TMI Blog1965 (5) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... e mortgage stands fully redeemed. (B) The plaintiff is at liberty to seek his remedy for possession of the suit lands in the Revenue Courts. (C) The plaintiff shall recover half the costs of the suit from the defendants and the defendants shall bear their own. 2. On April 15, 1953, the plaintiff filed an appeal in the Court of the Assistant Judge at Bijapur, and the defendants filed cross-objections. On July 5, 1955, the first appellate Court held that the Civil Court had no jurisdiction to determine whether defendant No. 1 was a mortgagee in possession or a tenant, and passed the following decree : The appeal is partly allowed. The decree of the learned trial Judge that nothing is due by the plaintiff to the defendants under the transaction (Exhibit 43) at the date of the suit and the plaintiff is at liberty to seek his remedy for possession of the suit land in Revenue Court is confirmed. The rest of the decree namely that the document (Exhibit 43) is a composite document showing a mortgage and a lease and about costs is set aside. Instead it is directed that the record and proceedings should go back to the Trial Court who should give three months' time to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of possession of agricultural lands on redemption of a mortgage and the Mamlatdar has no jurisdiction to try such a suit, the plea in the written statement that the defendants were protected tenants did not oust the jurisdiction of the Civil Court to try the suit and the Civil Court should have tried and decided the incidental issue whether the defendants were mortgagees or protected tenants, instead of referring the issue to the Mamlatdar. On behalf of the respondents, Mr. Gopalakrishnan disputed these contentions, and contended that the High Court rightly referred the issue for the decision of the Mamlatdar. 5. The suit lands are agricultural lands within the meaning of the Bombay Tenancy and Agricultural Lands Act, 1948. The Act was passed with a view to amend the law relating to tenancies of agricultural lands and to make certain other provisions in regard to those lands.'Land' as defined in s. 2(8) of the Act covers land used for agricultural purposes including the site of dwelling houses occupied by agriculturists for the purposes inter alia of s. 29. Sections 2(10)(A), 4 and 4-A define permanent tenants , tenants and protected tenants respectively. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertain such a suit; but if the defendant to the suit pleads that he is a tenant or a protected tenant or a permanent tenant and an issue arises whether he is such a tenant, the Court must refer the issue to the Mamlatdar for determination, and must stay the suit pending such determination, and after the Mamlatdar has decided the issue, the Court may dispose of the suit in the light of the decision of the Mamlatdar. 7. Section 85A was introduced by Bombay Act XIII of 1956, which came into force on March 23, 1956 during the pendency of the second appeal in this case. The suit out of which this appeal arises was governed by the law as it stood before the introduction of s. 85A. But independently of s. 85A and before it came into force, the Bombay High Court in Dhondi Tukaram v. Hari Dadu (1) held that the effect of Sections 70(b) and 85 read in the light of the other provisions of the Act was that if in a suit filed against the defendant on the footing that he is a trespasser he raises the plea that he is a tenant or a protected tenant the Civil Court had no jurisdiction to deal with the plea, and the proper procedure was to refer the issue to the Mamlatdar for his decision and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Civil Court to try those issues in the suit was taken away by s. 85 read with s. 70, Dhondl Tukaram's case settled the point, and held that the Mamlatdar had exclusive jurisdiction to decide those issues even though they arose for decision in a suit properly cognisable by a Civil Court. The result was somewhat startling, for normally the Civil Court has jurisdiction to try all the issues arising in a suit properly cognisable by it. But having regard to the fact that the Bombay Legislature approved of Dhondi Tukaram's case and gave effect to it by introducing s. 85A, we must hold that the decision correctly interpreted the law as it stood before the enactment of s. 85A. It follows that independently of s. 85A and under the law as it stood before s. 85A came into force, the Courts below were bound to refer to the Mamlatdar the decision of the issue whether the defendant is a tenant. 9. In Mudugere Rangaiah v. Rangaiah I. L. R. [1959] K.A.R.420 the plaintiff sued for a declaration that he is the kadim tenant in the suit land and prayed for a permanent injunction restraining the defendant from interfering with his possession. Both the plaintiff and the defendant claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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