J. B. MEHTA, J. ( 1 ) THIS group of Seven Civil Revision Applications under section 115 of the Civil Procedure Code involves a common question of law as to whether the Civil Court has jurisdiction to decide an issue referred to it by the Mamlatdar regarding the question of title which has arisen before him in a proceeding under the Tenancy Act. They are therefore heard together and disposed off by this common judgment. ( 2 ) THE facts involved in these applications are as under :- In each case the petitioner is the alleged tenant against whom the opponent Hiralal Chimanlal Thakore who claimed to be the Inamdar of village Them in Broach Taluka had filed applications under section 29 for getting possession under the Bombay Tenancy and Agricultural Lands Act 1948 Act LVII of 1948 (hereinafter referred to as the Act ). In Civil Revision Application No. 216 of 1950 the notice to terminate the tenancy was given on 17th September 1951. In reply the petitioner having denied the title of the landlord another notice to terminate the tenancy was given on 19th December 1952 on the ground that the tenant had denied the landlords title. The Tenancy Case No. 267 of 1952 was filed under section 29 of the Act on 7th May 1952. The petitioner denied the title of the opponent and claimed to be hereditary proprietor and that he had been an owner by adverse possession and that there was no subsisting relationship of landlord and tenant. The said application was dismissed by the Mamlatdar on 26th October 1953 on the ground that it involved the question of title. . . . . The learned Civil Judge numbered the reference as Civil Suit No. 178 of 1957 and decided the said reference on 22nd October 1958 holding that the petitioner-tenant was not the owner but the opponent landlord was the owner. He refused to draw a decree on 24th November 1958 Being aggrieved by the said finding the petitioner has come before us in revision. In the other matters also the facts are almost identical and the same points have been raised. ( 3 ) MR. He refused to draw a decree on 24th November 1958 Being aggrieved by the said finding the petitioner has come before us in revision. In the other matters also the facts are almost identical and the same points have been raised. ( 3 ) MR. A. D. Desai while contending that such a reference was competent has raised three other points before us:- (1) that it was not open to the petitioner to challenge the order of the High Court in this indirect manner? (2) that the petitioner having not challenged the jurisdiction of the Civil Court and having participated in the said decision on merits he is now precluded from raising this question? (3) that the High Courts order in substance and effect being the order of transfer of a case the Civil Court had jurisdiction to give its decision on the question directed by the High Court. ( 4 ) IN order to appreciate Mr. Desais contentions it would be proper at this stage to consider the scheme of the Act in so far as it has bearing on the question before us along with the order passed by the High Court at the earlier stage. The landlord is prohibited from taking possession of the land held by a tenant except under an order of the Mamlatdar under section 29 (2) of the Act. The opponent-landlord had therefore filed an application under section 29 (2) in the prescribed form and within the period of two years from the date on which the right to obtain possession of the land had accrued to him. Under section 29 (3) the Mamlatdar had to pass after holding an inquiry such orders thereon as he deemed fit. Under section 70 which deals with the duties of the Mamlatdar it is provided that for the purposes of the Act the duties and functions therein which include the following : -. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) to decide whether a person is a tenant or a protected tenant or a peramanent tenant;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) to decide whether a person is a tenant or a protected tenant or a peramanent tenant;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (mc) to decide references under section 85a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (o) to decide such other matters as may be referred to him by or under this Act. Section 74 Clause (1) (m) provides for an appeal against the Mamlatdars orders under section 29 to the Collector and section 76 clause (1) provides for the revision application being made to the Gujarat Revenue Tribunal (hereinafter referred to as the Revenue Tribunal ). Section 85 bars the jurisdiction of the Civil Court 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. Section 85a provides as under:- " (1) If any suit instituted in any Civil Court involves any issue 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 thereupon dispose of the suit in accordance with the procedure applicable thereto. Explanation. (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 thereupon dispose of the suit in accordance with the procedure applicable thereto. Explanation. For the purpose of this section a Civil Court shall include a Mamlatdars Court constituted under the Mamlatdars Courts Act 1906. " ( 5 ) IT may be noted at this stage that just like section 85a which provides for reference being made by a Civil Court of certain issues which it is not competent to decide to the Mamlatdar or to the competent authority under the Act there is no corresponding provision which provides for a reference being made by a Mamlatdar to the Civil Court on any question which arises in any proceeding before him and which he is not competent to decide. Section 32q sub-clause (3) may also be noted in this connection. That section deals with the proceeding before the Agricultural Lands Tribunal in connection with the amount of purchase price to be applied towards satisfaction of debts. Sub-section (3) provides as under:-"if such question involves any question of law regarding the validity of the encumbrance or the claim of the holder of the encumbrance or any question regarding the amount due in respect of the encumbrance then notwithstanding anything contained in section 85a the Tribunal shall in the manner prescribed refer the question for decision to the Civil Judge within the territorial limits of whose jurisdiction the land is situate. On receipt of such reference the Judge concerned shall after giving notice to the parties concerned try the questions referred to and record findings thereon and send the same to the Tribunal. The Tribunal shall then give the decision in accordance with the said findings. " ( 6 ) THIS is a specific provision which empowers the Agricultural Lands Tribunal to make a reference to the Civil Court. There is no corresponding provision for reference being made by the Mamlatdar or the Collector or the Revenue Tribunal to a Civil Court or which would invest the Civil Court with the powers to decide any such references made by these authorities. There is no corresponding provision for reference being made by the Mamlatdar or the Collector or the Revenue Tribunal to a Civil Court or which would invest the Civil Court with the powers to decide any such references made by these authorities. ( 7 ) THESE provisions thus set up a complete hierarchy of special judicial tribunals in tenancy cases for the determination of questions specified in section 70 of the Act so far as the Mamlatdar is concerned with a provision for appeal to the Collector and a revision to the Revenue Tribunal against his orders and to that extent the jurisdiction of the Civil Court is expressly barred under section 85a of the Act and even a further provision is made for reference by the Civil Court under section 85a of such issues to the Mamlatdar and which he is empowered to decide by the provision made in section 70 clause (mc) which imposes a duty on him to decide such a reference. ( 8 ) ON the basis of this scheme of the Act in Special Civil Application Nos. 2178 to 2187 of 1955 filed at the earlies-stage in these cases a Division Bench consisting of Shah and Vyas JJ on 16th July 1956 held as under:-"it is evident on a reading of sec. 70 and sec. 85 of the Act that if a question is required to be settled decided or dealt with by a Mamlatdar the Civil Courts jurisdiction to settle decide or deal with that question must be deemed to be excluded. Upon the Mamlatdar being conferred jurisdiction to decide for the purposes of the Act whether a person is a tenant or a protected tenant the jurisdiction of the Civil Court to settle decide or deal with that question may in our judgment be deemed to be excluded. The proceedings filed in the Court of the Mamlatdar for obtaining orders for possession on the footing that the defendants were tenants were therefore properly instituted but the question still remains whether the Mamlatdar is competent to decide question of title which arise en dispute between the contesting parties. There is nothing in section 70 of the Bombay Tenancy and Agricultural Lands Act 1948 which confers upon the Mamlatdar either expressly or by implication jurisdiction to decide questions of title to land apart from questions relating to the relation of landlord and tenant. There is nothing in section 70 of the Bombay Tenancy and Agricultural Lands Act 1948 which confers upon the Mamlatdar either expressly or by implication jurisdiction to decide questions of title to land apart from questions relating to the relation of landlord and tenant. In the present case it is true that Thakore alleged that the defendants were his tenants and they had denied his right as a landlord and had thereby forfeited their right to remain in possession of lands as tenants. But the tenants raised a question of title subsisting in them by reason of ancient tenure and adverse possession. It i. well settled that where the jurisdiction of the Civil Court is sought to be excluded the provisions excluding the jurisdiction of the Civil Court must be strictly construed and the Civil Court will not readily assume that the jurisdiction of the Civil Court is excluded where there is no express exclusion prescribed by statute. As we have already pointed out the Legislature not having entrusted the Mamlatdar with power to decide question as to title and having provided that certain powers and functions may be performed and exercised by the Mamlatdar and having conferred jurisdiction to decide certain specific matters we are of the view that when questions of title substantially arising between the parties have to be decided the Mamlatdar would not be competent to decide those questions and it would be for the Civil Court to decide those questions. The Deputy Collector in this group of cases has come to the conclusion that complicated questions relating to title have been raised which have to be decided by the Civil Court. With that view the Tribunal has concurred. As in the view of Deputy Collector and the Revenue Tribunal questions relating to title have been raised and in their view they must be left to the Civil Courts for adjudication we do not think that we would be justified in disagreeing with that view and holding that in exercise of the limited jurisdiction conferred upon the Mamlatdar for deciding questions as to tenancy or protected tenancy the Mamlatdar should be held entitled to and should decide those question. " ( 9 ) THE same view was taken in Special Civil Application No. 3038 of 1957 decided on 7th February 1958 by a Division Bench consisting of Dixit and Gokhale JJ. " ( 9 ) THE same view was taken in Special Civil Application No. 3038 of 1957 decided on 7th February 1958 by a Division Bench consisting of Dixit and Gokhale JJ. where also the question of title which had arisen was similarly directed to be referred to the Civil Court. ( 10 ) THE only point which is decided by the Bombay High Court at the early stage in these cases is that the proceedings filed for obtaining orders for possession on the footing that the defendants were tenants were properly instituted and that they were dismissed. But when the questions of title substantially arising between the parties have to be decided the Mamlatdar would not have jurisdiction to decide those questions and they were to be left to the Civil Court to adjudication. Their Lordships never examined the question of the competence of the Civil Court to decide a reference made by the Mamlatdar nor did they purport to transfer the pending applications before the Mamlatdar to the Civil Court. Such a question about the jurisdiction of the Civil Court could only be decided by a reference to the statutory powers vested in the Civil Court. As we have pointed out earlier there is no provision in the Act which empowers a Mamlatdar to make such a reference or which invests the Civil Court with jurisdiction to decide such a reference made by a Mamlatdar wherever the legislature intended to provide such a reference being made as in the case of Agricultural Lands Tribunal and for the same being heard and decided by a Civil Court a specific provision has been made as in section 32q (3) of the Act. This is a sufficient indication at the intention of the legislature. Mr. Desai was not able to point out any provision in the Act which would empower the Civil Court to decide such a reference. No provision even of any other enactment was pointed out to us under which a Civil Court could decide such a reference made by a Mamlatdar. In the Civil Procedure Code hereinafter referred to as the Code under sec. No provision even of any other enactment was pointed out to us under which a Civil Court could decide such a reference made by a Mamlatdar. In the Civil Procedure Code hereinafter referred to as the Code under sec. 90 there is a provision for staying cases for the for opinion of the Court which provide that where any person agree in writing to state a case for the opinion of the Court then the Court shall try and determine the same in the manner prescribed. Order 36 provides for the manner in which such a case has to be stated. Sub-clause (1) provides that the parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the Court and providing that upon the finding of the Court with respect to such question:- (a) a sum of money fixed by the parties or to be determined by the Court shall be paid by one of the parties to the other of them; or (b) some property movable or immovable specific in the agreement shall be delivered by one of the parties to the other of them; or (c) one or more of the parties shall do or refrain from doing some other particular act specified in the agreement. These references even have to be made by an agreement in writing entered into by the parties claiming to be interested in the decision of the question. in the absence of any such agreement as prescribed the Civil Court would have no jurisdiction to entertain any such reference. Under sec. 26 of the Code every suit before the Civil Court shall be instituted by the presentation of a plaint or in such manner as may be prescribed and under Order 4 Rule 1 every suit has to be instituted by presenting a plaint to the Court or such officer as it appoints in that behalf. Thus the jurisdiction of the Civil Court has to be invoked only as per the statutory provision which provide for such jurisdiction being invoked. In this connection a reference provide for such jurisdiction being invoked. Thus the jurisdiction of the Civil Court has to be invoked only as per the statutory provision which provide for such jurisdiction being invoked. In this connection a reference provide for such jurisdiction being invoked. In this connection a reference may be made to section 72 of the Act which provides that in all inquiries and proceedings commenced on the presentation of applications under section 71 the Mamlatdar or the Agricultural Lands Tribunal shall exercise the same powers as the Mamlatdars Court under the Mamlatdars Court Act 1906 and shall save as provided in section 29 follow the provisions of the said Act as if the Mamlatdar or such Tribunal were a Mamlatdars Court under the said Act and the application presented was a plaint presented under section 7 of the said Act. This section read With the explanation to section 85a which provides that the Civil Court shall include a Mamlatdars Court under the Mamlatdars Courts Act 1906 could not carry the case of Mr. Desai any further for the simple reason that section 85 provides for a reference being made to the competent authority by the Civil Court including a Mamlatdars Court of only such issues which can be settled decided or dealt with only by such a competent authority under the Act. The Mamlatdars Court therefore could not under section 85a refer to a Civil Court the questions which only the Civil Court would have jurisdiction to decide. In these circumstances we cannot hold in the absence of any statutory provision that the Civil Court has the power to decide any reference made by a Mamlatdar Collector or a Tribunal under the Tenancy Act if a question of title which had arisen in any proceeding before such authority were referred to the Civil Court. Such jurisdiction could only be conferred by the Legislature and it could not be created by any order of the Court. Such a reference is therefore clearly incompetent and it would not invest the Civil Court with jurisdiction to decide any such question. ( 11 ) AS regards the first question raised by Mr. Desai we cannot agree with him that the order of the High Court at the earlier stage operates as res judicata so far as the question about the jurisdiction of the Civil Court is concerned to entertain such a reference. ( 11 ) AS regards the first question raised by Mr. Desai we cannot agree with him that the order of the High Court at the earlier stage operates as res judicata so far as the question about the jurisdiction of the Civil Court is concerned to entertain such a reference. In fact their Lordships had not considered the question which has now arisen before us as to whether the Civil Court had jurisdiction to decide such a reference in the absence of any such power invested in the Civil Court under the Civil Procedure Code or under this Act or under any other statutory enactment which empowers it to decide such a reference on the question of title or which empowers the Mamlatdar to make any such competent reference. There is no question of invoking the bar of res judicata under section 11 of the Civil Procedure Code or any principle analogous to res judicata in such a case as in fact such a question was never raised nor considered and finally decided in the earlier proceeding. ( 12 ) AS regards the second contention of Mr. Desai also we find no substance therein. It is a settled principle of law that consent can never confer jurisdiction. If there is an inherent lack of jurisdiction the proceedings are null and void. The defect strikes at the very root of the authority of the Court to decide anything and such a defect cannot be cured even by the consent of the parties. The decision of the Privy Council in the case of Ladgard and another v. Bull 13 I. A. page 134 (R. C.) is the oft quoted authority for the proposition that consent or waiver can cure defect of jurisdiction but it cannot cure inherent defect of jurisdiction. In Kharda Co. Ltd. v. Raymon and Co. A. I R. 1962 S. C. 1811 at page 1815 the Supreme Court had also repelled a somewhat similar contention in connection with an arbitration award. The arbitration agreement in that case was found to be invalid but it was contended that the respondents were stopped from challenging the award on that ground because they appeared before the arbitrators and had taken part in the proceedings before them. The arbitration agreement in that case was found to be invalid but it was contended that the respondents were stopped from challenging the award on that ground because they appeared before the arbitrators and had taken part in the proceedings before them. The Supreme Court held that what confers jurisdiction on the arbitrators to decide a dispute is an arbitration agreement as defined in section 2 (a) of the Arbitration Act and where there is no such agreement there is an initial want of jurisdiction which cannot be cured by acquiescence. The Supreme Court therefore held that it was unable to accept the contention that the respondents were estopped by their conduct from questioning the validity of the award. In these circumstances as the Civil Court in the present case had no jurisdiction to decide such a reference the parties could not by consent or acquiescence have conferred jurisdiction on the Civil Court to decide such a reference. We therefore cannot agree with Mr. Desai that the petitioner was preclude by his conduct from challenging the decision of the Civil Court which was completely without jurisdiction. ( 13 ) THAT is why Mr. Desai really concentrated his attack on the true nature of the High Courts order and urged that in substance and effect it operated as a transfer of the case to the Civil Court under the directions issued under Article 227 of the Constititution. He further argued that even though a Mamlatdar or a Revenue Tribunal may not have such a power to make a reference to the Civil Court the High Court in the exercise of its superintendence powers both over the Tribunal and the Civil Courts could resolve such a deadlock in cases where each had only a partial jurisdiction over the subject matter and none of them had complete jurisdiction. Now the difficulty in Mr. Desais way is that the order of the High Court in terms directs that the proceedings before the Mamlatdar shall be stayed and only the issue in question shall be sent with papers for decision to the Civil Court. If it were an order of transfer of the entire case the Mamlatdar would have no control left over the matter and the proceedings would not have been stayed before him. If it were an order of transfer of the entire case the Mamlatdar would have no control left over the matter and the proceedings would not have been stayed before him. The distinction between the transfer of a case and the reference on some issue of the case would be that in the former the entire matter would go over to the transferee Court while in the latter the matter would remain on the record of the transferor Court and only an issue would be sent for decision of the other Court. In fact as we have mentioned earlier the High Court has never purported to exercise its powers of transfer while passing the aforesaid order assuming that such an order of transfer could be made in the exercise of its jurisdiction under Article 227 of the Constitution. Besides we cannot treat this as a mere procedural question. Such a reference would seriously affect the rights of appeal of the parties as it had happened in this very case as no decree could be drawn and was refused to be drawn on such a finding on an issue. Such contention completely ignores the necessary condition which must be fulfilled in every case of a transfer of a proceeding that it could be made only to a competent Court. A tenancy proceeding could never be transferred even by a High Court to the Civil Court in view of the complete exclusion of the jurisdiction of the Civil Court under section 85 to decide such questions which are required to be decided under section 70 only by a Mamlatdar. In U. A. Srinivasa Aiyengar v. The Official Assignee of Madras and another I. L. R. 38 Mad. 472 the Madras High Court has held that as the jurisdictions conferred by the Presidency Towns Insolvency Act on the High Court and by the Provincial Insolvency Act on the mofussil Courts are distinct and as the provisions of the two Acts differ in such important respects it is not competent for the High Court to transfer under sec. 9n of the Presidency Towns Insolvency Act and under sec. 24 Civil Procedure Code an insolvency petition pending before it under the Presidency Towns Insolvency Act for disposal by a mofussil District Court. 9n of the Presidency Towns Insolvency Act and under sec. 24 Civil Procedure Code an insolvency petition pending before it under the Presidency Towns Insolvency Act for disposal by a mofussil District Court. At page 473 it was observed:-"it is not necessary for me to express any opinion as to whether this Court in the exercise of its ordinary original civil jurisdiction can make an order under section 84 of the Code. " ( 14 ) THE question still remained to be considered viz. is the Court to which this petition has been transferred competent to try and dispose of the same? Their Lordships answered the question by stating that the transferee Court was not competent to try or dispose of that matter for the simple reason that both the jurisdictions were distinct and the said order of transfer was therefore set aside. This decision is a clear authority for the proposition that even if the High Court were to transfer a proceeding the transfer could be only to a competent Court. We cannot therefore agree with Mr. Desai that the effect of the order was to transfer he case to a Civil Court so as so invest it with the necessary jurisdiction to try such a proceeding as if it was a suit instituted before it. The jurisdiction to try any proceeding has to be conferred by law and it could not be done by any judicial order of any Court including that of the highest Court. ( 15 ) FINALLY Mr. Desai urged in this connection that both the Mamlatdar and the Civil Court were bound as subordinate Court or Tribunal to carry out the directions of the High Court But here in fact both of them have carried out the said direction. The Mamlatdar had dent the issue to the Civil Court as directed and the Civil Court in its turn had entertained the proceeding. But the Civil Court was sound to consider any objection raised before it regarding its total lack of jurisdiction. In this case no such point was raised before the Civil Court and that is why this point of total lack of jurisdiction has been raised before us. This point being one of jurisdiction could be raised under section 115 of the Civil Procedure Code. In this case no such point was raised before the Civil Court and that is why this point of total lack of jurisdiction has been raised before us. This point being one of jurisdiction could be raised under section 115 of the Civil Procedure Code. We have therefore considered the question which the Civil Court was bound to consider whether it had jurisdiction to decide the reference on the question of title made by the Mamlatdar in the absence of any statutory provision. In so doing the Civil Court would not be said to disobey any directions of the High Court nor we could have been said to attempt to review any of the previous orders. ( 16 ) IN the result there is no substance in any of the points raised by Mr. Desai and in the absence of any provision empowering the Civil Court to decide such a reference its decision is clearly without jurisdiction and it must be set aside. We therefore allow all these petitions set aside the decision of the Civil Court as incompetent and direct the Civil Court to remit the papers to the Mamlatdar in each case as expeditiously as it could be done. The rule is made absolute to that extent. As this point was not urged before the Civil Court we make no order as to costs in each of these applications. [ The rest of the judgment is not material for the reports. ] Petitions allowed. .