DAHYABHAI SOMABHAI Vs. RAMAJI KESARJI
LAWS(GJH)-1970-7-23
HIGH COURT OF GUJARAT
Decided on July 21,1970

DAHYABHAI SOMABHAI Appellant
VERSUS
RAMAJI KESARJI Respondents


Referred Judgements :-

MAHADAJI V. SONU [REFERRED]
ISARDAS SEOMAMAL LULLA V. THE COLLECTOR OF MADRAS [REFERRED]
R KANTILAL AND CO VS. AZIZUL HAQUE AND BROS [REFERRED]



Cited Judgements :-

GOBARBHAI RANCHHODBHAI SARDHARA VS. STATE OF GUJARAT [LAWS(GJH)-2005-3-96] [REFERRED TO]
GRAM PANCHAYAT JETSAR VS. ADDITIONAL COLLECTOR SRI GANGANAGAR [LAWS(RAJ)-1972-4-15] [REFERRED TO]
RATI CHAND VS. SAIFUDDIN AND OTHERS [LAWS(MPH)-1989-2-51] [REFERRED TO]
HEIRS OF BAI MANCHI W/O GULABJI MOHANJI VS. STATE OF GUJARAT [LAWS(GJH)-2017-5-16] [REFERRED TO]


JUDGEMENT

D.A.DESAI - (1.)This petition under Article 227 of the Constitution of India is directed against the judgment and order of the Mamlatdar Gandhinagar in Mam. Court Act Case No. 16/65 pronounced on 19th April 1966 and confirmed by the Prant Officer Gandhinagar in Revision Application No. 6/66 on 30th September 1966. One Mafatlal Punamchand was the owner of the lands bearing S. No. 1137 admeasuring 1 acre 27 gunthas and S. No. 1138 admeasuring 1 acre and 27 gunthas situated within the revenue limits of Isanpur Mota in Gandhinagar District. Mafatlal Punamchand the owner of the lands sold the same to the petitioners by a sale deed dated 26th April 1956 for consideration of Rs. 1350.00. The petitioners say that they came into possession of the lands on the date of the sale and since then they are in continuous possession except for a short period in 1964 As this sale was effected on 26th April 1956 that is after 15th June 1955 and before 1st April 1957 when the Amending Act of 1955 came into force the Mamlatdar held an enquiry whether the sale was in contravention of secs. 63 or 64 of the Bombay Tenancy and Agricultural Lands Act 1948 as it stood before the commencement of the Amending Act 1955. The Mamlatdar declared the sale to be invalid by his order dated 9th December 1958. Unfortunately it appears that after declaring the sale invalid the Mamlatdar did not proceed to pass the consequential order as required by sec. 84B(2) of the Bombay Tenancy and Agricultural Lands Act 1948 which requires that the Mamlatdar shall direct that the possession of the land be restored to the person from whom it was purchased and the amount of consideration paid if any shall be returned by the purchaser to the vendor. Present respondent Ramaji Kesraji claimed to be the tenant of this land. It appears that his name appeared as tenant in the Government records. The Agricultural Lands Tribunal commenced an enquiry under sec. 32G of the Bombay Tenancy and Agricultural Lands Act 1948 to determine the price. In the course of this inquiry the Agricultural Lands Tribunal held that respondent was not the tenant of the land and the proceedings were dropped by his order dated 30th January 1960 The petitioners have stated that no appeal or revision is preferred against this order. The Talati of village Isanpur Mota in execution of the order declaring the sale invalid proceeded to take possession of the land from the petitioners and handed over the same to the respondent on 3rd April 1964. The petitioners thereupon approached the Mamlatdar on 21st April 1964 contending that they have been unlawfully dispossessed by the Talati and the Talati had no power authority or jurisdiction to recover possession from them. The Mamlatdar by his order dated 19th June 1964 directed that the respondent should hand over possession of the lands to the petitioners and pursuant to this order the petitioners came back into possession of these lands The respondent preferred an appeal against the order of the Mamlatdar directing him to restore possession of the land to the petitioners; but it is not clear as to what has happened to that appeal. The respondent thereafter filed a suit under sec. 5 of the Mamlatdar's Courts Act praying for possession of the suit lands. The respondent alleged in the plaint that he is a tenant of the suit lands and that he has been unlawfully dispossessed and the sale in favour of the petitioners having been declared invalid they have no title to the lands and therefore the respondent is entitled to be restored to possession. The petitioners appeared in the suit and raised a contention that the Mamlatdar's Court has no jurisdiction to decide the question of tenancy and has accordingly no jurisdiction to entertain the suit. The Mamlatdar negatived this contention and directed that possession of the lands he handed over by the present petitioners to the respondent. The petitioners carried the matter in revision to the District Deputy Collector and Prant Officer without success. The petitioners have challenged the aforementioned two decisions of the Mamlatdar and the District Deputy Collector in this petition.
(2.)Mr. J. M. Patel learned Advocate who appeared for the petitioners urged that a Court set up under the Mamlatdar's Courts Act and known as Mamlatdar's Court is a Civil Court and if before such a Court a question is raised whether a particular person is a tenant or not within the meaning of the Bombay Tenancy and Agricultural Lands Act 1948 the Mamlatdar's Court will have no jurisdiction to decide that issue and the issue will have to be referred to the Mamlatdar under sec. 85 of the Bombay Tenancy and Agricultural Lands Act 1948 It was therefore urged that if the Mamlatdar while presiding over the Mamlatdar's Court decides the issue that a particular person is a tenant the finding will be without jurisdiction and the order would be a nullity. It was also urged that in this case the petitioners as defendants specifically contended in the written statement that the Mamlatdar's Court had no jurisdiction to decide question of tenancy and as the matter was not referred to the Mamlatdar under sec. 70(b) of the Bombay Tenancy and Agricultural Lands Act 1948 and the Mamlatdar while deciding the suit under sec. 5 of the Mamlatdar's Courts Act proceeded to inquire into the question of tenancy the decision of the Mamlatdar is without jurisdiction and there is such patent lack of jurisdiction that the decision is wholly invalid and is a nullity.
(3.)The scheme of the Mamlatdar's Courts Act shows that the State Government shall set up a Court known as Mamlatdar's Court over which the Mamlatdar shall preside. Undoubtedly the respondent approached the Mamlatdar by invoking jurisdiction of the Mamlatdar's Court under sec. 5 of the Mamlatdar's Courts Act. The respondent by filing suit under sec. 5 of the Mamlatdar's Courts Act prayed for possession against the petitioners. The respondent specifically claimed his right to possession on the allegation that he is a tenant of the lands and he has been unlawfully dispossessed and that he is a tenant entitled to possession of the lands from the petitioners who are according to the respondent in unauthorised possession of the lands. The allegation in the plaint is clear and unequivocal and right to possession is founded upon the claim of status of a tenant vis- -vis lands involved in the dispute. This particular status claimed by the respondent was specifically denied by the petitioners and therefore an issue would necessarily arise whether the respondent was a tenant of the lands. Once that issue arises on the pleading of the parties the question would immediately arise whether the Mamlatdar presiding over the Mamlatdar's Court will have jurisdiction to decide the issue of tenancy.


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