MUSAMIA IMAM HAIDER BAX RAZVI Vs. RABARI GOVINDBHAI RATNABHAI

JUDGEMENT

(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:

(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: