Parmar Kanaksinh Bhagwansinh Vs.
Makwana Shanabhai Bhikhabhai & ANR [1994] INSC 652 (8 December 1994)
VENKATACHALA N. (J) VENKATACHALA N. (J)
SAHAI, R.M. (J)
CITATION: 1995 SCC (2) 501 JT 1995 (1) 103
1994 SCALE (5)169
ACT:
HEADNOTE:
VENKATACHALA, J.:
1.
This
civil appeal by special leave is directed against the Judgment and Decree dated
29th November, 1977 rendered by a single Judge of the Gujarat High Court in
Second Appeal No. 348 of 1973, which arose out of Regular Civil Suit No. 921 of
1966 filed in the Court of Joint Civil Judge, Baroda (Civil Court) by the
appellant herein as plaintiff against respondents 1 and 2 herein - defendants 1
and 2 for redemption of suit properties which were mortgaged as security for
certain monies borrowed by the plaintiff from defendant-l under two deeds of
mortgage executed in the year 1961
2.
Plaintiff
filed the suit for redemption of the said mortgages in the year 1966.
Defendant-2, brother of defendantI had been joined in that suit on the
allegation that the latter was put in possession of mortgage properties by the
former subsequent to the coming into existence of the mortgages. That suit was
resisted by the defendants, each of them having filed separate written
statements which in sub- 105 stance did not differ from each other. The defence
in those written statements was that defendant-l and his family members had
become tenants of the suit properties in the year 1959-1960 and had continued
to be such tenants at the time of mortgage deeds executed in respect of those
properties in the year 1961 and thereafter. It was also claimed therein that
they had become owners of the said properties when the plaintiff in the year
1962 sold those properties to defendant-1 by receiving a sum of Rs.4,400/- as
consideration for the sale. Even if the sale of said properties in favour of
defendant-l, it was asserted therein, was not proved, they continued to be
tenants of the said properties on the date of suit as they were tenants even
before the date of coming into existence of the mortgages. The issue relating
to their claim that they were tenants of the said properties - the agricultural
lands, as urged therein, had to be referred by the Civil Court to the Mamlatdar
under section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 -
"the BT&AL Act" for recording his finding thereon and the suit
had to be stayed pending receipt of the finding thereon so that the suit may be
finally disposed of on the basis of such finding. The Civil Court
notwithstanding the defence of the defendants taken in their written statements
that the suit had to be stayed for obtaining the finding on their claim of
tenancy under the BT&AL Act, framed the issues in the suit on the basis of
the pleadings of the parties and after trial .recorded its findings thereon.
Such findings were firstly, that the defendants had failed to prove that the
suit properties were sold in favour of defendant-l subsequent to the giving of
security of those properties in his favour under the mortgage deeds; secondly,
that the defendants had failed to prove the past tenancy of the suit properties
on its view that what was pleaded by them in the written statements was tenancy
prior to the date of filing of the suit; and thirdly, that the mortgages of the
suit properties were mortgages by 'conditional sale. On the basis of findings
so recorded by the Civil. Court, it also made a preliminary decree in favour of
the plaintiff for redemption of the suit properties. Though the defendants
filed an appeal in the Court of the District Judge, Baroda against the said
preliminary decree that appeal came to be dismissed on August 17, 1972
affirming the judgment and decree of the Civil Court.
3.
However,
the defendants questioned the judgments and decrees of the trial court and the
appellate court by filing a second appeal against the same in the High Court of
Gujarat. A learned single Judge of the High Court, who heard the second appeal,
while upheld the concurrent findings of the courts below that the deeds of
mortgage executed by the plaintiff in respect of the suit properties in favour
of defendant-l were mortgages by conditional sale and the defendants had failed
to prove that there was sale of the suit properties in their favour subsequent
to the coming into existence of the said mortgages, found that the defendants
had raised in their written statements the plea that they were tenants not only
prior to the date of suit but also at the time of the filing of the suit and
having regard to that plea the suit ought to have been stayed by the Civil
Court and the issue of tenancy should have been referred to the Mamlatdar for
obtaining a finding from him thereon both under section 85-A of the BT&AL
Act as it stood before its amendment at the time of filing of the suit 106 and
as it stood after its amendment after the filing of the suit. Consequently, the
learned single Judge set aside the judgments and decrees of the trial court and
the appellate court relating to the issue of tenancy raised by the defendants
in the suit and remanded the case to the Civil Court (trial court) directing it
to refer the issue of such tenancy to the Mamlatdar, Baroda for his
determination and to stay all further proceedings in the suit till he got the
finding from the Mamlatdar on that tenancy issue and thereafter to proceed to
dispose of that suit in the light of that finding and the other findings
recorded by the appellate court (District Judge). It is the Judgment and Order
of the learned single Judge of the High Court by which he allowed the Second
Appeal and remanded the suit, which is appealed against in this Civil Appeal of
the plaintiff as is stated at the outset.
4.
No
controversy is raised in this appeal as regards the findings of the Civil Court
that the deeds of mortgage executed by the plaintiff in respect of the suit
properties were mortgages by conditional sale. Specific case pleaded by the
plaintiff in the plaint as regards possession of the suit properties held by
tenants was that their possession which was with the plaintiff was given to
defendant-l on the execution of the deeds of mortgage by conditional sale in
his favour. In any event, it was not the case of the plaintiff that defendant-l
was a tenant of the suit properties and hc surrendered his possession of the
suit properties either expressly or impliedly and the possession so obtained by
the plaintiff was re-delivered to defendant-l in pursuance of the mortgages by
conditional sale executed in his favour.
5.
However,
the arguments addressed before us on behalf of the plaintiff- appellant in support
of the appeal by learned Senior Counsel Mr. S.K. Dholakia were these: That
defendant-l - respondent-l although was in possession of the suit properties -
agricultural lands at the time of execution of the deeds of mortgage by
conditional sale in his favour because of the coming into existence of such
mortgages there occurred merger of lease-hold rights of defendant-l in suit
properties when he obtained those properties as mortgage security under the
said mortgages and as a consequence he became a mortgagee in possession of
those properties. According 10 him a mortgagee in possession being a person who
cannot be deemed to be a tenant under section 4 of the BT&AL Act it was not
open to the defendants to claim that they were the tenants of suit properties
and if that be so question of raising issue of tenancy by the Civil Court in
the suit before it did not arise at all nor was it necessary to refer such
issue to the Mamlatdar under section 85-A of the BT&AL Act and stay the
suit till receipt of the finding on such issue as was directed by the High
Court in its judgment under appeal. In support thereof, he sought to place
reliance on the decisions of this Court in Shah Mathuradas Maganlal and Co. v.
Nagappa Shankarappa Malaga and Others [AIR 1976 SC 1565] and Gambangi
Appalaswamy Naldu and Others v. Behara Venkataramanayya Patro [AIR 1984- SC
1728]. Even otherwise. it was argued by him that the Civil Court before whom
the plaintiff had filed the suit for redemption of the suit properties could
not have driven the plaintiff to the forum of Mamlatdar merely because the
defendants had raised the plea that they were tenants of the suit properties -
agricultural lands.
According to him when the plaintiff had not
admitted that the defendants 107 were tenants of the suit properties, it was
not open to the defendants to force the plaintiff who had a right to choose his
forum to file a suit to go before another forum on the plea that jurisdiction
lay before another forum, that is, Mamlatdar. In this regard support was sought
from the decision of this Court in Raizada Topandas and Another v. M/s.
Gorakhram Gokalchand [AIR 1964 SC 1348]. He, therefore, urged that the High
Court was not justified in upsetting the concurrent finding of the trial court
and the appellate court that the defendants failed to prove their tenancy and
remanding the case to the trial court directing it to refer the issue of
tenancy to the Mamlatdar and stay the suit till the receipt of the finding in
that regard from the Mamlatdar and then dispose of the suit. Hence, the
Judgment and Order of the High Court, according to him, was liable to be
interfered with and set aside.
6.
However,
learned counsel appearing for the defendants - respondents sought to refute the
arguments advanced on half of the plaintiff- appellant.
7.
Questions
which arise for our consideration and decision in the light of the aforesaid
arguments of learned counsel for the contesting parties admit of their
formulations thus:
(1). Does the lease-hold of a tenant (lessee)
in a property merge in mortgage security if the same property is given by the
landlord (lessor) to the tenant (lessee) as a mortgage security under a
mortgage by conditional sale, as would debar the tenant from desisting the suit
of the landlord - mortgagor for recovery of possession of such property by
obtaining a decree for redemption of the mortgage ? (2). When a plea of tenancy
is raised with regard to suit property, an agricultural land, by a defendant
who claims to be a tenant of such property under the BT&AL Act and seeks a
reference of that issue by the Civil Court to the Mamlatdar under that Act for
obtaining a finding thereon, can the Civil Court decide such issue by itself
and proceed to decide the suit on the basis of the finding thereon ? As the said
questions could be dealt with appropriately with reference to the statutory
provisions which bear upon them, it would be convenient to advert to such
statutory provisions here.
The Transfer of Property Act, 1882 (TP Act)
"111. A lease of immoveable property determines - (a) ....
(b) ....
(c) ....
(d) in case the interests of the lessee and
the lessor in the whole of the property become vested at the same time in one
person in the same right ..... " Bombay Tenancy and Agricultural Lands
Act,1948 (BT&AL Act) "2. In this Act, unless there is anything
repugnant in the subject or context, (18) 'tenant' means a person who holds
land on lease and include - (a) a person who is deemed to be tenant trader
section 4;
108 (b) a person who is a protected tenant;
and (c) a person who is a permanent tenant;
and the word 'landlord' shall be construed
accordingly." "4. A person lawfully cultivating any land belonging to
another person shall be deemed to be a tenant if such land is not cultivated
personally by the owner and if such person is not - (a) a member of the owner's
family, or (b) a servant on wages payable in cash or kind but not in crop share
or a hired labourer cultivating the land under the personal supervision of the
owner or any member of the owner's family, or (c) a mortgagee in
possession." "70. For the purposes of this Act the following shall be
the duties and functions to be performed by the Mamlatdar - (a) to decide
whether a person is an agriculturist;
(b) to decide whether a person is a tenant or
a protected tenant (or a permanent tenant);
(c) to decide such other matters as may be
referred to him by or under this "85. (1). 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
Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in
appeal or revision or the State Government in exercise of their powers of
control.
(2). No order of the Mamlatdar, the Tribunal,
the Collector or the Maharashtra Revenue Tribunal or the State Government made
under this Act shall be questioned in any Civil or Criminal Court.
1.
2.
3.
4.
5.
6.
7.
8.
Section
85A, as it stood before the amendment of this Act by Gujarat Act No.5 of 1973
w.e.f. 3rd March, 1973:
"85A. (1). If any suit instituted in any
Civil Court involves any issues which are required to be settled, decided or
dealt with by any authority competent to settle, decide or deal with such
issues under this Act (hereinafter referred to as the 'competent authority')
the Civil Court shall stay the suit and refer such issues to such competent
authority for determination.
(2). On receipt of such reference from the
Civil Court, the competent authority shall deal with and decide such issues in
accordance with the provisions of this Act and shall communicate its decision
to the Civil Court and such court shall thereupon dispose of the suit in
accordance with the procedure applicable thereto .... " Section 85A, as it
came into force after it was amended by Gujarat Act No.5 of 1973 w.e.f 3rd
March, 1973 :- "85A. (i) If any suit instituted, whether before or after
the specified date, in any Civil' Court involves any issues which are required
to be settled, decided or dealt with by any authority competent to settle,
decide or deal with such issues. under this Act (hereinafter referred to as the
'competent authority') the Civil Court shall stay the suit and refer such
issues to such competent authority for determination. ' '
9.
We
shall now proceed to deal with 109 the aforesaid questions.
Question (1):
10.
Interests
of the lessee and the lessor in the whole of the property become vested at the
same time in one person in the same right because of section 11 l(d) of the
T.P. Act.
What is enunciated in section 111 (d) of the
T.P. Act cannot be doubted is the doctrine of merger. Merger takes place when a
lesser estate is merged or drowned in a greater estate. Lease- hold held by a
tenant or a lessee being a lesser estate and the right of reversion of the
landlord (lessor) being a higher estate, the lessee's lease-hold right in
respect of the property merges in reversion when that right of reversion, i.e.,
the landlord's (lessor's) right of reversion comes to the tenant or lessee
which happens when the landlord having a right to sell his reversion to the
tenant holding the lease-hold sells the whole of it to the tenant (lessee).
But, in view of the arguments advanced on behalf of the plaintiff- appellant,
what has to be seen is if the landlord of a property, the lease-hold of which
is already with the tenant, gives that very property as mortgage security to
the tenant (lessee) by executing a mortgage by a conditional sale for the
amount borrowed by him from the latter, does merger of lease-hold right in that
mortgage security occur. When the landlord mortgages the lease-hold property of
the tenant to the tenant himself, he does not part with the right of reversion
which he has in respect of that property. If that be so, merger of lease-hold
estate in reversion cannot arise, inasmuch as, there cannot be any
inconsistency or incompatibility in one person being the tenant and also the
mortgagee of the same property, for in that event instead of the tenant paying
rent to the landlord he may adjust it against the amount claimable by him as a
mortgagee from the landlord. Moreover, if a lessee of a property takes a
mortgage of the sum property from the landlord, it would be unreasonable to
attribute to a tenant the intention to surrender the tenancy and to invoke the
sophisticated doctrine of implied surrender as has been held by the Gujarat
High Court in Patel Atmaram Nathudas v. Babubhai Keshavlal, AIR 1975 Guj. 120.
11.
In
the present case, as has already been pointed out by us, the plaintiff-
appellant did not claim that the defendants or any of them were in possession
of the suit properties as tenants and there was a surrender by them of the
possession either expressly or impliedly as would make the Court to come to the
conclusion that the possession of the suit properties with the defendants was
surrendered by them pursuant to the mortgage by conditional sale executed in
their favour. If that be the position, there can be no bar for the defendants
to claim the right to continue in possession of the suit properties as tenants under
the BT&AL Act even if the plaintiff could obtain a decree for redemption of
the suit properties, which relief was sought in the suit. The decision of this
Court in Shah Mathuradas case (supra) and G. Appalaswamy case (supra) sought to
be relied upon by learned counsel for the appellant - plaintiff in support of
his arguments that there was a merger of the leasehold right of the tenant in
the suit properties when he took mortgages of those properties from the
landlord as would deny him the right to continue in possession of those
properties as a tenant, instead of supporting his argument would go against it,
as we shall presently point out. Shah 110 Mathuradas case (supra) was that
where the respondent had executed a mortgage in favour of the appellant respecting
a premises of which he was a tenant. It was agreed under the terms of the
mortgage deed that no interest need be paid by the respondent since the
premises, the possession of which was given to the tenant pursuant to the
mortgage was to be enjoyed in lieu of interest payable on the mortgage. When
suit for redemption of the premises was filed by the respondent the appellant
claimed, that after redemption, he was entitled to remain in possession of the
premises because of the subsistence of his previous tenancy right. This Court
held that the mortgage deed established beyond doubt that there was no
subsistence or continuation of lease in that there was delivery of possession
by the tenant to the landlord immediately before the mortgage and redelivery of
possession to the tenant of the premises made by the landlord was pursuant to
the mortgage as a mortgagee and not as a tenant. Secondly, this Court held that
the appellant was not entitled to retain after redemption possession of the
mortgage-property by reason of his previous right to be in its possession as a
tenant. In the present case as we have pointed out earlier, when no surrender
of possession of the suit properties had taken place before the coming into
existence of mortgages in favour of the lessor - mortgagor, when no redelivery
of possession had been given pursuant to the mortgage to the-tenant, the
decision under consideration can be of no assistance to the appellant. Since
the following observations in the said case confirm the view we have taken on
non-merger, they can be excerpted:
12.
"For
a merger to arise, it is necessary that a lesser estate and a higher estate
should merge in one person at one and the same time and in the same right, and
no interest in the property should remain outside. In the case of a lease the
estate that is in the lessor is a reversion. In the case of a mortgage the
estate that is outstanding is the equity of redemption of the mortgagor.
Therefore, there cannot be a merger of lease and mortgage in respect of the
same property since neither of them is a higher or lesser estate than the
other."
13. Coming to G. Appalaswamy case (supra)
which considered the question whether a sitting tenant who took property by a
possessory or usufructuary mortgage in his favour was liable to deliver
physical possession upon redemption to the mortgagor (former lessor). This
Court dealing with the said question said that all depends upon whether there
was an implied surrender of the lessee's rights when the usufructuary mortgage
was executed in his favour by the lessor-mortgagor and only if an implied
surrender of lossee's rights could be inferred then the mortgagor would be
entitled to have delivery of physical possession upon redemption but not
otherwise. Dealing with the question of non-merger this Court approved the
ratio of the decision in Shah Mathuradas (supra) thus:
"In our view there can be no merger of a
lease and a mortgage, even where the two transactions are in respect of the
same property. It is well-settled that. for a merger to arise, it is necessary
that lesser estate and a higher estate should merge in one person at one and
the same time and in the same right and no interest in the property should
remain outstanding. In the case of a lease, the estate that is outstanding in the
lessor is the reversion; in the case of a mortgage, the estate that is
outstanding is the equity of redemption of the mortgagor.
Accordingly, there 111 cannot be a merger of
a lease and a mortgage in respect of the same property since neither of them is
a higher or lesser estate than the other. Even if the rights of the lessee and
the rights of the mortgagee in respect of a property were to be united in one
person the reversion in regard to the lease and the equity of redemption in
regard to the mortgage, would be outstanding in the owner of the property and
accordingly, there would not be a complete fusion of all the rights of
ownership in one person."
13.
Hence,
the lease-hold of a tenant (lessee) in a property does not merge in mortgage
security of that property, even if it is given .to him by the landlord (lessor)
on a mortgage by conditional sale as would debar the tenant from desisting the
suit of the landlord mortgagor for recovery of possession of such property by
obtaining decree for redemption of the mortgage.
Question (2):
14.
The
argument which was strenuously advanced on behalf of the appellant - plaintiff
was that in a suit for redemption filed by the mortgagor in a Civil Court in
respect of property notwithstanding the plea of the defendants' claim that they
were tenants of that property under the BT&AL Act and under the provisions
of that Act the issue of tenancy had to be referred by the Civil Court to the
Mamlatdar for recording a finding thereon and the Civil Court can proceed to
dispose 0 the suit only on the basis of the finding received from the
Mamlatdar, the Civil Court itself can record its finding on the issue of
tenancy and if the finding to be recorded had to go against the claim of
tenancy, it would be permissible for the Civil Court to grant the decree for
redemption sought by the plaintiff in the said suit. Support was sought for the
argument from the decision of this Court in Topandas case (supra).
15.
We
find it difficult to accept the said argument and the aforesaid decision of
this Court relied upon in support thereof can render no assistance. The only
question which arose for decision in Topandas case (supra) was whether on a
proper interpretation of section 28 of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 - "the Rents Control Act", the Court of
Small Causes, Bombay had exclusive jurisdiction in dealing with the suit out of
which the appeal had arisen. There, the respondent - a partnership firm was in
possession as a tenant of a shop at Mulji Jetha Market, Bombay. It instituted a
suit in the Bombay City Civil Court (not the Court of Small Causes, Bombay)
praying for a declaration that it was in lawful possession of the shop and the
appellants had no right to enter into or remain in possession of the shop and
for grant of an injunction restraining the appellants from interfering with the
respondent's possession. The plaint averments were that appellant- 1
(defendant- 1) had appointed the respondent as his commission agent for the
sale of the appellants' cloth in the shop in question. The agreement was to
remain in force for a period of four years. Pursuant to the said agreement, the
respondent had allowed the appellants, their family members, servants and
agents to visit the shop only for the purpose of looking after the business of
commission agency. The appellants, despite being asked not to visit the shop
after the expiry of the period in the concerned agreement, they continued to
visit the shop and were preventing the respondent from having access to its
various articles such as stock-in-trade, 112 books of account, furniture,
fixtures etc. Thus according to the plaint, the appellants who .were merely
licensees, had no right to enter into the shop after the expiry of the period
of licence envisaged in the agreement. The defence of the appellants
(defendants) in substance was that the agreement on which reliance was placed
by the respondents in their suit was a sham agreement and that the appellants
in reality were the tenants of the shop and the relationship between the
respondents and appellants was that of the landlord and tenant. The further
plea taken in the written statement by the appellants was that as the question
involved in the suit related to the possession of premises as between a landlord
and his tenant, the Court of Small Causes, Bombay, alone had jurisdiction to
try the suit. The appeal in this Court had arisen out of the finding recorded
on that issue and in dealing with that matter this Court had. to consider the
true effect of sub-section (1) of section 28 of the Rents Control Act to find
whether it means that a defendant if raises a claim or question as to the
existence of relationship of landlord and tenant between him and plaintiff the
jurisdiction of the Civil Court is ousted even though the plaintiff pleaded
that there is only exclusive jurisdiction to decide the case with the Court of
Small Causes, Bombay. Dealing with the matter this Court referred. to the
general principle which covers the question of jurisdiction at the inception of
suits which was not disputed, thus:
"The plaintiff chooses his forum and
files his suit. If he establishes the correctness of his facts he will get his
relief from the forum chosen. If ... he frames his suit in a manner not
warranted by the facts, and goes for his relief to a court which cannot grant
him relief on the true facts, he will have his suit dismissed. Then there will
be no question of returning the plaint for presentation to the proper court,
for the plaint, as framed, would not justify the other kind of court to grant
him the relief ..... If it is found, on a trial on the merits so far as this
issue of jurisdiction goes, that the facts alleged by the plaintiff are not
true and the facts alleged by the defendants are true, and that the case is not
cognizable by the. court, there will be two kinds of orders to be passed. If
the jurisdiction is only one relating to territorial limits or pecuniary
limits, the plaint will be ordered to be returned for presentation to the
proper court.
If, on the other hand, it is found that
having regard to the nature of the suit it is not cognizable by the class of
court to which the court belongs, the plaintiff's suit will have to be
dismissed in its entirety."
16.
By
referring to the material portion of section 28 of the Rents Control Act the
argument made on behalf of the appellants was found by this Court to be
untenable by stating thus:
"... We do not think that the section
says or intends to say that the plea of the defendant will determine or change
the forum.
17.
It
proceeds on the basis that exclusive jurisdiction is conferred on certain
courts to decide all questions or claims under the Act as to parties, between
whom there is or was a relationship of landlord and tenant. It does not invest
those courts with exclusive power to try questions of title such as questions
as between the rightful owner and a trespasser or a licensee, for such
questions do not arise under the Act. If, therefore, the plaintiff in his
plaint does not admit a relation which would attract any of the provisions of
the Act on which the exclusive jurisdiction given under S.28 depends, we do not
think that the defendant by his plea can force the plaintiff to go to a forum
where on his 113 averments he cannot go. The interpretation canvassed for by
the appellants will give rise to anomalous results; for example, the defendant
may in every case force the plaintiff to go to the Court of Small Causes and
secondly, if the Court of Small Causes finds against the defendant's plea, the
plaint may have to be returned for presentation to the proper court for a
second time .....
when one has regard to the provisions in Part
II it seems reasonably clear that the exclusive jurisdiction conferred by S.28
is really dependent on an existing or previous relationship of landlord and
tenant and on claims arising under the Act as between such parties."
18.
As
seen from the above observations this Court has held that it did not think that
the section concerned says or intends to say that the plea of the defendant
will determine or change the forum. But, if the provisions of the BT&AL Act
which bear on the question of matters to be decided by the Mamlatdar are seen,
they give no room for one even to think that those matters could be decided by
a Civil Court when a question is raised in that behalf even by a defendant in a
suit.
19.
Section
70 of the BT&AL Act to which we have adverted already imposes a duty on the
Mamlatdar to decide whether a person is an agriculturist or a tenant or a
protected tenant or a permanent tenant when such person claims to be so under
that Act. Further, section 85 of the BT&AL Act to which also we have
already adverted, in unequivocal terms says that in deciding any issue which is
required to be decided by the Mamlatdar under the BT&AL Act no Civil Court
has jurisdiction to decide it. Furthermore, section 85A, as it stood prior to
its amendment by Gujarat Amendment Act No.5 in the year 1973 and as stands
thereafter, requires that if any suit instituted in Civil Court involves the
question of tenancy of 'present' or 'past', as the case may be, the same being
required to be decided or dealt with by an authority competent under the
BT&AL Act, the Civil Court has to stay the suit and refer the issue to such
competent authority for determination and after receiving the decision thereon
to dispose of the suit in accordance with such decision. Thus, the provisions
in the BT&AL Act give no scope or room to think that the plea of tenancy if
raised by the defendants in a suit in a Civil Court, the same could be decided
by the Civil Court. Thus we are constrained to answer the question in the
negative by agreeing with the view expressed by the single Judge of the High
Court in this regard in his Judgment and Order under appeal.
20.
Consequently,
the Judgment and Order under appeal does not call for our interference.
21.
In
the result, we dismiss this appeal with costs.
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