MOTIBHAI BIJALBHAI BHOI Vs. SAKINABIBI W/O. SADATALI SAHEBALI
HIGH COURT OF GUJARAT
Motibhai Bijalbhai Bhoi
Sakinabibi W/O. Sadatali Sahebali
Click here to view full 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.;
Copyright © Regent Computronics Pvt.Ltd.