1. This appeal is directed against the judgment of the learned Assistant Judge. Panchmahals at Godhra setting aside the judgment and decree for eviction passed by the learned trial Judge and remanding the suit to him under Section 151, Civil Procedure Code, with a direction that he should raise issues and re-number them and send the same to the Mamlatdar for decision and in the meanwhile to stay the suit, under Section 85-A of the Tenancy Act.
2. The facts giving rise to this appeal in a nut-shell are as under:--
3. The trustees of a religious public trust of Salam Jamadar's Mosque filed a suit against the present respondent Vaghri Sana Ratna to recover possession of the trust property which was in his possession as a tenant. The learned Civil Judge. Senior Division, Godhra passed a decree for eviction against the tenant. In an appeal preferred in the District Court. Panchmahals at Godhra, the learned Assistant Judge who heard the appeal was of the view that the question whether the present respondent was a tenant or not and whether to present appellants was entitled to possession of the suit land and mesne profits could only be decided by the Mamlatdar. In his view, provisions of section 88B would not be retrospective and would not apply to a tenant who was inducted on the land prior to 1956 when the Tenancy Act was amended. He, therefore, set aside the judgment and decrees passed by the learned trial Judge and remanded the suit under Section 151. Civil Procedure Code with a direction to send the issues framed by him to the Mamlatdar for his finding and therefore to decide the suit according to law. Against the said order of the learned Assistant Judge, the present appeal has been preferred to this court.
4. Mr. V.J. Desai, learned Advocate for the respondent at the outset raised a preliminary objection. He submitted that the appeal to this court could not lie. He stated that the learned Assistant Judge had remanded the suit in his inherent powers under Section 151, Civil Procedure Code. He had not remanded the suit under order 41, Rule 23. Civil Procedure Code. In fact, he urged that the Order 41, Rule 23 simpliciter could not apply to the facts of this case as the learned trial Judge had not disposed of the suit on the preliminary points. He therefore, urged that once the suit was remanded to the trial court under Section 151, Civil Procedure Code, the only remedy open to the aggrieved party was to come to this court by way of a revision application. In support of his say, Mr. Desai referred to the case of Mrigendra Kumar Majumdar v. Sidheshwar Shit, AIR 1966, Cal 310, wherein it was observed that--
'Where the order of remand by lower appellate court is plainly not one under Order 41 Rule 21, it is not appelable under Order 43 Rule 1 (u).
It is difficult to hold that such a remand is appealable, particularly when the lower appellate court, in making this order, did not fully decide or conclusively determine anything on the merits of any of the disputes between the parties or any of their disputed rights but left the entire matter for decision to the trial court in the light of certain directions given in its judgment.
In making an order of remand to send the case back 'to the trial Court for fresh or further consideration, the lower appellate court has always to set aside the decree of the trial Court. The mere fact, therefore, that the decree of the trial court has been set aside, would not make the lower appellate court's order of remand a decree and appealable as such. Indeed, otherwise every order of remand under Section 151 of the Code would become appealable.'
With respect, I entirely agree. It cannot be said that the trial court had disposed of the suit on a preliminary point. In fact, the trial court had framed several issues and on the findings given on those issues on merits, the trial Court had passed a decree for eviction. The learned Assistant Judge, however, felt that the decree of the trial Court was not proper because the defendant was a tenant who was inducted on the land prior to 1956 when certain provisions of the Tenancy Act were amended and Section 88B therein was inserted under which the trust property was exempted from the operation of the Tenancy Act except with regard to certain sections enumerated therein. The learned Judge, therefore, was of the view that this amendment would not be applicable to a tenant who was already on the land prior to 1956. He, therefore, set aside the judgment and decree of the trial Court and remanded the suit to him. It cannot, therefore, be said that the Order 41, Rule 23. Civil Procedure Code could have any application to the facts of the present case. In fact, the learned Assistant Judge himself has not exercised his power under Rule 23 of Order 41, C.P. Code, but he has remanded the suit under Section 151, C.P. Code. in such circumstances, an appeal could not lie to this court. The only remedy which was open to the aggrieved party was to approach this court by way of a revision application. However, as this matter is of considerable importance. I permit the appellants to convert this appeal into a revision application.
5. Mr. Qureshi, learned Advocate for the appellants has very seriously contended that the learned Assistant Judge has failed to appreciate the relevant provisions of Section 88B of the Bombay Tenancy Act and has misread and misinterpreted certain observations of the Supreme Court and has come to a wrong conclusion. He drew my attention to S. 88B of the Bom. Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as the Act wherein it is mentioned--
'88B(1) Nothing in the foregoing provisions except Sections 3, 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and the provisions of chapters VI and VII in so far as the provisions of the said chapters are applicable to any of the matters referred to in the sections mentioned above shall apply.'
(a) to lands held or leased by a local authority or university established by law in the Bombay area of the State of Gujarat; and
(b) to lands which are the property of a trust for an educational purpose, a Hospital, Panjrapole Gaushala or an institution for public religious worship;
(c) xx xx xx'
Sub-clause (2) states--
'For the purposes of this section certificate granted by the Collector, after holding an inquiry, that the conditions in the proviso to sub-section (1) are satisfied by any trust shall be conclusive evidence in that behalf'
Relying on the words used in this section, Mr. Qureshi very forcefully urged that in the instant case, admittedly, the land belonged to the Mosque which was a religious institution. It was a trust registered under the Bombay Public Trusts Act. The Collector had given a certificate under clause (b) of the said section. Therefore, he urged that, it was clear that the provisions of the said Act except Sections 3, 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 mentioned therein would not be applicable to the land of the trust. He submitted that Section 88B had no relation whatsoever to Section 43C and therefore, the learned Assistant Judge was clearly in error in reading Section 43C while considering the effect of Section 88B.
6. In order to appreciate the submissions made by Mr. Qureshi, it will be worthwhile to refer to Sections 43C and 43D. of the Act. Section 43C States
'Nothing in Sections 32 to 32R (both inclusive) and 43 shall apply to lands in the areas within the limits of--
(b) a municipal corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949.
(e) a cantonment, or
(f) any area included in a Town Planning Scheme under the Bombay Planning Scheme under the Bombay Town Planning Act, 1954:
Provided that if any person has acquired any right as a tenant under this Act on or after the 28th December 1948, the said right shall not be deemed to have been affected by the Bombay Tenancy and Agricultural Lands (Amendment) Act. 1952, or (save as expressly provided in Section 32D) by the Amending Act, 1955, notwithstanding the fact that either of the said Act has been made applicable to the area in which such land in situate.'
Section 43-D states--
'(1) In the areas to which Section 43C applies notwithstanding any thing contained in Sections 31 to 31D (both inclusive) a landlord may terminate the tenancy of a tenant (other than a permanent) in respect of any land with effect from the 31st day of May of any year by giving the tenant three months' notice in writing, if the landlord bona fide in writing, if the landlord bonafide requires the landlord for any non-agricultural purpose:
Provided that the three months' period of such notice shall expire before the 31st day of May of such year.
(2) The Provisions of Sections 29, 37, and 39 shall mutatis mutandis apply to the termination of the tenancy of a tenant in respect of any land under sub-section (1)'.
It may, therefore, be noted that under Section 43C rights of a tenant who was inducted on the land after 28th December 1948 were preserved in spite of the amendment made in the Act under which the provisions of the Tenancy Act were held not applicable to the land situated within the municipal limit. Mr. Qureshi, however, urged that this section has nothing to do with section 88B which specifically states that the provisions of the Tenancy Act would not apply to lands owned by a trust. He, therefore, urged that it was immaterial if the land was situated within the municipal limit or not. Once it was found that the land was owned by a trust, the provisions of the Tenancy Act except those provisions specifically enumerated in Section 88B would not be applicable at all and in that case, it was not necessary for the court to remand the suit with a direction to send certain issues to the Mamlatdar. Apparently, the submissions made by Mr. Qureshi have great force. Reading Section 43C by itself, one can readily agree with Mr. Qureshi that it would have no application so far as the land owned by the trust is concerned. In such a case, only the provisions of Section 88B effect of the various amendments made under the Tenancy Act in 1956 have been considered by the Supreme Court in the case of Ishverlal Thakorelal Almaula v. Motibhai Nagibhai, 7 Guj LR 233 = (AIR 1966 SC 459), wherein at page 238, the following pertinent observations were made:--
'The Legislature has by referring to the Amending Act of 1955 'sought also to protect, save as expressly provided in section 43D, the rights acquired under Act 67 of 1948, notwithstanding the amendments made by Act 13 of 1956. By Section 48 of Act 13 of 1956, the scheme of exemption from the operation of the Act of certain provisions thereof was extensively amended in respect of different classes of land. Section 88 of Act 67 of 1948 as originally enacted was substituted by Sections 88, 88A, 88B, 88C and 88D. But this modified scheme of exemption and other provisions of the Act were by virtue of the proviso to Section 43C not to affect the rights of tenants acquired on or after December 28, 1948 under Act 67 of 1948, save as expressly provided 67 of 1948, save as expressly provided by Section 43D.'
By these observations, the Supreme Court meant that the amendment introduced in the Tenancy Act by Act 13 of 1956 was not retrospective and could not affect the rights of a tenant acquired after 28th December 1948, Mr. Qureshi, however, urged that the Supreme Court was not called upon to decide this point; that the question was not directly before it and these observations, therefore, cannot be said to be laying down any proposition of law. I am unable to agree with him. In the case before the Supreme Court, the Supreme Court was required to consider the effect of the amendment made in the Tenancy Act. The Supreme Court was called upon to consider whether the Amending Act was retrospective in effect. While doing so, the Supreme Court took into consideration several other provisions of the Act which were similarly for the first time substituted in the Tenancy Act by the Act 13 of 1956. Under these circumstances, the Supreme Court specifically referred to Sections 88, 88A, 88B, 88C and 88D and observed that this modified scheme of exemption and other provisions of the Act were by virtue of the proviso to Section 43C not to affect the rights to tenants acquired on or after December 28, 1948. I am therefore, not prepared to agree with Mr. Qureshi that the Supreme Court was not called upon to make any observations with regard to other provisions of the Act. Assuming for the sake of argument that, that was not the subject-matter before the Supreme Court, even the obiter dicta of the Supreme Court laying down law is binding on all other courts. Therefore, the proposition of law enunciated by the Supreme Court in the observations made above would be binding on me and with respect. I entirely agree.
7. Mr. Qureshi further urged that assuming that the Provisions of the Tenancy Act applied to the facts of the present case, the question whether the defendant was a tenant in the past cannot be left to be decided by the Mamlatdar. Under the provisions of the Tenancy Act as contained in Section 70 thereof, the Mamlatdar has to decide whether a particular person is a tenant or not. Therefore, the Mamlatdar has to record his finding about the situation as it contains in the present and not about the situation as was found in the past. He, therefore, urged that the issues as framed by the learned Assistant Judge 'whether the appellant was a tenant or a protected tenant' cannot be left for decision to the Mamlatdar and it would be open to the trial court to decide the same from the evidence before him. In support of his case, Mr. Qureshi referred to the case of Mussamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai 10, Guj LR 421= (AIR 1969 SC 439) wherein it was observed--
'Section 70(b) of the Bombay Tenancy and Agricultural Lands Act imposes a duty on the Mamlatdar to decide whether a person is a tenant, but the sub-section does not cast a duty upon him to decide whether a person was or was not a tenant in the past whether recent or remote. The main question in the present case was the claim of the defendants that they had become statutory owners of the disputed lands because they were tenants either on the tillers' day or on the date of the release of the management by the Court of Wards. In either case, the question for decision will be not whether the defendants were tenants on the date or the suit but the question would be whether they were or were not tenants in the past. In other words, the plea of tenancy on the two past dates was a subsidiary plea and the main plea was of statutory ownership and the jurisdiction of the civil court cannot, therefore, be held to be barred in this case by virtue of the provisions of Section 70 of the Act read with the provisions of Sec. 85 of the Act.'
From these observations, it is therefore clear that the learned Assistant Judge was not right in directing the trial court to send the above issue to the Mamlatdar for recording his finding. In fact, in the instant case, it is not disputed by the parties that the defendant is the tenant of the suit land. The only question which requires to be considered in the suit is whether he was a tenant after 28th December 1948 and prior to 1956 when the above amendment came into force. This question could be decided by the trial court from the evidence before it. Once it is found as a fact that the defendant was a tenant and had acquired interest after December 28, 1948 and prior to 1956, Section 88B of the Act would not come in his way and it would not be open to the civil court to pass a decree for eviction. In that case, only the Mamlatdar could pass proper orders for possession under Section 29 of the Act. From the perusal of the judgment of the learned trial Judge it transpires that he has no framed an issue whether the defendant was a tenant after December 28, 1948 and prior to 1956. Unless it is found as a fact that the defendant was a tenant prior to 1956, provisions of Section 88B of the Act would be applicable in his case. In my opinion, therefore, the papers will have to be sent to be trial court as has been done by the learned Assistant Judge for recording a finding on the issue whether the defendant was a tenant after 28th December 1948 and prior to 1956 when the Act 13 of 1956 came into force. If after recording his finding on this issue, the learned trial Judge came to the conclusion that the defendant was a tenant inducted on the land after December 28, 1948 and before 1956, he should dispose of the case according to law in the light of the provisions of Section 43D of the Act and observations of the Supreme court referred to in 7 Guj LR 233 = (AIR 1966 Sc 459) referred to earlier.
8. In the Result, the revision application partly succeeds. The order of the learned Assistant Judge remanding the suit to the trial court for his decision is confirmed. But his order directing the learned trial Judge to send issues framed by him to the Mamlatdar for his decisions is hereby set aside. The learned trial Judge is directed to frame an issue whether the defendant was a tenant inducted on the land after December 28, 1948, and prior to 1956 when the amendment came into force and decide the suit according to law. In view of the facts of this case, there will be no orders as to costs.
9. Application partly allowed.