* 1 * W.P.- 9547.2003 24.9.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9547 OF 2003 Vishwanath Laloo Rathod ...... Petitioner V/S. 1. Kushaba Revappa Salgar 2. Smt. Mahabubi Abdul Shaikh Since deceased through her legal heirs 2A] Abdul Latif Abdul Wahas Shaikh 2B] Salim Abdul Wahab Shaikh .........Respondents [Orig.Plaintiff and Defendant no.1 resp] * * * * * * Mr. T.D. Deshmukh, Advocate for the petitioner. Mr. R.S. Alange, Advocate for the respondent no.1. Coram : Smt. R.P. SondurBaldota, J. 24 September, 2010. P.C. : 1. This petition is filed under Article 227 of Constitution of Indian for quashing of the order dated 6th January, 1997 passed by the Vth Joint Civil Judge Senior Division, Solapur on the two * 2 * W.P.- 9547.2003 24.9.2010 applications filed by the parties to the suit. The application at Exhibit-150 was filed by respondent no.1 who is the original plaintiff. The application at Exhibit-153 is filed by the petitioner-original defendant no.2 to the suit. Respondent no.1 to the petition filed Special Civil Suit No.89 of 1991 against original respondent no.2 herein (who is since deceased and is substituted by heirs) and the petitioner seeking the following reliefs. (i). “ That the plaintiffs suit be decreed with costs. (ii). That decree for specific performance be kindly passed and the defendants be directed to execute the sale deed in favour of the plaintiff. (iii). That the perpetual injunction be kindly granted restraining the defendant from bringing interference into the peaceful possession of the plaintiff and not to get the same of the defendant no.2 recorded into the Record of Rights. (iv). That the damages of Rs.40,000/- be kindly awarded and the interest at the rate of 24% be kindly granted from the date of suit until recovery and the charge of the amount be kept upon the suit property. (v). That it may kindly be declared that the plaintiff is also a tenant as per the Agreement dated 12.3.85 and is entitled to purchase the land. * 3 * W.P.- 9547.2003 24.9.2010 (vi). That the costs be awarded. (vii). Any just and equitable orders be kindly passed.” 2. The averments in the plaint in support of the prayers are that respondent no.1 was an agricultural tenant in respect of the land at Gat No.36 and as such had been cultivating the same. His name however had not been recorded in the record of rights as original respondent no.2 (defendant no.1 to the suit ) desired to sell the land to respondent no.1 for the consideration of Rs. 80,000/-. It is claimed that respondent no.1 and original respondent no.2 were advised in order to avoid complications at the time of registration of sale-deed, to execute two separate sale deeds at different times, each for sale of half portion of the land. Accordingly, on 12th March 1985 sale-deed in respect of the land admeasuring 2 hectares located towards the northern side of Gat No.36 for consideration of Rs.40,000/- was executed. According to respondent no.1 on the same day, an agreement of sale in respect of the balance half portion towards the southern side was executed by original respondent no.2, the consideration under * 4 * W.P.- 9547.2003 24.9.2010 which was of Rs.40,000/-. However, respondent no.1 continued to be in possession of the entire land, of the northern portion as the owner and the southern portion as the agricultural tenant. Later, he learnt that the petitioner and original respondent no.2 conspired to deprive him of the land on the southern side. Original respondent no.2 executed a registered sale-deed dated 8th February, 1991 in respect of the southern portion of the land in favour of the petitioner. Though the plaint contains complete information as regards the transaction of sale between the petitioner and original respondent no.2 and the objection of respondent no.1 thereto, there in no prayer in plaint to challenge the transaction of sale in favour of the petitioner. Instead there is a prayer at clause-5 seeking declaration of the tenancy in respect of the southern portion of the land. 3. The trial court had framed issues arising between the parties for proceeding with the trial in the suit. Thereafter, the petitioner filed the application at Exhibit-153 submitting that the relief of declaration of tenancy in the suit is not tenable as the civil court cannot grant the relief. The petitioner therefore * 5 * W.P.- 9547.2003 24.9.2010 applied for deletion of the issue relating to the claim of tenancy made by respondent no.1. There was another application filed being Exhibit-150 by respondent no.1 praying that the issue regarding his tenancy be framed and the matter be send to the Tahsildar, Taluka-Solapur for finding as per Section 85(a) of the Bombay Tenancy and Agricultural Act. 4. The trial court by the impugned order allowed the application filed by respondent no.1 and dismissed the application filed by the petitioner holding that respondent no.1 is not only claiming a relief of specific performance of the contract but also a declaration that he is the tenant of the suit/agricultural land. It therefore referred Issue no.2 to competent authority for decision. 5. Perusal of the plaint shows that the suit filed by respondent no.1 is essentially for specific performance of the agreement for sale dated 12th March, 1985 executed by original respondent no.2. The averments therein as regards the agricultural tenancy are made only to justify the possession of the property agreed to be sold. In addition, respondent no.1 seeks to contend that being an * 6 * W.P.- 9547.2003 24.9.2010 agricultural tenant of the property, he alone is entitled to purchase the same. A prayer seeking a declaration, that respondent no.1 is entitled to purchase the land as an agricultural tenant is obviously misconceived. In the same suit, respondent no.1 could not have sought declaration of his title to the land, as well as, declaration of tenancy rights in respect of the land. He cannot claim to be the owner, as well as, the tenant in respect of the property. Therefore, there can be no issue as regards the agricultural tenancy. Therefore, the trial court was not right in rejecting the application of the petitioner for deletion of the issue relating to the claim of tenancy and granting the application of respondent no.1 for sending the issue of tenancy for decision to the Tahsildar under the provisions of the Bombay Tenancy and Agricultural Lands Act. In the circumstances, the petition is allowed in terms of prayer clause (b). The parties to appear before the trial court on 25th October, 2010. [SMT. R.P. SONDURBALDOTA, J] * 7 * W.P.- 9547.2003 24.9.2010