J. M. SHETH, J. ( 1 ) ONE of the important question of law involved in all these four revision petitions is identical. It will therefore be convenient to dispose them of by a common judgment. ( 2 ) THE question involved is whether the jurisdiction of the Civil Court to grant an interim injunction as regards possession in relation to agricultural lands is ousted by reason of addition of clause (nb) in sec. 70 if that section is read with secs. 85 and 85-A of the Bombay Tenancy and Agricultural Lands Act 1948 (which will be hereinafter referred to the Act ). The aforesaid addition was made by Act No. 5 of 1973. That amendment came into force on 3-3-1973. By Ordinance No. 7 of 1973 dated 30-12-1973 there was amendment in clause (ta) of sec. 74 of the Act and by that amendment an appeal has also been provided against the order passed by the Mamlatdar under sec. 70 (nb) of the Act. By Act No. 5 of 1973 sec. 85 of the Act was also amended to apply some of the provisions of the Act retrospectively for the purpose of suits in which making of reference to Tenancy Courts was necessary. It is also an admitted position that prior to the addition of clause (nb) in sec. 70 of the Act the Mamlatdar had no jurisdiction to grant such interim or temporary injunction. ( 3 ) THIS Court prior to the said amendment had an occasion to consider the question whether the Civil Courts jurisdiction to grant interim injunction was ousted on account of the position that the question whether a person is a tenant or not was to be decided by the Mamlatdar in Civil Revision Application No. 273 of 1967 decided on 5th July 1967 by my learned Brother J. B Mehta J. This contention raised on behalf of the tenant was negatived. The question therefore that is posed in all these four revision petitions whether the aforesaid addition of clause (nb) has made any change Regarding it. ( 4 ) MR. M. F. Solanki appearing for the petitioner or petitioners as the case may be in Civil Revision Applications Nos. 1042 of 1974 and 1046 of 1974 and Mr. F. B. Dabhi appearing for the petitioners in Civil Revision Application No. 352 of 1974 and Mr. ( 4 ) MR. M. F. Solanki appearing for the petitioner or petitioners as the case may be in Civil Revision Applications Nos. 1042 of 1974 and 1046 of 1974 and Mr. F. B. Dabhi appearing for the petitioners in Civil Revision Application No. 352 of 1974 and Mr. M. B. Shah appearing for the petitioner in Civil Revision Application No. 910 of 1974 urged that under the Act which is a special Act power has been conferred on the Mamlatdar to grant a temporary injunction. It would necessarily oust the jurisdiction of the Civil Court. It is submitted by them that even in a case where the reference regarding the issue of tenancy is made to a Tenancy Court by a Civil Court the Tenancy Court will have jurisdiction to grant temporary injunction. The moment the tenant raises such a plea of tenancy question whether ad interim injunction granted by the trial Court should be confirmed i. e. it should be made absolute has got to be referred to the tenancy Court in view of clause (nb) added in sec. 70 of the Act. Another course suggested was that it should grant some time to enable the parties to raise a question regarding grant of temporary injunction in the Tenancy Court when the reference reaches the Tenancy Court. ( 5 ) MR. B. N. Shah who had a similar question to be urged in another civil revision application which is still not ready was permitted to intervene. His submissions were:- (1) An affirmative statute giving a new right does not by itself and of necessity destroy a previously existing right such as invoking the jurisdiction of the Civil Court but if the apparent intention of the legislature is that two rights should not exist together the previously existing right will be taken as destroyed. (2) Where the special Tribunal is invested by an Act of legislature for determining the question as to the rights which are creations of tie Act the jurisdiction of the tribunal is unless provided otherwise exclusive and the Civil Court cannot take cognizance of such matters. (3) Thirdly where the special Tribunal is invested by the legislature with the exclusive jurisdiction to determine its own authority in certain matters the jurisdiction of the Civil Court must be deemed to have been taken away to that extent. (3) Thirdly where the special Tribunal is invested by the legislature with the exclusive jurisdiction to determine its own authority in certain matters the jurisdiction of the Civil Court must be deemed to have been taken away to that extent. ( 6 ) AS against these submissions made on behalf of the petitioners tenants submissions made on behalf of opponents by Mr. M. C. Shah Mr. A. J. Patel and Mr. J. M. Patel are that It is an. admitted position that initially Civil Court has jurisdiction to entertain a suit if a suit is filed by an owner of agricultural land to obtain a permanent injunction against a threatened trespass. The argument advanced on behalf of the tenants is that jurisdiction of the Civil Court will be lost the moment the plea of tenancy is raised by way of defence. A hypothetical case may be taken into consideration. Defendant does not say anything about his status whether he is a tenant licensee etc. and the owner asserts that he is in possession of the suit land. Admittedly by clause (nb) added in sec. 70 of the Act the Mamlatdar has been given jurisdiction or power to grant a temporary injunction. Does it mean that in a suit of the aforesaid nature the Civil Court will have to refer such a question regarding grant of temporary injunction to the Mamlatdar? It is submitted that it could not have ever been intended by the legislature to refer 6such a question of temporary injunction to the Mamlatdar. It is submitted that sec. 70 of the Act enumerates number of decisions which the Mamlatdar is required to make by applying such provisions of the Act and not anything de hors the Act. Even but for the provisions of sec. 70 there are provisions in the Act which lay down the duties and powers of the Mamlatdar. It is submitted that sec. 70 gives a consolidated digest of the various functions and duties to be performed by the Mamlatdar under that Act. In short the submission made on behalf of the opponents is the addition of clause (nb) in sec. 70 of the Act is only for the purpose of investing the Mamlatdar also with such power of granting a temporary injunction in a proceeding pending before him under the Act. It is an enabling provision. In short the submission made on behalf of the opponents is the addition of clause (nb) in sec. 70 of the Act is only for the purpose of investing the Mamlatdar also with such power of granting a temporary injunction in a proceeding pending before him under the Act. It is an enabling provision. Obtaining of an interim injunction is not a substantive right of any party. No party can claim temporary injunction as a matter of right. It is merely the power of the Court and it is in its discretion to grant that relief. No point of controversy in that behalf can be referred to the Mamlatdar. In a proceeding validly instituted before the Mamlatdar he can issue a temporary injunction if be thinks it necessary to maintain the status quo; no party to such a proceeding can claim it as a matter of right. For granting it be is not to decide any substantive rights of the parties. He Has to apply the tests laid down by the Court for granting such temporary; injunction during the pendency of a proceeding. He has not to decide ally substantive rights arising under the Act. Mr. Shah has submitted take into account a case-tenant goes to the Court averring that his landlord is forcibly trying to dispossess him and prays for a permanent injunction. Such a suit will be entertainable only by a Civil Court and not by the Mamlatdar submitted Mr. Shah and in support of his submission he has invited my attention to a decision of a Division Bench of the Bombay High Court to which I will make reference to an appropriate stage. He has urged that even under the amended provisions of the Act the Mamlatdar has no jurisdiction to Grant a permanent injunction. It is only the Civil Court which is entitled to grant such a permanent injunction. He has also referred to another hypothetical case parties admit relationship of landlord and tenant. Tenant files an application to the Tenancy Court for a declaration that he is a tenant. Landlord admits that relationship and a declaration is given by the Tenancy Court. After the decision of the Tenancy Court landlord tries to threaten the tenant to dispossess. Can such a tenant not go to a Civil Court and sue for permanent injunction and in that suit ask for a temporary injunction ? Mr. Landlord admits that relationship and a declaration is given by the Tenancy Court. After the decision of the Tenancy Court landlord tries to threaten the tenant to dispossess. Can such a tenant not go to a Civil Court and sue for permanent injunction and in that suit ask for a temporary injunction ? Mr. Shah has submitted certainly he has to approach a Civil Court for such a suit seeking permanent injunction. ( 7 ) MR. Shah has further submitted that when a suit is filed nobody can anticipate the nature of the defence. Civil Court while granting such an interim injunction will take into account whether prima facie case is made out regarding actual possession on the date of the suit balance of convenience and irreparable injury. Supposing in such a suit ad interim injunction is granted by the trial Court it remains operative? and if it is to be referred to the Mamlatdar he submitted it is fl very much inconceivable position that a legislature ever intended that such an ad interim injunction granted by a Civil Court should be confirmed by 8 Tenancy Court or it should be vacated by a Tenancy Court. Mr. Shah has submitted that there is no provision in the Civil Procedure Code (which will be hereinafter referred to as the Code) or the Act that such an ad interim injunction granted should stand automatically vacated. Reference regarding a question of tenancy is required to be referred to a Tenancy Court. Mr. Shah has submitted that it is an admitted position that the defence cannot take away the jurisdiction which the Court had. He has also invited my attention to the relevant provisions of Order 14 of the Code and rule 5 of Order 20 of the Code to find out what was meant by expression issue referred to in the relevant provisions of the Act. ( 8 ) THESE are the broad submissions made on both the sides. One additional submission made by Mr. Solanki is that if the submission made by him is not accepted and it is found that Civil Court and Tenancy Court have concurrent jurisdiction there is likelihood of conflicting decisions. There will be conflicting interim injunctions given by the two authorities. That could never have been intended by the legislature. One additional submission made by Mr. Solanki is that if the submission made by him is not accepted and it is found that Civil Court and Tenancy Court have concurrent jurisdiction there is likelihood of conflicting decisions. There will be conflicting interim injunctions given by the two authorities. That could never have been intended by the legislature. It will therefore be reasonable to arrive at a conclusion that legislature Intended to oust the jurisdiction of the Civil Court in such cases and invest a Mamlatdar with his exclusive jurisdiction to decide ouch questions as he has been assigned to perform the functions and duties enumerated in sec. 70 of the Act. It is also urged by Mr. Solanki that if Mamlatdar performs such duties and functions and grants such interim relief it will be a speedier remedy. ( 9 ) IT may be at the out-set stated that this question is not res integra. Such a question was raised in Civil Revision Application No. S97 of 1974 with Civil Revision Applications Nos. 598 of 1974 373 of 1974 and 684 of 1974 decided on 27th August 1974 by my learned Brother M. P. Thakkar J. It is observed by him:- Clause (nb) was introduced in sec 70 of the Act by Gujarat Act V of 1973. Before the introduction of the said provision it was well-settled for more than 7 or 8 years that a Civil Court had jurisdiction to pass appropriate interim orders in pending suits as regards possession even in cases where one of the parties claimed to be a tenant This point was urged at length before J B Mehta J in Civil Revision Application No. 273 of 1967 and it was decided therein that a Civil Court had undoubted jurisdiction to pass appropriate interim orders as regards possession notwithstanding the fact that one of the parties to the suit claimed to be a tenant It was argued before J B Mehta J that having regard to the observations made by M. R. Modi J. in Mohan Moti v. Indravadan 4 Gujarat Law Reporter 387 at page 394 the Civil Court had no jurisdiction to grant interim orders on such matters After quoting the relevant passage from the decision in Mohan Motis case (Supra) J B Mehta J has observed as under:mr. Sheth strongly relied upon this paragraph to urge that It is not open to the Civil Court to consider even a Prima facie case when this issue of tenancy is involved which can be decided only by toe competent authorities under the Act We do not agree with Mr. Sheths reading of this decision of Mr. Justice Modi The short question which Modi J. had to deal with was whether prima facie case us necessary to be proved before a reference was to be made to the competent authorities under the Act and his answer was that as soon as a plea was raised about the tenancy the question was exclusively within the jurisdiction of the competent authorities under the Act and a Civil Court had no jurisdiction It is in this context that Modi J. emphasised this aspect that it was mere raising of this plea which excluded jurisdiction of the Civil Court to determine such an Issue and it was not open to the Civil Court to go into the question whether there was any prima facie case or that the contention was rightly or wrongly raised That view of Mode J. was clearly based on the interpretation of the aforesaid Dhondi Tukarams Case (55 Bombay Law Reporter 663) and is clearly as per the settled law on this question The question before me is not however as to when the reference ought to be made There can be no dispute that once that plea is raised the Civil Court would have to refer this question for determination to the competent authority under the Act What Mr. Sheth contends is that the Civil Courts jurisdiction is excluded even for granting an interlocutory relief In fact the entire approach of Mr. Sheth In this connection is wholly misconceived The Civil Court while considering the question of an interim injunction had only to consider a prima facie case along with the other relevant factors of Balance of convenience. etc for exercising its discretion in passing this interlocutory order. It was for this limited purpose that the Civil Court had gone into the question as to who was prima facie in possession. etc for exercising its discretion in passing this interlocutory order. It was for this limited purpose that the Civil Court had gone into the question as to who was prima facie in possession. Both the Courts found that actual physical possession prima facie was with the plaintiff and the plaintiff having a prima facie case and as balance of convenience was in his favour he was threatened with irreparable loss unless interim relief was granted. All the observations which the lower Court has made are only from that limited consideration and the Civil Court never purported to decide the question of tenancy. Mr. Sheth argued that the factum of possession was one of the facts in issue for deter mining the issue of tenancy to the Civil Court this incidental finding must also he left to the Civil Court. There can be no dispute that for the purpose of determining the issue of tenancy the finding will have to be reached by the competent authority under the Act on all the ingredients of definition of a tenant. In the present case the Civil Court had not arrived at any decision on the controversy but for granting interim relief it had only arrived at a tentative conclusion as to who vas prima facie in possession. Such a consideration of a prima facie case even though it may be based on affidavits and the documentary evidence before the Court can never be equated with the process of determination of an issue of tenancy. Therefore there is no substance in the contention of Mr. Sheth that the lower Court had no jurisdiction to pass the present interim order. After referring to sec. 70 of the Act Thakkar J. has observed:-IT is abundantly clear that before the introduction of clause (nb) by virtue of the amendment of 1973 a Tenancy Court exercising powers under the Act had no jurisdiction to grant any interim orders. At this juncture it must be made clear that what is meant is that the Tenancy Court had no power to grant a temporary injunction during the pendency of any proceeding pending before the Tenancy Court. Evidently in order to remedy the situation and enable the Tenancy Court to issue temporary injunction in appropriate cases the legislature has amended the Act and has introduced clause (nb) which confers the power on a Tenancy Court to issue a temporary injunction. Evidently in order to remedy the situation and enable the Tenancy Court to issue temporary injunction in appropriate cases the legislature has amended the Act and has introduced clause (nb) which confers the power on a Tenancy Court to issue a temporary injunction. It is difficult to comprehend how the introduction of this clause in sec. 70 can either expressly or by necessary implication oust the jurisdiction of a Civil Court which (it is not disputed even by the petitioners) the Civil Court doubtless possessed. Surely the power to issue temporary injunction conferred on a tenancy Court is referable only to the exercise of such power in the course of a proceeding pending before the Tenancy Court. By no stretch of imagination can it be contended that this power is referable to the question of issuing a temporary injunction by the Civil Court in a Civil suit pending before it. The power to issue a temporary injunction is an ancillary power conferred on the competent authority in order to enable it to preserve status quo during the pendency of a litigation. It does not resolve any question or issue with any finality. He then refers to the tests laid down by the Courts for preserving such status quo observing: -. . THIS power has been conferred for the obvious reason that a considerable time is likely to elapse before a Court can finally adjudicate upon the rights of the parties. Evidence has to be recorded arguments have to be heard and a finding has to be recorded at the conclusion of the trial. That however; does not mean that during the pendency of the trial the parties may be permitted to alter the status quo or to create a situation prejudicial to the other side. It is for this reason that the power to issue a temporary injunction co-terminus with the conclusion of the proceeding in the Court concerned is conferred on a Civil Court or Revenue Court. A glance at sec. 70 will show that several duties and functions are required to be performed by a Mamlatdar. The ancillary and the supplementary power for issuing temporary injunction can be exercised only in relation to a proceeding which is pending before the Tenancy Court. Obviously it cannot be exercised in relation to a civil suit pending in a civil Court. 70 will show that several duties and functions are required to be performed by a Mamlatdar. The ancillary and the supplementary power for issuing temporary injunction can be exercised only in relation to a proceeding which is pending before the Tenancy Court. Obviously it cannot be exercised in relation to a civil suit pending in a civil Court. The argument of the learned counsel for the petitioners is that as soon as one of the parties to the suit asserts that he is a tenant the Civil Court is bound to refer the question as regards temporary injunction to the Tenancy Court. It is not disputed that a Civil Court would have the power in any event to grant an ex parte injunction in order to preserve the status quo an protect the rights of the plaintiff. At that stage the question of an alleged tenancy may not at all arise. Even so according to the Counsel for the petitioners as soon as the defendant appears and claims the status of a tenant the Civil Court would be powerless to pass any order in regard to interim injunction thereafter. It is argued that thereafter the question would have to be referred to a Tenancy Court. According to the Counsel for the petitioners it is the Tenancy Court which alone can either confirm the interim order or vacate the interim order. In other words according to the petition is after granting an ex parte injunction the Civil Court will become functus officio and it will be the Mamlatdar who will be either confirming the injunction or vacating the Injunction. The argument is so untenable that it is not necessary to demonstrate that it is altogether without substance. Surely an order passed by a Civil Court cannot be vacated by a Revenue Court. Besides there is no provision in the Tenancy Act for referring the question as to who is in possession to a Tenancy Court. It would have been a different matter if one of the functions enumerated in sec. 70 was to decide the question as to who is in possession or the date of the institution of a suit. As sec. It would have been a different matter if one of the functions enumerated in sec. 70 was to decide the question as to who is in possession or the date of the institution of a suit. As sec. 70 presently reads the question as regards the actual physical possession of a party on the date of the institution of a suit in a Civil Court is not required to be decided y*a Tenancy Court The power conferred by clause (nb) which is merely an enabling provision is the power to grant interim injunction when there is a matter pending in a Tenancy Court It is not possible to read clause (nb) as conferring a power on the Tenancy Court to decide the question as regards the interim injunction in relation. to a civil suit pending in a civil Court. There is therefore no substance in the contention that the civil Court has no jurisdiction to issue a temporary injunction in a matter where one of the parties claims the status of a tenant in regard to agricultural lands governed by the Tenancy Act. It is submitted on behalf of the petitioners before me that in view of their submission the aforesaid decision of my learned brother M. P. Thakkar J. requires reconsideration at the hands of a larger Bench and With that object in mind the aforesaid submissions have been made. I am in respectful agreement with the view taken by my learned brother Thakkar J. for the reasons which will follow hereafter. ( 10 ) I first propose to refer to sec. 94 of the Code which. falls; in Part VI which deals with Supplemental proceedings. Clause (c) (of it Which is material for our purposes reads;94 In order to prevent the ends of justice from being defeated the Court may if it is so prescribed. (C) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the Civil prison and order that his property be attached and sold; (E) make such other interlocutory orders as may appear to the Court to be just and convenient. The word prescribed has been defined in clause (16) of sec. 2 of the Code. Prescribed means prescribed by rules. Those relevant rules are in order 39 of the Code. ( 11 ) MR. Solanki has laid considerable emphasis to sec. The word prescribed has been defined in clause (16) of sec. 2 of the Code. Prescribed means prescribed by rules. Those relevant rules are in order 39 of the Code. ( 11 ) MR. Solanki has laid considerable emphasis to sec. 4 of the Code which reads:- (1) In the absence of any specific provision to the contrary nothing in this code shall be deemed to limit or otherwise affect any special or local law now in force are any Special jurisdiction or power conferred or any special form or procedure re prescribed by or under any other law for the time being in force. (2) In particular and without prejudice to the generality of the proposition contained in sub-sec. (1) nothing in this Code shall be deemed to limit or otherwise effect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land. This section does not mean That the Code does not apply to proceedings under special or local laws but only enacts that where there is an inconsistency the rules of the Code do not prevail. This section therefore is not of any assistance in determining the question that is posed before me. ( 12 ) MR. R. N. Shah who was allowed to intervene has invited my attention to Note 23 in Mullas Code of Civil Procedure 13 Edition at pages 40 and 41 and cited some decisions of the Supreme Court. The statement of learned Author Mulla relied upon is:-THE question how far the jurisdiction of the ordinary civil Courts is taken away with respect to matters which are entrusted to special tribunals constituted by the legislature has been the subject of several decisions in recent times. The learned Author thereafter enumerates the principles governing the determination of this question. One of them relied upon is:- (3) But where a statute creates a new right not existing at common law and specifies a particular mode in which it is to be enforced that bars by implication the jurisdiction of Civil Courts. We are not concerned with any such right newly created in a special statute which was not existing at common law and which specifies a particular mode in which it is to be enforced. ( 13 ) I have referred to sec. We are not concerned with any such right newly created in a special statute which was not existing at common law and which specifies a particular mode in which it is to be enforced. ( 13 ) I have referred to sec. 94 of the Code only for the purpose of understanding the real nature of such interim proceeding for the grant of interim relief. It cannot be gainsaid that by grant of such interim injunction to maintain the status quo during the pendency of the suit substantive rights of the parties have not to be decided and are not decided. Such an interim injunction is to be granted for the purposes of maintenance of the status quo on establishment of a prima facie case balance of convenience and irreparable loss etc. ( 14 ) SEC. 70 of the Act reads as under :-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 or was a tenant or a protected tenant or a permanent tenant; (C) to determine the rates of rent under sec. 9; (D) to decide dispute regarding class of land under sec. 9-A; (F) to determine the amount of compensation under sec. 10 for the contravention of secs. 8 9 9 and 9-C; (H) to determine the amount to be refunded to a tenant under sec. 13 (5); (i) to determine the amount of Compensation for trees to which a tenant is entitled under sec. 19; (J) to determine any dispute regarding the right to produce of trees naturally growing under sec. 20; (K) to determine the costs of repairing protective bunds under sec. 23; (L) to sanction exchange of tenancies. under sec. 33; (M) to determine the amount of compensation payable to tenant for any improvement under sec. 41:- (MA) to determine what is reasonable rent under sec. 43-B:- (MB) to issue certificate under rec. 84-A and decide under sec. 84-B or 84-C whether a transfer or acquisition of land is invalid and to dispose of land as provided in sec. 84-C:- (MC) to decide references under sec. 85a; (MD) to decide any dispute under sec. 41:- (MA) to determine what is reasonable rent under sec. 43-B:- (MB) to issue certificate under rec. 84-A and decide under sec. 84-B or 84-C whether a transfer or acquisition of land is invalid and to dispose of land as provided in sec. 84-C:- (MC) to decide references under sec. 85a; (MD) to decide any dispute under sec. 88c; (N) to take measures for putting the tenant or landlord as the agricultural labourer or artisan or person carrying on an allied pursuit into the possession of the land or dwelling house under this Act; (NA) to decide all matters relating to the construction of water course under Chapter V-A (NB) to issue temporary injunction; (O) to decide such other matters as may be referred to him by or under this Act. It is significant to note that the duties and functions specified in clauses (a) to (o) are to be performed by the Mamlatdar for the purposes of this Act. If we critically examine these different clauses it will appear that the Mamlatdar has to decide or determine questions referred to in clauses (a) (b) (c) (d) (f) (h) (i) (j) (l) (m) (ma) (mc) (md) (no) and (o ). Those questions referred to in those various clauses are to be decided by the Mamlatdar for the purposes of this Act under the various provisions of the Act. They can form one category of cases. Second category of cases will cover cases where under clause (1) the Mamlatdar has to sanction exchange of tenancies under sec. 33 clause (mb) where the Mamlatdar has to issue certificate under sec. 84-A. That clause also refers to a question which the Mamlatdar has to decide under sec. 84-B or 84-C whether a transfer or acquisition of land is invalid and to dispose of land as provided in sec. 84-C and in clause (n) to take measures for putting the tenant or landlord or the agricultural labourer or artisan or person carrying on an allied pursuit into the possession of the land or dwelling hours under the Act. Barring clause (nb) added by the aforesaid amending Act of 1973 every other function is assigned to the Mamlatdar under the provisions of the Act other than the provisions contained in sec. 70 of the Act. Barring clause (nb) added by the aforesaid amending Act of 1973 every other function is assigned to the Mamlatdar under the provisions of the Act other than the provisions contained in sec. 70 of the Act. For the purpose of deciding such controversy in order to give effect to the Act these questions are required to be decided by the Mamlatdar. So far as taking measures referred to in clause (n) are concerned the Mamlatdar is required to take necessary action in view of the provisions contained in sec. 29 of the Act. Regarding sanctioning of exchange of tenancies that function is to be performed in view of the provisions of sec. 33 of the Act. ( 15 ) IT thus clearly appears that for deciding the questions referred to in other clauses one has to look into other provisions of the Act and the Mamlatdar has been required to perform those functions under the provisions of those sections. Mr. Shah is right in submitting that sec. 70 of the Act is practically a consolidated digest enumerating the functions and duties to be performed by the Mamlatdar under the Act which have been specified in other provisions of the Act. It is only in this clause (nb) which has been added by the aforesaid amending Act of 1973 the Mamlatdar is given power to issue temporary injunction. Except under this clause there are no other provisions in the Act which indicate that the Mamlatdar has to perform this function of issuing temporary injunction. It is significant to note that sec. 70 of the Act does not state that the question as to possession of agricultural land has to be decided settled or dealt with by the Mamlatdar. If that had been the position could have very well urged that the Civil Courts jurisdiction was Intended by the legislature to be ousted. Keeping in view the aforesaid analysis of sec. 70 itself it is necessary to read the two relevant secs. 85 85 of the Act. If that had been the position could have very well urged that the Civil Courts jurisdiction was Intended by the legislature to be ousted. Keeping in view the aforesaid analysis of sec. 70 itself it is necessary to read the two relevant secs. 85 85 of the Act. Sec. 85 of the Act reads as under:- (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 the Gujarat Revenue Tribunal or the State Government in appeal or revision of the State Government in exercise their powers of control. (2) No order of the Mamlatdar the Tribunal the Collector or the Gujarat Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court. EXPLANATION. For the purposes of this section a Civil Court shall include a Mamlatdars Court constituted under the Mamlatdars Courts Act 1906sub-SEC. (1) of sec. 85 of the Act clearly indicates that the jurisdiction of a Civil Court to settle decide or deal with any question which is by or under the Act required to be settled decided or dealt with by the Mamlatdar or Tribunal a Manager the Collector the Gujarat Revenue Tribunal or the State Government in appeal or revision or the State Government in exercise of their powers of control is excluded. It there. fore means that what has been excluded from the jurisdiction of the Court is to settle decide or deal with the question which is by or under the Act required to be settled decided or dealt with by any of those specified authorities. Sub-sec. (2) of it further gives finality to the decision arrived at on such questions by the Mamlatdar or the other specified authorities and such decision is not open to be questioned in any Civil or Criminal Court. As said earlier except under clause (nb) questions referred to in other clauses have to be settled decided or dealt with by the Mamlatdar under other provisions of the Act and sec 85 of the Act still stands unamended even after the aforesaid amending Act came into force. As said earlier except under clause (nb) questions referred to in other clauses have to be settled decided or dealt with by the Mamlatdar under other provisions of the Act and sec 85 of the Act still stands unamended even after the aforesaid amending Act came into force. It is only as regards the questions which have to be decided settled or dealt with by or under the Act Civil Courts jurisdiction has been taken away and these are such decisions which have been given finality and cannot be questioned in any civil or criminal Court. ( 16 ) SEC. 85-A of the Act reads as under:- (1) 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. (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 theretoexplanation. For the purpose of this section a Civil Court shall include a Mamlatdars Court constituted under the Mamlatdars Courts Act 1906that section has been amended as said earlier by Gujarat Act No. 5 of 1973 If we refer to the language of this sec. 85-A it is in my opinion abundantly clear that what is required to be referred to a Tenancy Court is the issues. which are required to be settled decided or dealt with by any authority competent to settle decide or deal with such issue under the Act and the Court is obliged to stay the suit when such issues are required to be referred to the competent authority for determination. In my opinions such issues would be the issues which are required to be decided for the decision of the suit It cannot include the decision of such interlocutory matters which are required to be decided only for the purposes of observing the status quo. In my opinions such issues would be the issues which are required to be decided for the decision of the suit It cannot include the decision of such interlocutory matters which are required to be decided only for the purposes of observing the status quo. No substantive rights are decided in such interlocutory applications; substantive rights are not affected in any manner by such decision. In my opinion it is quite untenable to suggest that even such a question requires the framing of an issue and referring that issue to the Mamlatdar for determination. ( 17 ) ORDER 14 rule 1 of the Code deals with Framing of Issues. It reads:- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (3) Bach material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) issues are of the kinds:- (a) issues of fact (b) issues of law. (5) At the first hearing of the suit the Court shall after reading the plaint and the written statements if any and after such examination of the parties as may appear necessary ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. (6) Nothing in this rule requires the Court frame and record issues where the defendant at the first hearing of the suit makes no defence. This rule 1 of Order 14 of the Code clearly indicates that the questions decided for Deciding such interlocutory applications cannot be said to be the subject-matter of issues as contemplated by this rule 18 Rule 2 of Order 14 of the Code deals with issues of law and of fact and rule 3 deals with the position regarding the materials from which issues have to be framed. ( 18 ) RULE 5 of Order 20 of the Code reads:- In suits in which issues have been framed the Court shall state its finding or decision with the reasons therefore upon each separate issue unless the finding upon any one or more of the issues is sufficient for the decision of the suit. It is thus evident that the expression issues will mean the issues that have to be framed for determination of the suit. ( 19 ) ANOTHER significant factor to be borne in mind in this respect is that sub-sec. (2) of sec. 85-A of the Act clearly Indicates that on receipt of such reference from the Civil Court as contemplated by sec. 85-A (1) of the Act the competent authority has to deal with and decide such issues in accordance with the provisions of the Act and has to communicate its decision to the Civil Court and the Civil Court has thereupon to dispose of the suit in accordance with the procedure applicable thereto. It means that the competent authority i. e. the Tenancy Court has to decide such issues in accordance with the provisions of the Act. Question regarding grant of interim injunction in a case like the present case is not required to be decided in accordance with any provisions in the Act. It is to be decided on general principles. The language of this section also clearly indicates that the legislature never contemplated that the Civil Court should refer such questions regarding grant of interim injunction to a Tenancy Court. ( 20 ) MR. Dabhi appearing for the petitioners in Civil Revision Application No. 352 of 1974 has laid considerable emphasis in support of his submission on the observations made by Raju j. in Jamadar Suleman Bachumiya v. Mahavir Mathadin. 4 Gujarat Law Reporter 131. At pages 133 and 134 the observations made are:-THE questions referred to in sec. 85 (1) are Those enumerated in sec. 70 of the Tenancy Act. One of the questions referred to in sec. 70 is to decide whether a person is a tenant. But none of the items in sec. 70 refers to the question whether a person is in possession or not. 85 (1) are Those enumerated in sec. 70 of the Tenancy Act. One of the questions referred to in sec. 70 is to decide whether a person is a tenant. But none of the items in sec. 70 refers to the question whether a person is in possession or not. In view of sec 29 of the Bombay Tenancy and Agricultural Lands Act Civil Courts have no jurisdiction to decree possession in favour of a plaintiff whether he is a landlord or a tenant. But a Civil Court can entertain a suit for injunction to restrain the defendant from interfering with the plaintiffs possession. In such a suit it may happen that the defendant raises a contention that he is a tenant. In the case of an ordinary suit for injunction the plaintiff has to prove that he is in possession and he must also prove that he is entitled to continue in possession But if it is contended by the defendant that he is a tenant of the plaintiff and if that contention is found to be correct the plaintiff would not be entitled to continue in possession although he may have been in possession on the date of the suit and the question whether the defendant is a tenant or not cannot be decided by the Civil Court but only by the Tenancy Court. In such a case therefore the Civil Court cannot issue an injunction whether permanent or temporary because the question whether the plaintiff is entitled to an injunction permanent or temporary would depend upon the question whether the defendant is a tenant of the plaintiff and therefore entitled to possession. These observations marked by me have been relied upon by Mr. Dabhi and it is urged that this decision clearly lays down the ratio that even in such a suit for injunction Civil Court is not entitled to grant injunction either permanent or temporary. . ( 21 ) IN Civil Revision Application No. 273 of 1967 decided by my learned Brother J. B. Mehta Jon 5th July 1967 referred to earlier this very decision was relied upon by Mr. Sheth advocate appearing In that petition for the petitioner-tenant and after referring to those observations it has been observed by Mehta J. :-THESE observations were strongly relied upon by Mr. Sheth but these observations are clearly obiter in the context. Mr. Sheth advocate appearing In that petition for the petitioner-tenant and after referring to those observations it has been observed by Mehta J. :-THESE observations were strongly relied upon by Mr. Sheth but these observations are clearly obiter in the context. Mr. Sheth argued that in view of the explanation to sec. 85 the observations could not be considered as obiter. We cannot agree with this contention for the simple reason that my learned Brother had sought to draw a distinction between the two kinds of proceedings even after reading the aforesaid explanation to sec. 85. Mr. Sheth is therefore unable to persuade me to make a reference to the Division Bench on the ground that there is a concluded decision on this point by my learned Brother Raju J. so that before taking a different view in the matter I should refer the matter to the Division Bench. I am In respectful agreement with the aforesaid observations made by my learned Brother J. B. Mehta J. ( 22 ) IN Mela Kabhai v. Motibhai Kahandas Patel 60 Bombay Law Reporter 1071 a Division Bench of the Bombay High Court Has at page 1074 after referring to several decisions of the Bombay High Court observed: -. . . WITH respect therefore we agree with the decision in Dhondi Tukaram v. Dadoo Piraji (55 Bombay Law Reporter 663 ). We are accordingly of the opinion that the Mamlatdar is Competent to entertain and decide an application for a declaration that a person is or is not a tenant. MR. Karlekar is on surer ground in his contention that the Mamlatdar has no jurisdiction to grant an injunction in tenancy cases. No such power has been granted to the Mamlatdar by any provision of the Tenancy Act A similar question arose before a Division Bench consisting of Dixit and Badkas JJ. in Lalbhai Girdharlal v. The Jarod Joint Co-operative Farming Society (1957) Special Civil Application No. 2051 of 1957 decided on 13th November 1957 It was argued in that case that sec. 72 of the Act of 1948 provides that the Mamlatdar shall exercise the same powers as the Mamlatdar under the Mamlatdars Courts Act 1906 in all enquiries and proceedings commenced on the presentation of applications under sec. 71. 72 of the Act of 1948 provides that the Mamlatdar shall exercise the same powers as the Mamlatdar under the Mamlatdars Courts Act 1906 in all enquiries and proceedings commenced on the presentation of applications under sec. 71. Since the Mamlatdars Courts Act empowers the Mamlatdar to grant an injunction it was urged that by virtue of sec 72 of the Bombay Tenancy and Agricultural Lands Act 1948 the Mamlatdar can grant an injunction in tenancy cases as well. This argument was rejected by the Bench. MR. Gokhale however on behalf of the petitioner has drawn our attention to an earlier decision of Shah and Vyas JJ. in Anna Yashwant Dhavane v. Vithabai Shankar Karade ( (1956) Special Civil Application No. 497 of 1956 decided on 32nd June 1956 In that case the learned Judges relying on sec. 72 of the Act held that it was within the powers of the Mamlatdar in tenancy cases to grant an injunction. It appears that the question was not then fully argued. Sec. 72 of the Act does not enlarge the scope of enquiries and proceedings under the Act. but merely provides that in all enquires and proceedings validly instituted under the act) the Mamlatdar shall exercise the same powers as the Mamlatdars Court under the Mamlatdars Courts Act. When a person applies for an injunction to the Mamlatdar under the Tenancy Act he institutes a proceeding and whether he can institute such a proceeding cannot be determined with reference to sec. 72 of Act which only specifies the powers that may be exercised in proceedings validly instituted under other provisions of the Tenancy Act. That being so we agree with the view taken in Lalbhai Girdharlal v. The Jarod Joint Co-operative Farming Society and hold that it is not within the powers of the Mamlatdar under the Tenancy Act to grant an injunction. It is significant to note that even after the aforesaid decision which in clear terms states that the Mamlatdar has no jurisdiction to grant an injunction in such a validly instituted proceeding before him under the Act there is no amendment made which indicates that such a permanent injunction can be granted by the Mamlatdar in a validly instituted proceeding under the Act. By the amendment the Mamlatdar is only given power to grant temporary injunction. By the amendment the Mamlatdar is only given power to grant temporary injunction. That power is to be exercised in proceedings validly instituted under other provisions of the Act. That are no other provisions as said earlier except clause (nb) which came to be added by Gujarat Amending Act No. 5 of 1973 which deals with such grant of temporary injunction only. As said earlier it is the Civil Court which has jurisdiction to grant a permanent injunction Suits filed therefore in the Civil Court for getting a relief of permanent injunction against the threatened trespass are validly instituted suits and the Civil Court has jurisdiction to grant a relief for permanent injunction in those suits provided the averments made in the plaint are found to be true. In case the defendant raises a plea of tenancy no doubt that issue regarding tenancy has got to be referred to the Tenancy Court and only after the tenancy Court decides that the defendant is not a tenant after the decision of the Mamlatdar on that point the Civil Court will have to decide the suit on the basis of that decision. ( 23 ) ON behalf of the petitioners considerable emphasis is laid on the decision of a Division Bench of Kerala High Court in K. Sankara v. Seshambal AIR 1974 Kerala 205. Kerala High Court had to deal with sec. 125 of the Kerala Land Reforms Act (1 of 1964 ). That section quoted at page 206 reads as under:-125 Bar of jurisdiction of Civil Courts (1) No Civil Court. shall have jurisdiction to settle decide or deal with any question or to Determinant matter which is by or under this Act required to be settled decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Government or an officer of the Government provided that nothing contained in this sub-section shall apply to proceedings pending in any Court at the commencement of the Kerala Land Reforms (Amendment) Act 1969. (2) No order of the Land Tribunal or the appellate authority or the Land Board or the Government or an officer of the (Government made under this Act shall be questioned in any Civil Court except as provided in this Act. (2) No order of the Land Tribunal or the appellate authority or the Land Board or the Government or an officer of the (Government made under this Act shall be questioned in any Civil Court except as provided in this Act. (3) If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises the Civil Court shall stay the suit or other proceedings and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only. (4) The Land Tribunal shall decide the question referred to it under sub-sec. (3) and return the records together with its decision to the Civil Court. (5) The Civil Court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it. (6) The decision of the Land Tribunal on the question referred to it shall for the purpose of appeal be deemed to be part of the finding of Civil Court. (7) No Civil Court shall have power to grant injunction in any suit or other proceeding referred to in sub-sec. (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen till such question is decided by the Land Tribunal and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act 1969 or before such question has arisen shall stand cancelled. After referring to sec. 9 of the Code which invests jurisdiction in the Civil Court to try suits of a civil nature it is observed at pages 206 and 207:-IT is clear from the above section that the jurisdiction of Civil Courts is not absolute but on the other hand it is subject to any statutory exception made in that respect. Sec. 125 of the Act contains such a provision Sub-sec. Sec. 125 of the Act contains such a provision Sub-sec. (1) of the section bars the jurisdiction of Civil Courts to decide or deal with any question or determine any matters which is by the Act required to be decided or dealt with by the Land Tribunal or the other authorities mentioned therein. Sub-sec. (3) provides that when any question arises before a Civil Court whether a person is a tenant or kudikidappukaran the Court shall stay the suit or proceeding in which that question arises and refer the same to the Land Tribunal concerned along with the records for decision Sub-sec. (4) requires the Land Tribunal to decide the question referred to it and return the records together with its decision to the Civil Court. Sub-sec. (5; makes the Tribunals decision binding on the Civil Court; and directs; the Civil Court to dispose of the suit or proceeding on the basis of the decision. Sub-sec (6) makes the above position further clear. When a person sues another person for recovery of possession of land on the basis of title and the defendant contends that he is a tenant who is not liable for eviction the only question that arises in such a case for decision is whether the defendants claim as tenant is true or not. This is all that is required for invoking sec. 125 (3) of the Act. To say that this is not enough but the defendant must further establish before the Civil Court that his plea is prima facie true is to read into the above provision something which it does not contain or which the legislature has not enacted. It would also amount exercise of a jurisdiction by the Civil court which it has been expressly debarred by sec. 125 of the Act from exercisingin my opinion this decision lays down the correct ratio when a question regarding the plea of tenancy is raised by the defendant in such a civil suit that question has got to be referred to the Mamlatdar by the Civil Court and the Civil Court will not be justified in deciding the question whether any prima facie case is made out in that behalf prior to its referring that issue for determination to tenancy Court. This ratio laid down by a Division Bench of Kerala High Court is in conformity with the decision arrived at by Modi J. in Vasava Mohan Moti v. Indravadan Kuberdas Sampatram 4 Gujarat Law Reporter 387 and J. B. Mehta J. has in terms distinguished that case accepting the ratio laid down in that decision. It is significant to note that in that Kerala decision there were earlier decisions of that Court referred to therein and at page 208 the observations made in those earlier decisions have been quoted. They are. . . . . The enquiry regarding the status of a person as a kudikidappukaran or as a tenant is only for the purpose of deciding the rights of a tenant or a kudikidappukaran. If incidentally the relationship between the parties has to be resolved for giving relief to the plaintiff in respect of matters not covered by Act I of 1964 I do not think that by the wording of sec. 125 (3) of Act I of 1964 there is an ouster of jurisdiction For example if in a suit for injunction where by the plaintiff wants to restrain the defendant raises a plea that he is in possession of the property as a tenant a very literal interpretation of sec. 125 (1) (2) and (3) will compel the Court to refer the issue to the Land Tribunal. If the reference is made and the Civil Court is obliged to decide the suit on the basis of the finding of the Land Tribunal there is an abdication of the function of the Civil Court. The question in such cases is only who is in possession of the property on the date of suit. The defendants claim of possession based on the tenancy is immaterial for the reason that the defendant is in possession of the property whether it be as lessee or otherwise no relief of injunction can be granted to the plaintiff. In such cases counsel appearing in the case agree that no reference under sec. 125 (3) is called for. If that is so I do not appreciate how in a suit for ejectment when the defendant raises a plea of tenancy a reference under sec. 125 (3) of Act I of 1964 is rendered obligatory. In such cases counsel appearing in the case agree that no reference under sec. 125 (3) is called for. If that is so I do not appreciate how in a suit for ejectment when the defendant raises a plea of tenancy a reference under sec. 125 (3) of Act I of 1964 is rendered obligatory. In order to grant relief to the plaintiff on the basis of his claim of trespass it may be necessary for the Civil Court incidentally to examine the character of the defendants possession. In such a suit no right between the landlord and tenants are involved. The plaintiff does not want any relief in his capacity as landlord against the defendant as a tenant. There is thus no scope for the application of sec. 125 (3) of Act 1 of 1964. It is context of these latter observations that the Division Bench has observed:-WITH great respect we are unable to agree fully with the learned Judges reasoning and much less with his conclusion. There is no warranty to construe sec. 125 (3) in the light of see. 125 (1 ). 230th the provisions deal with different matters. Even if sec. 125 (3) is interpreted in the light of sec. 125 (1) it makes no difference on the scope and applicability of sec. 125 (3 ). This provision as we have already stated requires a Civil Court to stay the suit or proceeding pending before it. if any question arises therein regarding the regulates of a tenant or a kudikidappukaran including the question whether he is a tenant or kudikidappukaran and to send the records thereof to the land Tribunal concerned for its decision which is binding on the Court. The significant observations made therein that follow require special mention. They are:-IT may be that in the illustration dealt with by the learned Judge namely in a suit for injunction against threatened trespass wherein the defendant claims that he is in possession of the land as a tenant no question regarding rights of tenant may arise within the meaning of sec. 125 (3) of the Act since the controversy in such a suit is only who is in possession of the land and the title that the plaintiff or of defendant has put forward in support of their respective claim for possession may arise for decision only incidentally. 125 (3) of the Act since the controversy in such a suit is only who is in possession of the land and the title that the plaintiff or of defendant has put forward in support of their respective claim for possession may arise for decision only incidentally. We refrain from expressing any open on this questions We would only say that the illustration does not render any assistance to the proposition that a party to an action in a Civil Court is not entitled to invoke sec. 125 of the Act unless he prima facie established that he is a tenant or Kudikidappukaran. for the simple Reason that the section does not require that to be done. All that is necessary is that a question regarding the right of a tenant or a kudikidappukaran arises for decision in the suit or proceeding pending in the Civil Courtagain that position is made clear by referring to other earlier decisions of Kerala High Court in para 8 observing: -. . . . . . . THE first one is Narayana Menon v. Kallandi 1973 Kerala LT 983 That case arose out of a suit for injunction to restrain the defendant from. trespassing on a land alleged to be in the possession of the plaintiff. The defendant contended that he was a tenant of the land and he was in possession on that basis. The Court held that sec. 125 (3) of the Act has 110 application since in such a case the only question was whether the plaintiff or the defendant was in possession of the land and there was no question regarding the rights of a tenant or kudikidappukaran The second decision is Alvi v. Mohammedkutty Haji 1973 Kerala LT 937 - (AIR 1974 Kerala 100 ). The question that arose in this case was the same and the learned Judges followed their earlier decision. We have referred to this aspect of the matter in dealing with the decision of Krishnamoorthi Iyer J. in C. R. P. No. 298 of 1973 (Kerala); and we have nothing more to add to what we have already observed in that context. We have referred to this aspect of the matter in dealing with the decision of Krishnamoorthi Iyer J. in C. R. P. No. 298 of 1973 (Kerala); and we have nothing more to add to what we have already observed in that context. It is thus evident that the aforesaid decision of a Division Bench of Kerala High Court only lays down the ratio that a Civil Court has no jurisdiction to decide whether a prima facie case is made out regarding the tenancy before referring that issue for the decision of a competent authority. It dose not lay any ratio that even in such a suit for injunction when the question regarding interim injunction has to be decided the Civil Court loses its jurisdiction the moment the defendant raises a plea of tenancy that is the tenancy issue required to be decided settled or dealt with by the Mamlatdar under the Act. That decision therefore cannot help the petitioners case. ( 24 ) THE decision of the Supreme Court in M. Chhaganlal v. Greater Bombay Municipality A. I. R. 1974 Supreme Court 2009 relied upon by the petitioners also has no bearing on the question that is posed before me. It only lays down that Chapter V-A in Municipal Act was enacted to provide to the Municipal Corporation a speedier remedy for eviction of unauthorised occupants from Municipal premises as against the ordinary remedy of a civil suit involving expense and delay so that the Municipal Corporation should be able to carry out effectively its policy of slum clearance speedy development of the estates of the Corporation and providing more housing accommodations. There is thus a valid basis of differentiation between occupiers of Municipal premises and those of other premises and there is a rational relation and nexus between the basis of the classification and the object of the legislation. In the instant case the legislature merely empowers the Mamlatdar to grant such temporary injunction in a validly instituted proceeding before him seeking reliefs contemplated under other provisions of the Act. It is only in my opinion an enabling provision. But for the addition of clause (nb) in sec. 70 of the Act the Mamlatdar would have been helpless of granting such interim relief for preserving the status quo pending the decision of that proceeding. It is only in my opinion an enabling provision. But for the addition of clause (nb) in sec. 70 of the Act the Mamlatdar would have been helpless of granting such interim relief for preserving the status quo pending the decision of that proceeding. ( 25 ) THE decision of Chagla C. J. in Trimbak Sopana Girme v. Gangaram Mhatarba Yadav 55 Bombay Law Reporter 56 has also no bearing on the question that is posed before me. It only lays down that sec. 70 (b) of the Act indicates that all questions with regard to the status of a party when the party claims the status of a protected tenant are left to be determined by the Revenue Court and the jurisdiction of the Civil Court is ousted. When the legislature has left it to the Mamlatdar to decide the issue whether the defendant is a protected tenant or not it implies that he must decide that the defendant is not a trespasser in order to hold that he is a tenant or a protected tenant and he must also hold that he is a trespasser in order to determine that he is not a tenant or a protected tenant. This decision in my opinion lays down the correct position of law in that behalf. ( 26 ) IN the same volume in Dhondi Tukaram Mali v. Dadoo Piraji Adgale at page 663 a Division Bench of the Bombay High Court consisting of Gajendragadkar and Vyas JJ. observed:-SEC. 70 of the Bombay Tenancy and Agricultural Lands Act 1948 makes the Mamlatdar the forum of exclusive jurisdiction for the determination of the question mentioned in that section. Therefore in a suit filed against the defendant for possession of agricultural lands on the footing that he is a trespasser if he raises a plea that he is a tenant or a protected tenant the Civil Court will have no jurisdiction to deal with that plea. That decision also does not assist us in determining the question that is posed. ( 27 ) IN Mohmadkhan Jamiyatkhan v. Dadamiyan Mohmadmiyan 11 Gujarat Law Reporter 595 at page 598 my learned Brother J. B. Mehta J. has observed: -. . AS the High Court at that time had expressed the view that the legislature would make suitable changes and the Bombay Legislature approved of this decision and gave effect to it by enacting sec. . AS the High Court at that time had expressed the view that the legislature would make suitable changes and the Bombay Legislature approved of this decision and gave effect to it by enacting sec. 85a which proceeds on the assumption that though the civil Court has otherwise jurisdiction to try a suit it would have no jurisdiction to try an issue arising in the suit if the issue was required to be settled decided or dealt with by the Mamlatdar under the Act. On that assumption sec. 85a provides for suitable machinery for reference of the issue to the Mamlatdar for his decision. Further proceeding at page 169 their Lord ships pointed out that this result was somewhat startling for normally the Civil Court has jurisdiction to try all the issues arising in a suit properly cognizable by it. But having regard to the fact that the Bombay legislature approved of Dhondi Tukarams case by introducing sec. 85a it must be held that the decision correctly interpreted the law as it stood before the enactment of sec. 85a. It follows that independently of sec. 85a and under the law as it stood before sec. 85a came into force the courts below were bound to refer to the Mamlatdar the decision of the issue whether the defendant is a tenant. Their Lordships thereafter referred to a decision of Mysore High Court where on the identical scheme a view was taken that the jurisdiction of the authority being limited to cases arising by or under the Act by the words for the purposes of the Act the jurisdiction of the Civil Court to decide all the points in dispute in an otherwise competent suit was not excluded by the mere plea of the defendant. Their Lordships In terms pointed out that it was not necessary to express any opinion one way or the other on the correctness or otherwise of the Mysore decision in view of some points of distinction between that scheme and legislative history of Mysore Act and those of the Bombay Act. There fore however startling the legal position appears to us at first sight so far as the scheme of the Tenancy Act is concerned the settled legal position is that because the tenancy authorities have exclusive jurisdiction to decide the suit as it would have no jurisdiction to decide this issue. There fore however startling the legal position appears to us at first sight so far as the scheme of the Tenancy Act is concerned the settled legal position is that because the tenancy authorities have exclusive jurisdiction to decide the suit as it would have no jurisdiction to decide this issue. Therefore even 3 competent Civil Court must refer the issue under sec. 70 of the Tenancy Act to the Mamlatdar and if the competent authority decides that a person was not a tenant but a trespasser it would be open to the Civil Court thereafter when the plea of the tenancy was rejected by the Mamlatdar under sec. 70 (b) to deal with the dispute on the footing that the defendant was not a tenant but a trespasser. In my opinion that decision also lays down the correct position of law and it has no bearing on the question involved in these revision petitions. ( 28 ) IN Maruti Dagadu Darekar v. Keshav Vyanketesh Wakade 56 Bombay Law Reporter 1010 at page 1012 it is observed: - -. . . . . MR. Chandrachuds argument is that in this suit for injunction the only question for determination is whether the plaintiff is entitled to injunction and all that the plaintiff has to show is that he was in possession at the date of the suit. This is a suit not under sec. 9 of the Specific Relief Act in which the only question for determination is whether the plaintiff was in possession and was disturbed in his possession within the period mentioned in that section but this is a Regular suit for injunction and it is not enough for the plaintiff in such a suit merely to allege and prove that he was in possession at the date of the suit but he is required to show that he was in possession under a title. That is a suit for injunction the plaintiff must prove that he was in possession at the date of the suit goes without saying but the plaintiff besides showing that he was in possession at the date of the suit has to show that his possession is referable to a valid title. That is a suit for injunction the plaintiff must prove that he was in possession at the date of the suit goes without saying but the plaintiff besides showing that he was in possession at the date of the suit has to show that his possession is referable to a valid title. Under sec 70 (b) it is for the Mamlatdar to decide whether a person is a tenant This also suggests that the Mamlatdar has power to decide whether a person is or is not a tenant. Now if defendants Nos. 1 to 4 are not tenants then in that event they have no right to remain in possession. If on the other hand defendants Nos. 1 to 4 are the tenants of defendants Nos. 5 and 6 and their tenancy is prior to the tenancy of the plaintiff defendants Nos. 1 to 4 will be entitled to remain in possession because the tenancy of the plaintiff is subsequent to the tenancy created in favour of defendants Nos. 1 to 4. Although therefore the suit is one for injunction and the Civil Court has jurisdiction to entertain the suit it seems to me that the Civil Court has no jurisdiction to decide the question whether defendants Nos. 1 to 4 are the tenants of defendants Nos. 5 and 6. It may be that the Act primarily contemplates disputes between a landlord and a tenant but it seems to me that the intention as expressed in Bombay Act No. LXVII of 1948 seems to be that the question relating to the tenancy of a person is a question which must he determined primarily by the Mamlatdar and not by the Civil Court and there is both reason and principle in Support of this view. Supposing it is held that the Civil Court has jurisdiction to decide this question and also the Mamlatdar has power to decide the question it may well be that in certain conceivable circumstances there may be a conflict of decision an (i a conflict of decision between two parallel Courts is scarcely a happy situation because parties will then be in a difficulty to know as to which order the parties are required to obey. In my view therefore it is reasonable to hold that even if this is a dispute between a tenant and another tenant that dispute is one which mast be decided by thee Mamlatdar and not by the Civil Court. In my opinions this decision also lays down the correct ratio. In the instant case we are not concerned with any such substantive rights of the parties which are required to be decided for the disposal of the suit. It cannot be gainsaid that even in such a suit for injunction in my opinion question regarding the issue of tenancy has sot to be referred to the Mamlatdar for his determination as that question requires to be decided settled or dealt with by the Mamlatdar under the provisions of the Act. At this stage we are only concerned with the. interim injunction to be granted for preserving the status quo. In my opinion the jurisdiction of the Civil Court which initially was admittedly with the Civil Court cannot be ousted simply because the defence has raised a plea of tenancy. ( 29 ) IN Lakseminarasimhiah v. Yalakki Gowda A. I. R. 1965 Mysore 310 relied upon by Mr. Solanki it is observed in para 7 at page 311 the granting or refusing of injunctions is a matter resting in the sound discretion with the trial Court and consequently no injunction will be granted whenever it will operate oppressively or inequitably or contrary to the real justice of the case. It also lays down the test to be applied in exercise of such discretionary power. There is no dispute with the principle enunciated in that decision. ( 30 ) IN Bhimaji Shankar Kulkarni v. Dundappa Vithappa Udapudi A. I. R. 1966 Supreme Court 166 at page 169 in para 6 the observations made are:-IN Dhondi Tukarams case AIR 1954 Bombay 100 the Court expressed the hope that the legislature would make suitable amendments in the Act. The Bombay Legislature approved of the decision and gave effect to it by introducing sec 85-A by the amending Bombay Act XIII of 1956. The Bombay Legislature approved of the decision and gave effect to it by introducing sec 85-A by the amending Bombay Act XIII of 1956. Sec. 85-A proceeds upon the assumption that though the Civil Court has otherwise jurisdiction to try a suit it will have no jurisdiction to try an issue arising in the suit if the issue is required to be settled decided or dealt with by the Mamlatdar or other competent authority under the Act and on that assumption sec. 85-A provides for suitable machinery for reference of the issue to the Mamlatdar for his decision. Now the Mamlatdar has jurisdiction under sec 70 to decide the several issues specified therein for the purposes of this Act and before the introduction of sec. 85-A it was a debatable point whether the expression for the purposes of this Act meant that the Mamlatdar had jurisdiction to decide those issues only in some proceeding before him under some specific provision of the Act or whether he had jurisdiction to decide those issues even though they arose for decision in a suit properly cognizable by a Civil Court 80 that the jurisdiction of the Civil Court to try those issues to the suit was taken away by sec. 85 read with sec. 70. This decision has been referred to by J. B. Mehta J. in the decision referred to by me earlier. There is no dispute about the proposition enunciated by the Supreme Court in the aforesaid Bhimajis case. ( 31 ) IN Dhulabhai v. State of Madhya Pradesh. A. I. R. 1969 Supreme Court 78 the Supreme Court has at page 89 in para 32 enumerated the principles regarding the exclusion of the jurisdiction of the Civil Court. There is no dispute about the propositions enunciated therein. That decision also is not helpful for deciding the question that is posed. ( 32 ) IN Jivabhai Purshottam v. Chhagan Karsan A. I. R. 1961 Supreme Court 1491 at page 1494 in para 6 it is observed: -. . . . THE Bombay Amending Act is a piece of beneficent legislation meant for the protection of tenants. therefore if there is any doubt about the meaning of sub-sec. ( 32 ) IN Jivabhai Purshottam v. Chhagan Karsan A. I. R. 1961 Supreme Court 1491 at page 1494 in para 6 it is observed: -. . . . THE Bombay Amending Act is a piece of beneficent legislation meant for the protection of tenants. therefore if there is any doubt about the meaning of sub-sec. that doubt should be resolved in favour of the tenant for whose benefit the was passed In this view it is obvious that the legislature could not have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases the tenancy had not yet terminated though notices had been given when the further restrictions were being put on the right to terminate the tenancy. The objects and reasons mentioned in the bill for making the amendments contemplated under Gujarat Act No. 5 of 1973. were referred to. They do not show that clause (nb) was added in sec. 70 of the Act as a contrary view was taken by J. B. Mehta J. in the aforesaid decision and that view was not approved by the legislature. I therefore. do not find anything in the provisions of the Act and in the insertion of clause (nb) in sec. 70 of the Act to indicate that the legislature intended the ousting of the jurisdiction of Civil Court regarding granting interim injunction in such a suit for injunction restraining the defendant who according to the plaintiff was threatening a trespass and was trying to forcibly dispossess him. In my opinion the submissions made on behalf of the petitioners are not well-founded and the submissions made on behalf of the opponent or opponents as the case may be are well-founded. When such a suit is filed in the Civil Court nobody anticipated the nature of the defence. For grant of such interim injunction the tests are:- prima facie case regarding actual possession at the date of the suit balance of Convenience and irreparable injury. When such a suit is filed in the Civil Court nobody anticipated the nature of the defence. For grant of such interim injunction the tests are:- prima facie case regarding actual possession at the date of the suit balance of Convenience and irreparable injury. That position has been made clear by J. B. Mehta J. in Civil Revision Application No. 273 of 1967 decided on 5th July 1967 ( 33 ) ON behalf of the petitioners reliance was sought to be placed on certain observations made by my learned Brother D. A. Desai J. in Second Appeal No. 533 of 1965 decided on 11th March 1971 It is observed:- The appellate Court has rather approached the matter in a sentimental way. The learned Assistant Judge observed that the only question arising for determination is whether the respondent (plaintiff) has a right to live in the suit house or not. This is with respect incorrect. The question before the learned Assistant Judge was whether the respondent plaintiff was the owner of the house and whether he was in possession of the suit house which would have shown that his possession was referable to a valid title. . . . . . . . . . The real and substantial question between the parties was whether the respondent proved his title to the house and was in possession of the whole or a portion of the house. It is further observed:-THE suit filed by the respondent is a regular suit for injunction. A party seeking injunction. In the allegation that that party is in possession of the property and seeks assistance of the Court by praying for an injunction restraining the other party alleged to be disturbing the possession of the party in possession must show its title or lawful possession of the property. The party claiming to be entitled to relief of injunction must not only show that that party is in possession of the property but that possession must be referable to a valid title. The respondent claims to be the owner of the suit house. These observations have been made with reference to the question regarding the relief of injunction to be granted at the conclusion of the trial. They have not been referred to in reference to the context of deciding the relief of interim injunction in a case like the present case. The respondent claims to be the owner of the suit house. These observations have been made with reference to the question regarding the relief of injunction to be granted at the conclusion of the trial. They have not been referred to in reference to the context of deciding the relief of interim injunction in a case like the present case. ( 34 ) IN Ramshree Mahavir v. Girdharlal Bholanath Agarwal 11 Gujarat Law Reporter 971 relied upon by the opponents Advocates my learned another M. P. Thakkar J. has observed:-IN a civilisation where the rule of law obtains it is difficult to envisage a Court of law upholding any such right in favour of a person who claims right to dispossess by use of force without recourse to due process of law. If this were to be permitted there would be a violent conflict between persons claiming individual rights. There is no manner of doubt that no such right can be claimed by the defendant regardless of the question whether or not the plaintiff himself has any right to remain in possession. Once it is established by the plaintiff that he is in exclusive possession and it is admitted by the defendant that he is in such possession an injunction restraining the defendant from dispossessing the plaintiff by force must issue as a matter of course more readily if the defendant persists in asserting the claim that he has a right to take the law in his own hands and forcibly dispossess the plaintiff. These decisions relied upon by either sides are not of much assistance in deciding the question that is posed before me. ( 35 ) MR. R. N. Shah who was permitted to intervene has leaned heavily on the decision of my learned Brother D. P. Desai J. in Aher Mesa Hamir v. Charan Shamla Sura 14 Gujarat Law Reporter 812 and that such interim injunction cannot be granted by the Civil Court and the question has to be referred to the Mamlatdar the moment the defendant appears and raises a plea of tenancy. It is observed therein:-NO question of granting ad interim injunction under Order 39 of the Civil Procedure Code will arise in a suit brought by an unsuccessful party against a successful party who had been found to be in actual possession of the land in dispute. WHAT is protected by sec. It is observed therein:-NO question of granting ad interim injunction under Order 39 of the Civil Procedure Code will arise in a suit brought by an unsuccessful party against a successful party who had been found to be in actual possession of the land in dispute. WHAT is protected by sec. 145 of the Criminal Procedure Code is actual possession from the date of the order under sec. 145 (1) and even if that order is wrong the remedy of the aggrieved party is either to get it cancelled by way of revision of to file a suit for evicting the person declared to be in actual possession. The unsuccessful party while filing a suit for eviction cannot arrogate to itself possession of the land in question contrary to the order passed under sec. 145 of the Criminal Procedure Code and sue for injunction merely on the ground that a revisional application against the order has been preferred by it prior to the filing of the suit:- and the same is pending. To take any other view of the provisions of sec. 145 would result in cross-injunctions granted by two competent authorities. Such a state of affairs should be avoided and the interpretation which seems to avoid such state of affairs must commend itself to a Court of law. It is therefore clear that the suit as framed by the plaintiff without claiming the relief of possession is misconceived and that in the face of the order under sec. 145 (6) of the Criminal Procedure Code in favour of the defendant no temporary injunction should be granted by the Civil Court. It clearly turns upon the provisions contained in sec. 145 of the Criminal Procedure Code 1898 The wording of sub-sec. (6) of sec. 145 of the Criminal Procedure Code 1898 clearly indicates that a person in whose favour such an order is passed under sec. 145 of the Criminal Procedure Code is entitled to possession thereof until evicted therefrom in due course of law and the Magistrate is empowered to forbid the unsuccessful party from disturbing of such possession until such eviction and when he proceeds under second proviso to sub-section (4) he may restore possession to the party forcibly and wrongfully dispossessed. 145 of the Criminal Procedure Code is entitled to possession thereof until evicted therefrom in due course of law and the Magistrate is empowered to forbid the unsuccessful party from disturbing of such possession until such eviction and when he proceeds under second proviso to sub-section (4) he may restore possession to the party forcibly and wrongfully dispossessed. It is therefore evident that such possession was to be protected until in due course of law he is evicted and the Magistrate is entitled to forbid such disturbance of possession until such eviction. It is therefore evident that in such a ease the unsuccessful party cannot be given such interim injunction by the Civil Court in a suit which would defeat the very purpose of the provisions contained in that sec. 145 of the Criminal Procedure Code 1898 ( 36 ) ON close scrutiny of all the relevant factors and looking to the scheme of the Act I am of opinion that this addition of clause (nb) in see. 70 of the Act is made only with a view to empower the Mamlatdar in a proceeding taken out under the provisions of the Act to grant such temporary injunction. Before the amendment he had no such jurisdiction or power. By the insertion of this clause the Mamlatdar is given supplementary power in a proceeding under the Act for the purposes of the Act to grant such temporary injunction. ( 37 ) IF the legislature had really intended to oust the jurisdiction of the Civil Court regarding the granting of such interim injunction in such suit which is validly instituted and which the Civil Court is competent to entertain the moment the tenant raises a plea of tenancy and such issue was required to be referred to the Mamlatdar for determination under the provisions of the Act the legislature could have very-well drafted the section on similar lines as sec. 125 (7) of Kerala Land Reforms Act 1964 That sub-section reads:- (7) No Civil Court shall have power to grant injunction in any suit or other proceeding referred to in sub-sec. 125 (7) of Kerala Land Reforms Act 1964 That sub-section reads:- (7) No Civil Court shall have power to grant injunction in any suit or other proceeding referred to in sub-sec. (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen till such question is decided by the Land Tribunal and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act 1969 or before such question has arisen shall stand cancelled. The omission of such sub-section in sec. 85 or sec. 85-A or sec. 70 or in any other sections of the Act further fortifies my conclusion that the legislature never intended such a result by the insertion of this clause (nb) in sec. 70 of the Act. ( 38 ) IT will not be out of place if we refer to secs. 46 and 60 of the Act which throw some light on this question. Sec. 46 falls in Chapter IV relating to Management of Estates held by Landholders. Sub-sec. (1) and (2) of it reads:- 46 On the publication of the notification under sec. 44 the following consequences shall ensue:- (1) all proceedings then pending in any Civil Court in respect to the debts and liabilities enforceable against the estate shall be stayed; and the operation of all processes executions and attachments then in force for or in respect of such debts and liabilities shall be suspended; (2) so long as the management continues no fresh proceedings processes executions or attachments shall be instituted in or issued enforced or executed by any Civil Court in respect of such debts and liabilities Section 60 of the Act deals with the topic regarding Holder of Estate Dying. Sub-sec. (3) of it read:- (3) No Civil Court shall during the continuance of the management issue any attachment or other process against any portion of the estate under management for or in respect of any debt or liability incurred by any such person either before or after his said succession. It is thus evident that wherever the legislature intended to take away the jurisdiction vested in the Civil Court in respect of attachment or other processes the legislature has by clear terms indicated that intention. It is thus evident that wherever the legislature intended to take away the jurisdiction vested in the Civil Court in respect of attachment or other processes the legislature has by clear terms indicated that intention. There is no such provision as said earlier by me as regards the grant of temporary injunction by the Civil Court in a validly instituted civil suit which the Civil Court is entitled to entertain. ( 39 ) I am therefore of the opinion that my learned Brother Thakkar J has rightly reached the conclusion that by insertion of this clause (nb) in sec. 70 of the Act the Mamlatdar is given enabling power to grant such interim injunction for preserving the status quo during the pendency of a validly instituted proceeding before him under the Tenancy Act and it does not oust the jurisdiction of the Civil Court to grant such interim relief in a validly instituted suit which the Civil Court is entitled to entertain. It is therefore not necessary to refer the question to a larger Bench. The question of law involved in all these four petitions is decided accordingly. ( 40 ) ONE additional question urged on behalf of the petitioners is that if this Court does not accept their arguments regarding the ouster of jurisdiction of the Civil Court the position that would emerge would be that the Civil Court as well as the Mamlatdar would have jurisdiction to grant such temporary injunction in proceedings validly instituted before them. There is therefore likelihood of conflicting decisions and grant or cross injunctions The Court should therefore set up a formula to avoid such conflict. It is difficult to lay down a set formula which could meet with the facts and circumstances of each case it could be resolved by following the principle of judicial comity. . ( 41 ) IN Sree Sree Bhabapritanandas Ojha v. President of the Bihar State Boards of Religion Trusts AIR 1954 Patna 262 a Division Bench of Patna High Court has at page 264 observed:-IN my opinion the argument of Mr. P. R. Das is correct. If the statute is construed in its plain and grammatical sense there would be conflicting orders between two jurisdictions. Complications and difficulties would arise if the two authorities hold conflicting views as to the proper way of dealing with the trust properties. P. R. Das is correct. If the statute is construed in its plain and grammatical sense there would be conflicting orders between two jurisdictions. Complications and difficulties would arise if the two authorities hold conflicting views as to the proper way of dealing with the trust properties. The petitioner cannot serve two masters at the same time and if there are conflicting orders the petitioner would be placed in an impossible situation. These results ale so startling that I must reject the interpretation which leads to them. In a case of this description the rule of construction is well settled. It is a matter of great public importance that there should be as far as possible no conflict or clash of jurisdiction between two equally competent authorities. The principle at stake is the principle of comity. In Jopson v. James (1908); 77 LJ ch 824 Farewell L. J. states:-HE existence of concurrent jurisdiction renders very necessary the observance of a comity between those jurisdictions the disregard of which would lead to most unfortunate friction. Two points appear to be usual on considering whether the Court should have regard and defer to a jurisdiction with which it may come in conflict or whether the Court can fairly expect that other jurisdiction to defer to it. One is priority in time and the other is the extent of the relief asked for or obtainable in the other jurisdiction. Now in the present case there is really no question that the comity between two conflicting jurisdictions ought to have been exercised by the Vice-Chancellor in favour of the Nova Scotian Court. Two authorities should have respect for each other and should follow the principle of judicial comity. If one authority has already decided the question the other should stay its hands taking into consideration the facts and circumstances of the case. Even if the authority which should have stayed its hands in view of the facts and circumstances of the case omits to do it party aggrieved can have a remedy by approaching the proper higher authority. No set formula can be laid down. Same principle has been stated by learned Author Bindra in his book Interpretation of Statutes 1970 Edition at pages 191 and 192. [ The rest of the Judgment not material for the Report. ] Application dismissed. .