1 AO NO.4/1997 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.4/1997 WITH CA NO.169/1997. (Tukaram s/o Mhaatarji Wanarse and Ors. Vs. Vithoba s/o Mhatarji Wanarse and Ors.) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr.MM Patil-Beedkar, Adv. For appellants Mr.MM Joshi, Adv. For Resp.Nos.1, 2 & 7. *** CORAM : K.U.CHANDIWAL ,J. DATE : 3 rd DECEMBER, 2010. ... 1) Heard. 2) No substantial question of law was formulated when the appeal was admitted on 15th January, 1997. 3) On perusal of the grounds of appeal, following substantial question of law is formulated, - “Whether the order of remand by the learned District Judge was in tune to the settled legal position; and whether remand was the only solution in the matter.?” 4) After formulation of the above substantial question of law, Mr. Joshi, for Respondent Nos.1 and 7 waives service. 5) Mr.SR Deshpande has filed power for Respondent Nos.3 to 6. 6) The learned District Judge, on analysis 2 AO NO.4/1997 of the evidence, found that in the written statement of the defendants at Exhibit-16, reference of Isaram Jairam and one Mahipat Sakharam to be protected tenants of Survey Nos. 11 and 13 located at village Garkhede. In the partition suit, land Gut No. 50 allotted to Shivram Jairam, who was the father of Himmatrao and Pandit (appellants before the learned District Judge) indeed had denied that Tukaram or Gumphabai were in possession of the land in question, but they did not dispute that Gumphabai, Tukaram and Vithoba purchased the land from Survey No. 11/1 and 13/1. 7) The learned District Judge also found case of the present respondent is with the nucleus plea of tenancy as they have tried to demonstrate that Isaram and Mahipat were the protected tenants and after the declaration, they became absolute owners of the land Survey Nos. 11 and 13. They asserted to be in possession of the said land. Taking survey of these facts, the learned District Judge found that the issue of tenancy and its reference to the tenancy court was imperative and consequently, remanded the matter. 8) In the above backdrop, I do not see any error on the part of the learned District Judge in remanding the matter 3 AO NO.4/1997 by order dated 6.12.1996. The order under challenge does not call for interference. The observations made in herein are prima facie in nature, based on the pleadings and the learned Judge, trying the suit shall not be swayed with the same. 9) The learned Judge, seized with the matter, shall ensure for expeditious disposal of the suit, including inviting expeditious finding on the issue of tenancy. No costs. CA disposed of. (K.U.CHANDIWAL) JUDGE bdv/