1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa SECOND APPEAL NO. 666 OF 2007 Vinayak Pralhad Vhale .. Appellant (Org. Defendant No. 1) VERSUS 1) Guruba Shankar Gade .. Respondents (Since deceased through his LR’s) .... Mr. T. D. Deshmukh for the Appellant. Mr. G. M. Savagave for Respondent Nos. 1 A to 1D. .... CORAM : R. G. KETKAR, J. DATE : JUNE 8, 2010. P.C.:­ This Second Appeal is preferred by the original Defendant No. 1 challenging the Judgment and decree dated 14th June, 2007 passed by the learned District Judge­ 1, Solapur in Regular Civil Appeal No. 392 of 2002 arising from the Judgment and decree dated 16th August, 2002 passed by the learned Civil Judge, Junior Division, Barshi in Regular Civil Suit No. 459 of 1984. 2 2. By these Judgment, the Courts below decreed the suit instituted by the Respondent No.1 (hereinafter referred as Plaintiffs) and directed the Appellant (hereinafter referred as original Defendant No. 1) to hand over the peaceful possession of the land admeasuring 3H 69R out of Gat No. 2 situate at village Shelgaon (Vhale), Taluka ­ Barshi, District ­ Solapur to the Plaintiffs, within two months from the date of the said order. 3. The case of the Plaintiffs is that Gat No. 2 admeasuring 8H 70R was owned by one Kulkarni. Out of the said land, the original Plaintiff Guruba Gade and Defendant No.2 Yedba, his real brother purchased the northern 2 Hector portion by a registered sale deed dated 10th April, 1970 from one Mahadeo Vhale. Subsequently, said Guruba purchased 1H 21R adjacent to the aforesaid northern 2 Hector land from said Mahadeo Vhale by a registered sale deed dated 11th October, 1971. Thereafter, by registered sale deed dated 7th November, 1974, Guruba purchased 1H 48R land adjacent to the aforesaid 1H 21R from said Mahadeo Vhale. It is his further case that the partition was effected between the original Plaintiff and Defendant No. 2 Yedba, under which Defendant No. 2 received the northern 1H land and the 3 original Plaintiff received remaining 1H land out of the said southern 2H land. The original Plaintiff Guruba had exclusively purchased 1H 21R under the registered sale deed dated 11th October, 1971 and further had exclusively purchased 1H 48R by the registered sale deed dated 7th November, 1974. Thus, it is the case of the original Plaintiff that after the partition of 1971, the Defendant No.1 had no right, title and interest in respect of 3H 69R. The Defendant No. 1 claimed tenancy on the basis of the Batai Patra dated 23rd March, 1978 executed by the Defendant No.2. 4. Parties adduced oral as well as documentary evidence and considering the material on record, the Courts below decreed the suit. It is against these Judgments, the Defendant No. 1 has preferred this Second Appeal. 5. I have heard Mr. Deshmukh, learned counsel for the Appellant and Mr. Savagave, learned counsel for the Respondent Nos. 1A to 1D, heirs and legal representatives of the original Plaintiff at length. 4 6. Mr. Deshmukh, submitted that the Courts below failed to appreciate that the Defendant No. 1 is a deemed tenant as per section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short hereinafter referred as the Act). The Defendant No. 1 is lawfully cultivating the land belonging to the Plaintiff and Defendant No.1 and the said land is not cultivated personally by the owners. He submitted that Defendant No.1 does not fall in any of the categories (a), (b) and (c) of section 4 of the Act. Relying upon the Judgment of the Apex Court in the case of Bhimaji Shankar Kulkarni V/s. Dundappa Vithappa Udapudi & Anr. AIR 1966 Supreme Court 166, he submitted that the question whether Defendant No.1 is a tenant or not must be referred to the Tenancy Authorities under the said Act. Civil Court has no jurisdiction to entertain and try a suit for possession of an agricultural land against the tenant. In particular, he relied upon paragraph 7 of the said Judgment. Since there is relationship of landlord and tenant between the Plaintiff and Defendant No.1, the Plaintiff has to initiate the proceedings by making an application to Mamlatdar for possession of agricultural land. He also submitted that the Batai Patra was executed on 23rd March, 1978 and the present suit is instituted on 19th 5 September, 1984. Since the Defendant No. 1 is lawfully cultivating the land, the decree passed by the Courts below are liable to be set aside. 7. On the other hand, Shri Savagave, learned counsel for the Respondent Nos. 1A to 1D supported the impugned Judgments. 8. It is not in dispute that the original Plaintiff and Defendant No.2 Yedba jointly purchased 2H out of 8H 70R from one Mahadeo Vhale under the registered sale deed dated 10th April, 1970. At the time of Gudi Padva of the year 1971, there was partition between original Plaintiff Guruba and Defendant No. 2 Yedba. Guruba received 1 Hector from southern side and the Defendant No.2 received 1 Hector from the northern side. The original Plaintiff Guruba thereafter exclusively purchased 1H 28R from said Mahadeo Vhale under the registered sale deed dated 11th October, 1971. Subsequently, the Original Plaintiff Guruba exclusively purchased 1H 48R under the registered sale deed dated 7th November, 1974. Thus, after the partition of 1971, the acquisitions were made by the original Plaintiff to the exclusion of 6 Defendant No.2. In these circumstances, the Defendant No.2 had no authority to execute the Batai Patra in respect of the lands of the original Plaintiffs (1H in partition of 1971 plus 2H 69R total 3H 69R) if that be so, it cannot be said that there is relationship of land lord and tenant between original Plaintiffs and Defendant No.1. It also cannot be said that the original Defendant No.1 was lawfully cultivating the land to the extent of 3H 69R of the original Plaintiff. The Courts below after appreciation of material on record rightly came to the conclusion that the Defendant No.2 was not justified in executing the Batai Patra in respect of the lands of the original Plaintiff. I do not find that any substantial question of law are arising in the present Second Appeal. Hence, the Second Appeal dismissed with no order as to costs. 9. In view of the dismissal of the Second Appeal, no orders are required in the Civil Application No. 1213 of 2007 and the same is, accordingly, dismissed. 10. Mr. Deshmukh, learned counsel for the Appellant seeks stay of this order for a period of six weeks. Mr. Savagave, learned counsel for the Respondent No. 1A to 1D opposes this 7 Application. It is the matter of record that the Batai Patra was executed on 23rd March, 1978 and Plaintiffs instituted the suit on 19th September, 1984. Considering the fact that the Defendant No. 1 is in possession, in the interest of justice, the operation of the present order is stayed for a period six weeks from today. [ R. G. KETKAR, J. ]