MOTIBHAI BIJALBHAI BHOI Vs. SAKINABIBI W/O. SADATALI SAHEBALI
LAWS(GJH)-1983-2-29
HIGH COURT OF GUJARAT
Decided on February 18,1983

Motibhai Bijalbhai Bhoi Appellant
VERSUS
Sakinabibi W/O. Sadatali Sahebali Respondents

JUDGEMENT

- (1.) The learned Judge himself decided the question of past tenancy in negative, which he had no jurisdiction to do. It was not open to the Civil Court to deal with the question of past tenancy. Section 70(b) of the Bombay Tenancy Act says that decision about present or past tenancy is within the exclusive jurisdiction of the Mamlatdar and the Civil Court is bound to make a reference in that regard. The learned Judge also has said that the mortgage is not a usufructory mortgage, but by a conditional sale the property was given in possession of the alleged tenants -mortgagees. This is incidentally referred to by me and not by way of any decision. There was no question of paying any interest on the amount nor was there any question of giving rent of the leased property. Section 25 -A is not to be understood to refer to the mortgage to be usufructory mortgage and it cannot be a mortgage by contitional sale also, where terms of usufruactory mortgage are also there. (GDB) Appeal partly allowed.;


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