Ramaswami, J. - (1.) These appeals are brought, by special leave, from the judgment of the High Court of Gujarat dated February 5, 1963 in appeal No. 1009 of 1960 arising out of Civil Suit No. 64 of 1958 filed by Mussamiya Imam Haider Bax Razvi, appellant in Civil Appeal No. 312 of 1966 (hereinafter referred to as the plaintiff) against the respondents in Civil Appeal No. 312 of 1966 and the appellants (excepting the Charity Commissioner) in Civil Appeal No. 313 of 1966 (hereinafter referred to as the defendants).
(2.) The lands in dispute are located in the village Isanpur and form part of a 'Devasthan' inam. The 'Sanads' were created in the names of the ancestors of the plaintiff as the Sarjudanashin of the estate of Shah Alam which was an estate consisting of 'Roza', a mosque, a graveyard and several other properties. The estate was last held by the father of the plaintiff who expired on or about March 9, 1948 leaving behind him the plaintiff who was then a minor as his only heir. On August 26, 1948 the Collector of Ahmedabad was appointed as the guardian of the properties of the plaintiff by an order of the District Court, Ahmedabad. Subsequently, on or about January 15, 1953, the then Bombay Government assumed management of the estate under the Court of Wards Act 1905 (Bombay Act No.1 of 1905) and appointed the Collector of Ahmedabad as the manager of the same. The case of the plaintiff is that the defendants fraudulently entered into a conspiracy with the Collector's subordinate staff for getting possession of the disputed lands. In this connection the first defendant wrote to the District Collector, Ahmedabad on July 25, 1956 representing that certain persons formed or will form a Co-operative Society for carrying on agriculture and therefore required the lands for that purpose. Defendants 1,2,3 and 5 also made applications for that purpose alleging that they were Rabari, kept cattle and were residents of Ahmedabad but none of them had any agricultural land. On account of the fraud of the defendants the Collector was prevailed upon to make an order dated July 28, 1956 in breach of the provisions of Ss. 63 and 64 of the Bombay Tenancy and Agricultural Lands Act (Bombay Act 67 of 1948), hereinafter referred to as the 'Act', and the Rules made thereunder granting possession of the lands to the defendants who were neither carrying on agriculture on cooperative basis nor ever formed a Cooperative Society. It was contended on behalf of the plaintiff that the lease granted to the defendants was void and the plaintiff was entitled to a decree for recovery of possession of the lands from the defendants and also for a sum of Rs. 10,000/-, for damages for use and occupation of the land prior to the date of the suit and for future mesne profits at the rate of Rs. 500/- per month. The main written statement was filed by the first defendant and his contention was that the Civil Court had no jurisdiction to hear the suit. It was said that a valid lease had been created in favour of the defendants and as a result of the coming into force of the Amending Act (Bombay Act No. 13 of 1956) the defendants had become statutory owners of the lands in question. The suit came up for hearing before the 5th Joint Civil Judge, Senior Division at Ahmedabad who by his judgment dated July 30, 1960, held that the Civil Court had jurisdiction to hear the suit and the provisions of the Act did not apply to the suit lands and therefore the defendants were trespassers. The learned Judge accordingly granted a decree in favour of the plaintiff for recovery of possession of the lands from defendants 1 to 8. He also granted the plaintiff a decree for a sum of Rs. 10,000/- as damages for use and occupation of the lands with interest at 6 per cent p. a. from August 1, 1956 till the date of the suit i. e. July 11, 1958. The learned Judge further ordered that the plaintiff was entitled to recover mesne profits to be determined under O. 20, R. 12, Civil Procedure Code. Defendants 1 to 3 took the matter in appeal to the High Court of Gujarat, being First Appeal No. 1009 of 1960. The High Court held:(1) that the defendants had failed to establish that they had become statutory owners of the suit lands on or before the date of the suit, (2) that the plaintiff had failed to establish that the lease created either on July 28, 1956 or on August 24, 1956 was vitiated by fraud, and (3) that the Civil Court had no jurisdiction to deal with the question as to whether the defendants were or were not tenants from the date of the suit and this question could only be decided by the Revenue Authorities. For these reasons the High Court directed that under S. 85-A of the Act the following issue should be referred to the Mamlatdar having jurisdiction in the matter for his decision and that the officer shall communicate his decision, or, if there are appeals from the decision, the final decision, to the High Court as soon as possible. The issue was as follows: "Do the defendants prove that they are tenants of the lands in suit - The High Court further directed that the hearing of the appeal should stand adjourned until after the relevant communication was received from the Revenue Authorities.
(3.) It is necessary at this stage to set out the relevant provisions of the Act as it stood at the material time. Section 2 (18) states: "2. In this Act, unless there is anything repugnant in the subject or context,- (18) 'tenant' means a person who holds land on lease and includes- (a) a person who is deemed to be a tenant under Section 4; (b) a person who is a protected tenant and (c) a person who is a permanent tenant; and the word landlord' shall be construed accordingly;" Section 32 (1) is to the following effect: "32. (1). On the first day of April 1957 (hereinafter referred to. as 'the tillers' day") every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections 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- (a) such tenant is a permanent tenant thereof and cultivates land personally; (b) such tenant is not a permanent tenant but cultivates the land leased personally; and (i) the landlord has not given notice of termination of his tenancy under Section 31; or (ii) notice has been given under Section 31, but the landlord not applied to the Mamlatdar on or before the 31st day of March 1957 under Section 29 for obtaining possession of the land; or (iii) the landlord has not terminated this tenancy on any of the grounds specified in Section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March 1957 under Section 29 for obtaining possession of the lands. Provided that if an application made by the landlord under Section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Gujarat Revenue Tribunal under the provisions of the Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as 'the postponed date.' Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub-section (3) of Section 31 shall be deemed to have purchased the land on the lst day of April 1958, if no separation of his share has been effected before the date mentioned in that proviso." Section 32-F reads as follows: "(1) Notwithstanding anything contained in the preceding sections, (a) where the landlord is a minor, or a widow or a person subject to any mental or physical disability or a serving member of the armed forces the tenant shall have the right to purchase such land under S. 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31: Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land in the same proportion as the share of that person in the entire joint family property and not in a larger proportion. (b) Where the tenant is a minor or a widow or a person subject to any mental or physical disability or a serving member of the armed forces, then subject to the provisions of clause (a), the right to purchase land under Section 32 may be exercised- (i) by the minor within one year from the date on which he attains majority; (ii) by the successor-in-title of the widow within one year from the date on which her interest in the land ceases to exist; ********** Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion. ********** " Section 63 (1) reads thus: "63. (1) Save as provided in this Act- (a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall be valid in favour of a person who is not an agriculturist [or who being an agriculturist will, after such sale, gift, exchange, lease or mortgage, hold land exceeding two-thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961] or who is not an agricultural labourer: Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, on such conditions as may be prescribed. Explanation.-For the purpose of this sub-section the expression agriculturist' includes any person who as a result of the acquisition of his land for any public purpose has been rendered landless, for a period not exceeding ten years from the date possession of his land is taken for such acquisition. ********** " Section 70 is to the following effect: "70. For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar- (a) to decide whether a person is an agriculturist; (b) to decide whether a person is a tenant or a protected tenant (or a permanent tenant); ********** (c) to decide such other matters as may be referred to him by or under this Act." Section 85 states: "(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control. (2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court. Explanation- For the purposes of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdars' Courts Act, 1906." Section 85-A provides as follows: "(1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. (2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto. Explanation. -For the purpose of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Courts Act, 1906". Section 88 reads: "(1) Save as otherwise provided in subsection (2), nothing in the foregoing provisions of this Act shall apply- (a) to lands belonging to, or held on lease from, the Government; (b) to any area which the State Government may from time to time, by notification in the Official Gazette, specify as being reserved for non-agricultural or industrial development; (c) to an estate or land taken . . . . .. . .under the management of the Court of Wards or of a Government Officer appointed in his official capacity as a guardian under the Guardians and Wards Act, 1890; (d) to an estate or land taken under management by the State Government under Chapter IV or Section 65 except as provided in the said Chapter IV or Section 65, as the case may be, and in Sections 66, 80-A, 82, 83, 84, 85, 86 and 87: Provided that from the date on which the land is released from management, all the foregoing provisions of this Act shall apply thereto; but subject to the modification that in the case of a tenancy, not being a permanent tenancy, which on that date subsists in the land- (a) the landlord shall be entitled to terminate the tenancy under Section 31 or under Section 33-B in the case of a certificated landlord within one year from such date; and (b) within one year from the expiry of the period during which the landlord or certificated landlord is entitled to terminate the tenancy as aforesaid, the tenant shall have the right to purchase the land under Section 32 (or under Section 33-C in the case of an excluded tenant); and ********** " Rule 36 of the Bombay Tenancy and Agricultural Lands Rules, 1956 is to the following effect: "Conditions on which permission for sale etc. of land under Section 68 may be granted- (1) The Collector or other officer authorised under the proviso to sub-section (1) of Section 63 shall not grant permission for the sale, gift exchange, lease or mortgage of any land in favour of a person who is not either an agriculturist or an agricultural labourer or who, being an agriculturist, cultivates personally land not less than the ceiling area whether as owner or tenant or partly as owner and partly as tenant unless any of the following conditions are satisfied: (a) such a person bona fide requires the land for a non-agricultural purpose; or (b) the land is required for the benefit of an industrial or commercial undertaking or an educational or charitable institution; or (c) such land being mortgaged, the mortgagee has obtained from the Collector a certificate that he intends to take the profession of an agriculturist and agree to cultivate the land personally; or (d) the land is required by a Co-operative Society; or ********** " ;