B.K. Mehta, J.
1. These two revisions arise out of the two interlocutory orders dated 22nd September, 1972 and 7th August, 1972, respectively, made by the Civil Judge (J.D.) Dholka in Civil Suit No. 87 of 1964 filed by one Jenatbibi Husainali against Shaikh Kasambhal Nurbhai for possession of five pieces of agricultural land situated within the revenue limits of Dholka town bearing S. Nos. 1482 to 1486 together with the superstructures and fixtures thereon. By the order of 22nd September, 1972, the learned Civil Judge refused to refer the question raised in issue No. 4, namely, whether the plaintiff proves that she became deemed purchaser on 1-4-1957, on the ground that the civil court has jurisdiction in the matter on the ratio of the decision of Supreme Court in Musamia Imam Haider Box Razvi v. Rabari Govindbhai Ratnabhai and Ors. : [1969]1SCR785 , as it involves determination of a question about the past tenancy. By the order of 7th August, 1972, the learned Civil Judge rejected the application filed by the plaintiff Bai Janatbibi to delete and recast various issues including the aforesaid issue No. 4, regarding the status of the plaintiff. In order to appreciate the rival contentions of the parties. It is necessary to advert to a few facts leading to these two revision applications.
2. The plaintiff Bai Jenatbibi had filed Regular Civil Suit No. 87 of 1964 in May, 1964 in the Court of Civil Judge (J.D.) Dholka against the defendant Kasambhai for declaration that the fields are of the sole ownership and possession of the plaintiff and for permanent injunction in respect of the aforesaid five pieces of agricultural land and for restraining the defendant from interfering with her possession. In that suit, ad-interim injunction was granted, but ultimately, it was vacated after hearing the parties. The case of the plaintiff was that she was the owner of the suit land and the defendant was a trespasser. She claimed the ownership on the ground that originally the land belonged to one Abdul Karim Rasulbhai and she was his tenant and became the statutory owner of the land on April 1, 1957 under the Bombay Tenancy and Agricultural Lands Act, 1948. The defendant contended that he was a tenant in possession of the suit land from 1956-57 and was not a trespasser. The trial court has, therefore, raised issues on these pleadings. There was one issue about the status of the plaintiff which numbered as 8A and raised the following question:
Whether the plaintiff proves that she became the deemed purchaser on 1-4-1957?
The defendant, therefore, made an application to the trial Court for referring the issue to the competent authority under the Tenancy Act. The said application was rejected on the ground that the question involved was of past tenancy and, therefore, the civil Court has jurisdiction to decide the same. From that order a revision was preferred by the defendant by his civil Revision Application No. 590 of 1971. When the Revision came up for hearing before the learned Single Judge of this Court (Coram-A.D. Desai, J.), the plaintiff filed an affidavit requesting the court to delete issue No. 8A, as it was not necessary to raise the issue for purposes of the relief of the declaration or injunction. That prayer of the plaintiff was opposed by the defendant who was the petitioner in that revision. However, in the opinion of the learned Single Judge as the suit was filed on the basis that the plaintiff was the owner of the suit land and the petitioner was a trespasser, the request of the plaintiff to delete the said issue was justified. In that view of the matter, therefore, the revision filed by the defendant to refer the question to the competent authority under the Tenancy Act was not necessary and the revision was dismissed with the result that the matter came back before the trial Court. It appears that the plaintiff thereafter amended her plaint praying for possession in case if it was found by the trial court that the defendant was in possession of the suit fields. The plaint was allowed to be amended and the relief for possession was added. The defendant filed his written statement to this amended plaint. On these new pleadings, the trial court raised necessary issues. Issue No. 4 which dealt with the question of status of the plaintiff was raised in the following terms:
Whether the plaintiff proves that with effect from 1-4-1957 she became the deemed purchaser of the suit properties by virtue of the Bombay Tenancy and Agricultural Lands Act, 1948, as alleged in the plaint para 4.
The issues were raised by the trial court on 15th July, 1972. It appears that by Ex. 162, the defendant applied to the court again for referring this issue No. 4 to the competent authority. It also appears that by Ex. 161 the plaintiff applied for amendment of issues and framing additional issues as prayed in the said application. I am not concerned with the application of the plaintiff regarding other issues except issue No. 4 in these revision applications. The plaintiff wanted this issue No. 4 to be deleted. Both these applications, namely, Ex. 162 for reference to the competent authority under the Tenancy Act at the instance of the defendant and Ex. 161 for deletion of issue No. 4 at the instance of the plaintiff, were rejected by the trial court by the orders of 22nd September, 1972 and 7th August, 1972 which are the subject matter of these two revision applications before me.
3. As these two orders from which these two revisions have been filed relate to the same issue, I propose to dispose of these two revision applications by this common judgment.
4. I will first take up Civil Revision Application No. 1237 of 1972 filed by the plaintiff from the order of the trial court refusing to delete issue No. 4. It was urged by Mr. Chhatrapati, the learned advocate, on behalf of the plaintiff who is petitioner before me in Civil Revision Application No. 1237 of 1972 that as this issue was ordered to be deleted by the learned Single Judge of this High Court in Civil Revision Application No. 590 of 1971, on the principle of merger, the trial Court could not have refused to delete the issue and the defendant should have approached this Court, if at all he wanted retention thereof. Mr. Chhatrapati's contention would have been justified, if there would not have been art amendment in the pleadings after the matter was sent back by the High Court on dismissal of the said Civil Revision Application No. 590 of 1971. Originally, before the amendment, the suit was for declaration about the ownership and possession and for permanent injunction restraining the defendant from interfering with the possession of the plaintiff. By the amendment made on 27th June, 1972, the paragraphs numbered as 5(A) and 5(B), were incorporated in the plaint and relief l(a) in para 8 was added. To this amended plaint, written statement was filed by Ex. 154 on 6th July, 1972. On this amended pleading, fresh issues were raised on 15th July, 1972. Issue No. 4 related to the question, whether the plaintiff proved that with effect from 1-4-57 she became the deemed purchaser of the suit properties by virtue of the Tenancy Act? And at issue No. 10 a question was raised, whether the defendant proved that he was cultivating the suit fields since June, 1956 as tenant of the plaintiff and also of her mother as alleged in paragraph 13 of the written statement? In that state of the amended pleadings, therefore, it cannot be urged that on principle of merger, the trial Court could not have raised the issue as issue No. 4 or should have deleted the issue as prayed for by the plaintiff. Mr. Chhatrapati, however, has tried to persuade me that by the amended plaint no substantial change has been brought about. It was a sort of formal amendment which was sought for, allowed and incorporated by adding a relief of possession, so as to avoid multiplicity of litigations. I am not inclined to accept this submission of Mr. Chhatrapati because the plaintiff could have got permanent injunction without declaration of ownership in the suit before the amendment. The adjudication of the question of title on possession would not have been necessary for the relief of permanent injunction but after the amendment, when the relief of actual possession was sought for, the determination of the question of title became necessary and to that extent it cannot be said that question as well as the questions in dispute remain the same substantially for all the reliefs claimed in the suit. In my opinion, the assertion of the plaintiff that she was entitled to declaration, possession and permanent injunction on the basis of her statutory ownership having been denied and traversed in the written statement filed by the defendant, a neat question about the status of the plaintiff as statutory owner arose and the adjudication of which has become necessary for purpose of adjudicating all the questions effectively. In that view of the matter, therefore, I do not think that this Court should interfere in revision with the order of the trial court dated 7th August, 1972 dismissing the application of the plaintiff to delete the said issue.
5. I have, therefore, to consider, whether the second order of the trial court dated 22nd September, 1972, refusing to refer the question as to the status of statutory ownership of the plaintiff to the competent authority was one, which is without jurisdiction. Mr. N.R. Oza, the learned Advocate, on behalf of the defendant, urged before me that the trial court was in error in holding that as this issue involved a question of past tenancy on the ratio Musamid's case (supra) the Civil Court has jurisdiction. According to Mr. Oza, the question here is not one arising under Section 70(b) of the Tenancy Act, but, one, arising under Section 68(c) read with Sections 32 and 32-G of the said Act. In other words, it was the contention of Mr. Oza that the case does riot fall within the ratio of Musamid's case (supra). Mr. Oza contended that the question, whether the plaintiff has become statutory owner as she was a tenant of the occupant Abdul Karim as alleged by the plaintiff, is one, to be determined by Agricultural Lands Tribunal under Section 68(c) read with Sections 32 and 32-G of the Tenancy Act. The right of the plaintiff to be a statutory purchaser and the liability of the occupant to be a statutory seller, are created under a statute which at the same time gave a special and particular remedy for enforcing it, and it is not within the competence of an ordinary Civil Court to determine about this special right and liability. It was further contended by Mr. Oza that the orders of Agricultural Lands Tribunal determining the status of a person to be a statutory owner as being a tenant on 1-4-57 has been made final by the statute and, therefore, clearly, Civil Court's jurisdiction is ousted. In support of his contention, he relied on the decision of the Supreme Court in Dhulabhai v. State of Madhya Pradesh and Anr. : [1968]3SCR662 . He has further relied on the decision of the Division Bench of this Court consisting of D.A. Desai P.D. Desai, JJ. in Special Civil Application No. 1465 of 1966, decided on December 22, 1972 (Hormusji Sorabji Patel v. G.R. 71). Mr. Chhatrapati on the other hand urged on behalf of the plaintiff that this is not a question arising between landlord and tenant and, therefore, one which should necessarily be referred to the competent authority under the Tenancy Act, as the plaintiff would, in a suit for possession against trespasser, succeed or fail by her averments made in the plaint. Mr. Chhatrapati made a strenuous effort to impress upon me that in other proceedings under the Tenancy Act between the occupant Abdul Karim and the present plaintiff or her predecessor-in-title, the status of the plaintiff or her mother as a tenant has been accepted and at various stages of disputes between the parties before the present suit was filed, the defendant had filed suits in the court of Mamlatdar for obtaining a declaration that he was a tenant of the land in question from 1956-57 under Section 70(b) of the Tenancy Act and had withdrawn those proceedings. It was also urged by Mr. Chhatrapati that in the Chapter proceedings, which have arisen between the parties hereto, the stand of the defendant was that he was in possession of the suit land independently of the plaintiff since 1956; and that a contrary and false stand was taken in the said proceedings that he was a direct tenant from the occupant Abdul Karim since June, 1956. It was also pointed out by Mr. Chhatrapati that in a criminal complaint filed by the defendant against the plaintiff in the Court of Judicial Magistrate, First Class, Dholka, being Criminal Case No. 552 of 1967, the defendant stated in his evidence that he came to know Abdul Karim Rasulbhai the occupant after 10th April, 1967, when the chapter proceedings were commenced. It was also pointed out by Mr. Chhatrapati that the defendant got into the possession of the land since 20th April, 1967 pursuant to the order passed in Chapter proceedings under Section 145 of the Criminal Procedure Code prohibiting the plaintiff from entering her own properties. It was also pointed out that the case of the defendant in his written statement in the present suit was that he is a tenant from the plaintiff on the basis of a writing dated 13-5-1959 recording the terms and conditions on which the suit fields were leased out to him. It was urged by Mr. Chhatrapati that this writing does not refer, much less establish prima facie, that the defendant was in possession sines 1956 as a tenant on these fields. It was also pointed out that since 1963, the defendant was making efforts to get his name illegally entered in the record of rights and was not in possession since 1956 as alleged by him. Mr. Chhatrapati, therefore, contended that on these grounds the trial court was justified in refusing to refer this question to the competent authority under the Tenancy Act,
6. In my opinion, all these various questions of facts which may be relevant and material for determining the status of the plaintiff as a statutory owner as being tenant on the land since 1956 from occupant Abdul Karim, would not be relevant for purposes of determining the question, whether the issue of the plaintiff becoming a statutory owner since 1-4-1957 should be referred to the competent authority. What the court has to consider under Section 85-A of the Tenancy Act is, whether any question, which is required to be tried or determined by the authority under the Tenancy Act, arises in the suit before it, and if such a question arises, the Court has to stay the suit and refer the issue to the competent authority. As observed above, on the pleadings of the parties a neat question does arise, whether the plaintiff has become statutory owner of the suit land, as she was a tenant on the due date. It should also be noted that the Agricultural Lands Tribunal is seized of the matter as it has already initiated the proceedings under Section 32-G of the Tenancy Act by issuing notices upon the plaintiff as well as the defendant and two tenancy suits have been registered before the Agricultural Lands Tribunal between Abdul Karim and the plaintiff and Abdul Karim and the defendant, respectively. These facts have been clearly put on the record of the trial court by Exs. 138, 138/1, 138/2 and 138/3. The question, whether the plaintiff has become statutory owner, is one, which is within the exclusive competence of the Agricultural Lands Tribunal and that question could not be determined by Civil Court. An attempt was made by Mr. Chhatrapati to persuade me that the question of statutory ownership is not an independent question to be inquired into but is merely a fiction which is to be applied once, if it is found that a person claiming benefit of fiction is held to be a tenant on the relevant date. In support of his contention Mr. Chhatrapati has drawn my attention to certain observations made in Musamia 's case (supra), particularly what has been observed by the Supreme Court in paragraph 6 of the judgment, which reads:.In other words, it was argued that the determination of the question whether the lease was created which subsisted after August I, 1956 or which subsisted also on May 11, 1958 was not a matter within the scope of the jurisdiction of the High Court. We are unable to accept the argument put forward by Mr. Hathi as correct. Section 70(b) of the 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 'tiller's 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 of the suit but the question would be whether they were or were not tenants in the past. The question whether the defendants were tenants on July 28, 1956 or on May 11, 1958 was not an independent question but it was put forward by the defendants as a reason for substantiating their plea of statutory ownership. 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.
7. In my opinion, the above observations of the Supreme Court clearly show that the only point raised on behalf of the tenants in that case before the Supreme Court on their plea, that they had become statutory owners as they were tenants on the relevant date, was, that it was a question within the exclusive competence of Mamlatdar under Section 70(b). That contention clearly negatived by the Supreme Court on the plain reading of Clause (b) of Section 70, which cast a duty on the Mamlatdar to determine, whether a person is a tenant or not and, therefore, apparently would not be under obligation to determine the question, whether a person was or was not a tenant in past, remote or immediate. The question in Musamia's case (supra) was about the exclusion of civil Court's jurisdiction in view of Section 85-A read with Section 70(b) of the Tenancy Act. But the question, which arises in the present suit is, whether Civil Court's jurisdiction is ousted in view of Section 85-A read with Sections 68(c) and 32 of the Tenancy Act. In my opinion, therefore, the ratio of Musamtya's case would not be of any assistance to the plaintiff.
8. Section 68 of the Tenancy Act, as applicable in the State of Gujarat, provides as under: '68. Duties of the Tribunal-It shall be the duty of the Tribunal:
(a) to determine the value of the site of a dwelling house under Section 17;
(b) to determine the purchase price of the land under Sections 32G, 63A and 64;
(c) to decide any dispute under Sections 32 to 32R (both inclusive);
(d) to perform such other functions in carrying out the provisions of this Act, as may be prescribed or as may be directed by the State Government.
Under Section 68(c) the Tribunal has to decide any dispute arising under Sections 32 to 32R. Under sec, 32, every tenant on the first day of April, 1957, shall be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if such tenant is a permanent tenant thereof or protected tenant and tried landlord has not given notice of termination of his tenancy under Section 31, or under Section 14 of the Act. Under Section 32G, the Tribunal shall publish or cause to be published a public notice in the prescribed form in each, village within its jurisdiction calling upon all tenants-purchaser, landlords and all other persons interested to appear before it on the specified date. On that specified day, the Tribunal has to record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant. Where any tenant fails to appear to make a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective, and if the tenant is willing to purchase, the Tribunal shall, after giving an opportunity to the tenant and landlord and all other persons interested in such land to be heard and after holding an inquiry, determine the purchase price of such land. It is, therefore, clear that the Tribunal has not to automatically apply a fiction created under Section 32 mechanically as contended by Mr. Chhatrapati. The very obligation cast on by Sub-section (c) of Section 68 enjoins the Tribunal to decide any dispute under Sections 32 to 32R and a question may conceivably arise in a given case when two persons may be claiming statutory ownership in respect of the same piece of land as being tenants on the tillers' day. In that case, the Tribunal has got to determine in the first instance who is the tenant in respect of the said land on the tillers' day. Mr. Chhatrapati, therefore, contended that the Tribunal has to proceed to decide the dispute before it on the assumption that the person was a tenant but if there is really a dispute whether a person was a tenant or not on the tillers' day, the dispute is within the competence of civil Court as held in Musamia's case (supra). I am not inclined to accept this submission of Mr. Chhatrapati for the reasons stated above that in Musamia's case the question of jurisdiction of civil Court arose qua the duties of Mamlatdar under Section 70(b). The question did not arise as to whether it was within the exclusive competence of the Agricultural Lands Tribunal under Section 68(c), where it possesses a combine capacity of both Tribunal and Mamlatdar as is the case before me. It is an admitted position that the State of Gujarat has by a notification dt. July 9, 1960 invested the officers designated to perform duties of Agricultural Lands Tribunal under Section 67 of the Act with the power to perform the functions of Mamlatdar under the Act within the areas over which they have jurisdiction. A similar question arose before the Supreme Court in Civil Appeal No. 365 of 1966, between Kuberbhai v. The Gujarat Revenue Tribunal and Ors. decided on 7th February, 1967, where the owner of an area of land admeasuring Acres 22-14 Gunthas applied to the Mamlatdar, Bulsar, in January, 1951 for recovery of possession of the same from the appellant before the Supreme Court, who was cultivating it since 1944 on the ground of the appellant being in default in payment of rent for three successive years. That application was dismissed on January 20, 1953. The Agricultural Lands Tribunal issued a notice under Section 32-G of the Tenancy Act to the owner for fixing the price at which the land held by the appellant was to be purchased by the latter, on the basis that he had become a deemed purchaser of the entire land on April I, 1957. The owner contended that the appellant was his servant and looking after the land on his behalf and, therefore, not a tenant entitled to purchase the land under the Act. The appellant before the Supreme Court contended that he was a tenant in respect of the entire area of land and was entitled to purchase the same under the statute. The Agricultural Lands Tribunal held that the appellant was a tenant in respect of a part of land only and it was deemed to have been purchased by him from 1-4-57 without any encumbrances. It was also held that the appellant did not possess tenancy right in respect of the remaining part of the land on which mango trees were standing. In appeal before the District Collector, the order of the Tribunal was set aside as the appellate authority found that the appellant was a servant in respect of the entire piece of the land. The appellant, therefore, moved the High Court of Gujarat under Article 227 of the Constitution. Before the High Court, a preliminary contention raised by the appellant was that the agricultural Lands Tribunal had no jurisdiction to determine, whether the appellant was a servant or a tenant, and that order under Section 32-G should have been passed in favour of the appellant in respect of the entire land. The High Court, however, held that the Tribunal had jurisdiction to determine, whether the appellant was a tenant in respect of the land or a part thereof. The appellant-tenant, therefore, went in appeal before the Supreme Court by way of special leave. Before the Supreme Court, the appellant contended that the High Court was in error in holding that the Agricultural Lands Tribunal had jurisdiction to determine whether the appellant did or did not possess tenancy right under the Tenancy Act over the mango trees. Dealing with this contention, His Lordship Mr. Justice J.C. Shah (as he then was) speaking for the Court observed as under:
The plea of counsel for the appellant that the High Court had no jurisdiction to deal with the question whether the appellant was or was not a tenant of the land is plainly belied by the terms of Section 32 of the Act. Under Section 32 only a 'tenant' is deemed to have purchased the land from his landlord on April 1, 1957. The Agricultural Lands Tribunal had therefore to determine in the first instance whether the claimant was a tenant in respect of the land. It is true it at under Section 70 of the Act, jurisdiction to determine whether a person is a tenant or a protected tenant, is conferred upon the Mamlatdar, and that provision by implication excludes the jurisdiction of the other authorities to make an enquiry for the purposes of the Act into that question. But the State of Gujarat has by notification dated July 9, 1960, invested the officers designated to perform the duties of the Agricultural Lands Tribunal under Section 67 of the Act with power to perform the functions of a Mamlatdar under Act within the areas over which they have jurisdiction. The order of the Agricultural Lands Tribunal is therefore not open to question on the ground of lack of jurisdiction.
In this connection Mr. Oza has drawn my attention to the decision of the Division Bench of this High Court comprising of D.A. Desai P.D. Desai, JJ. in Special Civil Application No. 1465 of 1966, decided on December 22, 1972, where the Court was concerned with the question of determining the status of statutory ownership incidentally involving a question of past tenancy, where D.A. Desai, J. speaking for the court laid down after exhaustively examining the different provisions of the Tenancy Act and the impact of the ratio of Musamia 's case (supra) on the facts of the case before the Division Bench as under:.Therefore, first ground of attack that the Civil Court would have no jurisdiction to make a reference under Section 85-A of the Tenancy Act in respect of a dispute involving past tenancy commending before 1-4-1957 is rather too broadly stated and cannot be accepted. The answer would be that the Court before which such a dispute is raised will have to find out whether the dispute is one which would arise under Section 32 and then reference will have to be made to the Agricultural Lands Tribunal. Such a dispute would not necessarily arise under Section 70(b) only and yet if it does arise, Civil Court can proceed to decide it. Therefore, as a broad proposition it cannot be accepted that when there is a dispute involving past tenancy a reference to Revenue Authorities would be incompetent and civil Court could have jurisdiction to decide it. In such case, the Civil Court will have to decide whether the reference has or has not to be made keeping in view the dispute and the context in which it arises, and the reference would have to be made if the dispute falls within the four corners of Section 68(c) read with Sections 85 and 85A of the Tenancy Act.
Keeping the principle in mind and having regard to that has been laid down by the Supreme Court in Kuberbhai v. The Gujarat Revenue Tribunal and Ors. in Civil Appeal No. 365 of 1966,1 think that in the facts of this case, the learned Civil Judge was not right when he refused to refer this question to the decision of the Agricultural Lands Tribunal which has been already seized of the matter.
9. Mr. Chhatrapati therefore, made an attempt to persuade me that this question could not have arisen in the proceedings such as those between the plaintiff and the defendant as there is no relationship of landlord and tenant between them. In the first instance, this assumption of Mr. Chhatrapati is not correct about the relationship. The plaintiff is a widow and, therefore, entitled to make a sub-lease of the property. It is, inter alia the case of the defendant that he is the tenant of the plaintiff on the land since 1956. But assuming that their is no relationship of landlord and tenant between the plaintiff and the defendant, it cannot be said that from that fact alone, a question could not conceivably arise, which is required to be settled, decided or dealt with by the competent authority under the Tenancy Act. As held in Vasava Mohan Mod v. Indravadan Kuberdas Sampatram and Anr. IV G.L.R. 387 that Section 85 of the Bombay Tenancy and Agricultural Lands Act is not limited to proceedings between a landlord and a tenant only but is wide enough to cover any proceedings between any parties where any question is raised by a party, which question is required by or under the Act to be settled, decided or dealt with by the authorities mentioned in that section, and once a question required to be settled, decided or dealt with by an authority mentioned in Section 85 of the Act is raised, no Civil Court will have jurisdiction to decide that issue and it is not even open to the civil Court to go into the issue or call upon the parties making any such allegation to prima facie prove its case. On the plain reading of Section 85, I am in respectful agreement with this decision of the learned Single Judge of this Court. Late Mr. Justice Modi (as he then was) observed in his judgment at page 391 as under:
There is nothing to indicate in this section that the proceedings in which the jurisdiction of the Civil Court is barred has got to be a proceeding between a landlord and a tenant. Section 85 speaks of any question which is by or under the Act required to be decided by a Mamlatdar and that question is not limited to a question arising between a landlord and a tenant only. The question can as well arise between other parties where one party takes up the contention that he is a tenant, a protected tenant or a permanent tenant, as is the fact in the case before me, where, the question has arisen between a tenant from a mortgagee and the owner of the property. There is nothing to indicate in this section a saving of the bar in such a case. It is true that the above mentioned cases were cases in which the proceedings had arisen between alleged landlords and tenants. But the ratios of those judgments cannot be said to be limited to proceedings between landlords and tenants only. I am, therefore, of the view that Section 85 is not limited to proceedings between a landlord and a tenant only but is wide enough to cover any proceedings between any parties where any question is raised by a party which question is required by or under the Act to be settled, decided or dealt with by the authorities mentioned in that section.
In Shankar Raoji Patil v. Mahadu Govind Chawan 57, B.L.R. 65, the Division Bench of the Bombay High Court consisting of Chagla CJ. and Tendolkar, J. was concerned with a question of power of Mamlatdar to grant possession to a tenant in an application under Section 29 from his subtenant, where it was contended that once it was established that the party in possession was a trespasser, it is only civil Court that can deprive the trespasser of the possession and give it to the party claiming it against the trespasser. Negativing this contention, Chagla CJ. speaking for the Court held:
If it is open to the Mamlatdar to determine the question as to whether the petitioners were the tenants of respondent No. 1 or not, it must follow that impliedly he had jurisdiction also to decide that they were not sub-tenants and therefore were trespassers. That is the view I have taken sitting singly in a case reported in Trimbak Sopana v. Gangaram 55 B.L.R., 56 and that view has been accepted by a judgment of a division bench reported in Dhondi Tukaram v. Dadoo Pirajl 55 B.L.R. 663. But it is urged on the strength of the judgment in Dhondi Tukaram v. Dadoo Piraji that even though the Mamlatdar may impliedly held that the petitioners are trespassers, he has no jurisdiction to grant a relief to respondent No. 1 and order possession against trespassers. The contention is that it is only when the tenant wants possession from his landlord that under Section 29(1) the Mamlatdar can pass an order for possession in his favour, but when the tenant is seeking possession against a trespasser, the Tenancy Act confers no jurisdiction upon the Mamlatdar to give him possession and the tenant must be relegated ti% his rights in a civil Court, and what is urged is that since the Prant Officer came to the conclusion that the petitioners were trespassers, be should have directed respondent No 1 to file a suit in a Civil Court and not order possession. Now the view taken by the division bench in Dhondi Tukaram v. Dadoo Piraji was that if a suit is filed by a landlord in a civil Court for possession and the defendant raises the contention that he is a tenant, the issue must be decided by the Mamlatdar and the suit must be stayed. If the Mamlatdar holds that the defendant is a tenant, then the suit must be dismissed. If the Mamlatdar holds that the defendant is not a tenant but is a trespasser, that the Civil Court must go on with the suit on the basis of the defendant being a trespasser. Now, one important fact must be borne in mind in considering the decision of the division bench, and that is that it was a suit filed, by a landlord against a tenant and not by a tenant against a landlord. The case that we have is not a case of landlord seeking possession from his tenant but it is a case of a tenant who has been dispossessed and who wants his possession to be restored.... The Tenancy Act was put on the statute book for the protection of tenants and it would be difficult to believe that the legislature intended that after a tenant had gone to the Mamlatdar for possession against a party who was in possession and the Mamlatdar had tried the issue as to whether that party was a sub-tenant or not, the Mamlatdar should have no right to give relief to the tenant but should drive the tenant to the Civil Court asking him to start a new litigation and then obtain possession by the rather dilatory method of a suit....
Both the above decisions clearly bring out that a question may arise in given cases between a tenant and a sub-tenant or a trespasser for that matter, which may be required to be settled, decided or dealt with by the competent authority under the Tenancy Act.
10. Mr. Chhatrapati has drawn my attention to the decision of Raju, J. in Civil Revision Application No. 578 of 1963 in Amarsang Mohan v. Sardarsang, decided on 10th January, 1967, where he held that Civil Court has jurisdiction to try the suit filed by a permanent tenant against a trespasser who claimed to be a tenant from the original occupant, who was not a party to the proceedings, on the ground that the question did not arise between landlord and tenant, having regard to the definition of the term, 'Tenancy' under the Tenancy Act, which, according to the learned Single Judge has been 'enacted to deal with the disputes between landlord and tenant.'
11. Mr. Oza has in this connection cited the decision of learned Single Judge of the Bombay High Court, Mr. Justice Dixit in Maruti Dagadu Darekar v. Keshav Vyankatesh Wakade 56 B.L.R. 1010, where he held that:.Although, therefore, the suit is one for injunction and the civil Court has jurisdiction to entertain the suit, it seems to me that the Civil Court has no jurisdiction to decide the question whether defendants Nos. 1 to 4 are the tenants of defendants Nos. 5 and 6. It may be that the Act primarily contemplates disputes between a landlord and a tenant, but it seems to me that the intention as expressed in Bombay Act No. LXVII of 1948 seems to be that the question relating to the tenancy of a person is a question which must be determined primarily by the Mamlatdar and not by the civil Court and there is both reason and principle in support of this view. Supposing it is held that the civil Court has jurisdiction to decide this question and also the Mamlatdar has power to decide the question, it may well be that in certain conceivable circumstances there may be a conflict of decision and a conflict of decision between two parallel courts is scarcely a happy situation because parties will then be in a difficulty to know as to which order the parties are required to obey. In my opinion, therefore, it is reasonable to hold that even if this is a dispute between a tenant and another tenant, that dispute is one which must be decided by the Mamlatdar and not by the civil Court.
I respectfully beg to prefer the view of the learned Single Judge of the Gujarat High Court and the Bombay High Court in Vasava Mohan Moti's case and Maruti Dagadu Darekar's case, respectively, on the plain reading of the section and having regard to the scheme of the Tenancy Act.
12. Mr. Chhatrapati thereafter made a last attempt to impress upon me that since the trial court is still seized of the disputed raised in issue No. 9, as to whether the defendant proved that he was a tenant of the plaintiff since 1956, the reference by the civil Court of the status of the plaintiff as statutory owner to the determination by the Agricultural Lands Tribunal would clearly result in conflict of the two Courts, which situation can be hardly said to be a happy one and, therefore, also the Court should not refer this question of the status of the plaintiff to the Agricultural Lands Tribunal. I am not impressed by this contention of Mr. Chhatrapati for the simple reason that the Agricultural Lands Tribunal is seized of the matter as to who out of the plaintiff and the defendant has become statutory owner of the suit land, and if that question is answered by determining incidentally as to who was the tenant on the land in 1956, the decision would be final and binding, and issue No. 9, therefore, would be required to be answered accordingly. It that view of the matter, therefore, the result is that the revision filed by the plaintiff fails while the revision filed by the defendant succeeds.
13. The result is that the revision application No. 1237 of 1972 filed by the plaintiff fails and is dismiss while the revision application No. 1196 of 1972 filed by the defendant succeeds and the trial court is directed to make a suitable reference to the Agricultural Lands Tribunal for determination of the question raised in Issue No. 4 and till the final determination of that question, the suit should be stayed under Section 85A of the Tenancy Act. Having regard to the peculiar facts in these applications, there should be no order as to costs in both these revision applications.