S.H. Sheth, J.
1. These two appeals arise out of Special Civil Suit No. 16 of 1967 decided by the Court of the Civil Judge (Senior Division) at Baroda. The facts of the case briefly stated are as under.;
2. The plaintiff filed the present suit against the defendants for recovery of possession of agricultural lands on the allegation that prior to 1st April 1957 he was the tenant in respect of those lands and had become their deemed purchaser under the Bombay Tenancy and Agricultural Lands Act, 1948. He further alleged that in 1965 he was dispossessed. In defence, it was contended that the plaintiff was not the tenant prior to 1st April 1957 and that, therefore, he had not become the deemed purchaser under the provisions of the Tenancy Act. It was next contended that he had surrendered the lands to the landlords on 1st April 1957 and had been working on the land since then as the landlord's servant. The learned trial Judge held that the plaintiff was the tenant prior to 1st April 1957 and that he had become the deemed purchaser on that date under Section 32-G of the Tenancy Act. It was also held that he was wrongfully dispossessed by the defendant-landlords. He, therefore, passed in favour of the plaintiff decree for possession.
3. That decree is challenged by defendants Nos. 7 and 9 to 12 in First Appeal No. 3 of 1972 and by defendants Nos. 1 to 6 and 8 in First Appeal No. 717 of 1976. The learned trial Judge raised the issues. Later on he amended the issues and raised Issue No. 5-A relating to the past tenancy of the plaintiff. By his order Ex. 12 dated 18th November 1968 he referred that issue to the Mamlatdar under Section 85 A of the Tenancy Act. On 30th August 1969 the Mamlatdar made the order returning the reference to the Civil Court without deciding it because according to him he had no jurisdiction to decide whether plaintiff was a tenant prior to 1st April 1957. The order of the Mamlatdar was received on 20th November 1969. The Mamlatdar relied upon the decision of the Supreme Court in Mussamiya Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai and Ors. 10 G.L.R 421 to which we shall shortly refer. Thereafter the trial Court proceeded with the suit and decided it in favour of the plaintiff.
4. Section 70(b) of the Tenancy Act before it was amended in 1973 by Gujarat Act 5 of 1973 provided:
70. For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar:
(b) to decide whether a person is a tenant or a protected tenant (or a permanent tenant).
This unamended section was interpreted by the Supreme Court in Mussamlyus case (supra). It was held that there was nothing in the language of Section 70 or Section 85 of the Tenancy Act to suggest that the jurisdiction of the Civil Court was expressly or by necessary implication barred to decide the question whether a person was a tenant and had become the statutory owner of lands in his possession. Therefore, according to the Supreme Court, upon the true construction of Section 70 (b) as it was prior to its amendment in 1973, the jurisdiction of the Civil Court, by virtue of the provisions of Section 85 of that Act, was barred in cases where the tenant claimed present tenancy and not where the claim made by the tenant was based upon past tenancy. Now, the trial Court decided the suit on 27th September 1971. In view of the decision of the Supreme Court in Musamiya's case (supra), the trial Court had then the jurisdiction to decide whether the plaintiff was the tenant prior to 1st April 1957.
5. However, by Gujarat Act 5 of 1973, Section 70(b) and Section 85A were amended. Amended Section 70(b) reads as follows:
70. For the purposes of this Act the following shall be the duties- and functions to be performed by the Mamlatdar.
(b) to decide whether a person is or was a tenant or a protected tenant or a permanent tenant.
It is clear that amended Section 70(b) confers upon the Mamlatdar jurisdiction to decide the question relating to the past tenancy of a tenant also. Therefore, by virtue of Section 85 jurisdiction of the Civil Court even in controversies relating to past tenancies of the tenant is barred. Section 85A which enables a Civil Court to refer an issue as to tenancy, when it arises in a civil suit, to the Mamlatdar, is also amended. Amended Section 85A provides as follows:
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.
The words which are inserted in Sub-section (1) of Section 85A by Gujarat Act (sic) 5 of 1973 are as follows: 'instituted whether before or after the specified date, in any Civil Court'. Therefore, the cumulative effect of the amended Section 70(b) read with Section 85A is that if in a civil suit a question relating to the past tenancy of a tenant arises, the jurisdiction is conferred upon the Mamlatdar to decide it and an issue has got to be referred to the Mamlatdar by the Civil Court. By virtue of amended Section 70(b) read with amended Section 85A, the Civil Court cannot try an issue relating to the past tenancy of the tenant.
6. The expression 'specified date' used in amended Section 85A has been defined by Gujarat Act 5 of 1973. Sub-section (16C) has been inserted in Section 2. It defines 'specified date' so as to mean 'the date of the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1972'. Gujarat Act 5 of 1973 came into force on 20th April 1973.
7. Mr. Desai who appears on behalf of the plaintiff has contended that the trial Court had the jurisdiction to pass the decree on the day on which it passed it and that such a decree cannot be affected by subsequent amendment made by Legislature to Section 70(b) and Section 85A of the Tenancy Act. We are not impressed by this argument for two reasons. Indeed the amended Section 85A uses the word 'suit' and it does not use the word 'appeal'. But it is well-settled that appeal is a continuation of the suit. When the highest Court of appeal decides an appeal, what the highest Court does is to conclusively and finally decide the suit and nothing more. Secondly, with the deprivation of the jurisdiction of the Civil Court in matters relating to the past tenancy of tenants, we, exercising the jurisdiction of the Civil Court, do not have the jurisdiction now to confirm or set aside the decree for possession on merits. It is, therefore, clear that even though the trial Court had the jurisdiction to pass the decree when it passed it, the subsequent amendment to legislation which governs the pending suits renders that decree null and void. We must go to the extent of saying that in view of the fact that amended Section 85A governs the pending suits, the decree passed by the trial Court must be deemed to have been passed without jurisdiction even though the trial Court had the jurisdiction to pass it when it did.
8. Since the suit filed by the plaintiff is pending in appeal before us, it becomes imperative for us to refer the issue relating to the plaintiff's past tenancy to the Mamlatdar under Section 85A. Mr. Desai has tried to invite our attention to Ex. 187 with the object of showing us that in proceedings under Section 32G of the Tenancy Act, the controversy relating to the plaintiff's past tenancy was decided by the Mamlatdar. Ex. 187 relates to Vasai lands. The suit lands are Dabhoi lands. Therefore, Ex. 187 has no application to the suit lands. It cannot, therefore, be taken into account. It is, therefore, clear that there is nothing on the record of this suit which shows that the controversy which is now required to be referred to the Mamlatdar under Section 85A was never decided in proceedings under the Tenancy Act.
9. In that view of the matter, we must remand the suit to the trial Court for referring the issue to the Mamlatdar.
In the result, we allow the appeal, set aside the decree passed by the learned trial Judge, remand the suit to him with a direction that Issue No. 5A shall be referred by him to the Mamlatdar for decision. Upon the receipt of the finding on the issue by him he shall proceed with the suit and decide it according to law. Until issue 5A is finally decided, the learned trial Judge shall stay the suit.
It appears that in execution of the decree passed by the trial Court the plaintiff-tenant recovered possession of the suit lands from the defendants. He is therefore in possession now. Since we set aside the decree for possession, it is quite probable that the defendants might institute restitution proceedings and take back the possession from him. That is the apprehension which is expressed by Mr. Desai who appears on behalf of the plaintiff. Mr. S.R. Shah who appears on behalf of the defendants expressly states to us that during the pendency of the suit they shall not take back the possession of the suit lands from the plaintiff. This assurance given by Mr. Shah to the Court protects the plaintiff-tenant's interest. There shall be no order as to costs throughout.