1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 1371 0F 2010 *** Taramati W/o Shivdas Gaidwad Versus Digambar Gurudamu Bharti and others *** 1. Heard learned counsel for the Petitioner. Perused the order impugned, in this writ petition. 2. Petitioner is plaintiff in Regular Civil Suit NO.309 of 1993, pending in the Court of learned Civil Judge, Junior Division, Bhoom. Copy of the plaint is on record Annexure-A. Counsel for the petitioner took me to paragraph 2. In this para 2, it has been pleaded that the suit property was owned by one Mr. Damo Bharti. Damu Bharati is no more. Defendant NO.1 is disciple/ follower of Damu Bharati. At-least that is the claim of the petitioner that he is the disciple of Damu Bharati. Defendant No.2 according to the plaintiff is son of Damu Bharti. It is further contended by the plaintiff/ petitioner that deceased Damu Bharti had inducted husband of the present Petitioner Mr. Shivdas, his brother Vishwanath, Laxman and Pralhad as tenant, 40 years before. It was oral agreement of tenancy. Tenancy was on crop share basis. Since then, the property 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. was delivered in possession of husband of the present petitioner and his three brothers. Husband of the petitioner died. Petitioner does have two sons viz. Sunil and Balasaheb from deceased Shivdas. On behalf of the family of the Petitioner, this suit is filed by the petitioner. Petitioner/s husband and three brothers were cultivating the suit property on half crop share basis. It was oral agreement. In this suit, the decree is sought for declaration that the petitioner is having right to purchase the suit property preferentially of 1/4th share. A decree of perpetual injunction is sought against defendant Nos.1 and 2 that they shall not dispose of the property in favour of defendant Nos.3 and 4. Perpetual injunction is also sought against the defendants to the extent of alleged 1/4th share of the plaintiff and her alleged possession over that 1/4th share. This suit is filed on 10th November, 1993. 3. Defendants, after entering appearance, filed written statement. Issues had been framed by the trial Court in due course of time. Suit was listed for recording evidence and/ or hearing. Suit was dismissed in default. Petitioner/ plaintiff sought 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. restoration. The learned trial Court, after hearing the parties, restored the suit. On this back ground, present petitioner/ plaintiff filed an application at Exhibit-58, copy of which is at Annexure-D (Page 36) on record. This application is filed on 16th October, 2007. By this application, issue of tenancy is requested to be framed and reference thereof in view of section 99 of the Hyderabad Tenancy Act is sought. This application, after hearing the parties, is rejected by the trial Court. Said order is impugned in this writ petition. 4. The defendant No.2 has filed reply in the trial Court. Copy is on record. It is contended in the reply that prior to 14 years, suit is filed. Intention is only to procrastinate the litigation i.e. the suit. Contention that the suit property was given to husband and three brothers of the husband of the plaintiff on oral agreement of crop share basis is denied. Since about 40 years the land was not cultivated either by the husband of the petitioner or brothers of the husband of the petitioner. Claim of the petitioner that she does have preferential right is also denied. This reply is filed by the defendant No.2 on 26th October, 2007. 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 5. The trial Court, in para 5 of the order, has made a reference to the contention raised by the present petitioner/ plaintiff in the application Exhibit-58. Trial Court has referred to filing of written statement, framing of the issues. The trial Court also has obser4ved that the plaintiff has not filed any documentary evidence to show prima facie that she is having tenancy right over the disputed land. In the same paragraph, it has been observed by the trial Court that there is concrete pleading of the plaintiff particularly on which date or in which year her husband acquired tenancy rights. According to the trial Court, the petitioner has made vague allegations. In para 8, trial Court has observed, filing of the suit in the year 1993, framing of the issues Exhibit-25 on 30th September, 1996, dismissal of the suit, avoidance of leading evidence by the plaintiff and arrived at a conclusion that there is no substance and rejected the application. 6. Counsel for the Petitioner pointed out para 2 of the plaint i.e. pleading. He also points out page 48, copy of the 7/12 extract. In the cultivation column for the year 1960-61 name of four persons, including the 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. name of husband of the present petitioner, is mention. Mode of cultivation is shown as "4". 7. I have given due consideration to the submissions. I have also taken into account provision laid down under section 99 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, pleading raised by the plaintiff/ petitioner have been considered by me. Conduct of the plaintiff/ petitioner is taken into account. In my view, no cause for invoking extraordinary jurisdiction is established. Order impugned is legal, reasoned and proper. 8. Writ petition stands dismissed without any order as to costs. [S.B.DESHMUKH, J.] Dated:02/03/2010. ans/1371