1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 8252 OF 2009 Shri Chandraprabhu Digambar Jain Devsthan, Neri (Bk) Through its Chairman Shri Ashok Premchand Jain age 45 years, occ. business r/o Neri (Bk), Tq. Jamner Dist. Jalgaon .. PETITIONER VERSUS 1 Atmaram Damu Kumawat age 63 years, occ. agril. 2 Shamrao Bandu Kumawat age 75 years, occ. agril. Both r/o Neri (Bk), Tq. Jamner Dist. Jalgaon. .. RESPONDENTS Mr. G.V.Wani, Advocate for the petitioner. Mr. V.Y. Patil, Advocate for respondent no. 1. ===== CORAM : R. M. BORDE, J. DATE : 27 th APRIL, 2010. ORAL JUDGMENT : 1 Heard. 2 2 Rule. With the consent of the parties, the matter is taken up for final disposal at admission stage. 3 Application tendered by respondent / original plaintiff at exh. 48 in Regular Civil Suit no. 80/2008 seeking amendment to the pleadings has been allowed by the trial court in view of order passed on 6-7-2009 and the said order permitting amendment to the plaint is subjected to challenge at the instance of petitioner / original defendant in this petition. 4 Respondent / original plaintiff has instituted Regular Civil Suit no. 80/2008 claiming decree of injunction against defendant in respect of land gat no. 76. It is not necessary to go into the factual details of the matter. Suffice it to note that the defendant has caused appearance and resisted the contentions raised in the plaint by filing written statement. During the continuance of the suit, plaintiff presented application exh. 48 seeking amendment to the plaint. In view of the proposed amendment, plaintiff wants to contend that there are entries recorded in the revenue record in respect of the suit land in pursuance to the decision rendered in tenancy cases no. 81, 86, 87 and 39 of 1961 decided on 18-10-1961. Entries are recorded by the revenue authority on 18-7-1960 and 13-11-1960. According 3 to plaintiff, revenue entires recorded in pursuance to the decision rendered by tenancy authority are illegal and ultravirus. Plaintiff further contends that declaration is liable to be issued in his favour declaring that he being the tenant over the suit land is entitled to be declared as deemed purchaser. Plaintiff also claims declaration that the decisions rendered in tenancy case nos. 81, 86, 87 and 39 of 1961 decided on 18-10-1961 being void ab initio are liable to be cancelled. It may further be declared that those are not binding on the plaintiff. Plaintiff also claims declaration that he being tenant of disputed lands by operation of provisions of Tenancy Act, he has become deemed purchaser. Plaintiff claims appropriate delcaratory relief based on the pleadings noted above. Application tendered by the plaintiff seeking amendment to the plaint was opposed by the petitioner / original defendant contending that the civil court lacks jurisdiction to consider the issue raised by plaintiff by way of proposed amendment and as such, application seeking amendment is liable to be rejected. Trial court, inspite of observing that the civil court lacks jurisdiction to consider the prayer made by plaintiff, however, has permitted amendment in the plaint. 5 I have perused the order passed by the trial court and heard arguments advanced by learned counsel for the respective parties. Trial 4 court in the impugned order itself has observed that the prayer made by the plaintiff in respect of declaration issued by the tenancy authority and for cancellation of the order issued by such authority, is beyond the purview of the trial court and as such cannot be considered. However, inspite of making such observation in paragraph no.6 of the judgment, trial court has proceeded to permit amendment to the plaint thereby permitting the plaintiff to incorporate the amended pleadings. The relief sought for in view of the proposed amendment cannot be considered by the civil court in view of the specific bar provided under the Bombay Tenancy and Agricultural Lands Act. Section 85 of the Act bars jurisdiction of the civil court in respect of determination of issue triable by the tenancy authority. It cannot be controverted that the relief prayed for in view of the proposed amendment can only be considered by the tenancy authority and the civil court cannot determine the issues which are required to be dealt with by the competent tenancy authority. Plaintiff is also seeking declaration in respect of issues dealt with by the tenancy authority in the year 1961 by requesting the court to permit suitable amendment in the year 2008 i.e. after about 47 years. Apart from entertainability of the claim raised by the plaintiff, the relief requested for is also hopelessly barred by time. In any eventuality, it was not proper for the trial court to permit amendment as proposed by the plaintiff. 5 Petition therefore deserves to be allowed and the same is accordingly allowed. Order passed by the Civil Judge, Jr.Dn., Jamner on 6-7-2009 below exh. 48 in Regular Civil Suit no. 80/2008 is quashed and set aside. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/wp8252.09.odt