Gajendragadkar, J.:—
This appeal has been referred to a Division Bench by Mr. Justice Shah because he felt that the question of jurisdiction which had been raised before him by Mr. Sukthankar on behalf of the appellant was of some importance. The appeal itself arises from a suit in which the plaintiff claimed to recover possession of certain agricultural lands from three defendants. According to the plaint, defendants Nos. 1 and 2 were trespassers and defendant No. 3 was a tenant whose tenancy had been duly determined. The plaintiff's claim was resisted principally by defendants Nos. 1 and 2 who claimed to be Mirasdars or permanent tenants. This plea has been rejected by the Courts below and the plaintiff's suit has been decreed. Against this decree defendants Nos. 1 and 2 have preferred the present appeal. At the hearing of this appeal Mr. Sukthankar contended before Mr. Justice Shah that the plea of tenancy which had been raised by his clients in the present suit can be tried by the Mamlatdar alone under s. 70 of the Bombay Tenancy and Agricultural Lands Act, LXVII of 1949, and that the Civil Courts have no jurisdiction to entertain such a plea. This particular contention was not urged in the Courts below; but Mr. Justice Shah allowed it to be raised because it is a pure point of jurisdiction which arises on the pleadings themselves. It would appear that while Mr. Justice Shah had commenced to deliver his referring judgment, Mr. Sukthankar cited before him the decision of the learned Chief Justice in Trimbak Sopana v. Gangaram which was in his favour. But Mr. Justice Shah was disposed to take the view that the question raised may with advantage be considered by a Division Bench and so he has referred this point to us.
The scheme of the Bombay Tenancy and Agricultural Lands Act, 1948, seems to be fairly clear. This Act was passed to confer some special benefits on the tenants of agricultural lands. Amongst these, the most important benefit has been conferred by s. 29 of the Act. Section 29 provides for the procedure for taking possession of agricultural lands. The effect of this section is that a landlord cannot obtain possession of agricultural lands which are let out to a tenant unless an order to that effect is passed by the Mamlatdar. An application can be made by the landlord to obtain this relief. An application can also be made by the tenant who has been dispossessed but who claims that he is entitled to possession of any agricultural land. When an application is made to the Mamlatdar in the prescribed form, the Mamlatdar has to make an inquiry into the respective rights of the parties and then pass an order on the application as he may deem fit. The section provides for a limitation of two years for making such an application, the starting point of the limitation being the date on which the right to obtain possession of the land is deemed to have accrued to the applicant. Sub-section (4) of s. 29 is very important. It lays down that if any person takes possession of the land except in accordance with the provisions of sub-ss. (1) and (2) of s. 29, he shall be liable to forfeiture of crops, if any, grown in the land in addition to payment of costs as may be directed by the Mamlatdar or by the Collector and also to the penalty prescribed in s. 81. The penalty prescribed by s. 81 for contravention of the provisions of s. 29, sub-ss. (1) and (2), is the liability to pay a fine up to Rs. 1,000. It would thus be seen that under s. 29 the only procedure available to a landlord to recover possession of the property let out by him to his tenant is to move the Mamlatdar by an application and obtain his order for possession. If the landlord obtains a decree for possession from a civil Court and manages to get into possession in execution of his decree or otherwise, he would prima facie incur all the liabilities prescribed by sub-s. (4) of s. 29. Consistently with the spirit underlying the provisions of s. 29, s. 70 of the Act provides for the duties of the Mamlatdar. Sub-sections (a) to (e) of s. 70 mention different kinds of questions which it is the duty of the Mamlatdar to decide under this Act. Section 70(b) makes it the duty of the Mamlatdar to decide whether a person is a tenant or a protected tenant. Thus it would follow that when an application is made before the Mamlatdar either by the tenant or by the landlord and a question arises as to whether the person in cultivation of the land is a tenant or a protected tenant, it is the duty of the Mamlatdar to decide that question. Section 85 shows that the questions which are left for determination of the Mamlatdar under s. 70 cannot be tried by a civil Court. Section 85(1) clearly provides that no civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or by the other Tribunals or authorities mentioned in this Act. There is, therefore, no doubt that s. 70 makes the Mamlatdar the forum of exclusive jurisdiction for the determination of the questions mentioned in that section. Therefore, whenever parties are at issue on the question as to whether a person is a tenant or a protected tenant, the only Tribunal that can decide this question is the Mamlatdar and no other. In other words, the Mamlatdar's jurisdiction to deal with the questions mentioned in s. 70 is absolutely exclusive.
Mr. Justice Shah apparently felt that the opening words of s. 70, “For the purposes of this Act,” impose a limitation upon the jurisdiction of the Mamlatdar. The Mamlatdar may have to decide the questions mentioned in s. 70; but that is only for the purposes of this Act. In other words, if a point as to whether a person is a tenant or a protected tenant arises in a proceeding not failing within the Bombay Tenancy and Agricultural Lands Act, the decision of the said point cannot be said to be for the purposes of this Act. That seems to be the effect of the argument. With respect, we do not see how these words can be said to affect the bar created by s. 85 against civil Courts entertaining any plea which falls to be decided by the Mamlatdar under s. 70. The purpose of the Act in the context is deciding the claim of the parties as to possession of an agricultural land. It may be, the landlord claims to recover possession of the agricultural land from his tenant or the tenant who is dispossessed claims to be restored to possession of the agricultural land. Whenever any such dispute arises between the parties the object of the party seeking relief is to take possession of the agricultural land, and that undoubtedly is one of the purposes of the Tenancy Act. Indeed, s. 29 makes it clear that possession of the agricultural land can be awarded only in execution of an order passed by the Mamlatdar and not otherwise. Therefore, in our opinion, even if a plea is raised by a defendant in a suit like the present that he is a tenant or a protected tenant, that plea is ultimately referable to the provisions of the tenancy act and the purpose of raising the plea is to claim the protection of the Act. If that be so, the decision of the plea must be held to be for the purposes of this Act.
In considering the provisions of s. 70 it must be borne in mind that the jurisdiction conferred on the Mamlatdar is not confined to cases where the relationship of landlord and tenant is admitted. In fact it is only where the said relationship is alleged by one party and denied by the other that the question falls to be considered and the decision of the question is left exclusively to be determined by the Mamlatdar under the provisions of ss. 70 and 85 of the Act. It is likely that a trespasser would thereby be able to prolong litigation between him and the owner of the property by frivolously raising a plea that he is a tenant or a protected tenant; but, on the other hand, a landlord may also frivolously allege that a tenant is a trespasser. We must, therefore, hold that the only forum that can deal with his plea is the Mamlatdar. If he rejects the plea, the dispute between the owner and the trespasser would be triable by the ordinary civil Court; but otherwise, the Mamlatdar alone will decide the dispute in so far as it falls within the purview of the Act.
We may incidently point out that the unreported decisions of this Court which Mr. Justice Shah has mentioned in his referring judgment were all concerned with the earlier Tenancy Act of 1939. In the said Act exclusive jurisdiction had not been conferred upon the Mamlatdar to decide certain questions; and so there was no question of excluding the jurisdiction of civil Courts in respect of any class or category of questions between landlords and tenants. In fact, the material provisions of ss. 29, 70 and 85 were enacted for the first time in the present Act. Therefore, with respect, these decisions are not of any assistance in dealing with the question raised in the present appeal.
Therefore, we hold that in a suit filed against the defendant on the footing that he is a trespasser if he raises the plea that he is a tenant or a protected tenant, the civil Court would have no jurisdiction to deal with that plea. That is the view which has been expressed by the learned Chief Justice in Trimbak Sopana v. Gangaram, and with respect we agree with that view. We would, however, like to add that in all such cases where the civil Court cannot entertain the plea and accepts the objection that it has no jurisdiction to try it, it should not proceed to dismiss the suit straightaway. We think that the proper procedure to adopt in such cases would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar within a reasonable time. If the decision of the Mamlatdar is in favour of the party raising the plea, the suit for possession would have to be dismissed, because it would not be open to the Civil Court to give any relief to the landlord by way of possession of the agricultural land. If, on the other hand, the Mamlatdar rejects the plea raised under the Tenancy Act, the civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser. It would have been much better if Legislature had provided for the transfer of such cases as they have done in the B.A.D.R Act. We would, therefore, like to invite their attention to this aspect of the matter in the hope that some suitable provision would be made in the Tenancy Act.
There is another point which we must consider before we part with this case. It appears that when the appeal was argued before Mr. Justice Shah, it was assumed that the provisions of the Tenancy Act of 1948 applied to the present suit. But this assumption is challenged before us and we have come to the conclusion that the Tenancy Act of 1948 does not apply to the present proceedings. The material section for deciding this point is s. 89. This section provides for the repeal of the enactment specified in the Schedule and then it goes on to add in sub-s. (2):
“But nothing in this Act or any repeal effected thereby—……
(b) shall save as expressly provided in this Act, affect or be deemed to affect,
(i) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or
(ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of this Act,
and any such proceeding shall be continued and disposed of, as if this Act was not passed.”
It is clear that rights which had vested in the landlord prior to this Act are intended to be saved. It is also clear that legal proceedings in respect of such rights and remedies in respect of them are also intended to be saved with the important proviso that these proceedings should have been commenced before the Act came into force. It is perfectly competent for the Legislature to affect vested rights retrospectively. It is also competent to them to save pending proceedings from the operation of the new Act. Mr. Sukthankar says that no party has a vested right in procedure and his argument is that this Act has merely substituted the forum of the Mamlatdar for the decision of certain questions instead of the ordinary civil Courts. In support of this argument Mr. Sukthankar has referred us to a decision of this Court in Shiv Bhagwan v. Onkarmal. This contention is undoubtedly sound. But, on the other hand, if the Legislature has expressly provided that pending proceedings in respect of a right which had accrued to the landlord to evict a trespasser or a tenant whose tenancy has been duly determined should be continued and disposed of as if this Act had not been passed, we must give effect to that provision. S. 89(2)(b)(ii) unambiguously lays down that any legal proceeding in respect of rights mentioned in s. 89(2)(b)(i) shall be continued and disposed of as if this Act was not passed. It would be noticed that what are saved are only pending proceedings. In other words, if a proceeding is instituted subsequent to the commencement of the Act, it would be governed by this Act notwithstanding the fact that the right itself had accrued to the party prior to the Act. In this connection it would be pertinent to point out that the last clause of s. 89(2) differs in one material particular from s. 7 of the Bombay General Clauses Act. Section 7 of the General Clauses Act deals with the effect of repeal, and, broadly stated, it provides, inter alia, that the repeal of an Act would not affect a right which had vested in a party under the repealed Act and it safeguards any legal proceedings which the party may institute in assertion of the said right. This is how the material portion of s. 7 reads:
“…………the repeal shall not—
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”
Under the provisions of this section even if a proceeding is instituted subsequent to the repeal of an Act, it will be continued as if the repeal of the Act had not taken place. section 89 of the present act, however, does not seem to protect legal proceedings in respect of vested rights which may be instituted subsequent to the commencement of this Act, unlike s. 7 of the General Clauses Act. It does not refer to the institution of legal proceedings, but mentions merely their continuance and disposal, which clearly denotes pending proceedings. That is why we hold that it is only pending proceedings in respect of vested rights that are saved from the operation of this Act; so that even in respect of vested rights which are saved, if a suit to enforce them is filed subsequent to the commencement of the Act the provisions of this Act will apply and if any question mentioned in s. 70 arises between the parties it will have to be decided by the Mamlatdar. In the present case it is common ground that the suit was instituted much before the present Act came into force. The suit was in fact filed on June 26, 1946, and was decreed by the trial Court on June 29, 1948. The appeal against this decree was preferred on August 4, 1948, and it was disposed of on August 26, 1949. It was during the pendency of the appeal that the present Act came into force on December 28, 1948. Therefore, in our opinion, it would not be open to the appellant to contend that the civil Court has no jurisdiction to try the plea which he has raised. Our attention has been drawn to an unreported decision of the learned Chief Justice in Rajgonda Appa Patil v. Anna Appaji in which a similar view has been expressed. My brother Vyas has also taken a similar view in Bhimji Velji v. Pritamlal Bapubhai Desai.
We would, however, like to add that in the present appeal we are not called upon to consider whether it would be open to the decree-holder to secure possession of the agricultural land by executing the decree, which may be passed in his favour by the Civil Court. Before answering the said question, the effect of s. 29 will have to be considered. We are at present concerned only with the question as to whether the civil Court's jurisdiction is ousted in pending proceedings on the ground that in these proceedings a plea under s. 70(b) is raised, and we answer that question in the negative.
Since this matter has been referred to us for the decision of the point of jurisdiction, we must now send it back to Mr. Justice Shah for disposal of the appeal in accordance with law.
Answer accordingly.
K.B.S