1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Letters Patent Appeal No.47 of 2010 IN Writ Petition No. 2380 of 1997 [decided] [Ramesh Eknath Chaudhari & another Vs. Krishna Z. Wakekar (dead) through L.Rs., & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. M.D. Zoting, Adv., for the appellants. ----- CORAM : A.H. JOSHI AND P.B. VARALE, JJ. DATE : 28th January, 2010. 1. This is an appeal against order passed by the learned Single Judge dated 16 th October, 2009 dismissing the Writ Petition. 2. Heard learned Adv. Mr. M.D. Zoting for the appellants. 3. In the Reference received from Civil Court, Tahsildar gave a declaration that the original defendant no.1 was a tenant under Section 6 of the Bombay Tenancy & Agricultural Lands [Vidarbha Region] Act, 1958. 2 4. While taking exception to the judgment of learned Single Judge, the learned Adv. Mr. M.D. Zoting has placed reliance on reported judgment of Single Judge of this Court in case of Jaichand Vs. Ananda & ors. [1973 Mh.L.J. 272]. 5. The thrust of reliance is on a proposition that: If tenant pleads that tenancy is contractual, a declaration that it is a deemed tenancy cannot be made. 6. Perusal of the reported judgment in case of Jaichand [supra] discloses the background as follows:- [a] The person claiming to be a tenant has entered the suit property on the basis of Agreement of Sale, a written document. [b] The tenant had filed a Written Statement of Claim before the Tahsildar and specified his tenancy to be contractual. [c] Tahsildar found that contractual tenancy was not proved, as the entry of the tenant in the suit property was on the basis of Agreement of Sale. [d] The said finding of Tahsildar was confirmed by Deputy 3 Collector. [e] The Maharashtra Revenue Tribunal, for the first time, held that tenant had “entered the suit property legally”, may be on the basis of Agreement of Sale, and held the tenant to be cultivating the land legally and hence deemed tenant under Section 6 (1) of the Act. [f] The learned Single Judge of this Court found that it was not open to Maharashtra Revenue Tribunal to have arrived at said finding. 7. Facts of the present case do not match on any parameters with the facts or law as laid down in the aforesaid judgment of this Court in case of Jaichand [supra]. 8. The appellants have failed to show that respondent-tenant had set up a plea of contractual tenancy. Based on the sole reported judgment relied upon by the appellants, they urge that the tenant has pleaded contractual tenancy. The appellants are not able to show that tenant has so pleaded the tenancy to be contractual, and so long it is not shown, the case of Jaichand [supra] does not serve as a precedent to govern the result of present case. 9. Entire claim in the Letters Patent Appeal, as was in the Writ Petition, is based on 4 a fiction as to tenant's pleading than a fact. 10. In the circumstances, Letters Patent Appeal has no merit, and is rejected. Judge Judge |Hedau|