ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.3789 OF PETITION NO.3789 OF PETITION NO.3789 OF 1991 1991 1991 Krishnabihari Shivnath Shukla by heir Prabhudevi Krishnabihari Shukla (Since deceased through her L.Rs) 1. Vikramdatta Shivnath Shukla, Aged 66 years, Occu. Agri. R/o. At & Post Palghar, Ta.Palghar, Dist. Thane. ...Petitioner. Vs. 1. Kumudchandra Vasantrao Babrekar (Since deceased through her L.Rs.) 1/1. Sou. Shradhya Chandrakant Joshi, Aged 47 yrs. Retired. R/o. Sulochana Niwas, Behind Umadevi Temple, Umrale, Nalasopara (West), Tq.Vasai, Dist. Thane. 1/2. Sou. Ajita Bharat Joshi, Aged 45 years, Occu. Household, Manisha Apartment, Block No.102, 1st Floor, Opp. Parvat Nagar, S.V.Road, Dahisar (East) Mumbai-400 068. 2. Krishanakumar Vasantrao Babrekar, (Since deceased by his L.Rs.). 2/1. Kanchan Krishnakumar Babrekar, Aged 62 years. 2/2. Manak Prasad Krishna Kumar Babrekar, Aged 31 years. (Both R/o. 705, Ashtavinayak Building, Sadanand Wadi, V.P.Road, Girgaum, Mumbai-400 004. 2/3. Sou. Swati Santosh Naik, Aged 33 years, R/o. at 3/1, 104, Shruti Park, Thane (West). ( 2 ) 3. Sumant Vasantrao Babrekar, R/o. 9, Sadanand Wadi, V.P.Rogai, Girgaum, Mumbai-400 004. 4. Vinayak Vasantrao Babrekar, (since deceased through his L.Rs.) 4/1. Jyoti Pravin Pradhan, Aged 56 years, Occu. Household, Gokul Sadan, Kesar Baug, Gokhale Marg, Mulund (East), Mumbai-400 081. 4/2. Swati Anant Vaidya- daughter (since deceased through her L.Rs.) 4/2/1. Sou. Vaibhavi Ravindra Deshpande, Occu. Household, Guru Saicharan Apartment, C/202, Phule Road, Bhoirwadi, Near Telephone Exchange, Maharashtra Nagar, Dombivali (W)- 421 202. 4/2/2. Kumari Kirti Anant Vaidya, Aged 27 years, Occu. Student, 2/4, Shivakripa Nagar, Rodvali, Khopoli, Tq. Khalapur, Dist. Raigad-410 203. 4/3. Sou. Madhuri Anil Seth, Aged 45 years, Occu.-Household, 8, Malati Bhuvan, Kesar Baug, Mulund (East), 400 081. 4/4. Sou. Sarita Pradeep Baji, Aged 43 years, Occu. Household, 112, Nav Nilambari Co-operative Housing Society, Plot No.131, M.I.D.C., Kalyan Road, Ajadegao, Dombivali (East)-421 201. 4/5. Sou. Pravina Vivek Bhutala, Aged 41 years, Occu. Household, Krishna Kamal Shankar Mandir Road, Shilphata, Khopoli, Tq.Khalapur, Dist. Raigad-410 201. ( 3 ) 5. Jayashree Hemchandra Acharya, (since deceased through her L.Rs.) 5/1. Bhalchandra Hemchandra Acharya, Aged 62 years, Retired, Flat No.14, 3rd Floor, Shanti Sadan Rohan Park, ’B’ Building, Bolinj, Virar (West) Tq.Vasai, Dist.Thane. 5/2. Ramesh Hemchandra Acharya, (Since deceased through his L.Rs.) 5/2/1. Kalpana Rameshchandra Acharya, Aged 52 years, Occu. Household, 5/2/2. Dipesh Rameshchandra Acharya, Aged 27, Service. 5/2/3. Nilesh Rameshchandra Acharya, Aged 25 years, Service, R/o. Shivling Nagar, Near Prakash Bakery, Boisar Road, Old Palghar, At Post, Tq. Palghar, Dist. Thane. 5/3. Mohini Dilip Shasne, Aged 57 years, Service, A-5, Sahyadri Bldg., 2nd Floor, Anushakti Nagar, Mumbai-400 094. 5/4. Vinod Hemchandra Acharya, (Since deceased through his L.Rs.) 5/4/1. Vasudha Vinod Acharya, Aged-54 years, Occu. Household, 5/4/2. Bharat Vinod Acharya, Aged 20 years, Occu. Student, (Both R/o. Chandansar, Virar (East), At Post-Virar, Tq.Vasai, Dist.Thane. 5/5. Jagruti Jayant Pathak, Aged 54 years, 127, E- Dada Maharaj Chawl, Room No.8, ( 4 ) 1st Floor, Khadilkar Road, Girgaum, Mumbai-400 004. 5/6. Sou. Kirti Kishor Vaidya, Aged 52 years, Occu. Household, Sadanand Sadan, Umrale, Nalasopara (W), Tq. Vasai, Dist. Thane. 6. Nirmala Naryan Joshi, (Since deceased by her L.Rs.) 6/1. Sou. Ujwala Uday Purandare, Aged 43, Occu. Household, Pitashri, At Post, Kelve Road, Tq.Palghar, Dist. Thane. 6/2. Anamika Atul Joshi, Aged 37, Occu. Household, Ramzaroka Co-op. Hsg. Soc. F-303/3 Sector 1, Flat 116, RAC 11, Opp. IES High School, Charkop, Kandivali West, Mumbai.- 400 067. 6/3. Prasad Narayan Joshi, Aged 34 years, Service, Shitale Ali, Nirmal, Post Nirmal, Tq.Vasai, Dist. Thane. 7. Smt.Vatsala Narendra Acharya, Patel Chawl, Near Dahisar Station, Dahisar (East), Bombay-400 068. 8. Shri Suresh Nilkanth Dandekar, (Since deceased through his L.Rs.) (a) Madhavi Suresh Dandekar, (b) Smt. Dipshri Thatte, (c) Miss. Rohini Suresh Dandekar, (d) Tanuja Suresh Dandekar, (e) Dr.Rohit Suresh Dandekar, All R/o. Uma-Nilkant Niwas, At Post, Palghar, Palghar-Mahim Road, District Thane. ( 5 ) 9. Shri Kunjabhari Shivnath Shukla, 10.Subhashchandra Shivanath Shukla, 11.Krishnakumar Shivanath Shukla, 12.Ravindranath Shivanath Shukla, 13.Mahendrakumar Shyambihari Shukla, 14.Indramani Shyambihari Shukla, 15.Deshdeepak Shyambihari Shukla, 16.Lalbahadur Shyambihari Shukla, 17.Smt. Kamladevi Shyambihari Shukla, 18.Mrs. Malati Nityanand Tiwari, 19.Mrs.Dhanna Y. Tiwari, 20.Mrs. Sarika R. Tiwari. (Writ Petition stand dismissed against Respondent Nos. 9 to 20) ....Respondents. Mr.A.J.Joshi for the Petitioner. Mr.G.R.Rege, Sr.Counsel with Mr.S.A.Mudbidri for the Respondents. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 25th February, 2009 : 25th February, 2009 : 25th February, 2009 JUDGMENT:- JUDGMENT:- JUDGMENT:- . The Petitioner alleged to be a tenant of the suit land which is owned by Respondents/ owners/ landlords. 2. The suit was filed by the Respondents in the year 1977 and claimed the possession of the land. ( 6 ) 3. Issue No.9 was framed by the Civil Judge, Thane under Section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, "B.T. & A.L.Act") which is as follows:- "Issue "Issue "Issue No.9:- No.9:- No.9:- . Does defendant No.2 prove that he is in possession of the suit land as a tenant? 4. Thus, Defendant No.2 proved that he is in possession of the suit land as a tenant. 5. The land was given to the Petitioner’s father for cutting grass on yearly contract / Annual payment basis. After his death, the original Petitioner now deceased, was continued with such yearly contract of cutting grass. The other portion of the land was given to other person for the same purpose. The Respondents terminated and not extended the said contract and demanded the possession, as not given, therefore, the suit. 6. There is not much challenge to the fact and as ( 7 ) concurrently held by all the authorities below that landlords are the owners of the land and Petitioner’s father was in possession pursuance to the agreement in question. 7. With regard to the main issue, all the authorities based on the evidence placed on record and after perusing the record as well as the evidence and considering the submissions raised, I am also of the view that the Petitioner failed to prove that he is in possession of the suit land as of tenant as contemplated under the B.T. & A.L. Act. 8. There is no case made out by the Petitioner to interfere with the concurrent findings arrived at by the authorities below. There is no perversity in the order. Admittedly, original tenant was in possession of the land pursuant to the agreement of cutting grass. Therefore, wheresoever in possession of the land pursuant to any agreement, the claim of deemed tenancy rightly rejected by the authorities, whereby, it is clearly held, as submitted by the learned counsel appearing for the Respondents, that plea of contractual tenancy once accepted, the subsequent deemed tenancy is impermissible. The decision given ( 8 ) by the authorities on the reference of issue, is therefore, rightly answered. 9. (1989, Mh.L.J., 689 Dwarkanath Vishram Ghurye (1989, Mh.L.J., 689 Dwarkanath Vishram Ghurye (1989, Mh.L.J., 689 Dwarkanath Vishram Ghurye since since since deceased by heirs Ashok Dwarkanath Ghurye & Anr. deceased by heirs Ashok Dwarkanath Ghurye & Anr. deceased by heirs Ashok Dwarkanath Ghurye & Anr. Vs. Vs. Vs. Narayan Vasudeo Dhond, Narayan Vasudeo Dhond, Narayan Vasudeo Dhond, and Shri Babasaheb Shri Babasaheb Shri Babasaheb Dajisaheb Dajisaheb Dajisaheb Londhe Vs. Shri Hanmantrao Daulappa Nimbal Londhe Vs. Shri Hanmantrao Daulappa Nimbal Londhe Vs. Shri Hanmantrao Daulappa Nimbal dated dated dated 8th September, 1977 (Coram:- Chandurkar, J.)) 8th September, 1977 (Coram:- Chandurkar, J.)) 8th September, 1977 (Coram:- Chandurkar, J.)) The authorities relied upon by the Petitioner to claim deemed tenancy in view of above facts, are distinguishable. The aspect of deemed tenancy has rightly decided by the authorities against the Petitioner, though the land in question and agreement in question govern by the provisions of the B.T. & A.L.Act. (2004(1), Mh.L.J. 285, Kishan Ramchandra 2004(1), Mh.L.J. 285, Kishan Ramchandra 2004(1), Mh.L.J. 285, Kishan Ramchandra Kumbhar Kumbhar Kumbhar & Ors. Vs. Kashinath Bandu Teli & Ors., 2005 & Ors. Vs. Kashinath Bandu Teli & Ors., 2005 & Ors. Vs. Kashinath Bandu Teli & Ors., 2005 (3) (3) (3) Mh.L.J. 352 Dharma Radhya Vartha & Ors. Vs. Mh.L.J. 352 Dharma Radhya Vartha & Ors. Vs. Mh.L.J. 352 Dharma Radhya Vartha & Ors. Vs. Ramesh Ramesh Ramesh Vrijlal Shah & Ors., AIR 1964 S.C., 1320, Dahya Vrijlal Shah & Ors., AIR 1964 S.C., 1320, Dahya Vrijlal Shah & Ors., AIR 1964 S.C., 1320, Dahya Lala Lala Lala Vs. Rasul Mahomed Abdul Rahim and AIR 1987, SC Vs. Rasul Mahomed Abdul Rahim and AIR 1987, SC Vs. Rasul Mahomed Abdul Rahim and AIR 1987, SC 2429, 2429, 2429, Jagan Vs. Gokuldas Hiralal Tewari.) Jagan Vs. Gokuldas Hiralal Tewari.) Jagan Vs. Gokuldas Hiralal Tewari.) 10. The submission of the Petitioners that they were manually growing the crops by taking all possible steps, has been concurrently rejected as no sufficient material placed on record to prove by the Petitioner ( 9 ) that they were growing crops of manual labour by sowing the seeds of the crops. Therefore, there is no question of alleged personal cultivation as contended in view of the definition of the word "to cultivate" as contemplated under Section 2(5) of the B.T. & A.L.Act. All the authorities have considered these facets by further observing that it was mere a contract of cutting grass on the suit land and the possession was never given as a tenant specially when the Petitioner failed to prove that they were actually raising grass on the suit land. (1954, Bombay Law 1954, Bombay Law 1954, Bombay Law Reporter Reporter Reporter 199, Nathubhai Gandabhai Desai Vs. State of 199, Nathubhai Gandabhai Desai Vs. State of 199, Nathubhai Gandabhai Desai Vs. State of Bombay Bombay Bombay). Therefore, it does not fall under the ambit of "agricultural activities" as contemplated under the B.T. & A.L. Act. The authorities so relied upon by the Petitioner’s counsel in view of the above facts and circumstances are distinct and distinguishable. 11. Resultantly, the Petition is dismissed with no order as to costs. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.)