Supreme Court Upholds Plaintiff Landlord’s Suit for Possession; Bombay Tenancy Act’s Statutory Ownership Provisions Inapplicable During Court of Wards Management; Court Refuses to Refer Issue of Tenancy When Not Raised. Lease Expired Before Cessation of Management, Hence No Statutory Ownership Under Section 88 of Bombay Tenancy and Agricultural Lands Act, 1948.

Civil suit for recovery of possession of agricultural lands and mesne profits based on allegations of fraudulent lease creation.

The plaintiff sought a decree for possession of the suit lands and a sum of Rs. 10,000 for pre-suit damages, along with future mesne profits.

The plaintiff alleged that the defendants, in conspiracy with subordinate staff of the Collector, fraudulently obtained a lease during the management of the estate by the Court of Wards, and that the lease was void, making the defendants trespassers.

The trial court decreed the suit, granting possession and damages. On appeal, the Gujarat High Court held that the plaintiff failed to prove fraud; the defendants failed to prove statutory ownership; the civil court had jurisdiction to decide past tenancy but could not decide current tenancy; and referred the issue of whether the defendants were tenants on the date of suit to the Mamlatdar under Section 85A of the Act.

Whether the lease in favour of the defendants was vitiated by fraud. Whether the defendants became statutory owners of the suit lands under Section 32 or Section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948, on or before the date of the suit. Whether the civil court had jurisdiction to decide the question of tenancy on past dates (July 28, 1956 or May 11, 1958) and the claim of statutory ownership, or whether such jurisdiction was barred under Sections 70 and 85 of the Act. Whether the High Court was justified in referring the issue 'Do the defendants prove that they are tenants of the lands in suit?' to the Mamlatdar under Section 85A.

The plaintiff argued that the lease was fraudulently obtained, the defendants were trespassers, the civil court had full jurisdiction, and the defendants could not claim statutory ownership because the Act was inapplicable during Court of Wards management. The defendants contended that a valid lease was created, they became statutory owners on the tillers’ day (April 1, 1957) under Section 32, or alternatively under Section 88 after cessation of management, and that the civil court lacked jurisdiction to determine tenancy, which should be decided by the revenue authorities.

1. The provisions of Sections 1 to 87A of the Bombay Tenancy and Agricultural Lands Act, 1948 were not applicable to lands under the management of the Court of Wards during the period August 1, 1956 to May 11, 1958; hence, Section 32 could not confer statutory ownership on the tillers’ day. 2. To claim the benefit of the Act’s provisions under the first proviso to Section 88 after cessation of Court of Wards management, there must be a subsisting tenancy on the date of cessation; a lease that expired before that date does not create any tenancy right. 3. The civil court’s jurisdiction is not ousted by Sections 70 and 85 of the Act when the question is whether a person was a tenant on a past date, raised as a subsidiary plea to the main claim of statutory ownership, because the Mamlatdar’s mandate under Section 70(b) is limited to determining the existence of a tenancy at the time of the proceeding, and there is no express or necessary exclusion of civil court jurisdiction over a title claim of statutory ownership. 4. Section 85A reference to the Mamlatdar is not warranted where the pleadings and evidence do not raise a triable issue of subsisting tenancy on the date of suit.

As during the period August 1, 1956 to May 11, 1958 sections 1 to 87A of the Act were not applicable to the suit lands, s. 32 was not applicable, and therefore, the respondents could not have become statutory owners on the 'tillers’ day' mentioned in s. 32. Section 70(b) of the Act imposes a duty on the Mamlatdar to decide whether a person is a tenant and not to decide whether a person was or was not a tenant in the past. the jurisdiction of the civil court cannot be held to be barred by virtue of the provisions of ss. 70 and 85, as there is no exclusion, expressly or by necessary implication, of the jurisdiction of the civil court to decide the question whether the respondents had acquired title as statutory owners. There was no plea of any intervening act or transaction between May 11, 1958 and July 11, 1958, the date of suit, under which a fresh tenancy was created and which was subsisting on the date of the suit. There was thus no issue which survived for the decision of the Mamlatdar under s. 85A of the Act.

The plaintiff filed Civil Suit No. 64 of 1958 on July 11, 1958 in the Court of the Joint Civil Judge, Senior Division, Ahmedabad, for recovery of possession and mesne profits. The trial court decreed the suit on July 30, 1960. The defendants appealed to the Gujarat High Court (First Appeal No. 1009 of 1960). The High Court by judgment dated February 5, 1963, held that fraud was not proved, that the defendants failed to establish statutory ownership, but referred the issue of present tenancy to the Mamlatdar under Section 85A and adjourned the appeal. Against this order, both sides obtained special leave to appeal to the Supreme Court (Civil Appeals Nos. 312 and 313 of 1966). The Supreme Court allowed the appeals in part, set aside the reference, and directed the suit to be decreed as per the trial court’s judgment.

• Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act 67 of 1948): 2(18), 32, 63, 64, 70, 85, 85A, 88
• Bombay Court of Wards Act, 1905 (Bombay Act No. 1 of 1905):