N.G. Shelat, J.
1. The suit from which this second appeal arises was instituted by the plaintiff-respondent in the Court of the Civil Judge (J. D.) Deodar, at Sihori, for recovering possession of a land called 'Vidma Advatvalu' bearing S. No. 1186, admeasuring about 15 acres, and for other incidental reliefs, inter alia alleging that the suit land was mortgaged with him under a mortgage-deed executed by the Jagirdars of 'Vadadi Pad' of village Sihori, and that since the said mortgage was with possession, he entered into a contract with the father of the appellants on 20th July 1950 by which the latter had agreed to cultivate the mortgaged land on partnership basis. Since the plaintiff was not paid his share from the crop of the year 1953-54 certain proceedings were taken before the revenue authorities. In those proceedings it was found by the Mamlatdar that there was no relationship of landlord and tenant between the parties and that, therefore, no share from the crop can be given to the plaintiff. It appears that thereafter there arose some disputes about the mutation in the record of rights. The respondents claimed to have the land mutated to their names and that was resisted by the plaintiff. The Aval Karkun decided by an order dated 7-11-57 that the respondents' names should be entered as holders of land till the plaintiff establishes his right in a Civil Court. An appeal was preferred against that order, and it was during the pendency of the appeal that the plaintiff filed the suit. The appeal was dismissed by the Prant Officer saying that since the suit was filed, no useful purpose would be served by deciding the appeal on merits. The averments in the plaint are that the respondents were his partners in cultivation of his land, and that under the terms of that contract, since they have failed to give his share in the crop, he was entitled to restoration of his land from the defendants.
2. The appellants who were defendants in the suit resisted the suit on various grounds. One of those grounds with which we are concerned in this appeal was that they were permanent holders of the land and the authority to decide that question is the State Government under Section 2(4) of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953, hereafter to be referred to as the 'Act'. According to them, since the decision of the State Government is final, the Civil Court has no jurisdiction to entertain and try the suit.
3. Of the various issues raised by the trial Court, issue No. 1 relating to the jurisdiction of the Civil Court was decided as a preliminary issue. The learned Civil Judge found that the Civil Court had no jurisdiction to try the suit which involved the question as to whether the defendants were permanent holders in respect of the land in question, in view of Section 2(4) of the Act and that way he dismissed the suit making no order as to costs. Feeling, dissatisfied' with that order passed on 17th January 1959 by Mr. S.J. Sheth, Civil Judge (Junior Division) Deodar, the plaintiff preferred Civil Appeal No. 10 of 1959 in the Court of District Judge at Palanpur. The learned District Judge, however, was of the view that while it is true that the question whether the defendants in the suit were permanent holders or not, can be decided by the State Government and that the decision of the State Government would be final in that respect having regard to Section 2(4) of the Act, it cannot be said that the jurisdiction of the Civil Court to entertain the suit was taken away. He, therefore, set aside the order of dismissal of the suit and remanded the suit back to the trial Court for further trial according to law. That order further says that, if the lower Court finds that the question whether the respondents are permanent holders with regard to the disputed land is not decided finally by the competent authorities, then it would be open for it to stay further proceedings of the suit and to direct the parties to obtain the proper orders from the competent authorities on that question. After receiving those orders, the lower Court shall dispose of the suit finally, according to law. Aggrieved by that decision, the plaintiff has come in appeal.
4. Mr. Barot, the learned advocate appearing for the appellants, contends that as provided by Section 2(4) of the Act, it is only the State Government which shall decide the question such as the one falling within three sub-clauses of Clause (4) of Section 2 of the Act Clause (iii) refers to the question as to whether any person is a permanent holder. In the suit that question was to be determined, and since that can only be decided by the State Government, the jurisdiction of the Civil Court was ousted. His contention, further, is that once the decision of the State Government is made final and since there is no such provision as we have in Section 85A of the Bombay Tenancy and Agricultural Lands Act for staying such proceedings in a Civil Court till the matter is finally decided by the revenue authorities having regard to Sections 70 and 85 of the Act, there is no justification for staying a suit on the same lines under the provisions of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953. The Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 came in force on 1-8-54, and Section 2(4) of the Act provides as under:
2(4) If any question arises,:
(i) whether a Jagir is proprietary or non-proprietary,
(ii) whether any land is Gharkhed or Jiwai, or
(iii) whether any person is a permanent holder,
the State Government shall decide the question and such decision shall be final.
Now it is clear that the point raised by the defendants in their written statement filed in the suit is that they are permanent holders of the suit land, and that, therefore, that question would have to be decided by the State Government, or by its officer as contemplated in proviso to Section 2(4) of the Act. But there is nothing in the Act which says that, the jurisdiction of the Civil Court is taken away in respect of any such land merely because a question such as the one contemplated under Section 2(4) of the Act is raised by the defendants in the suit. The jurisdiction of a Civil Court, however, can be said to have been taken away by implication since such a question is to be determined, by a specified authority, and more particularly as the decision of that authority is made final. But that would be only with regard to any such question, and not of a spit which can be instituted in a Civil Court. What is therefore taken away is the jurisdiction of a Civil Court from determining any such plea or question failing under Section 2(4) of the Act. The decision on that point cannot be questioned in a Civil Court.
5. But it is well settled that the jurisdiction of a Civil Court for entertaining any suit depends upon the averments made in the plaint and the reliefs claimed therein. It is only when the defendants appear before the Court and raise any of such pleas which affect the jurisdiction of the Court, that the question as to whether the Civil Court can try that issue or the suit would arise. Till any such issue is raised therefore, the jurisdiction to entertain any suit in law is always there unless specifically taken away by any provision of law. On this basis, and having regard to averments made in the plaint, it can be easily said that the suit as framed was properly instituted in a Civil Court. It follows therefore that the Civil Court had jurisdiction to entertain the suit. There is considerable difference is saying that the Court has no jurisdiction to try a particular point if raised in the suit as is done in this suit, and that it has no jurisdiction to entertain and try the suit. Now even Mr. Barot concedes that on the averments made in the plaint, the suit is properly instituted in a Civil Court. It is eqully clear that a relief sought for in the suit depends upon the decision on the plea of their being permanent holders of the land in suit. If, therefore, that question is decided by the State Government under Section 2(4) of the Act that they are permanent holders of the land, since that decision is final, the Civil Court has to act upon it and the plaintiff's suit would then stand dismissed as no possession of the land can be given to the plaintiff. No such point is so far decided by the competent authority and consequently, till that is done, the jurisdiction of the Civil Court remains. If the decision were to be otherwise in the sense that they were not found to be permanent holders in respect of the land of which possession is sought for by the plaintiff, the suit must go on as otherwise plaintiff would stand to suffer for nothing merely because the defendants have chosen to raise such a point in their written statement. What takes away the jurisdiction of the Civil Court is the decision in respect of any such question arising and not by merely raising a plea of being permanent holders in the written statement. If the latter were to prevail for ousting the jurisdiction of the Civil Court, no suit for possession of the land could ever be entertained by a Civil Court. That cannot be so, and none of the provisions contained in Jagir Abolition Act do even remotely suggest the same.
6. The question then is as to what procedure should be followed when such a position arises. We can well adopt the method contemplated under Section 85A of the Bombay Tenancy and Agricultural Lands Act, inserted by Bombay Act 13 of 1956. By this section, the Legislature laid down that if any suit instituted 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. Clause (2) thereof says that 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. This section came into existence as a result of a decision in a case of Dhondi Tukaram Mali v. Dadoo Piraji Adgale 55 Bom. L.R. 663. As observed in that case, 'Section 70 of the, Bombay Tenancy and Agricultural Lands Act, 1948, makes the Mamlatdar the forum of exclusive jurisdiction for the determination of the questions mentioned in that section. Therefore, in a suit filed against the defendant for possession of agricultural lands on the footing that he is a trespasser, if he raises a plea that he is a tenant or a protected tenant, the Civil Court will have no jurisdiction to deal with that plea. ' 'Then Their Lordships have observed that in all such cases where the Civil Court cannot, entertain the plea and accepts the objection that it has no jurisdiction to try it, should not proceed to dismiss the suit straightway. The proper procedure to adopt in such cases would be to direct the party who raises such a plea to obtain a decision from the Mamaltdar within a reasonable time. If the decision of the Mamlatdar is in favour of the party raising the plea, the suit for possession would have to be dismissed. If, on the other hand, the Mamlatdar rejects the plea raised under the Bombay Tenancy and Agricultural Lands Act, 1948, the Civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser. Now, it is true, as urged by Mr. Barot that there is no such provision in the Jagir Abolition Act as we have Section 85 A in the Bombay Tenancy and Agricultural Lands Act. But absence of any such provision does not necessarily imply that the Civil Court's jurisdiction is ousted merely because the question such as the one raised in the suit is raised in the written statement by the defendants.
7. For that, till such time that any such provision is made, we can usefully follow the procedure suggested in the case referred to hereabove (Dhondi Tukaram Mali v. Dadoo Piraji Adgale 55 Bom. L.R. 663). That appears. to be perfectly a reasonable way of looking at the matter rather than dismissing the suit outright before knowing as to whether the defendants succeed in their plea about their being permanent holders as contemplated in Section 2(4) of the Jagir Abolition Act. The learned Judge has adopted that method and given suitable directions to the trial Court. The jurisdiction to proceed with the trial, in case defendants are not found to be permanent holders of land by the competent authority under Section 2(4) of the Act remains, and it can in that event deal with the other issues involved in the suit and give reliefs in accordance with law. In my opinion therefore, the learned District Judge was perfectly right in passing the order as he did and the appeal is, therefore, liable to be dismissed.
8. The appeal is dismissed with costs.