1 SA211/2010 with CA No.606/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.211 OF 2010 ALONGWITH CIVIL APPLICATION NO.606 OF 2010 IN SECOND APPEAL NO.211 OF 2010 Pandharinath Runja Porje and others ..... Appellants. v/s Smt. Anyabai Ganpat Mate and others ..... Respondents. Mr. P.D. Patil for the appellants. Mr. G.R. Agarwal for Respondent No.1. CORAM: V. M. KANADE, J. DATE : 17th January, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the appellants and the learned Counsel appearing on behalf of 2 SA211/2010 with CA No.606/2010 Respondent No.1. 2. Appellants are original Defendants. They are challenging the judgment and decree passed by the Civil Judge, Junior Division, Nashik in Regular Civil Suit No.9 of 2005 in favour of the Respondents who are original Plaintiffs and which Judgment and decree has been confirmed by the District Court, Nashik in Regular Civil Appeal No.30 of 2008. 3. Brief facts are that the respondents/plaintiffs had filed suit for recovery of possession from the appellants herein on the ground that the appellants are in unauthorized occupation of the suit land. Written Statement was filed and in the said Written Statement it was alleged that the plaintiffs had sold the land to the defendants/appellants and after receiving the sale consideration, the suit is filed by them with malafide intention for recovery of possession. 4. The learned Counsel appearing on behalf of the appellants submitted that the appellants were tenants of the suit land and, therefore in view of provisions of section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948, both the Courts below ought to have referred this issue for adjudication before the Tenancy Court. He submitted that, therefore, the judgment and decree which was passed by the Trial Court and confirmed by the District Court was liable to be set aside. He invited my attention to 3 SA211/2010 with CA No.606/2010 ground No.VIII of the Appeal Memo, which reads as under:- “VIII) Whether both the Courts below justified in concluding that as the appellants are not tenant over the suit property there cannot be bar of Section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948 to try the suit before Civil Courts?” 5. In the present case, perusal of the Written Statement clearly indicates that nowhere it is pleaded that the appellants/defendants were tenants of the suit property. Similarly, perusal of the plaint also indicates that it is not the case of the plaintiffs who are respondents herein that they had given the suit land to the appellants/defendants as tenants. That being the position, since the appellants/defendants never pleaded at any time that they were tenants of the suit property, such an issue could not have been framed. It is submitted that evidence was led by the appellants/defendants to that effect. However, since there are no pleadings on this point, such an issue could not have been framed and, therefore, the question of referring the matter to the agricultural land tribunal for adjudication of the said issue does not arise. Further, it is an admitted position that the appellants/defendants are cousins of the respondents/plaintiffs and, therefore, on that point also, it cannot be said that they could be treated as tenants. 4 SA211/2010 with CA No.606/2010 6. Viewed from any angle, no substantial question of law is raised in this second appeal. Second Appeal is therefore dismissed. Civil Application does not survive and the same is disposed off accordingly. (V.M. KANADE, J.)