1. The petitioner is the original plaintiff of Special Civil Suit No. 100 of 1977 pending in the Court of Civil Judge (S. D.). Surat. He gave application - Exh 40 by which he requested the Judge to frame two issues and refer those issues to the Tenancy Court under the provisions contained in S. 85 Of cultural referred to as the Act). The learned Civil Judge rejected that application on the ground that the suit was of 1977 and the issues were framed on 4-7-1978 and thereafter also after death of the original defendant, the defendants who are the heirs adopted the written statement. Those issues were confirmed and thereafter this particular application was given. Being aggrieved by that order passed, the plaintiff has filed this petition.
2. The learned advocate Shri D. D. Vyas appearing on behalf of the defendants strongly opposed this petition mainly on the following grounds:-
(1) Such a petition, is not maintainable under the provisions contained in S. 115 of the Civil P. C_ as the order passed by the learned Civil Judge (S. D.) cannot be considered to be a 'case decided';
(2) The order confirming the framing of issues would operate as resjudicata, between the parties; and
(3) The issues suggested were covered by issue no. I and the same court had jurisdiction to decide issue no. I and it was not at all necessary to frame any more issues or refer the matter to the Tenancy Court.
3. Now in order to appreciate the above contentions it may be stated that the suit is a suit for partition for certain survey numbers situated in village Dabholi. In the plaint it was stated that out of the properties which were required to be partitioned, one of the survey numbers viz. survey no. 122 was a survey number in respect of which original defendant - Ramubhai Fakirbhai had obtained a certificate during the proceedings under S. 32G of the Act but the tenancy rights of that survey number belonged to joint Hindu family. In the written statement which was filed that fact was denied and it was submitted by the defendants that he alone was cultivating that land as a tenant. So far as issue no. 1 is concerned, it is as under: --
(1) Whether the suit property bearing survey no. 122 of Dabholi village is joint family property?
4. Now the real question of controversy was as to whether deceased Ramubhai was a tenant of survey no. 122 of village Dabholi or the tenancy rights were of the joint family of deceased Ramubhai and his deceased brother Jinabhai. It may here be stated that so far as the parties are concerned, Fakirbhai is a common ancestor who had two sons (1) Jinabhai and (2) Ramubhai. Plaintiff Gandabhai son of Jinabhai and he filed suit his uncle Ramubhai and as he his heirs and legal representatives is the against expired are brought on record. These are the circumstances under which the questions posed are required to be examined. We may state that the proceedings for which the legislature has provided an independent remedy or a different procedure and if the parties are not allowed to follow that procedure that question would always amount to 'case decided' and consequently such orders will open to revision. It can be held be that it was a case where jurisdiction was required to be exercised by a different forum and the civil court decided to exercise that jurisdiction itself it would be exercising the jurisdiction not vested in it by law and if such an order is allowed to stand it would cause a failure of justice and would cause irreparable injury to the party against whom that order is made. Under these circumstance the first objection of the learned advocate Shri Vyas would fail.
5. In regard to the question of the rejudicata, the learned advocate Shri R. N. Shah cited a case of Bhikhabhai Jethabhai v. J. V. Vyas, Addl. Collector reported in (IM) 4 Guj LR 873. The Division Bench of this Court held as under:--
'Any decision of a court which lacks inherent jurisdiction to try the matter cannot operate as rejudicata in a subsequent proceeding. The doctrine of resjudicata is based on estoppel by record and, no estoppel can be created by a nullity. If the decision of the executing court was a nullity, as being the decision of a court suffering from inherent want of jurisdiction, such decision could not operate as resjudicata.'
The second objection, therefore, also fails.
6. The third question which is o' real controversy is as to whether the question is required to be raised by a separate issue and whether it is necessary to refer that issue to the Tenancy Court. For that purpose one has to look to S. 70(b) of the Act which runs as under: --
'70. For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar -
xxx xxx xxx (b) to decide whether a person is or was a tenant or a protected tenant or a permanent tenant; xxx xxx xxx.'
S. 85 of the Act bars the jurisdiction of the Civil. Court and it runs as under:-
'85. (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector, the Gujarat Revenue Tribunal or the State Government in appeal or revision or the State Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Gujarat Revenue Tribunal or the State-Government made under this Act shall be questioned in any civil or criminal court.
Explanation:--For the purposes of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Courts Act, 1906.'
S. 85A of the Act runs as under:--
'85A. (1) if any suit instituted, whether before or after the specified date, in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent Authority',) the Civil Court shall stay the suit and refer, such issues 'to such competent authority for determination,.
(2) On receipt of such reference from the Civil Court, the competent authority. shall deal with and - decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.
Explanation.: -- For the purpose of this section a Civil Court shall include a Mamlatdarls court constituted. under the Mamlatdar's Courts Act, 1906'.
7. The above provisions would clearly go to show that the question as to whether a particular person was a tenant or not is exclusively required to be determined by the Tenancy Court and not only the jurisdiction of the Civil Court is barred, but it is further provided that if a suit or proceeding is pending in a civil court it would be stayed and the matter would be referred to the Tenancy Court.
8. The learned advocate Shri Vyas draw our attention to two cases, which are required to be referred to. The first case is Second Appeal No. 513 of 1965 decided on 4-11-1965 by J. B. Mehta, J. (as he then was). It was a case where certain issues were fram6d by the High Court and the matter was remanded for the decision to the trial court. Under those circumstances in second appeal it was held that new questions could not be raised in Second Appeal, Second decision is Second Appeal No. 281 of 1967 decided on 11-7-1972 by S. H. Sheth, J. (as be then was) where the only question which was argued was whether the occupancy certificate granted to one Pitha Hira was for his own benefit and whether there was evidence to show that exclusive occupation or exclusive possession was adverse to the plaintiffs. The question regarding jurisdiction of the Civil Court was not at all raised and. therefore, that question was never required to be decided. Again it was a case under the Saurashtra Barkhali Abolition Act. These two rulings therefore, do not help the learned advocate Shri Vyas. On the contrary the' view which is supported by a case of Nanba, Wd/o. Deceased Hematsinh Malublid v. Ajitsingh Naghubbai reported in (1976) 17 Guj LR 975.That was a case similar the case with which we are dealing. In that case it was held as under:---
'Therefore, where the issue is whether the defendant A the sole tenant of the land in question or whether the plaintiffs and the defendants are joint tenants it falls within the ambit of S. 70(b) and cannot be tried by the Civil Court.'
This ruling, is exactly on all fours so far as the case of framing of issue is concerned and, therefore, this application is required to be allowed. The order passed rejecting exhibit 40 is set aside and instead of the two issues suggested in exhibit 40 the following issue is framed:-
Whether Ramubhai was a tenant of survey No. 122 of village Dabholi or the tenancy rights were of the joint family of deceased Ramubhai or his deceased brother-Jinabhai ?
The matter will now go back to the learned Civil Judge who will refer this issue to the Tenanc7 Court for decision and stay the suit till this issue is decided 'by the Tenancy Court
9. Rule is made absolute with no order as to costs.
10. Petition allowed.