KBP 2645-07.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2645 OF 2007 WITH WRIT PETITION NO.2646 OF 2007 Smt.Savitribai Bapu Karanjkar and ors. ..Petitioners (in both the petitions) Vs. Mahadu Ramchandra Dhondge and ors. ..Respondents (in both the petitions) ........ Mr.Kishor Patil i/b.Mr.P.N.Joshi, for petitioners. Mr.P.B.Shah, for respondent Nos.1 to 3. ......... CORAM : A.S.OKA, J.. DATE : 9 th SEPTEMBER, 2009. P.C. : 1] The submissions of the learned counsel were heard on earlier date. These petitions can be disposed of by a common order. 2] The petitioners are the original defendants and respondents are the original plaintiffs. The respondents filed a suit against the petitioners relating to the land survey nos.93/11 and 93/12 situated at village Bhagur, Taluka and District Nashik. The suit is for possession. In the suit it is contended that under the agreement dated 20 th June 1979 the petitioners have been placed in possession of the suit land. It is contended that the petitioners had issued notice to the respondents in the year 1995 calling upon them to execute a KBP 2645-07.sxw 2 conveyance. The respondents declined to execute the conveyance but, thereafter, no steps have been taken by the petitioners. The petitioners contested the suit by filing a written statement. The petitioners contended that the respondents were never in possession of the suit land and the same was in possession of their ancestor Ganpat from year 1957-58 as an agricultural tenant. Issues were framed by the trial court. After amendment was carried out on 3 rd September, 2004, additional issue was framed on the plea of tenancy of the petitioners. The petitioners made an application before the trial Court for referring the issue of tenancy to the Tribunal under the Bombay Tenancy and Agricultural Lands Act, 1948. By order dated 4 th April, 2006, the said application was rejected on the ground that only bald allegations have been made in the written statement of the petitioners without mentioning the terms and conditions of the tenancy. The petitioners made an application for review of the said order and by order dated 31 st July, 2007, the application for review was rejected. Thereafter, on 31 st January, 2007 the trial court deleted the issue of tenancy. Writ Petition No.2645 of 2007 has been filed impugning the order by which the prayer for making a reference to the tribunal was rejected. Writ Petition No.2646 of 2007 is filed for challenging the deletion of issue of tenancy. 3] Learned counsel for the petitioners submitted that the plea of tenancy raised by the petitioners was on the basis of consistent revenue record. He KBP 2645-07.sxw 3 submitted that the detailed averments regarding transmission of tenancy have been set out in the written statement, and therefore, the plea of tenancy was not a bald plea as held by the trial Court. The learned counsel for the respondents submitted that only because the plea of tenancy is raised, the issue cannot be framed and remitted to the tribunal. He submitted that as there is absolutely no basis for plea of tenancy, the courts below were right in passing the impugned orders. 4] I have carefully considered the submissions. In paragraph 12 of the written statement of the petitioner, it is contended that from the year 1957-1958, the suit lands were in possession of One Ganpat Karanjkar as agricultural tenant. Accordingly, an entry has been made in the record of rights. It is contended that after the demise of Ganpat, the name of Balwant is shown in the revenue record as a protected tenant. The said Balwant continued to be a tenant till the year 1982. After the demise of Balwant, his sons Eknath, Vithoba, Bapu and Ramdas were in possession as tenants. It is pointed out that Eknath, Vithoba and Bapu are no more and the present petitioners are the legal representatives of Bapu. The revenue record shows that the name of Ganpat was appearing therein and by a mutation entry No. 5098 made in the year 1963, the names of heirs of Ganpat were mutated in the revenue records. Thus, there is a foundation for the plea of tenancy set up by the petitioners. The said plea of tenancy is prima facie supported by KBP 2645-07.sxw 4 the revenue record. The 7/12 extracts annexed to the petition show that in “other rights column” there is an entry of Balwant Ganpat Karanjkar as a tenant and name of second petitioner appears in cultivation column. In the circumstances, the trial court has committed an error. This was a case where the trial court ought to have referred the issue of tenancy to the Tribunal constituted under the said Act of 1948. 5] Hence, I pass the following order:- (a) The issue of tenancy framed by the trial court on 3 rd September, 2004 is restored. (b) The trial court shall refer the said issue of tenancy to the Tribunal constituted under the Bombay Tenancy and Agricultural Lands Act, 1948 for its decision. The Trial Court shall pass consequential orders. (c) It is made clear that the observations made in this judgment are only prima facie observations and the issue of tenancy will be decided by the concerned Tribunal on its own merits. (d) The writ petitions are allowed in above terms. ( A.S.OKA, J. )