1. The petitioner claims to be a tenant of an agricultural land at Amla, a village in the territory of the old Baroda State. The land belonged originally to one Mohansingh. On May 12, 1932, Mohansingh passed a possessory mortgage of this land in favour of one Becharbhai Ranchhodbhai. The mortgage was to be redeemed after 15 years. On November 27, 1942, Mohansingh sold the equity of redemption of the land to the present opponent No. 1, Motibhai. Motibhai redeemed the mortgage on March 16, 1956, and thus became the full owner of the land. Now, the father of the petitioner was an old tenant of this land. On the father's death in 1951 the petitioner continued to cultivate the land as a tenant. In 1952, however, the name of opponent No. 2, Gordhandas, was shown in the Record of Rights as a tenant. It appears that this entry was false, and that opponent No. 2 Gordhandas was merely a cook of opponent No. 1. In 1956 the petitioner filed an application before the Mamlatdar against opponents Nos. 1 and 2, claiming, firstly, a declaration that he was a protected tenant under the Tenancy Act, secondly, an injunction restraining opponents Nos. 1 and 2 from disturbing his possession of the land, and thirdly, a declaration that the purchase of the equity of redemption by opponent No. 1 was contrary to law and invalid.
2. The Mamlatdar held that the petitioner, and not opponent No. 2, was the tenant of the land in dispute, and granted him a declaration that he was the tenant, and also ordered opponent No. 1 to refrain from disturbing the petitioner's possession. On appeal filed by opponent No. 1, the Prant Officer confirmed the order of the Mamlatdar. Opponent No. 1 went in revision to the Bombay Revenue Tribunal, and the Tribunal set aside the orders of the Mamlatdar and the Prant Officer and dismissed the original application filed by the petitioner. Against this decision of the Revenue Tribunal the petitioner has filed this Special Civil Application.
3. The question whether the petitioner is a tenant protected by the Bombay Tenancy and Agricultural Lands Act, 1948, depends in this case upon whether the petitioner's family was a tenant of the original mortgagor or whether it was introduced on the land for the first time by the mortgagee. The land in dispute being in the territory of the old Baroda State, the Bombay Tenancy and Agricultural Lands Act, 1939, was never made applicable thereto. The Bombay Tenancy and Agricultural Lands Act, 1948, was made applicable to the territory on July 31, 1949. If the petitioner were merely the tenant of the mortgagee in possession, then on the redemption of the mortgage his tenancy came to an end under Section 111(c) of the Transfer of Property Act. He cannot in that case claim the protection of Section 4 of the Tenancy and Agricultural Lands Act, 1948, because that section does not protect a 'mortgagee in possession', which expression has been held to include a person claiming through a mortgagee in possession. That position is now established by recent decisions of this Court. If, however, the family of the petitioner was initially a tenant of the mortgagor, it would be possible for the petitioner to contend that he is not covered by the expression 'mortgagee in possession' in Section 4 of the Act of 1948, so as to be excluded from the protection of that section. The petitioner would then be a person lawfully cultivating the land when the Act became applicable to the area in question on July 31, 1949, and would be deemed to be a tenant so as to be entitled to the declaration which he seeks.
4. The Revenue Tribunal has, with respect, correctly appreciated this aspect of the case. It held that the crucial question was whether the family, of the petitioner was a tenant of the mortgagor or whether it was introduced on the land as a tenant by the mortgagee in possession. On this point the Revenue Tribunal has observed that according to the Mamlatdar the petitioner was a tenant of the mortgagor, and that this finding was apparently confirmed by the Prant Officer. The Tribunal, however, held that this finding was not supported by any legal evidence, and, therefore, it set aside the orders of the Mamlatdar and the Prant Officer and dismissed the original application. The only evidence about the petitioner being the tenant of the mortgagor was contained in a statement made by the petitioner before the Talati. It appears that the Mamlatdar had sent the tenant's application to the Talati for investigation, and the Talati had taken down a statement of the petitioner on which reliance was placed by the Mamlatdar. The Revenue Tribunal held that this statement could not be regarded as evidence. The Tribunal also held that even if this statement were regarded as evidence, the petitioner could not have any personal knowledge about the tenancy before the possessory mortgage, and that his statement could not be relied upon for showing that his family was a tenant on the land from before the mortgage.
5. It appears to us, however, that neither the Mamlatdar nor the contesting parties had any clear idea in this case as to the proper issues on which evidence had to be led. This is obvious from the issues actually raised by the Mamlatdar in his judgment. The first issue was, whether the petitioner proved that he is a tenant. The only other relevant issue was issue No. 4, whether the landlord proved that the petitioner's rights as a tenant of the mortgagee were terminated. No issue was raised on whether the petitioner's family was initially a tenant of the mortgagor. It is, only recently that as a result of some of the decisions of this Court it has become clear that, in a case like this, the alleged tenant has to show that he was the tenant of the mortgagor and not merely the tenant of the possessory mortgagee. That being so, we think that the proper order that the Revenue Tribunal should have passed in this case was to remand the case for recording evidence on the question whether the family of the petitioner was a tenant of the mortgagor, and not merely to decide the case on such evidence as happened to be on record.
6. This view of ours would require that the case should be remanded to the Mamlatdar for raising a proper issue as indicated above and deciding it after giving an opportunity to the parties to lead evidence. However, on behalf of opponent No. 1, Mr. Karlekar says that such a remand would be futile because, in any case, the application filed by the petitioner is not maintainable. As stated above, the petitioner prayed in his application that he should be declared to be a tenant entitled to the protection of the Tenancy Act, and that the opponents should be restrained by an order of injunction from disturbing his possession. Mr. Karlekar says that the Mamlatdar, under the Tenancy Act, has no jurisdiction either to give a declaration or to pass an order of injunction. It would be convenient to consider separately whether the Mamlatdar has jurisdiction to pass such a declaratory order and whether he has jurisdiction to grant an injunction.
7. It appears to us that the Mamlatdar under the Tenancy Act ean pass such a declaratory order. Mr. Karlekar, however, relies on the recent decision in Maganbhai Kesarbhai Patel v. The Bombay Revenue Tribunal (1957) Special Civil Application No. 278 of 1957. Before considering this decision it would be convenient to consider some previous decisions of this Court and the relevant provisions of the Tenancy Act.
8. The jurisdiction to decide whether a person is a tenant or a protected tenant has been conferred upon the Mamlatdar by Section 70(6) of the Bombay Tenancy and Agricultural Lands Act, 1948. Section 70 enumerates the duties and functions to be performed by the Mamlatdar. Section 85 lays down that no civil Court shall have jurisdiction to settle, decide or deal with any question which is required under the Tenancy Act to be settled, decided or dealt with by the Mamlatdar. In Dhondi Tukaram v. Dadoo Piraji (1952) 55 Bom. L.R. 663 a division bench of this Court considered the effect of these two provisions. It came to the conclusion that Section 70 of the Act makes the Mamlatdar the forum of exclusive jurisdiction for the determination of the questions mentioned in that section. It further held that in all cases before the civil Court where questions are raised which are triable only by the Mamlatdar, the proper procedure to adopt would be to direct the party, who raises any such question, to obtain a decision from the Mamlatdar within a reasonable time. This ease makes it clear that the jurisdiction of the Mamlatdar to decide the questions mentioned in Section 70 of the Act is not confined to applications specifically provided for in the Tenancy Act. Now, Section 70 enumerates the duties and functions to be performed by the Mamlatdar 'for the purposes of this Act'. The division bench considered this expression and came to the conclusion that whenever a person raises the plea that he was a tenant, his object is to claim the protection of the Tenancy Act, and that the investigation of such a plea is covered by the expression 'the purposes of this Act' occurring in Section 70 of the Act. The decision in this ease shows that any person who claims to be a tenant under the Act has a right to approach the Mamlatdar for a decision that he is a tenant and that he is entitled to the protection of the Act. If the power to grant such a declaration did not vest in the Mamlatdar, it would have been futile for the civil Court to direct any party to approach the Mamlatdar for such a decision as suggested in the above case.
9. A reference may then be made to Section 74 of the Act, Sub-section (1)(a) of Section 74 provides for an appeal to the Collector from 'an order under Section 4' passed by the Mamlatdar. Now, Section 4 of the Act deals with persons who are deemed to be tenants, and provides that in certain circumstances a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant. This section by itself does not provide for an application to be made by any party to the Mamlatdar for a decision that he should be declared to be a tenant. Nevertheless, Section 74(1)(a) of the Act provides for an appeal from an 'order' of the Mamlatdar under Section 4. Unless the Mamlatdar had jurisdiction to pass an order to the effect that a person is or is not deemed to be a tenant, the provisions in Section 74(1)(a) of the Act would be meaningless. The said provision, therefore, shows that the Mamlatdar may pass declaratory orders about tenancy rights, and that the proceedings before him are not necessarily confined to applications which are specifically allowed to be filed under Section 29 and some other sections of the Act.
10. In the case Maganbhai Kesarbhai Patel v. The Bombay Revenue Tribunal, on which Mr. Karlekar relies, a tenant had filed an application before the Mamlatdar against his opponent for a declaration that the opponent was not his subtenant. The Bombay Revenue Tribunal held in that case that a negative declaration cannot be granted by the Mamlatdar, and this view of the Tribunal was upheld by a division bench of this Court consisting of Dixit and Shelat JJ. Although that case related to the jurisdiction of the Mamlatdar to grant a negative declaration, it has been urged by Mr. Karlekar with considerable force that the reasoning of the learned Judges would equally apply to the jurisdiction of the Mamlatdar to grant a positive declaration. In holding that the application for a negative declaration was not maintainable, Dixit J. observed that the application was not covered by Section 29 of the Act, and went on to say,
When an application is made either under Section 29(1) or Section 29(2), it is then for the mamlatdar to consider what his duties are as laid down in Section 70 of the Act.
The application was held to be not maintainable because it was not under Section 29 of the Act, so that the Mamlatdar had no occasion to exercise his powers under Section 70 of the Act. It appears to us that when the learned Judges decided this case the relevant observations of the Division Bench in Dhondi Tukaram v. Dadoo Piraji were not brought to their attention. It further appears that the provision of Section 74(1)(a) of the Act was also not brought to their notice. With respect, therefore, we agree with the decision in Dhondi Tukaram v. Dadoo Piraji. We are accordingly of the opinion that the Mamlatdar is competent to entertain and decide an application for a declaration that a person is or is not a tenant.
11. Mr. Karlekar is on surer ground in his contention that the Mamlatdar has no jurisdiction to grant an injunction in tenancy cases. No such power has been granted to the Mamlatdar by any provision of the Tenancy Act. A similar question arose before a division bench consisting of Dixit and Badkas JJ. in Lalbhai Girdharlal v. The Jarod Joint Co-operative Farming Society (1957) Special Civil Application No. 2051 of 1957. It was argued in that case that Section 72 of the Act of 1948 provides that the Mamlatdar shall exercise the same powers as the Mamlatdar under the Mamlatdars' Courts Act 1906 'in all enquiries and proceedings commenced on the presentation of applications under Section 71'. Since the Mamlatdars' Courts Act empowers the Mamlatdar to grant an injunction, it was urged that by virtue of Section 72 of the Bombay Tenancy and Agricultural Lands Act, 1948, the Mamlatdar can grant an injunction in tenancy eases as well. This argument was rejected by the bench.
12. Mr. Gokhale, however, on behalf of the petitioner, has drawn our attention to an earlier decision of Shah and Vyas JJ. in Anna Yeshwant Dhavane v. Vithabai Shankar Karade (1956) Special Civil Application No. 497 of 1956. In that case the learned Judges, relying on Section 72 of the Act, held that it was within the powers of the Mamlatdar, in tenancy eases to grant an injunction. It appears that the question was not then fully argued. Section 72 of the Act does not enlarge the scope of enquiries and proceedings under the Act, but merely provides that in all enquiries and proceedings validly instituted under the Act, the Mamlatdar shall exercise the same powers as the Mamlatdar's Court under the Mamlatdars Courts Act. When a person applies for an injunction to the Mamlatdar under the Tenancy Act, he institutes a proceeding, and whether he can institute such a proceeding cannot be determined with reference to Section 72 of the Act which only specifies the powers that may be exercised in proceedings validly instituted under other provisions of the Tenancy Act. That being so, we agree with the view taken in Lalbhai Girdharlal v. The Jarod Joint Co-operative Farming Society, and hold that it is not within the powers of the Mamlatdar under the Tenancy Act to grant an injunction.
13. The result is that we set aside the orders of the Bombay Revenue Tribunal as well as those of the Prant Officer and the Mamlatdar, and direct that the case should be remanded to the Mamlatdar with a direction that he should frame an issue on whether the family of the present petitioner was a tenant of the mortgagor and record such evidence on this issue as the parties wish to lead. If the Mamlatdar holds on evidence that the family of the petitioner was a tenant of the mortgagor, then the petitioner will be entitled to a declaration that he is a tenant under the Bombay Tenancy and Agricultural Lands Act, 1948. On the other hand, if the Mamlatdar finds that the tenant's family was introduced on the land by the mortgagee in possession, then the application will be dismissed. There will be no order as to costs of this petition.