SHAH JIRJI BHARA Vs. JADEJA MAMUBHA PABAJI
HIGH COURT OF GUJARAT
Shah Jirji Bhara
Jadeja Mamubha Pabaji
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(1.) Mr. Mankad successfully showed that under Section 125 read with Section 124 again read with Sections 31 and 100 of the Bombay Tenancy and Agriculrual Lands (Vidarbha Region and Kutch Area) Act, 1958, (Act No. 94 of 1958), the Civil Courts had no jurisdiction to deal with this question. Under Section 31 of the said Act, if any land is mortgaged by a landlord by way of a usufructory mortgage to a tenant cultivating such land, the tenancy of such land shall be in abeyance during the period the mortgage subsists. After the expiry of the said period, it shall be lawful for the tenant to continue to hold the land on the terms and conditions on which he held it before the mortgage was created. Under Section 100(b) of the said Act which is analogous to Section 70(b) of the Bombay Tenancy Act, which is applicable to this area, it is the duty of the Mamlatdar to decide question of tenancy. Under Section 124 of the Act the Civil Court has no jurisdiction to decide any question, which by or under that Act is required to be decided by the Mamlatdar and Section 125 of the said Act enjoins upon any Civil Court to refer such an issue to the Mamlatdar for his decision. (C.R.A. No. 669/70 decided by J. B. Mehta J. on 8-12-1970 followed)
(2.) The Appellate Judgment is set aside and the appeal before the Appellate Judge is restored to that court with a direction to refer the point No. 1 raised in appeal before him, namely, "Whether the mortgagee was a tenant prior to the mortgage transaction", to the Mamlatdar concerned for decision. If that decision is in favour of the defendant, the Appellate Court shall not grant delivery of possession and if it turns out otherwise, that decree, as was confirmed by the learned Appellate Judge shall stand revived.
Appeal allowed. ;
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