1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 126 OF 2007 1) Dnyanu Bala Patil, ) (since deceased through the ) legal heirs :-) ) 1a) Changubai Balu Patil ) age abut 53 years, Occupation: ) Agriculture and Household, R.O. ) Parale, Taluka Shahuwadi, ) District Kolhapur. ) 1b) Rayianabai Laxman Patil ) age about 72 years, ) occupation: Agriculture, and ) Household, R/o. Man, Taluka ) Shahuwadi, District Kolhapur. ) 1c) Aakkatai Mahadeo Patil ) age bout 67 years, Occ: Agriculture ) and Household, R/o. -do- )Appellant (og.Appellants 1,2 & 4). Versus 1. Devasthan Vyawasthapan Samiti ) Western Maharashtra, Kolhapur ) Near Ubha Maruti, Kolhapur. ) 2. Shivaji Chandrappa Patil ) Age about 32 years, ) Occupation: Agriculture, ) Resident of Village Mhalasavade ) Taluka Shahuwadi, District Kolhapur ) 3. Parvati Keshav Patil ) 2 Age about 69 years, Occ: ) Agriculture and Household, R/o ) Ambarade, Taluka: Shahuwadi, ) District Kolhapur. ) 4. Kamlabai Eknath Dalavi ) Age about 63 years, ) Occupation: Agriculture and ) Household, R/o. Gadewadi, ) Taluka Sahuwadi, District ) Kolhapur. )..Respondents Ms. A.R.S.Baxi, Advocate, for the appellant. Ms. Gunjan P. Shah i/b. Shri S.A.Sawant, Advocate, for the respondent No.1. Mr. Sachindra B. Shetye, Advocate,for the respondent No.2. CORAM: J.H.BHATIA,J. DATE: 4th August, 2009. JUDGMENT: 1. The appellants before this Court are the legal heirs of the original plaintiff – Dnyanu Bala Patil, who claimed that he was cultivating the suit land as a tenant of respondent No.1. Initially, the plaintiff filed Regular Civil Suit No.66 of 1991 for permanent injunction and in the alternative for possession of the suit property. The contention of the defendants/respondent Nos. 1 and 2 was that the plaintiff had not executed a Kabulayatnama after expiry of the period of earlier Kabulayatnama. The plaintiff had handed over possession to the defendant No.1. Defendant No.1 had by holding auction given the land for cultivation to the defendant No.2 for a period of 11 months and he had also executed a 3 Kabulayatnama. The defence was accepted and the claim of the plaintiff for perpetual injunction or for possession came to be dismissed. The plaintiff preferred Regular Civil Appeal No.117 of 1996. That appeal also was dismissed. Hence, the Second Appeal. 2. After perusal of the judgments of the Courts below, it is found that the plaintiff himself did not enter into witness box. On behalf of him, his power of attorney holder P.W.1 Ganpati Patil was examined who admitted that in the Kabulayatnma executed by the plaintiff, the earlier tenure was only 11 months and after that he had not executed the document. It was found that the plaintiff was not in possession when he filed the suit and the land was already given to defendant No.2 for cultivation for a period of 11 months under the Kabulayat. The plaintiff had never claimed any declaration that he was a tenant in the suit land under the Bombay Tenancy and Agricultural Lands Act, 1948 (for short “Tenancy Act”) If there would be any such prayer, the issue could not have been decided by the Civil Court, but would be required to be referred to the Tenancy Court. Under the provisions f the Tenancy Act, if a tenant has been unlawful evicted or dispossessed by the landlord, the remedy is provided in the said Tenancy Act and the Tenancy Court can restore possession to the tenant. If the plaintiff has any grievance, the remedy against the landlord was not by way of 4 civil suit, but by proceeding under the Tenancy Act. Taking into consideration the facts and circumstances, I find no mistake in the orders passed by the Courts below and I find no substantial question of law involved in the Appeal. 4. In the result, the Appeal stands dismissed. 5. As the Appeal itself is dismissed, the C.A. No.1158 of 2007 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)