1. The appellants in this appeal are the legal representatives of the first defendant. The plaintiffs filed O. S. 91/1 of 1963 in the Court of the Munsiff at Aland claiming declaration of ownership relating to the property as also claiming amount in deposit and forpossession. The case of the plaintiffs was that they are the owners of the suit property. It was their further case that defendant 1 surrendered his tenancy right long back but was attempting to interfere with the possession held by the plaintiffs. It was further elated that having regard to the illegal interference of the plaintiff's possession, the proceedings were initiated before the Court of the Munsiff Magistrate, Aland, and it was wrongly decided that defendant 1 was in possession of the lands in question and the lands were accordingly ordered to be released to him on the 27th August. 1957. The suit was therefore instituted for a declaration, for recovery of amount and also for mesne profits.
2. Defendant I filed the written statement. Amongst other contentions it was submitted by him that the rights of protected tenancy in the land was not surrendered and further in pursuance of such surrender possession was not obtained under the provisions of Section 32 of the Hyderabad Tenancy and Agricultural Lands Act. It was further stated that it is wrong to say defendant 1 has no right in respect of land in dispute and that the alleged surrender is not a genuine one. Further defendant 1 has stated the following in the written statement :
'Therefore the defendant 1 is the protected tenant of the land and as suchentitled to the possession of the land and has also got preferential right to purchase', (underlining is mine). As a result of these pleadings, the trial Court raised several issues and one of the issues raised was whether defendant 1 surrendered his rights of protected tenancy in favour of plaintiff No. 1 and whether the order of surrender dt. 10-10-1956. was obtained by forgery and false personation as alleged by the defendant No. 1. Upholding the claim of the plaintiffs, the trial Court passed a decree in their favour.
3. The correctness of this decree was challenged before the learned Addl. Civil Judge, Gulbarga. in R. A. 171/4/1966. By the judgment dated 30th June 1969, the learned Appellate Judge has confirmed the decision of the trial Court and dismissed the appeal. The legal representatives of defendant I have preferred this second appeal.
4. In my view it is not necessary to consider the other contentions raised in these proceedings, inasmuch as the judgment of the Courts below will have to be set aside and the proceedings remitted back to the trial Court having regard to the clear pronouncement of this Court on the question involved in the proceedings. In the present case, the claim made by theplaintiffs is that defendant I was wrong-fully interfering with the possession and subsequently has illegally got into possession of the suit property in pursuance of the order of the Magistrate's Court. The case of the first defendant on the other hand is that he is in possession of the lands in question as a protected tenant. He has also raised a plea that the alleged surrender proceedings which have taken place long back, are all proceedings which are not legal and are vitiated for the reasons stated in the written statement. There is therefore, a two fold plea raised by the first defendant. The first one is that he has not surrendered the tenancy interest as claimed by the plaintiffs and the second one is that he is still the tenant of property in question. The provisions of the Hyderabad Tenancy and Agricultural Lands Act are in pari materia with the provisions of the Bombay Tenancy Agricultural Lands Act and also the provisions of the Mysore Tenancy Act. This Court, after a consideration of the provisions of the Bombay Tenancy Agricultural Lands Act and the Mysore Tenancy Act, in the case of Ningegowda v. M. Boranna, (1971) 2 Mys LJ 83 has laid down that when an issue of tenancy is raised by the defendant in a suit and that issue is required to be determined, then the Civil Court at the relevant time had no jurisdiction to decide the same. Having considered the provisions of the Hyderabad Tenancy and Agricultural Lands Act, the only conclusion that is possible is that even under that Act it was the Tahsildar who had the exclusive jurisdiction to determine the status of a person claiming to be a tenant. The Civil Courts had no jurisdiction in the matter and if the principle laid down by the Supreme Court under the Bombay Act was to be applied, then the suit was required to be stayed and the party directed to seek an adjudication from the Tahsildar. It has however been pointed out by this Court that having regard to the enactment of the Mysore Land Reforms Act and its amendment, it is not necessary to follow this procedure but to set aside the decisions of the Courts below and to direct a fresh adjudication of the issue of tenancy in accordance with the provisions of the Mysore Land Reforms Act and particularly Section 133 of the Act.
5. It was however contended by the learned Counsel for the respondents, by placing reliance on the judgment of Musamia Imam Haider Bax Razvi v. Rabari Govindabhai Ratnabhai. : 1SCR785 that in the present case such reference was unnecessary. It was submitted that the Court was determining in the present case as to whether a surrender which was made several years back was a valid one or not and that since, that issue was not required to be determined by the Tahsildar, the claim of the first defendant as to the status of a tenant under the Act was not required to be determined. In Musamia Imam Haider Bax Razi v. Rabari Govindabhai Rantnabhai, : 1SCR785 this is what has been laid down bv their Lordships of the Supreme Court. The head note 'B' which fully summarises the view of the Supreme Court is to the following effect:
'Section 70 (b) of the Act imposes a duty on the Mamlatdar to decide whether a person is a tenant, but the subsection does not cast a duty upon him to decide whether a person was or was not tenant in the past, whether recent or remote. Where the main question in the suit was the claim of the defendants that they had become statutory owners of the disputed lands because they were tenants either on the tiller's day Or on the date of the release of the management by the Court of Wards the question for decision would be not whether the defendants were tenants on the date of the suit but the question would be whether they were or were not tenant's in the past. In such a case the plea of tenancy on the past two dates was not an independent question but was only a subsidiary plea put forward by the defendants as a reason for substantiating their plea of statutory owners to and the jurisdiction of the Civil Court cannot be held barred by virtue of Section 70 read with Section 85 of the Act. There is nothing in the language or context of Section 70 or Section 85 of the Act to suggest that the jurisdiction of the Civil Court is expressly or by the necessary implication barred with regard to the question whether the defendants had become statutory owners of the land and to decide in that connection whether the defendants had been in the past tenants in relation to the land on particular past dates. The jurisdiction of the Civil Court is also not barred in considering the question whether the provisions of the Act are applicable or not applicable to the disputed land during a particular period'.
According to the decision of their Lordships of the Supreme Court, if the plea of a person is as to whether he was or was not a tenant, then such question was not required to be referred. It is only when a person raises a plea that he is still a tenant, then that question cannot be determined by the Civil Court but must be determined by the appropriate authority under the Act. Applying the decision of their Lordships of the Supreme Court, it will be clear, that in the present case, defendant I still claims to be a tenant of the property in question. When the claim is to present tenancy it will be erroneous to hold that the Civil Court has still the jurisdiction to determine the question of tenancy. As already stated in the present case what is required to be done by the learned Munsiff, is, to frame an issue as to whether the defendant is a tenant of the land in dispute and decide that question. After the determination of this question as provided under Section 133 of the Act, the learned Munsiff will have to determine all other questions and not till then.
6. The learned Counsel for the respondents also submitted that in any event it was not necessary to set aside the decision of the Courts below and remit the proceedings back, but to pall for a finding on that issue. In my view this submission cannot be accepted for more reasons than one. The principle that should be followed by this Court and the subordinate Courts has been laid down in Ningegowda's case. (1971) 2 Mys LJ 83. Even apart from this decision, in my view the practice directed to be followed by this Court in Ningegowda's case is the only practice permissible to be followed. Under Section 133 of the Act it is provided that the Munsiff was to determine the question of tenancy as a preliminary issue. When the law requires that the issue of tenancy has to be determined as preliminary issue and thereafter to determine all other issues, it is clear that it is not open to the Court to retain the findings on other issues and ask the learned Judge to determine the issue of tenancy. The findings on other issues depend on the finding on the preliminary issue. Further, at that time the Court was totally incompetent to decide this issue and in that view if the parties have not let in full and substantial evidence, then it cannot be said that what they have done is wrong. The parties cannot now be denied an opportunity to place such material as is open to them to place before the Court. In that view of the matter. I am of the view that even this submission of the learned counsel for the respondents to retain the appeal on the file of this Court and only to remit a part of the proceedings to the trial Court for a finding on a particular issue cannot be accepted.
7. In the result this appeal is allowed, the judgments and decrees of both the Courts below are set aside and the suit is remitted back to the learned Munsiff for disposal in accordance with Section 133 of the Mysore Land Reforms Act and other relevant provisions of law and in the light of the observations made by this Court in Ningegowa's case, (1971) 2 Mys LJ 83 and in this case. In the circumstances the parties will bear their own costs in this Court and in the lower appellate Court. The costs in the trial Court will be the costs in the cause. The appellants are entitled to the refund of the court-fee paid on the appeal memorandum in this Court as well as in the lower appellate Court.