Gujarat High Court
Pankajkumar vs Bavaji on 15 November, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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SCA/846120/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8461 of 2008
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PANKAJKUMAR
VRUJLAL KANABAR - Petitioner(s)
Versus
BAVAJI
NANDRAM GIGARAM & 4 - Respondent(s)
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Appearance
:
MR
PJ KANABAR for
Petitioner(s) : 1, 1.2.1,1.2.2 MS ADITI P KANABAR for Petitioner(s) :
1, 1.2.1,1.2.2
MR MB GANDHI for Respondent(s) : 1,
MR CHINMAY
M GANDHI for Respondent(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 2 - 5.
MR PR ABICHANDANI for Respondent(s) :
4,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 10/09/2008
ORAL
ORDER
Petitioners are the original plaintiffs. They have instituted Special Civil Suit No.43/98 against the respondent-original-defendant. In response to the summons issued by the Civil Court, defendant filed written statement. In the written statement, besides other grounds, he also urged that the land in question was held by him as tenant. Possibly on this very ground, issue No.5 raised by the Civil Court was whether the defendant prove that the Court has no jurisdiction to try the suit in view of section 85A of the Bombay Tenancy and Agricultural Lands Act.
2. In my view, when question of tenancy was raised by the defendant, at that very stage, the issues should have been referred to the Tenancy Court and further proceedings of the suit should have been stayed in terms of the provisions contained in section 85-A of the Bombay Tenancy and Agricultural Lands Act. Unfortunately, however, neither the Civil Court adopted nor either sides requested for adopting such a course. Issue No.7 was also raised by the Civil Court to the effect that whether the defendant proves that he is in legal possession of the suit temple and the land as Sevayat and tenant. The suit proceeded and it appears that recording of evidence is also concluded. At that stage, the Civil Court passed the impugned order dated 26.5.08 and referred issue No.7 for decision by the Tenancy Court and requested the Mamlatdar to decide the same within six months and place the decision before the Court. The Civil Court was of the opinion that it had no jurisdiction to decide the issue of tenancy which can be decided only by the Mamlatdar and ALT.
3. Learned advocate Shri Kanabar for the petitioners vehemently submitted that civil court committed a grave error in referring the said issue for consideration by the Tenancy Court, that too, at a belated stage. He submitted that the entire trial was over and at such a stage to refer the dispute would cause irreparable harm to the petitioners. It was contended that in the evidence, the defendant did not set up any case of tenancy and in that view of the matter, he should be treated to have waived the question of tenancy rights.
Reliance was placed on the decision of this Court in the case of Hargovan Keshav v. Mansing Thakorbhai, 2000(3) GLR 2063 to contend that merely because a plea of tenancy is raised, civil court is not bound to refer the issue to the tenancy court.
Reliance was placed on a decision of the Apex Court in the case of D.M.Deshpande v. Janardhan Kashinath Kadam, AIR 1999 SC 1464 to contend that in the present case civil court could not have referred the dispute to the tenancy court.
Reliance was also placed on the decision of Full Bench of the Himachal Pradesh High Court in the case of Prithvi Raj Jhingta v. Gopal Singh, AIR 2007 Himachal Pradesh 11 to contend that civil court was required to decide all issues raised before it in terms of Order 14 Rule 2 of Civil Procedure Code.
4. On the other hand, learned advocate Shri M.B.Gandhi for the respondents opposed the petition and placing reliance on the decision of the Apex Court in the case of Parmar Kanaksinh Bhagwansinh v. Makwana Shahabhai Bhikhabhai, 1994 (0) GLHEL-SC 20785 submitted that it was incumbent on the civil court to refer the issue for decision by the tenancy court and suspend further proceedings of the suit.
5. From the material on record, it can be seen that at the very outset while in the written statement the defendant had set up a case of tenancy, he had contended that since the time of his father, the land was being cultivated as tenant. In the deposition also, in examination-in-chief, it has been elaborately stated that father of the defendant was the tenant of the suit land and his tenancy right was therefore crystallized upon introduction of the Bombay Tenancy and Agricultural Lands Act. In that view of the matter, as already noted at the outset, question of tenancy should have been referred to the Tenancy Court in terms of the provisions contained in section 85 of the said Act and further proceedings should have been stayed. Unfortunately, the Civil Court did not do so at the relevant time. However, delay in taking such a step by itself would not permit the civil court to decide the issues which, as per the mandatory provisions of section 85 and 85-A of the Tenancy Act, the Civil Court is not authorized to do.
6. I am unable to accept the contention of the counsel for the petitioners that in the oral evidence the defendant gave up the claim of tenancy. My attention was drawn to the cross-examination of the defendant. However, effect of the evidence has to be seen by reading the entire evidence as a whole and when the Civil Court has no jurisdiction to decide the question of tenancy, in the facts of the present case, I do not think that the Civil Court committed any error in passing the impugned order. In the facts of the present case, I do not find that the civil court can analyze the evidence threadbare and hold that the defendant was not the tenancy of the suit land.
7. In the case of Hargovan Keshav (supra), the learned Judge of this Court found that the defendant was taking an inconsistent stand of tenancy on one hand and ownership on the other. It was in this background, that even while observing that on plain reading of section 85, it is clear that the Civil Court is bound to refer the issue regarding tenancy to Mamlatdar and cannot insist that the party must establish prima facie case, it was further observed that this does not mean that as and when such a plea is raised, the Court without applying mind must refer the same to the Mamlatdar.
In the case of D.M.Deshpande (supra), the Apex Court was considering a case wherein in the execution proceedings the case of tenancy was set up without disclosing how it was created, when it was created and terms thereof. The Apex court also found that the land of the trust was exempted from the operation of the Tenancy Act. The Apex Court, therefore, found that the executing court rightly rejected the objection of the respondent regarding their claim of tenancy.
In the case of Prithvi Raj Jhingta (supra), Full Bench of the Himachal Pradesh High Court was considering the scope of Rule 2 of Order 14 of the CPC. In the present case, in view of the order passed by the civil court, further hearing of the suit is suspended and the stage of deciding of issues has not yet arisen.
8. In the result, I do not find that the civil court committed any error in passing the impugned order. The petition is therefore dismissed. Notice is discharged. Interim relief is vacated.
9. The petitioners are, however, justified in pointing out that the tenancy issue should be decided as early as possible. Mamlatdar and ALT therefore shall endeavour to adhere to the time limit provided by the trial Court in the impugned order.
(Akil Kureshi, J.) (vjn) Top