1 WP-471/92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.471 OF 1992 Ramu Sakharam Jamdade, Age Major, through his Power of Attorney Holder Pandurang Ramchandra Jamdade, Age Major, Occ. Agriculture, R/o. Phulenagar, At Wai, Tal.Wai, Dist.Satara. ..Petitioner. Vs. 1 Uttam Maruti Jagtap, Major, Occ. Business, R/o. 581/4, Phulenagar,Wai. 2 Shivaji Kondiba Jamdade, Age Major, Occ. Agriculture, Residing at 2150, Phulenagar, Wai, District Satara. ..Respondents. Mr. Rohit Sakhadeo i/by S.V. Dhakephalkar, Advocate for the Petitioner. Mr. Surel S. Shah, Advocate for the Respondent Nos. 1 and 2. CORAM : A.S.OKA, J. DATE : 1st October, 2010. JUDGMENT :- 1 Heard the submissions of the learned counsel appearing for the Petitioners and the learned counsel appearing for the Respondents. This writ petition arises out of the order passed on the application by the first respondent under Section 70(b) of the Bombay Tenancy & Agricultural 2 WP-471/92 Lands Act, 1948. (hereinafter referred to as the “said Act”). 2 The application for declaration of tenancy was allowed by the Tenancy Aval Karkun. In appeal preferred by the petitioner, the said order has been confirmed by the Sub Divisional Officer. A Revision Application made by the petitioner under Section 76 of the said Act has been dismissed by the learned Member of the Maharashtra Revenue Tribunal. 3 The learned counsel appearing for the Petitioner invited attention of the Court to the averments made in the application under Section 70(b) of the said Act before the Tenancy Aval Karkun. He submitted that the first respondent has pleaded the existence of the tenancy on the basis of the oral agreement. He submitted that after having specifically pleaded the existence of the contractual tenancy, at the time of hearing of the application, a case was made out by the first respondent of a statutory tenancy under Section 4 of the said Act. He submitted that it was not open for the first respondent to raise a plea of statutory tenancy after having specifically pleaded the existence of contractual tenancy. He placed reliance on the decision of this Court in the case of Ashok Dwarkanath Ghurye and another Vs. Narayan Vasudeo Dhond (1989(1) Bombay C.R. 625). He also relied upon an 3 WP-471/92 unreported decision of this Court dated 8th August, 1977 passed in Special Civil Application No.277 of 1973. He submitted that this Court has held that in a case where contractual tenancy is pleaded, it is not open for the alleged tenant to come out with the plea of statutory tenancy. He submitted that allowing such a plea to be raised amounts to denial of principles of natural justice in is much as the petitioner had no opportunity to deal with the said case. Lastly he submitted that the application under Section 70(b) of the said Act was filed with a view to defeat the suit for redemption of mortgage filed by the petitioner which was pending on the date on which the application was filed by the first respondent. He therefore, submitted that all the three orders are illegal. 4 I have carefully considered the submissions. In respect of the first submission, the learned counsel appearing for the petitioner submitted that after having pleaded the contractual tenancy, it was not open for the first respondent to plead the case of statutory tenancy under Section 4 of the said Act. Both the decisions relied upon by the counsel for the petitioner arose out of orders in the reference made by the Civil Court to the Agricultural Lands Tribunal. In both the cases, Civil Court had framed an issue on the basis of plea of contractual tenancy which was referred to the decision of the 4 WP-471/92 Agricultural Lands Tribunal. In the context of said factual aspect, what is held by this Court is that the Agricultural Lands Tribunal could have decided only the issue of contractual tenancy referred to by the Civil Court. In such a case the Tribunal was bound by the reference made. Hence, the said decisions are of no help to the petitioner. 5 In the present case, the impugned order arise out of the application under Section 70(b) for declaration of the tenancy. Though, there is a plea of oral contract in the application, nevertheless, the first respondent has also pleaded that he was lawfully cultivating the suit land. The Agricultural Lands Tribunal permitted the parties to adduce evidence. As pointed out by the learned counsel appearing for the petitioner, to some extent there was an inconsistency in the case made out by the first respondent as regards the date of commencement of the tenancy. The Agricultural Lands Tribunal has also considered the aspect that the petitioner was the maternal uncle of the first respondent. The Tribunal has made a reference to the notice dated 1st October,1986 sent by the second respondent to the first respondent in which the 1st respondent is admitted to be a tenant. Apart from that, the Tribunal has considered the rent receipts produced by the first respondent. After considering the oral and documentary 5 WP-471/92 evidence on record, a finding of fact which is recorded is that the first respondent was cultivating the suit land from 1977 to 1988. The Appellate Authority relied upon an order of the Tahsildar dated 24th February, 1988, by which, the entry of the name of the first respondent was made in the cultivation column. The findings of fact of both the Authorities have been confirmed by the Maharashtra Revenue Tribunal. 6 What is held and established by the first respondent is that he was lawfully cultivating the suit land from 1977-78 of which the present petitioner is the landlord. The learned Member of the Tribunal has rightly declined to interfere with the concurrent findings recorded by the Authorities below. 7 No case for interference is made out in writ jurisdiction under Article 227 of the Constitution of India. Writ petition is accordingly, rejected with no order as to costs. JUDGE 6 WP-471/92