1 ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 502 OF 2010 Smt. Housabai narayan Ingwale & Ors. .. Petitioners Vs Shri Nilkanth Dhondi Sutar & Ors. .. Respondents -- Shri V.B. Rajure for the Petitioners. Shri S.V. Sadavarte for Respondent No.1. -- CORAM : A.S.OKA, J. DATE : 26TH MARCH, 2010 P.C: . Heard learned counsel appearing for the Petitioners and the learned counsel appearing for the 1st Respondent-Plaintiff. Considering the narrow controversy involved in the Writ Petition, the same is taken up for final disposal at the admission stage. The 1st Respondent filed a suit for perpetual injunction. The present Petitioners are the original Defendant Nos.1 and 2. In the plaint, it was contended that the deceased husband of the 1st Defendant and the 1st Respondent-Plaintiff were the agricultural tenants in respect of the land bearing Gat No.1010. It was contended that the 1st Respondent-Plaintiff and the husband of the 1st Defendant were in possession of a part of the suit property described in paragraph 1(A) of the 2 plaint. A Written Statement has been filed by the present Petitioners. A plea of tenancy was raised in the said Written Statement. It was contended that the father-in-law of the 1st Defendant was an agricultural tenant in respect of the said land on 1st April, 1957 and that is how the father-in-law of the 1st Defendant became the deemed purchaser of the land in question. It must be stated here that an issue on the basis of the plea of tenancy has been already framed by the Trial Court by an order dated 7th March, 2009 passed below application at Exhibit-91. An application was made by the Petitioners at Exhibit-95 for a reference under Section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 ( hereinafter referred to as “the said Act of 1948” ). The said application has been rejected by holding that there is sufficient material on record to show that the 1st Respondent- Plaintiff and the deceased husband of the 1st Defendant were the tenants and therefore, the reference was not necessary. 2. The learned counsel appearing for the Petitioners has invited my attention to the material averments in the plaint in which it was sought to be contended by the 1st Respondent-Plaintiff that he along with the husband of the 1st Defendant were tenants. He invited my attention to the Written Statement in which it was contended that it was the father-in-law of the 1st Defendant who was the tenant on the tiller’s day and, therefore, he became a deemed purchaser. He, therefore, submitted that the issue of tenancy was required to be referred to the Tribunal. He submitted that going by the findings recorded by the Trial Court, the reference ought to 3 have been made. The learned counsel appearing for the 1st Respondent- Plaintiff supported the impugned judgment and order. He submitted that the suit being simplicitor for perpetual injunction, a reference was not necessary. 3. I have considered the submissions. In the decision of a Division Bench of this Court in the case of Bhagwanrao s/o Jijaba Auti v. Ganpatrao s/o Mugaji Raut & Anr., [1987(3) Bom.C.R. 258], it has been held that even in a suit for perpetual injunction, if the issue of tenancy arises, the same is required to be referred to the Tribunal in view of Section 85A of the said Act of 1948. 4. As pointed out earlier, the case of the 1st Respondent-Plaintiff is that he along with the husband of the 1st Defendant were the tenants. The case made out by the Petitioners is that the father-in-law of the 1st Defendant was the tenant on the tiller’s day and, therefore, he became a deemed purchaser. While passing the impugned order, in Paragraph 7, the learned Judge has observed thus: - “7. .....On perusal of the aforesaid documents it seems that there is sufficient material to show that the Plaintiff and the husband of defendant No.1 are tenants.” In Paragraph 8, the learned Judge proceeded to hold as follows: 4 “8. From the above ratio laid down by the Hon’ble High Court it becomes crystal clear that there is no need to refer the additional issue to the tenancy court for finding thereon, as prima facie there is sufficient material on record to show that the plaintiff was tenant.” 5. There is no challenge to the issue of tenancy framed by an order passed below application at Exhibit-91. The impugned order itself suggests that the issue of tenancy in respect of the suit agricultural land arises. In view of section 85 of the said Act, the Civil Court is not competent to decide the said issue. Hence, the application made by the Petitioners at Exhibit-95 ought to have been allowed and two additional issues framed under the order dated 7th March, 2009 are required to be referred to the Tribunal. 6. Hence, I pass the following order. (a) The impugned judgment and order dated 5th September, 2009 is quashed and set aside. (b) The application at Exhibit-95 is allowed. (c) The Trial Court will pass a formal order of making a reference to the Agricultural Lands Tribunal. (d) The Trial Court will issue direction to the Agricultural 5 Lands Tribunal to decide the issue of tenancy within a period of six months from the date of reference to the Tribunal. (e) All contentions of the parties on all the issues in the suit and the reference are expressly kept open. (f) The Writ Petition is allowed in above terms. (A.S.OKA, J)