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Jamadar Suleman Bachumiya Vs. Mahavir MathadIn and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR131
AppellantJamadar Suleman Bachumiya
RespondentMahavir MathadIn and anr.
Cases ReferredMaruti Dagadu v. Keshav Vyankatesh
Excerpt:
- - no doubt civil courts as well as courts under the mamlatdars courts act have jurisdiction to decide a suit for injunction when there is no prayer for possession......the opponents from causing obstructions to the possession of the suit lands. pending the suit an interim injunction was granted on 8-12-58 and an application for vacating the interim injunction was also dismissed. the learned mamlatdar also ordered that the contention of the opponents that they were tenants of the suit lands should be decided by the tenancy court and that the suit under the mamlatdars courts act should be kept pending till the decision by the tenancy court. the opponents went in revision to the prant officer baroda under section 23 of the mamlatdars courts act. the learned prant officer came to the conclusion that the possession was with the original defendants to the suit. he therefore set aside the order of the mamlatdar granting an interim injunction......
Judgment:

V.B. Raja, J.

1. This is a civil revision application. The applicant filed Suit No. 50/ 58 before the Mamlatdar of Baroda under Section 5 of the Mamlatdars Courts Act for a permanent injunction restraining the opponents from causing obstructions to the possession of the suit lands. Pending the suit an interim injunction was granted on 8-12-58 and an application for vacating the interim injunction was also dismissed. The learned Mamlatdar also ordered that the contention of the opponents that they were tenants of the suit lands should be decided by the tenancy Court and that the suit under the Mamlatdars Courts Act should be kept pending till the decision by the tenancy Court. The opponents went in revision to the Prant Officer Baroda under Section 23 of the Mamlatdars Courts Act. The learned Prant Officer came to the conclusion that the possession was with the original defendants to the suit. He therefore set aside the order of the Mamlatdar granting an interim injunction. Although in the order he has stated that the injunction both interim and permanent are vacated in fact the learned Mamlatdar had ordered only an interim injunction to issue.

In revision it is contended that the learned Prant Officer was wrong in appreciating the evidence afresh in revision before him under Section 23 of the Mamlatdars Courts Act and that the learned Prant Officer had no jurisdiction to entertain a revision under Section 23 of the Mamlatdars Courts Act when only an interim injunction had been passed and when no final order had been passed.

In support of the first contention reliance is placed on Kashiram v. Rajaram 13 Bom. L.R. 879. With respect I agree with the observations in this case that in revision under the Mamlatdars Courts Act the revising authority has no power to weigh the evidence which was before the Mamlatdar and come to a different conclusion of fact with reference to the plaintiffs possession.

But it is contended by the Learned Counsel for the opponents that the learned Mamlatdar who was trying the suit under the Mamlatdars Courts Act had no authority to issue an interim injunction because the proceedings under the Mamlatdars Courts Act are merely proceedings of a special type to which the provisions of the Code of Civil Procedure are not applicable. It is therefore contended that the provisions of Order 39 Rule 1 C.P. Code relating to interim injunction are not applicable to proceedings under Section 5 of the Mamlatdars Courts Act and he relies on Ganpatram Jebhai v. Ranchhod Haribhai I.L.R. 17 Bom. 645 and Kasam Saheb v. Marutibin I.L.R. 13 Bombay 552 In I.L.R. 13 Bom. 552, which was followed in I.L.R. 17 Bom. 645 it was held that Bombay Act III of 1876 provided a special procedure for Mamlatdars Courts and there is no indication in that Act of any intention that the rules of the Code of Civil Procedure should apply to cases for which the special procedure makes no provision. The Mamlatdars Courts Act with which we are dealing in the instant case is Act No. 11 of 1906 and in this Act also there is no indication of any intention that the rules of the Code of Civil Procedure should apply to cases for which the special procedure makes no provision. Section 5(2) of the Mamlatdars Courts Act makes a provision for a permanent injunction and there is no provision in this Act for an interim injunction. I therefore agree with the contention that the Mamlatdar cannot grant an interim injunction in a suit under Section 5 of the Mamlatdars Courts Act. The Learned Counsel for the applicant relies on Maruti v. Bankatlal 35 Bom. Law Reporter 576 which does not apply to the facts of the present case because that case does not relate to an interim injunction under Section 5 of the Mamlatdars Courts Act.

2. It is also contended by the Learned Counsel for the applicant that in the suit a contention was raised by the defendants that they were tenants and in fact the learned Mamlatdar referred the question of tenancy to the Tenancy Mamlatdar under Section 85 of the Bombay Tenancy and Agricultural Lands Act 1948 and that as the question of tenancy was pending in the Tenancy Mamlatdars Court the learned Prant Officer had no jurisdiction to decide any points in the suit. Reliance is placed on Maruti Dagadu v. Keshav Vyankatesh 56 Bombay Law Reporter 1010 Section 85(1) of the Bombay Tenancy and Agricultural Lands Act reads as under:

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 Collector or the Bombay Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.

Explanation to Section 85 of the Bombay Tenancy and Agricultural Lands Act also provides as under:

For the purpose of this section a Civil Court shall include a Mamlatdars Court constituted under the Mamlatdars Courts Act; 1906.

The questions referred to in Section 85(1) are those enumerated in Section 70 of the Tenancy Act. One of the questions referred to in Section 70 is to decide whether a person is a tenant. But none of the items in Section 70 refers to the question whether a person is in possession or not. In view of Section 29 of the Bombay Tenancy and Agricultural Lands Act Civil Courts have no jurisdiction to decree possession in favour of a plaintiff whether he is a landlord or a tenant. But a Civil Court can entertain a suit for injunction to restrain the defendant from interfering with the plaintiffs possession. In such a suit it may happen that the defendant raises a contention that he is a tenant. In the case of an ordinary suit for injunction the plaintiff has to prove that he is in possession and he must also prove that he is entitled to continue in possession But if it is contended by the defendant that he is a tenant of the plaintiff and if that contention is found to be correct the plaintiff would not be entitled to continue in possession although he may have been in possession on the date of the suit and the question whether the defendant is a tenant or not cannot be decided by the Civil Court but only by the Tenancy Court. In such a case therefore the Civil Court cannot issue an injunction whether permanent or temporary because the question whether the plaintiff is entitled to an injunction permanent or temporary would depend upon the question whether the defendant is a tenant of the plaintiff and therefore entitled to possession. In some suits under Section 5 of the Mamlatdars Courts Act also the question of tenancy might arise. For instance if the proviso to Section 5(1)(b) of the Mamlatdars Courts Act is to be applied the question whether the plaintiff has become entitled to possession merely by reason of the determination of any tenancy or other right may have to be considered. But where a suit for an injunction is filed under Section 5(2) of the Mamlatdars Courts Act the plaintiff has merely to prove that he is otherwise than by due course of law disturbed or obstructed in the possession of lands etc. In such cases the question of tenancy does not arise at all and what the Mamlatdar has to decide is whether the plaintiff has been otherwise than by due course of law disturbed or obstructed in the possession of any bands etc. Even if the defendant raises a contention that he is a tenant the question of tenancy does not arise for decision in those proceedings and Section 85 of the Bombay Tenancy and Agricultural Lands Act would have no application.

3. A distinction has therefore to be made between cases of a regular civil suit for as injunction restraining the defendant from disturbing the plaintiffs possession. No doubt Civil Courts as well as Courts under the Mamlatdars Courts Act have jurisdiction to decide a suit for injunction when there is no prayer for possession. But in the case of ordinary civil suits if the defendant contends that he is a tenant the plaintiffs relief would depend on the correctness or otherwise of that contention and the suit will have to be stayed under Section 85(1) of the Bombay Tenancy and Agricultural Lands Act. But if in a suit for injunction under Section 5(2) of the Mamlatdars Courts Act the defendant contends that he is a tenant of the plaintiff the suit need not be stayed because the question of tenancy need not be settled decided or dealt with by the Court under the Mamlatdars Courts Act. That question is not necessary to be settled decided or dealt with for the purpose of granting or refusing an injunction under Section 5(2) of the Mamlatdars Courts Act.

Further it is contended that although the learned Mamlatdar had jurisdiction to issue a permanent injunction under Section 5(2) of the Mamlatdars Courts Act he had no jurisdiction to issue an interim injunction under that section. This contention that the Mamlatdar had no jurisdiction to issue an interim injunction in a suit filed under Section 5(2) of the Mamlatdars Courts Act is correct and on this ground in revision before the Deputy Collector the order of interim injunction could have been Vacated but instead of vacating this interim injunction on this ground the Deputy Collector has reversed it on another ground namely after appreciating the evidence which he had no right to do. Although the learned Prant Officer had no jurisdiction to appreciate the evidence in a revision application filed before him under Section 23 of the Mamlatdars Courts Act the order passed by him does not appear to be unjustified in view of the fact that the learned Mamlatdar was trying a suit in which he had no jurisdiction to issue an order of interim injunction.

I therefore do not think that this is a fit case for interference in revision with the order passed by the learned Deputy Collector. The revision application is dismissed.

There will be no order as to costs.


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