1 wp 5653.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5653 OF 2011 1. Sk. Mohsin S/o Sk. Yaseen, Age : 53 Years, Occu. : Service & Agril., R/o Sillod, Tq. Sillod, Dist. Aurangabad. 2. Sk. Moin S/o Sk. Yaseen, Age : 61 Years, Occu. : Agril., R/o Sillod, Tq. Sillod, Dist. Aurangabad. 3. Sk. Mateen S/o Sk. Yaseen, Age : 48 Years, Occu. : Agril., R/o Sillod, Tq. Sillod, Dist. Aurangabad. 4. Sk. Mobin S/o Sk. Yaseen, Age : 45 Years, Occu. : Agril., R/o Sillod, Tq. Sillod, Dist. Aurangabad. 5. Sk. Mushtak S/o Sk. Haneef, Age : 48 Years, Occu. : Agril., R/o Sillod, Tq. Sillod, Dist. Aurangabad. 6. Sk. Ismail S/o Sk. Haneef, Age : 45 Years, Occu. : Agril., R/o Sillod, Tq. Sillod, Dist. Aurangabad. .. .. Petitioners 2 wp 5653.11 Versus 1. Ashok S/o Kishan Mirge, Age : 45 Years, Occu. : Agril., R/o Warud (Kh), Tq. Sillod, Dist. Aurangabad. 2. Sitahari S/o Bhagaji Mirge, Age : 48 Years, Occu. : Agril., R/o Warud (Kh), Tq. Sillod, Dist. Aurangabad. 3. Manikrao S/o Ranuba Mirge, Age : 47 Years, Occu. : Agril., R/o Warud (Kh), Tq. Sillod, Dist. Aurangabad. 4. Bapurao S/o Bhagaji Mirge, Age : 33 Years, Occu. : Agril., R/o Warud (Kh), Tq. Sillod, Dist. Aurangabad. .. .. Respondents Shri A. D. Kasaliwad, Advocate for Petitioners. Shri D. P. Palodkar, Advocate for Respondent Nos. 1 to 4. CORAM : S. V. GANGAPURWALA, J. DATE : 13TH OCTOBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 3 wp 5653.11 2. The present petitioners are the original plaintiffs, who have filed suit for retention of possession and injunction. Thereafter, during the pendency of suit, petitioners filed an application for amendment seeking relief of possession. The respondents/defendants appeared and resisted the suit of the petitioners. During the pendency of the suit, the respondents filed an application Exhibit 47 for framing an additional issue. The Trial Court allowed the said application. Aggrieved thereby the the petitioners have filed present writ petition. 3. Shri Kasliwal, the learned counsel for the petitioners contends that the issue about tenancy of Bhika Totaram is no longer res-integra in view of the dictum of this Court in Second Appeal No. 61/1988 which was arising out of R.C.S. No. 73/1970 in which the issue of tenancy was referred to the tenancy Court. In view of the decision of this Court, now again in the present suit the said issue cannot be gone into. According to the learned counsel the said aspect has not been considered by the Court. The learned counsel further contends that the issue referring to tenancy court in earlier case was in respect of the total land, but the said documents were not before the Trial Court. 4. Shri Palodkar, the learned counsel for respondents submits 4 wp 5653.11 that, perusal of the judgment of this Court in Second Appeal No. 61/1988, it would be clear that the present suit land to the extent of 4 Acres 24 Gunthas was not the subject matter in the said second appeal. As such, the judgment delivered by this Court in Second Appeal No. 61/1988 would be of no avail. The learned counsel further contends that the plaint and the decision of the revenue authorities was not before the Court and even if same issue is collateral in the earlier proceedings, the same may not amount to res-integra and issue is required to be framed. 5. The Court while passing the impugned order has not at all taken into consideration the efficacy of the judgment of this Court delivered in Second Appeal No. 61/1988, wherein the predecessor of the present respondents were parties and the issue of their tenancy was also involved. The Trial Court was expected to consider the relevancy of said judgment with the present dispute. 6. The other documents are also sought to be produced regarding the judgment and orders passed by the Tenancy Court. It would be appropriate for the parties to produce the same before the Trial Court. 5 wp 5653.11 7. In the light of the above, the impugned order is quashed and set aside and the Trial Court shall decide the application Exhibit 47 afresh. The parties are at liberty to file the judgment on which they place their reliance and after hearing the respective parties, the Trial Court shall decide the Exhibit 47 on its own merits. Rule is accordingly made absolute in above terms, however, with no order as to costs. 8. Needless to state that, the observations are meant only for the decision of the present petition. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Oct. 11