1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6962 OF 1999 1. Yashwant Bapu Rakshe (Parit) ..Petitioners Aged about 56 years 2. Ramchandra Bapu Rakshe (Parit) Aged about 44 years 3. Laxman Bapu Rakshe (Parit) Aged about 37 years Occupation of all ­ Agriculturists, residing At & Post : Tupari, Tal. Tasgaon District : Sangli. V/s. 1. Zanak Parshram Rakshe (Parit) ..Respondents Aged 38 years 2. Manik Parshram Rakshe (Parit) Aged 35 years 3. Smt. Shantabai Pandurang Rakshe (Parit) Aged 65 years 4. Dilip Pandurang Rakshe (Parit) Aged 40 years 5. Balasaheb Pandurang Rakshe (Parit) Aged 37 years 6. Anil Pandurang Rakshe (Parit) Aged 36 years 7. Bajirao Pandurang Rakshe (Parit) Aged 35 years 2 8. Vilas Kaka Rakshe (Parit) Aged 48 years 9. Ranjan Kaka Rakshe (Parit) Aged 40 years 10. Smt. Radhabai Kaka Rakshe (Parit) Aged 67 years Occupation of all : Agriculturists, residing At & Post : Tupari, Tal. Tasgaon Dist : Sangli. Mr.S.R.Page, Advocate, for the Petitioners Ms.Shubhangi Kadam i/b.Mr.S.G.Deshmukh, Advocate, for the Respondent Nos.1, 2 & 4 to 11 CORAM : A.S.OKA, J. DATE : 19TH APRIL, 2010 JUDGMENT . Heard the learned Counsel appearing for the Petitioners and the learned Counsel appearing for the Respondents. The present Petitioners are the original Defendants. The present Respondents are the original Plaintiffs. By this Writ Petition under Article 227 of the Constitution of India, the Petitioners have taken an exception to the Order dated 21st October, 1999 passed by the learned Trial Judge by which an issue on the basis of a plea of tenancy was framed and the same has been referred under Section 85A of 3 the Bombay Tenancy And Agricultural Lands Act, 1948 (hereinafter referred to as “the said Act”). 2. A Suit for possession and injunction was filed by the Respondents in respect of Agricultural land more particularly described in paragraph 1 of the plaint. The prayer in the Suit was for partition and separate possession of 3/4th share of the Respondents. An allegation in the plaint is that the landlord of the Suit land had granted tenancy in respect of the Suit land to the ancestors of the parties to the Suit for cultivation. It is alleged that name of the father of the original Defendants (Petitioners) was mutated in Revenue Record as a protected tenant. It is alleged that name of the father of the Petitioners appeared in the revenue record in his capacity as Karta of the joint family. It is alleged that the sale of the Suit property was effected under the said Act in the name of the father of the Petitioners as he was the head of the family. A Written Statement was filed by the Petitioners contesting claim of the Respondents. In paragraph 18 of the Written Statement, the Petitioners denied the allegation that 50 years prior to the date of the institution of the Suit, the landlord had let out the Suit 4 land to the predecessors/ancestors of the parties. In paragraph 19 of the Written Statement, it was contended that the father of the Petitioners had taken the Suit land personally from the landlord and he was cultivating the Suit land as agricultural tenant thereof in his personal capacity. It was contended that there is a Sale effected by the landlord in favour of the father of the Petitioners. 3. The learned Counsel appearing for the Petitioners invited my attention to the pleadings and he submitted that the issue of tenancy does not arise in as much as the Respondents/Plaintiffs will have to prove the title as claimed by them. He submitted that there is no foundation in the form of documentary evidence to the case made out by the Respondents in a plaint that the father of the Petitioners was holding the Suit land on behalf of the family as agricultural tenant in his capacity as the head of the Joint family. He submitted that only on the basis of bald assertions made in the plaint, an Order of reference could not have been passed. He submitted that in fact, the issue of tenancy does not arise. 5 4. I have given careful consideration to the submissions. The specific case of the Respondents in the plaint is that the suit agricultural land was let out to the family of the parties 50 years prior to the institution of the Suit. Further case is that the entry of the name of the father of the Petitioners was made in the Revenue Record as a protected tenant in his capacity as Karta of the joint family. In the Written Statement and in particular paragraph 19 thereof, a specific contention has been raised by the Petitioners that the Suit land was let out by the landlord to their father Bapu in his individual capacity and he was in possession of the Suit land as protected tenant thereof till there was a direct Sale of the Suit land in favour of the said Bapu by the landlord. The issue which is framed under the impugned Order reads thus :­ “Whether the joint family of Krishna and his sons namely Bapu, Parshuram, Pandurang and Kaka were in possession of the father of defendants namely Bapu Krishna Rakshe was in possession as tenant in his individual capacity of the suit property Gat no. 231 situated at mouje – Tupari, Tal. Tasgaon, Dist. Sangli ? “ It is an admitted position that name of the father of the Petitioners appeared in the Revenue Record in respect of the 6 Suit land as protected tenant. The only issue is whether he was holding the Suit land in his individual capacity or in his capacity as the Karta of the joint family. Even the said controversy can be decided only by the Agricultural Lands Tribunal constituted under the said Act. In the circumstances, it cannot be said that the issue which is raised by the Trial Court under the impugned Order does not arise. In fact, the issue squarely arises. It is the only Tribunal under the said Act which has exclusive jurisdiction to try the said issue. 5. In the circumstances no fault can be found with the impugned Order. Hence, I proceed to pass the following order. (i) Writ Petition is rejected. (ii) Rule is discharged with no orders as to costs. (iii) The concerned Agricultural Lands Tribunal will decide the issue as expeditiously as possible and in any event, within a period of six months from the date on which a certified copy of this Order is produced before the Tribunal. (iv) All contentions of the parties are expressly kept open. (A.S.OKA, J.) 7