1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6398 OF 2009 Smt. Ranjana Kashinath Shinde & Ors. .. Petitioners Vs Shri Govind Laxman Rajendra & Ors. .. Respondents -- Shri H.J. Venegavkar for the Petitioners. Shri Girish R. Agrawal for Respondent Nos.1 to 3. -- CORAM : A.S.OKA, J. DATE : 8th January 2010. P.C: Heard learned counsel appearing for the Petitioners and the Respondents. 2. The challenge in this Petition under Article 227 of the Constitution of India is to an order dated 30th January, 2009 passed by the trial Court by which the application made by the Petitioners under Section 85(A) of the Bombay Tenancy & Agricultural Lands Act, 1948 ( hereinafter referred to as “the said Act”) has been rejected. It must be stated here that earlier the said application was disposed of. By an order dated 4th June, 2007, this Court remanded the Application for a fresh hearing. By the impugned order, the said Application has been rejected on the ground that the issue of tenancy has been 2 decided in favour of the Respondents by the Competent Revenue Authorities. 3. The learned counsel appearing for the Petitioners submitted that the impugned order is based only on the orders passed by the Revenue Authorities. He submitted that the trial Court has proceeded on the assumption that there is a valid order of surrender under Section 29 of the said Act. He submitted that in view of Section 29 of the said Act, the exclusive jurisdiction to decide the issue regarding validity of surrender is conferred on the Tribunal constituted under the said Act and for deciding the said issue, a reference was necessary. The learned counsel appearing of the original Plaintiffs invited my attention to the documents annexed to the Reply which form part of the record of the trial Court. He invited my attention to the Order of Surrender dated 12th August, 1955 passed by the Mamlatdar, Nasik, in exercise of powers under the Section 5 read with Section 29 of the said Act. 4. I have given careful consideration to the submissions. The settled law is that the order of reference cannot be passed mechanically and the Court has to examine the material on record in support of the plea of the tenancy. 5. In Paragraph 10 of the Written Statement, the Petitioners have stated that the suit land was in possession of their ancestors as agricultural tenants. It is contended by the Petitioner that the original 1st and 2nd Plaintiffs represented to the predecessors of the Petitioners that the sale under the provisions of the said Act will take a considerable long time and therefore, the 3 predecessors of the Petitioners should return the land to the Plaintiffs and thereafter the Plaintiffs would sell the suit land to the predecessors of the Petitioners. It is alleged that relying upon the representation made, in the year 1955, a paper possession was handed over by the predecessors of the Petitioners to the 1st and 2nd plaintiffs but the actual possession was not handed over. It is stated that thereafter from time to time, portions of the suit properties were sold by the Plaintiffs. 6. In the Application made at Exhibit-17 for reference, a contention has been raised that on the tillers day, the suit land was in possession of the predecessors of the Petitioners and therefore, they have become the deemed purchasers. 7. I have considered the submissions. It appears that an Application was made by the Plaintiffs under Section 29 of the said Act for possession of the suit lands. A statement of the predecessor of the Petitioners by the name Amruta Shinde was recorded in which he offered to surrender the suit land on the ground that he does not need the suit lands. An order was passed under Section 5 read with Section 29 of the said Act on 12th August, 1955 by the Mamlatdar, Nasik, recording that the surrender was voluntary and, therefore, the possession should be handed over to the landlords. A copy of possession receipt has also been produced on record. There is a mutation entry made in respect of the said surrender in August, 1956. There is no challenge to the aforesaid order by the Petitioners or their predecessors. The said order has 4 attained finality. 8. Now, the contention of the Petitioners is that the Tribunal under the said Act will have to examine the validity of the surrender. That contention is completely contrary to the pleadings in the Written Statement and, therefore, there is no foundation to the plea of tenancy and, therefore, the order of reference could not have been made. 9. It must be noted that the impugned order is not happily worded. There is already an order of remand by this Court in the past. In view of the proceedings under Section 29 of the said Act, it is very difficult to find fault with the ultimate order of refusal of reference. There is no merit in the Petition and the same is rejected. (A.S.OKA,J)