession was prepared. According to the defendant, he never lost possession of the suit property as tenant which he had held from before, and plaintiffs were never in Vahivat of the suit lands as alleged by them.
3. It appears that on November 11, 1957, the petitioner applied to the Court by exh. 27 to decide the issue of jurisdiction as a preliminary issue. That application, it appears, was rejected on the ground that it was premature and proper issues would be framed and all the issues would be tried together. On November 26, 1957, issues were framed at exh. 29. The first issue was whether defendant proves that his leasehold has been surrendered by him nominally and without being intended to be acted upon in respect of the suit lands for purposes and in the circumstances pleaded in para. 3 of his written statement (exh. 13). The second issue was whether the plaintiffs were entitled to possession by treating defendant as a trespasser. The third issue was whether the Court had jurisdiction to award possession to the plaintiffs. On January 7, 1958, the defendant filed two applications. The first application was exh. 34 pointing out to the Court that though issue No. 1 was apparently worded so as not to attract the provisions contained in Section 70 of the Bombay Tenancy and Agricultural Lands Act, 1948 (which will hereafter be referred to as the Tenancy Act), virtually, the inquiry in the suit must necessarily lead to a finding on the question whether the defendant was a tenant or not. On this ground, it was contended in the application that the civil Court had no jurisdiction to enquire into issue No. 1 under Section 85 and must refer the matter to the Mamlatdar under Section 85A. The second application was exh. 35, and by that application it was prayed that an issue as to whether defendant was a tenant or not should be raised and the procedure laid down in Section 85A of the Tenancy Act as amended by Act XIII of 1956 be followed. Both these applications were rejected by the trial Court on February 22, 1958, and that is why the defendant has filed the present revision application.
4. Mr. Paranjpe, learned advocate appearing on behalf of the petitioner, contends that the written statement filed by the defendant clearly raises the question whether the defendant is a tenant of the suit lands or not; and, if that be so, he urges that that question can only be decided by the Mamlatdar under Section 70(b) of the Tenancy Act and the Court should have followed the procedure under Section 85A of the Act as amended in 1956 and referred the said issue to the Mamlatdar for his determination. The argument so presented is undoubtedly attractive. In support of that argument, Mr. Paranjpe has relied on a Division Bench ruling of this Court in Harshadrai Raghunathji v. Balubhai (1957) 59 Bom.L.R. 1039. In that case, a suit had been filed against the defendant on the ground that he was a trespasser and plaintiff got a decree for possession. It may be mentioned that it was the contention of the defendant in that case that he was a protected tenant. The matter being taken in appeal, the appellate Court asked the defendant to apply to the Mamlatdar for getting a decision as to whether the land in suit was an agricultural land and whether defendant was a protected tenant or not. Accordingly an application was filed by the defendant before the Mamlatdar, to which in reply a written statement was filed by the plaintiff in which it was contended that in view of Section 88(1)(b) of the Tenancy Act the Mamlatdar had no jurisdiction to decide the question whether the suit land had been leased out for an industrial or commercial undertaking. The Mamlatdar decided the application in favour of the defendant, but the Supernumerary Assistant Collector held in appeal that the Mamlatdar had no jurisdiction to decide the question whether the defendant was a tenant of the suit land. The Bombay Revenue Tribunal set aside that decision and remanded the case to the appellate authority with a direction that he should dispose of the matter in accordance with law. It was against this decision that a Special Civil Application under Article 227 of the Constitution was filed before this Court, and this Court held that in order to decide the question whether a person in possession is a tenant within the meaning of the Tenancy Act it was necessary to decide the question whether the lands in his possession were used for agricultural purpose or for a purpose mentioned in Section 88(1)(b) of the Act and that was a question which the Mamlatdar had power to decide and the civil Court was barred from deciding the question. It was observed in that case that it was inherent in the powers of the Mamlatdar to decide and determine matters which are specifically enumerated in Section 70 of the Tenancy Act, that he should have the power to determine in the first instance whether the Act applies to the lands in question, and to the extent to which it becomes necessary for him to determine for the purpose of deciding any question under Section 70, whether the lands fall within any of the categories of lands enumerated in Section 88, he has implied jurisdiction to do so, and the jurisdiction of civil Courts in that respect is ousted. Mr. Paranjpe's argument is that the principle of this ruling would be applicable to the facts of the instant case, because the real issue that is to be decided in this case is, according to him, whether the defendant is a tenant of the plaintiff and the question raised in issue No. 1 before the trial Court, viz., whether the surrender was nominal and not intended to be acted upon, was merely an incidental question ancillary to the real issue between the parties. This argument cannot be accepted. There is no dispute between the parties that the defendant was a tenant of the suit lands before he surrendered possession as alleged by the plaintiff. There is no dispute either that the formalities which are incumbent on the landlord to follow under the provisions of the Tenancy Act before he could get possession from his tenant who makes a surrender were duly followed. It is stated in the plaint that after the surrender a tenancy case was filed in the Court of the Mamlatdar and possession was obtained by the plaintiff through the Mamlatdar, and a possession receipt was obtained in pursuance thereof and thereafter plaintiff No. 1 obtained possession and continued to be in possession cultivating the lands personally with the assistance of servants till after the expiry of the year 1955-56. Neither in the written statement nor in this revision application is it disputed that the necessary formalities in connection with the surrender were complied with. It is, however, contended that the surrender was a mere paper surrender not intended to be acted upon and the defendant continued to be in possession of the suit lands and plaintiff No. 1 never obtained possession of the lands. The fact that there was a surrender being admitted, the real dispute between the parties, it appears to me, is as to the nature of that surrender. According to the plaintiff, it was a legal surrender which was acted upon and given effect to through the procedure contemplated under the Tenancy Act, whereas, according to the defendant, it was agreed between theparties that the surrender was to be a nominal surrender not intended to be acted upon. Section 70 of the Tenancy Act enumerates duties and functions which are to be performed by the Mamlatdar, but that section does not empower the Mamlatdar to decide the question whether a surrender which has been already accepted by him and in pursuance of which possession has been ordered to be delivered to the landlord, was a nominal surrender never intended to be acted upon. It is not the case of the defendant that any fraud was committed by the plaintiffs on the Court of the Mamladar. In my judgment, the question whether the defendant is still a tenant of the suit lands must necessarily depend on the determination of the principal issue as to whether the surrender that was the subject-matter of Tenancy Case No. 42/1952-53 was a nominal surrender never intended to be acted upon; and, in my judgment, there is nothing in the Tenancy Act which ousts the jurisdiction of the civil Court and prevents it from deciding that question. Once the landlord obtains possession of the lands from a tenant in pursuance of a surrender which is accepted by the Mamlatdar in accordance with the provisions of the Tenancy Act, the question whether such a surrender was a nominal or sham surrender does not fall within the ambit of Section 70 of the Tenancy Act. The jurisdiction of the civil Court to decide that question cannot, therefore, be held to be ousted by virtue of Section 85 of the Tenancy Act and the procedure under Section 85A is not applicable.
5. It is obvious that if the Court finds on issue No. 1 against the defendant and holds that the surrender was not a nominal one, there is no scope for determining the question as to whether the defendant continues to be a tenant of the plaintiffs, if, on the other hand, the civil Court comes to the conclusion that the defendant proves his allegation that the surrender was a nominal surrender never intended to be acted upon, the plaintiff would obviously be not entitled to any decree because, as already indicated, there is no dispute between the parties that the defendant was a tenant in respect of the suit lands and delivered possession thereof in pursuance of a surrender accepted by competent tenancy authorities. I must, therefore, hold that the decision of the trial Court on applications (exhs. 34 and 35) is correct and there is no sub-stance in this revision application.
6. This application, therefore, fails and the rule will be discharged with costs.