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Digambar Madhavsa Vs. Sk. YasmIn Sk. Iman and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2047 of 1979
Judge
Reported in1985(2)BomCR617
ActsHyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 99A
AppellantDigambar Madhavsa
RespondentSk. YasmIn Sk. Iman and anr.
Appellant AdvocateS.C. Bora, Adv. for ;R.M. Agarwal, Adv.
Respondent AdvocateA.H. Kapadia, Adv. for respondent No. 1
DispositionWrit petition dismissed
Excerpt:
- .....of the civil court, notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it will have to be referred to the competent authority under the tenancy act. by such camouflage of treating issues arising in a suit as substantial or incidental or principal or subsidiary, the civil court cannot arrogate to its self jurisdiction which is statutorily ousted. this unassailable legal position emerges from the relevant provision of the tenancy act.'the provisions of the bombay tenancy and agricultural lands act, 1948, were under consideration in this judgment of the supreme court. the relevant provisions of the bombay act are pari materia and similar to the provisions of the hyderabad tenancy and agricultural lands act, involved in the present.....
Judgment:

S.J. Despande, J.

1. This writ petition was argued by the learned Advocate for the petitioner at the stage of admission. The only point which was taken by the learned Advocate was that in a suit involving the relief of injunction simpliciter, reference to tenancy Court is not necessary. Reliance for the said proposition is placed on Maruti Sambha Surve v. Parshuram Krishna Koratkar and another, 1983 Mh.L.J. 958. It was stated that in this case a reference was made to the Tenancy Court and it reached up to the Maharashtra Revenue Tribunal. In the present case also, the Maharashtra Revenue Tribunal has answered the reference under section 99-A of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The authority aforesaid is cited in support of the contention that Civil Court should not refer the issue of tenancy to the Tenancy Court in a suit for injunction simpliciter. This judgment was delivered by Chandurkar, Actg. C.J., as he then was. This is a judgment of our High Court.

2. I find that in this judgment there is no reference to the latest judgment of the Supreme Court on this point, which finally settles the controversy in regard to the reference of matters to the Tenancy Court. In view of the specific observations of the Supreme Court in Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi, : [1979]2SCR586 , this point needs no elaboration. The relevant observations are to be found at page 658 and they are as under :---

'..........If there is an issue which had to be settled, decided or dealt with by competent authority under the Tenancy Act, the jurisdiction of the Civil Court, notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it will have to be referred to the competent authority under the Tenancy Act. By such camouflage of treating issues arising in a suit as substantial or incidental or principal or subsidiary, the Civil Court cannot arrogate to its self jurisdiction which is statutorily ousted. This unassailable legal position emerges from the relevant provision of the Tenancy Act.'

The provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, were under consideration in this judgment of the Supreme Court. The relevant provisions of the Bombay Act are pari materia and similar to the provisions of the Hyderabad Tenancy and Agricultural Lands Act, involved in the present case. I do not see any difference between section 85-A of the Bombay Act and section 99-A of the Hyderabad Act, and, therefore, the above observations of the Supreme Court should aptly apply to the present case also.

3. In the result, in view of the judgment of the Supreme Court in Gundaji's case (cited supra), I decline to follow the authority reported in 1983 Mh.L.J. 958. Writ petition is, therefore, summarily dismissed.


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