1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1121 OF 2009 IN SUIT NO.3432 OF 1996 Vivian W. Fonseca .. Plaintiff -versus Bertha W. Fonseca .. Defendant Sanjay Jain a/w Prashant Kulkarni i/b Zohair & Co. for the plaintiff. Naushad Engineer i/b Bhandary & Bhandary for defendant No.20. A. J. Almeida i/b Vasant Dhavan, for defendant No.21. CORAM: S. C. DHARMADHIKARI, J. DATED:5 th December, 2009. P.C. 1. Heard Shri.Almeida, appearing on behalf of Defendant No.21 who is praying by this Motion that the orders dated 3rd October, 2000, 8th January,2002 and 19th June, 2002 be recalled or suitably modified. Further the Court Receiver, High Court be directed to hand over possession of the suit land to the Defendant No.21. 2. Shri.Almeida, appearing in support of this Motion 2 contended that this suit is for partition. The Plaintiff is claiming l/15th share in the suit property. However, this suit is filed in collusion, in particular between the Plaintiff and the Defendant Nos 18 to 20. Shri Almeida submits that the Defendant No.21, was not impleaded as party Defendant to the suit. Defendant No.21 had to apply for impleadment. The land is agricultural land. It is the case of the Defendant No.21 that he was a tenant of the agricultural land in cultivation and when the Court Receiver was directed to take physical possession of the same, he found Defendant No.21 in possession. Therefore, all orders by which the Defendant No.21 had been dispossessed by the Court Receiver should now be set aside. The defendant No.21 can apply for these orders being set aside because of the observations of the Division Bench of this Court in Appeal No.41 of 2008 in Chamber Summons No.1189 of 2007. Relying upon the observations of the Division Bench and more particularly those in para Nos 12, 14 and 15. Shri. Almeida submitted that when the Division Bench observed that the request of the Defendant NO.21 to put him in possession can be considered at appropriate stage, the Division Bench intended that after the Defendant No.21 is impleaded as party, he can apply for these reliefs. 3 Therefore, after his impleadment, he applies for these reliefs more particularly in the light of the findings of the Tahsildar in the proceeding under section 70(b) of the Bombay Tenancy and Agricultural Land Act. 3. On the other hand, Shri. Jain, learned counsel appearing for the Plaintiffs submits that the Division Bench observation and judgment can not be read in the manner suggested by Shri.Almeida. The Division Bench had occasion to consider the factual position including the orders appointing the Court Receiver. The orders authorizing the Court Receiver to take physical possession after dispossessing Defendant no.21 at site were brought to the Notice of the Bench. These orders are made on 3rd October, 2000, 8th January,2002 and l9th June, 2002. The Division Bench has not set aside or reversed the above orders. The Division Bench instead has only impleaded the Defendant No.21 as party Defendant to the suit. The Division Bench was aware of the provisions of the Tenancy Act and therefore, held that unless and until the tenancy authorities give finality to the status of Defendant No.21, there is no question of granting any relief much less putting him back in possession. Therefore, there is no merit in this Motion and it should be dismissed. 4 4. With the assistance of learned counsel, appearing for the Defendant No.21, I have perused the order of the Division bench. The Division Bench has, during course of the order observed that applicant will have to move the authorities under Tenancy Act. However, attention of the Division Bench was invited to the pendency of the appeal before the Appeallate Authority and the order of stay passed therein. It is now stated that the Tenancy Appeal has been finally decided and the order of the Tahsildar has been reversed. It is now held that there is no merit in the contention of the Defendant NO.21 that he is a tenant of the agricultural land. My attention is invited to the order of the Sub Divisional Officer/Sub Divisional Magistrate, Mumbai Suburban District dated 24.10.2008. Shri.Almeida states that this order reverses the order of the Tahsildar. The entries are also directed to be deleted. However, Defendant No.21 has invoked the jurisdiction of the Revisional Court i.e. the Maharashtra Revenue Tribunal under section 76 of B.T. & A. L. Act and that the revision is pending. 5. To my mind the order of the Division Bench cannot assist Defendant No.21 beyond a particular limit. The order does not grant any substantial reliefs beyond 5 permitting his joinder as party defendant to this suit. Beyond that the order does not speak anything of the status, rather the Division Bench is aware of the pending proceeding under the Tenancy Act. Therefore, the Division Bench order cannot be construed to ‘mean’ that the Defendant No.21 has been dispossessed by the Receiver without any authority and illegally. The Division Bench may have noted the factual aspects, but its observations cannot be stretched to such an extent so as to vacating of all the earlier orders which are of the years 2000 and 2002. Thus, unless and until the status of the Defendant No.21 is decided, there is no way that he can claim to be put back in possession much less during the pendency of the present suit. Once he has decided to make an application for his joinder and having consented to his joinder as party Defendant to this suit, he cannot on the basis of his status and title claim any further reliefs, at this stage. More, so till such time as he is declared as a tenant of the agricultural land. Therefore, the Notice of Motion is misconceived and not tenable. It is accordingly disposed of. No costs . (S. C DHARMADHIKARI, J)