Case Note & Summary
The case involves a second appeal before the Bombay High Court arising from a civil suit concerning agricultural land. The appellants, four women, filed the suit against the respondents, Rau Rama Shinde and Kamal Bhau Shinde, seeking possession of the suit property. The trial court decreed the suit in favour of the appellants. However, the lower appellate court reversed the decree, recording findings of tenancy in favour of the first respondent. The appellants challenged this decision in the High Court. The High Court framed two substantial questions of law at the time of admission: whether the lower appellate court erred in recording findings of tenancy in favour of the defendant, and whether it ought to have framed an issue of tenancy and referred it to the Tenancy Court. The High Court noted that the lower appellate court had not framed any issue regarding tenancy and had proceeded to decide the tenancy issue itself, which was beyond its jurisdiction. The High Court held that under Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948, any issue of tenancy arising in a civil suit must be referred to the Tenancy Court for decision. The lower appellate court's failure to do so was a jurisdictional error. Consequently, the High Court allowed the appeal, set aside the judgment of the lower appellate court, and remanded the matter to the lower appellate court with a direction to frame an issue of tenancy and refer it to the Tenancy Court for adjudication. The appeal was disposed of with no order as to costs.
Headnote
A) Civil Procedure - Tenancy Jurisdiction - Reference to Tenancy Court - Section 85A, Bombay Tenancy and Agricultural Lands Act, 1948 - The lower appellate court erred in recording findings of tenancy in favour of the defendant without framing an issue of tenancy and referring it to the Tenancy Court for its decision - Held that the issue of tenancy must be referred to the Tenancy Court and the civil court cannot decide it (Paras 1-2).
Issue of Consideration
Whether the lower appellate court erred in recording findings of tenancy in favour of the defendant without framing an issue of tenancy and referring it to the Tenancy Court for its decision.
Final Decision
The appeal is allowed. The judgment and decree of the lower appellate court are set aside. The matter is remanded to the lower appellate court with a direction to frame an issue of tenancy and refer it to the Tenancy Court for its decision. No order as to costs.
Law Points
- Tenancy issue must be referred to Tenancy Court
- Civil court cannot decide tenancy
- Bombay Tenancy and Agricultural Lands Act
- 1948
- Section 85A
- Section 70
