IN THE HIGH COURT OF BOMBAY

Civil Revn. Appln. Nos. 492 and 495 of 1972

Decided On: 12.04.1973

Pandu Dhondi Yerudkar and Ors.

Vs.

Ananda Krishna Patil

Hon’ble Judges/Coram: R.M. Kantawala, C.J.

Citation: 1974 MHLJ 548, MANU/MH/0179/1975.

1. These revision applications can be disposed of together as the question in both of them is the same. In a suit filed by the plaintiff in each of the cases the defendants inter alia pleaded that they were tenants of the suit land which is agricultural land and in both these cases in view of the pleadings of the defendants one of the issues raised by the Court was “Do the defendants prove that they were in possession of the suit land as tenants prior to the transaction dated March 27, 1967”? Notwithstanding the fact that such an issue was raised in both the matters the learned Judge passed an order that “this issues regarding tenancy need not be referred to the Mamlatdar for his finding at this stage. It shall be referred to the Mamlatdar for his finding if the defendants produce some prima facie evidence to show that they were in possession of the suit lands as tenants prior to the transaction in question”. He directed that in the meantime the hearing of the suit shall be proceeded with.

2. In a large number of cases it is found that by making a vague averment the defendants ants to have an issue as regards his tenancy to be referred to as “the Act”). Section 35 of the Act bars jurisdiction of the Civil Court to decide or determine inter alia the question whether a person is a tenant or not of any agricultural piece of land and if such an issue arisen in a suit, under Section 35-A it becomes obligatory on the part of Civil Court to refer such issue for determination by the authorities under the Act, for decision and the Court is required to stay the suit. If an issue as regards tenancy is raised by the Court then looking to the language of Section 35-A it becomes obligatory on the part of the Civil Court to refer such issue for determination by the authorities under the act. In the present case the learned Judge his raised issue No.4 each of these matters to the effect whether the defendants prove that they were in possession of the suit lands as tenants prior to the transaction dated March 27, 1967. If such an issue was raised by him, then in view of the provisions of Section 35-A of the Act it was obligatory on him to refer such issue for determination under the Act and it was not permissible to the Court to require the party to produce, prima facie evidence to show that they are in possession of the suit lands as tenants. Reading Sections 85 and 85-A together such a question has to be determined by the authorities under the Act.

3. As frequently this question arises, a little caution is required to be exercised before the Court actually frames such an issue. Under Order 14 of the Code Civil Procedure an issue can only arise when a material proposition of fact or law is affirmed by one party and denied by the other. When a vague plea is made by the defendant contending that is made by the defendant contending that he is a tenant of the land, the Court should hesitate to frame such an issue on such a vague plea, unless the defendant is such able to give particulars showing the time when the tenancy was created, the person by whom it was created and the terms on which it was created. If in spite of such particulars being asked for the defendant is unable to furnish the same, the Court should not raise an issue on a vague plea that he, the defendant, is a tenant of any particular piece of land. Normally the rules of pleadings require that these particulars are the minimum particulars which a man must furnish before he can request the Court to frame an issue as regards the claim made for tenancy.

4. Whenever an issue as regards tenancy is framed the Court has no other option but to refer such issue for decision to the authorities under the Act. In the present case, such an issue as regards tenancy having been raised in both these matters, it was not permissible to the Court to direct the defendants to produce prima facie evidence in support thereof, because determination of such an issue is taken away from the jurisdiction of the Court and has the be decided by the authorities under the Act.

5. Looking to the frequency with which vague pleas are to be found in a large number of cases where suits are filed for possession of lands, it will be for the Government to consider whether in Section 85-A any modification is to be made conferring a discretion to the Court to consider whether a bona fide dispute or question arises in a suit which under the provisions of the Act is required to be decided or determined by the competent authorities under the Act and if no such bona fide dispute or question or issue arises, then it will not be obligatory for the Court to raise such an issue and refer it to the authorities under the Act.

6. As however, in both these cases an issue as regards tenancy had been raised, in view of the provisions of Sections 85 and 85-A, it was obligatory upon the Court to refer this issue to the authorities under the Act for determination.

7. In the result, both these revision applications are allowed. The rule is made absolute in each of these cases. The trial Court is directed to refer issue no.4 for determination by the authorities under the Bombay Tenancy and Agricultural Lands Act, 1948. Each party will bear its own costs of these revision applications.

8. Revisions allowed.