( 1 ) ao159.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 159 OF 2011 (Converted from Second Appeal No. 281 of 1994) WITH CIVIL APPLICATION NO. 4082 OF 1994 Kesarbai Madhav Waghchoure .. Appellant Major, Occ. Agri., R/o. Manjur, Taluka – Kopargaon, Dist. Ahmednagar. Versus 1. Raghunath Baburao Bhosale .. Respondents 2. Chandeo Raghunath Bhosale, Both Major, Occ. Agri., R/o. Manjur, Taluka – Kopargaon, Dist. Ahmednagar. Mr. V.D. Hon, Advocate for the appellant. Mr. P.N. Sonpetkar, Advocate for respondent Nos. 1 & 2. CORAM : A.V. NIRGUDE, J. DATED : 27.09.2011 ORAL JUDGMENT :- 1. This Appeal from Order is challenging the judgment and order dated 27.06.1994, passed by the learned 4th Additional District Judge, Ahmednagar, in Regular Civil Appeal No. 405 of 1988, by which the learned Judge allowed the appeal only to remand the case back to the Lower Court. He further directed the learned Judge of the Trial Court to frame an issue regarding tenancy and then proceed with the Trial etc. 2. The facts leading to this litigation in short can be stated as under :- ( 2 ) ao159.11 3. The appellant was the plaintiff and the respondents were the defendants. The cause of action for the appellant’s suit was as follows :- 4. The appellant said that her father owned a land Gat No. 338, admeasuring 2 H 18 R at village Manjur, Tal. Kopargaon, Dist. Ahmednagar. She said that her father sold this land to her on 19th January, 1980, by a registered sale-deed. She also said that she is the only legal heir her father left behind and so even if her father had not sold the land to her, she would have succeeded to it after her father’s death, which took place soon after in 1980. She said that since her marriage she has been staying at different village, which is situated at a short distance from the suit-land. She had been cultivating the land with the help of her husband by visiting it periodically. She then said that sometime in 1981 she noticed that the defendants who are her cousin and uncle, made construction of a hut in Southern area of the land. She found that the respondents also succeeded in getting their name included in the column of cultivation of the suit-land to the extent of 60 R portion which is situated in the South. On this cause of action she payed, on one hand that the respondents should be prevented from obstructing her peaceful possession of the entire land or in the alternative if the Court came to a conclusion that the ( 3 ) ao159.11 respondents are in possession of 60 R area on South side, she should be awarded a decree for possession to that extent. 5. The respondents opposed the suit with following case. They stated that the appellant’s father, when he was ill some time prior to 1980, needed funds for his medical treatment. Therefore, the appellant came to them seeking a loan. They said that they advanced a loan of Rs.4500/- to the appellant. They said thereafter they further gave her Rs. 3500/-. They stated that at that time an agreement took place between them and the appellant that the appellant would get the suit land transferred in her name from her father for and on behalf of them. In other words she would act as their “benami”. They further stated that since then they are in possession of the entire land. 6. In the alternative they also stated that on 19th January, 1980, they handed over to the appellant Rs. 4500/- and on the same day the appellant got the sale- deed executed from her father. They further suggested that the appellant then agreed to sell them a portion of the suit-land to the extent of 60R on south side. They said that on that day the appellant inducted them as her tenants in souther side 80 R land and agreed to receive Rs.100/-p.a. as rent. They said that this was an oral agreement. They specifically mentioned further that in ( 4 ) ao159.11 view of Section 70 and 85-A of the Bombay Tenancy and Agricultural Lands Act, the appellant cannot seek injunction against them. 7. In view of the rival pleadings, following questions would have arisen between them. i. Whether the appellant/plaintiff proved that she is in possession of entire land admeasuring 2H 18R? ii. Whether the respondents/defendants proved that they are in entire land admeasuring 2 H 18 R? In the alternative whether the respondents/defendants proved that they are in possession of 60 R land? iii. Whether the respondent/defendant proved the nature of their possession? 8. However, the issues that were framed by the Trial Court were not proper and the entire burden as per the issues framed then was on the respondents. Respondent No.2 entered witness box and recorded his deposition, but did not say a word about tenancy etc. His entire evidence is irrelevant as far as the pleading is concerned. However, the learned Judge of the Trial Court held that the respondents could prove that they are in possession of 60 R land because the revenue record supported their claim. The learned Judge of the Trial Court held that the respondents/defendants could not prove as to whether they are in permissive or lawful ( 5 ) ao159.11 possession of the suit-land to the extent of 60R and therefore he decreed the suit for possession to the extent of 60R. Against this judgment and decree the respondents came in appeal before the First Appeal Court, but the learned Judge of the First Appeal Court after hearing held on the basis of pleadings that the Trial Court ought to have framed an issue of tenancy and therefore he allowed the appeal and remanded the case back. 9. The question is - whether the order of remanding the case back to the Court was lawful? The answer is in the NEGATIVE. 10. As per the narration above it is clear that even in the written statement the respondents/defendants did not take plea of tenancy very clearly. They asserted firstly that they were put in possession of 60R land because the appellant had agreed to sell that portion of the suit-land to them on 19th January, 1980. At the same time, they also stated that on the same day the she also created tenancy in their favour. However, when the evidence was recorded, the respondents gave up their case based on tenancy. When the issues were framed they did not raise objection to the issues as they did not contain an issue in respect of tenancy. When the evidence was recorded the deposition did not make any mention about the tenancy etc. In view of this factual aspect the ( 6 ) ao159.11 learned Judge of the First Appeal Court ought not to have held that an issue of tenancy was needed in this case. He ought to have decided the case on the evidence that was already on record in the form of solitary deposition of respondent No.2 and the revenue record. It seems that he after reading the pleadings in the written statement recorded perfunctorily that this was the case where the issue of tenancy was involved. Had he made deeper probe in the case and this was necessary as the Judge of the First Appeal Court, he would have certainly realized that the issue of tenancy by then was not at all relevant. I am restraining myself from expressing further view on the case because I am not deciding the First Appeal. I would remand the case back to the First Appeal Court where the appeal would be decided on merits. 11. The Appeal from Order is allowed. The impugned judgment and order is set aside. Regular Civil Appeal No.405 of 1988 is remanded back to the First Appeal Court. It shall be decided by the learned District Judge at Kopargaon, Dist.Ahmednagar. The record and proceedings be sent back to the said Court. The parties shall appear before the said Court on 10th October, 2011. In case the parties did not appear on that day, the learned Judge of the First Appeal Court shall issue notices. The learned Judge of the First Appeal Court shall make endeavour to dispose of this appeal as early as possible and in any ( 7 ) ao159.11 case within six months from the date of appearance of all the parties. 12. In view of disposal of the Appeal from Order, the connected Civil Application does not survive and stands disposed of. [A.V. NIRGUDE, J.] snk/2011/SEP11/ao159.11ok