M. R. CALLA, J. ( 1 ) THE petitioner claims to be an Ex-Talukdar and claims to be the absolute owner of village Khasta situated in Dhandhuka Taluka. Such rights as Talukdars in respect of his Talukdari property were abolished and extinguished by the Talukdari Tenure Abolition Act of 1949. The Act was passed on 24-1-1950 whereby the rights and interest of Talukdars were abolished with effect from 15-8-1950. The petitioners case is that the land of village Khasta was neither alienated nor unalienated as understood by the Land Revenue Code and the said lands were liable for payment of the land revenue only after 15-8-1950 and prior to that it was liable only for "jama" which was periodically revised. The petitioner further states that the relation between the petitioner and his tenants were governed by "dharas" or regulations promulgated by the ancestors of the petitioner from time to time and the earliest one, i. e. , presently traced is "dhara" of S. Y. 1958 dated 12-2-1902. That one Gopalkesari filed Special Civil Application (sic.) No. 104 of 1994 (sic.) against the petitioners ancestors and two others in the civil Court and on the basis of the available evidence legal rights between the landlord and tenants in Talukdari village of Khasta had been clearly defined and expressly determined by the judgment and decree of the Court on 3-6-1908 (sic. ). Reference has also been made in para 5 of the petition to certain other suits and it has been given out that most of these suits were concluded by the consent decree. In 1912 or thereafter leases were executed by each of the tenants at the time and according to the petitioner, the ancestors of predecessors-in-title of the present opponents/defendants had duly renewed the same from time to time last one being in the year 1936 for a period of 15 years which expired in 1951. Thereafter, the opponents-defendants continued as tenants holding over. It is the further case of the petitioner that the Tenancy Act was applied to village Khasta from 15-8-1950 and by 1-4-1957 the opponents predecessor-in-title acquired some rights with respect to the agricultural lands under sec. 32g and with respect to residential houses under Sec. 16, if they prove that on sites belonging to the landlord the same are built by them, i. e. , the tenants or at their expenses. 32g and with respect to residential houses under Sec. 16, if they prove that on sites belonging to the landlord the same are built by them, i. e. , the tenants or at their expenses. The petitioner through his Advocate gave notice dated 25-2-1963 to all the opponents (their father-husband or ancestor or predecessor-in-title) who was in possession since 1936 as an express licensee of these properties and when they committed and refused and neglected to hand over possession as demanded in the notice on the expiry of the notice period the petitioner filed Regular Civil Suit nos. 43 of 1963 to 57 of 1963, i. e. , in all 15 suits in the Court of Civil Judge (J. D.), dhandhuka against various opponents or their predecessor-in-title. The suits were filed on 1-4-1963 claiming possession of the several properties Kodhs (byre), wandas, Vadas and open lands in village site. According to the petitioner these properties were not covered by the Tenancy Act. ( 2 ) THE proceedings between the parties were also pending before the Mamlatdar or Agricultural Lands Tribunal with respect to the rights as to the agricultural lands and properties covered by the Tenancy Act in village Khasta and in those proceedings no question is involved or raised or arises with respect to the Kodhs (byre), Vadas and open land situated in village site of Khasta. The defendants filed written statement in the suit and put it on contest. The Civil Judge (J. D.), Dhandhuka framed preliminary issues on 8-11-1963 and held that he had no jurisdiction in matter and passed an order on 22-4-1964 directing the return of the plaint to the petitioner for presentation to the proper Court. The petitioner preferred several appeals from the said order before the learned District Judge, Ahmedabad (Rural) at Narol and the district Judge, Ahmedabad (Rural) at Narol set aside the order dated 22-4-1964 and remanded all the said 15 suits to the learned Civil Judge (J. D.), Dhandhuka by his order dated 26-12-1964 with the direction to refer necessary issues to the Tenancy court for its decision under Sec. 85a of the Bombay Tenancy and Agricultural Lands act, 1948. The Civil Judge (J. D.), Dhandhuka thereafter, reconsidered the matter and passed an order dated 4-8-1964 and referred certain issues as stated in the reference under Sec. 85a dated 4-8-1964 to the Mamlatdar for decision. The Civil Judge (J. D.), Dhandhuka thereafter, reconsidered the matter and passed an order dated 4-8-1964 and referred certain issues as stated in the reference under Sec. 85a dated 4-8-1964 to the Mamlatdar for decision. The issue which was referred by the Civil Judge (J. D.), Dhandhuka to the Mamlatdar by his order dated 4-8-1964 was as under :"whether the suit properties are dwelling houses or sites of dwelling houses, occupied by agriculturists, or lands falling within clause (b) of Sec. 2 (8) of the Bombay Tenancy and Agricultural Lands Act, 1948 ?"the Mamlatdar and A. L. T. (No. 2), Dhandhuka on receipt of the said reference issued notice to the parties and various references were numbered as Ref. No. 1 of 1970 to 15 of 1970. Out of these references 1 of 1970 to 15 of 1970 the Mamlatdar took up the Reference No. 11 of 1970 (Suit No. 43 of 1963) as the first matter and notices were issued to the opponents. The opponents filed their written statement and the present petitioner also filed several documents on which they wanted to place reliance including copies of judgments of 1904 and 1908 suits and decrees passed by the Civil Court in some of these suits etc. According to the petitioner the mamlatdar gave opportunity to the petitioner to lead oral evidence. The evidence was recorded on 1-5-1970 and the judgment was delivered by the Mamlatdar in reference No. 11 of 1970 on 4-5-1970. The Mamlatdar gave finding that the suits lands were not covered by Sec. 2 (8) (b) of the Tenancy and Agricultural Lands Act, 1948 and observed that defendants-tenants are claiming ownership and title even on suit land and the Tenancy Court was not competent to decide the question of title. The Mamlatdar answered all the references in accordance with the finding as aforesaid giving identical finding in all other 14 matters but by separate judgment in each case. ( 3 ) AGAINST the aforesaid orders passed by the Mamlatdar in 15 references, 15 appeals were preferred before the Deputy Collector, Dholka being Tenancy Appeal nos. 182 of 1970 to 195 of 1970 and Appeal No. 165 of 1970. All these 15 appeals were heard together and as the common question of law was involved and the same were disposed of by a common judgment and order dated 30-12-1970 passed by the deputy Collector, Dholka. 182 of 1970 to 195 of 1970 and Appeal No. 165 of 1970. All these 15 appeals were heard together and as the common question of law was involved and the same were disposed of by a common judgment and order dated 30-12-1970 passed by the deputy Collector, Dholka. Thus, all the references made under Sec. 80a of the bombay Tenancy and Agricultural Lands Act were decided. ( 4 ) IT is also stated in Para 19 of the petition that the Mamlatdar, Dhandhuka had earlier passed perverse order in 1966 and the petitioner had preferred 6 Special civil Applications under Art. 226 before this Court and all these 6 Special Civil applications were admitted. The petitioner had also preferred Civil Appeal to the state Government, i. e. , Special Secretary, Government of Gujarat (Revenue department) but all these matters were not proceeded on merits as dispute was amicably settled by mutual agreement. ( 5 ) THE order dated 30-12-1970 passed by the Deputy Collector, Dholka in tenancy Appeal Nos. 182 of 1970 to 195 of 1970 and 165 of 1970 was taken in revision before the Gujarat Revenue Tribunal by the petitioner through Revision application Nos. 234 of 1971 to 248 of 1971 and all these 15 revision applications were heard on 1-11-1971 and were decided by a common order dated 29-11-1971 whereby the revision applications were dismissed. It appears that the petitioner took the matter to the High Court and before the High Court Special Civil Application no. 353 of 1972 was dismissed by the learned single Judge and even the Letters patent Appeal was dismissed by the Division Bench holding that the same was not maintainable. Thereafter, the matter was taken to the Supreme Court. The Supreme court decided the Civil Appeal No. 50 of 1973 on 25-10-1989. Operative part of the Supreme Courts order dated 25-10-1989 reads as under :"the learned Division Bench dismissed the Letters Patent Appeal holding that a Letters patent Appeal will not be competent against an order passed by the High Court in a petition under Art. 227. The Supreme court decided the Civil Appeal No. 50 of 1973 on 25-10-1989. Operative part of the Supreme Courts order dated 25-10-1989 reads as under :"the learned Division Bench dismissed the Letters Patent Appeal holding that a Letters patent Appeal will not be competent against an order passed by the High Court in a petition under Art. 227. Unfortunately a perusal of the order of the learned single Judge does not indicate as to whether he refused to exercise jurisdiction under Art. 227 or 226 as admittedly in the petition itself both the Articles were mentioned and a perusal of the relief would show that the petitioner sought relief which could be granted under Art. 226 and also which could be granted under Art. 227. Looking into all the circumstances, therefore, in our opinion the appropriate course will be that the learned High Court will consider the writ petition afresh on merits after giving opportunity of hearing to both the parties. The appeal is, therefore, allowed. The writ petition is sent back to the High Court of Gujarat and it is directed that it will be heard after notice to both the parties and be disposed of in accordance with law. The matter has already been pending for a long time, we would request the High Court to see that the writ petition is disposed of as expeditiously as possible preferably within six months from today. As no one appeared for the respondents no order as to costs. New Delhi Sd/- Sd/- date : 25th October, 1989. (G. L. Oza, J.) (T. K. Thomson, J.)" ( 6 ) THUS, this Special Civil Application which was filed in the year 1972 before this Court as remanded by the Supreme Court on 25-10-1989 came up for hearing before this Bench in January, 1998. This Court has thus to decide the special Civil Application of 1972 in the year 1998 now. While it was observed by the Supreme Court on 25-10-1989 while remanding the matter back that "the matter is already pending for a long time, we would request the High Court to see that the writ petition is disposed of as expeditiously as possible preferably within six months from today. " ( 7 ) IN normal course in terms of the Supreme Courts order dated 25-10-1989 the matter should have been decided by the end of April, 1990. " ( 7 ) IN normal course in terms of the Supreme Courts order dated 25-10-1989 the matter should have been decided by the end of April, 1990. However, to keep the record straight it may be mentioned that fault for the long pendency of this petition and delay in hearing of the matter is attributable to the petitioner alone. There are number of respondents many of whom have expired during the pendency of the matter and due care was not taken to bring on record the legal representatives of the deceased respondents in time. The applications were filed for bringing on record the legal representatives of only some of the respondents and not of all the deceased respondents. The Court thereafter called upon the petitioner to file consolidated application for bringing legal representatives of all the deceased respondents on record, yet, the steps were not taken in time and therefore, on 10-9-1997 the petitioner was directed to make such consolidated application for bringing the legal representatives of the deceased respondents on record within reasonable time and such application was directed to be filed by the petitioner on or before 10-11- 1997 with the further order that failing which the papers may be placed before the Court for passing order for dismissal of the petition for nonprosecution. It may be pointed out that only thereafter the steps were taken by the petitioner. The time had again to be extended till 24-11-1997 and thereafter notices on unserved respondents were directed to be published in the newspaper and accordingly the same were published in the newspaper on 5-1-1998 for the date of 19-1-1998. On 19-1-1998 it was given out by the learned Counsel for the petitioner while producing the receipt along with the copy of the newspaper, viz. , "sambhav" daily issue in Gujarati which is widely circulated newspaper in Gujarat published from Ahmedabad and thereafter the matter was directed to be listed for hearing on 23-1-1998 as prayed by learned Counsel for the petitioner. , "sambhav" daily issue in Gujarati which is widely circulated newspaper in Gujarat published from Ahmedabad and thereafter the matter was directed to be listed for hearing on 23-1-1998 as prayed by learned Counsel for the petitioner. ( 8 ) BE that as it may the fact remains that the Supreme Court while passing the order dated 25-10-1989 had recorded that "if the order of the Mamlatdar and Revenue tribunal are read it is apparent that the learned single Judge and Revenue Tribunal omitted to consider the material which was considered by the Mamlatdar which was produced as evidence in the case and the Tribunal disposed of the matter by a short order. In this view of the matter when the petition under Art. 226 was filed before it, it was expected to consider as to whether the Tribunal rightly exercised the jurisdiction vested by law but it appears that the High Court rejected the writ petition summarily. In our opinion, the question involved did deserve consideration by the high Court. We, therefore, feel that the judgment passed by the learned single Judge of the High Court does not appear to be justified. " ( 9 ) IN the backdrop of the facts and circumstances, various orders passed by the civil Court, Mamlatdar, Deputy Collector, Gujarat Revenue Tribunal and ultimate order dated 25-10-1989 passed by the Supreme Court, this Court considers it proper to address itself to the material and the evidence on the basis of which the Mamlatdar had passed an order in favour of the petitioner while deciding the reference. The main question which requires consideration is as to whether the suit properties are covered by the definition of lands within the meaning of Sec. 2 (8) (b ). Section 2 (8) ( (b) of the Bombay Tenancy and Agricultural Lands Act, 1948 is reproduced as under for ready reference : 2 (8) (b) :- For the purpose of S. 11, 16, 17, 17a, 17b, 18, 19, 20, 26, 28, 29, 29a, 30, 41, 4 (43), 63, 64, 64a, 84a and 84c - (i) The sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses. (ii) The sites of structures used by agriculturists for allied pursuits. (ii) The sites of structures used by agriculturists for allied pursuits. " ( 10 ) WHEREAS the copies of the plaints had not been placed on record nor same were available with the learned Counsel for the petitioner, the learned Counsel during the course of the hearing of the arguments, was called upon to file the copies of the plaints. Certain xerox copies of the plaints have been today produced by the learned counsel for the petitioner. After change of sitting from 2-2-1998 S. B. was formed today on 23-2-1998 only. ( 11 ) THE only question which requires adjudication in this case is as to whether the suit properties are covered by the definition of the lands within meaning of Sec. 2 (8) (b) of Bombay Tenancy and Agricultural Lands Act, 1948. The Mamlatdar and a. L. T. No. 2, Dhandhuka while passing the order dated 4-5-1990 has held that the suit properties are not dwelling houses occupied by agriculturists or lands falling within the definition of clause (b) of Sec. 2 (8) of the Tenancy and Agricultural Lands act. The Mamlatdar has considered the written reply dated 19-8-1969 filed by Shri prabhatsang Nathubhai stating that the suit properties were of his ownership and that his name has been mentioned as owner in the copy of the list of the Panchayat property Tax Assessment, wherein Kodh (byre) wada-enclosure have been mentioned. The Mamlatdar has also observed that it was not the claim of Prabhatsang nathubhai that construction work had been done either by him or by his ancestors. Reference has been made to the evidence dated 3-5-1970 and the say of Shri prabhatsang Nathubhai has been found to be contradictory because he had stated that first of all the village site land was given and later on his ancestors constructed the houses and on the other hand he has claimed the ownership. The Mamlatdar has also recorded that formerly there were two courts - cow-peu (byre) and dhalia (slope ). The wada enclosure land of plot Nos. 12 and 13 was not without a vandhi and the partition of wada (enclosure) was same ever since he attained the understanding. According to the Mamlatdar this witness meant that there was Wada with a builtwall running round the compound. He has then considered that ancestors had built the house. The wada enclosure land of plot Nos. 12 and 13 was not without a vandhi and the partition of wada (enclosure) was same ever since he attained the understanding. According to the Mamlatdar this witness meant that there was Wada with a builtwall running round the compound. He has then considered that ancestors had built the house. However, the Mamlatdar has found that no proof had been produced in support of these depositions. While referring to statement of Mavsang Gaga it has been mentioned by Mamlatdar that this witness had clearly agreed that the suit properties of the residential houses were separate ones. The Mamlatdar has then referred to documentary evidence/proof said to have been produced by the original plaintiff according to which Nathu Mansang had executed the tenancy lease deed describing that the houses, Kodhs byre, wadas (enclosures) had been given only to live in. The Mamlatdar has found that the suit property had been given as open land and nothing had been described as constructed houses thereon by the original defendant or his ancestors. Had it been an open land the ganotpatta ought to have been executed for the waste land. Had the said construction work been done either by the original defendant or his ancestors, Mavsang Gaga would not have put his signatures in the ganotpatta showing contradictory description. It was, therefore, held that the original defendant had no personal knowledge in connection with the position of the original construction work of the suit property. On this basis the fact stated in the tenancy lease deed should be accepted to be correct. On the premises as aforesaid, the statement of the original defendant was not accepted and the suit properties with the description of its standing structure as described in the tenancy agreement has been found to be given for taking in the use of the residential and agricultural purposes at that time and the condition was to return the same on the expiry of the period of the tenancy agreement. The Mamlatdar has thus held that the suit property was not the property intended for the residential use and it has been found that the original plaintiff had produced documentary evidence in respect of his ownership and therefore, as the dispute is about ownership and that the original defendant had failed to prove the construction work, the Mamlatdar has held that the property is not included within the meaning of definition of land under Sec. 2 (8) (b) of the Tenancy Act and the matter connected with the residential house occupied by tenant-agriculturist to be of his and therefore, the suit property which is the subject-matter of civil suit has been found to be not covered by clause (b) of Sec. 2 (8) of the Tenancy Act. ( 12 ) I have considered the material and the evidence which had been made use of by the Mamlatdar and have also gone through the order passed by the Deputy collector on 30-12-1970 and further order passed in the Revision Application by gujarat Revenue Tribunal as also the order dated 25-10-1989 passed by the Supreme court. Under Sec. 2 (8) (b) of the Bombay Tenancy and Agricultural Lands Act, 1948 the land means the sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses. Under Sec. 2 (8) (b) (ii) the sites of structures used by agriculturists for allied pursuits also mean land. In this context I have considered the averments with regard to the suit properties as have been read over before this Court by Mr. Vyas from the xerox copy of the plaint. According to the plain language of S. 2 (8) (b) (i) and 2 (8) (ii) it is not necessary that ownership in respect of such land is required to be established. The Mamlatdar has appreciated the whole case as if the ownership was required to be established. Section 2 (8) (b) takes within its sweep not only dwelling houses occupied by the agriculturists, agricultural labourers or artisans and the land appurtenant to such dwelling houses but also sites of structures used by agriculturists for allied pursuits. Therefore, even sites of the dwelling houses which are occupied would fall within the term "land". What is required is that it must be occupied, notwithstanding the fact whether it is owned or not. Therefore, even sites of the dwelling houses which are occupied would fall within the term "land". What is required is that it must be occupied, notwithstanding the fact whether it is owned or not. Not only this, even land appurtenant to such dwelling houses are included within the definition of land and the sites of any structure used by agriculturists for allied pursuits is covered by definition of land. In this context even if the consideration which prevailed with the mamlatdar is taken to be correct it would not exclude the suit properties from the definition of land as given in S. 2 (8) (b) (i) and (ii ). I find that precisely the issue which was referred by Civil Judge (J. D.), Dhandhuka vide its order dated 4- 8-1965 was as to whether the suit properties were dwelling houses or sites of dwelling houses occupied by agriculturists or land falling within clause (b) of Sec. 2 (8) of the Bombay Tenancy Act. In view of the very language of the reference even if what is exactly called dwelling house as pointed out by Mr. Vyas are excluded, sites of dwelling houses are very much there. According to the averment made in the plaint and the fact that such sites of the dwelling houses are occupied by agriculturists or agricultural labourers or artisans, the suit property also covers land appurtenant to such dwelling house. Since reference is with regard to Sec. 2 (8) (b) as a whole, clause (ii) of this Sec. 2 (8) (b) cannot be ignored and this clause also includes the sites of structures used by agriculturists for allied pursuits. In the facts of the present case it has to be agreed on all hands that sites of dwelling houses are occupied by agriculturists or agricultural labourers and the dispute is about the land appurtenant to such dwelling houses as also sites of structures used by agriculturists for allied pursuits. In this view of the matter, the material and the evidence which has been considered by the Mamlatdar as has been narrated hereinabove in the earlier part of this order could hardly be sufficient to exclude the land in question from the definition of the land as given in the Bombay Tenancy and Agricultural Lands Act, 1948. In this view of the matter, the material and the evidence which has been considered by the Mamlatdar as has been narrated hereinabove in the earlier part of this order could hardly be sufficient to exclude the land in question from the definition of the land as given in the Bombay Tenancy and Agricultural Lands Act, 1948. While dealing with the Mamlatdars order dated 4-5-1970, Deputy Collector in his order dated 30-12-1970 has rightly held that wadas used for keeping cattles or storing products etc. , are also covered by Sec. 2 (8) (b) (i) of the said Act, as they are the things belonging to an agriculturist. Deputy Collector has also rightly held that the Mamlatdar and A. L. T. had erred in holding that tenant was required to prove that dwelling houses include wadas. The question raised in the civil suit was with regard to the eviction of the agriculturists from the sites of dwelling houses occupied by them and the site of structures used by agriculturist for allied pursuits. In case such a tenant is to be evicted through decree of a civil court the landlord has to prove his case as required under Sec. 102 of the Evidence act and therefore, the burden of proof was on landlord and not the tenant. The Court thus finds that the suit properties certainly includes sites of dwelling houses occupied by agriculturists and the sites of structures used by agriculturists for allied pursuits and therefore, even if reasoning as had been given by the Mamlatdar is assumed to be correct the suit property is found to be covered by word "land" as defined in the tenancy under the Bombay Tenancy and Agricultural Lands Act, and therefore, under Sec. 85, the Civil Court has no jurisdiction to settle, decide or deal with any question which by or under this Act is required to be settled, decided or dealt with by the Mamlatdar because according to Sec. 70 of the Act, these matters are required to be dealt with by the Mamlatdar. On a reading of the provision of Sec. 2 (8) (b), sec. On a reading of the provision of Sec. 2 (8) (b), sec. 70 and Sec. 85 of the Act, it is clear that the impugned order passed by the mamlatdar on 4-5-1970 was wrong and the question referred to by the Civil Court is to be answered in the terms that the suit properties are sites of dwelling houses occupied by agriculturists etc. and/or the sites of structures used by agriculturists for allied pursuits within the meaning of clause (b) of Sec. 2 (8 ). ( 13 ) UPSHOT of the adjudication as aforesaid is that, the order passed by the mamlatdar and A. L. T. No. 2, Dhandhuka on 4-5-1970 in the matter of Khata No. 85/11/70 cannot be sustained and the same is set aside and there is nothing wrong with the conclusion arrived at by Deputy Collector while deciding Tenancy Appeal nos. 182 of 1970 to 219 of 1970 and 165 of 1970 on 30-12-1970 as also the impugned orders passed by the Gujarat Revenue Tribunal while deciding Revision application No. TEN. 234 of 1971 to 248 of 1971 on 29-11-1971. Accordingly, this court does not find any substance in the present Special Civil Application, the same is hereby dismissed and the Rule is hereby discharged. Interim orders if any shall stand automatically vacated. .