1 SA 119.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 119 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. S.S.Choudhari,Advocate holding for Mr. V.M.Kagane, Advocate for the appellant. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 17/03/2011 PER COURT : 1. This is defendant’s Second Appeal. 2. The respondent had filed Suit for possession in respect of suit property. The trial Court decreed the Suit. The defendant preferred Appeal. The appellate Court dismissed Appeal confirming the judgment and decree passed by the trial Court. The defendant has assailed the said Judgment and decree in the present Second Appeal. 3. Mr. S.S. Choudhari, the learned counsel for the appellant strenuously contends that in fact the Civil Court did not have the jurisdiction to try and entertain the Suit under the provisions of Section 2 SA 119.2011 85-A of the Bombay Tenancy and Agricultural Lands Act [ For short, ‘ said Act ’ ]. The learned counsel further contends that as per Section 14 of the said Act, the tenancy is heritable and the present appellant would succeed as a tenant on the death of the original tenant. The learned counsel further contends that the plaintiff would not be entitled for the benefit of Section 88-B in view of the fact that the plaintiff has not proved that the entire income of said lands is utilized for the purpose of said Trust. The learned counsel contends that as per Section 14 of the said Act, the tenancy can be terminated for default of the tenant only on the grounds mentioned therein and in the manner detailed in the said provision. Lastly, the learned counsel submits that in view of Section 4-B of the said Act, the tenancy can not be terminated by efflux of time. According to the learned counsel, the Court below has not considered this aspect in correct perspective and thereby has arrived at erroneous conclusion. 4. With the assistance of the learned counsel, I have gone through the Judgments. The defendant has not pleaded nor there is anything to suggest in the pleading that the plaintiff has not utilized the income of the land for the benefit of the Trust nor such issue was raised before the Courts below. For 3 SA 119.2011 the first time in the Second Appeal, the same is agitated. The fact whether the total income from the land was applied to the Trust or not, is totally a factual matrix. The appellant would not be entitled to raise the same for the first time at the second appellate stage and that too without pleading. The arguments of Mr. S.S. Choudhari, the learned counsel that in view Section 14 of the said Act, the tenancy is heritable is not in consonance of the provisions of statute in as much as as per Section 88-B, the provisions of the said Act are exempted. The District Court has rightly relied on the Judgment of the Apex Court in the case of Shriram Mandir Sansthan @ Shriram Sansthan, Pusda V/s Vatsalabai and others reported in AIR 1999 Supreme Court – 520. When the tenancy itself can not be construed to be heritable, no question arises of even resorting to the provisions of Section 14 of the said Act, so also, the issue of jurisdiction as contended by the learned counsel taking aid of Section 85-A also would not be sustainable in as much as the said provision also would be exempted from the operation and the Civil Court shall have jurisdiction in view of Section 106 of the Transfer of Property Act. 5. The Courts below have taken into 4 SA 119.2011 consideration all these aspects and have arrived at correct conclusion. 6. In light of the above, the Second Appeal being sans substantial question of law, is dismissed however with no order as to costs. 7. In view of dismissal of Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 119.2011