1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3361 OF 2009 Shri Vijay P. Shinde & Anr. ..Petitioners. V/s. Smt.Kamalabai D. Kale. ..Respondent. Mr.P.S.Dani for Petitioners. Mr.A.V.Anturkar i/b.Mr.S.B.Deshmukh for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : APRIL 4, 2009. DATE : APRIL 4, 2009. DATE : APRIL 4, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. The argument canvassed by the Petitioners before this Court is that the suit notice was issued to terminate tenancy in respect of land admeasuring 15’ x 13 ft. However, the finding of fact recorded is that the Petitioner was tenant in respect of land admeasuring 23’ x 28 ft. On the basis of this finding, it was argued that the suit as filed could not have been decreed at all. 3. Counsel for the Respondent in all fairness concedes that there is infirmity in the action initiated by the Respondent on the basis of the suit 2 notice. Having realised that position, the Respondent through Counsel states that this Petition be allowed and the decree of possession passed by the Court below be set aside keeping option open for the Respondent to proceed against the Petitioners for the entire land in possession of the Petitioners admeasuring 23’ x 28 ft. by issuing fresh notice, which suit to be decided on its own merit in accordance with law. There is no difficulty in acceding to this request. 4. Accordingly, without entering into any other controversy, this Petition is allowed. In the circumstances, the Judgment and decree passed by the District Judge-11, Pune dated 31st January, 2009 in Civil Appeal No.214 of 2007 confirming the Judgment and Decree passed by the Trial Court dated 8th February, 2007 in Civil Suit No.95 of 2001 is set aside. Instead, the suit is dismissed while making it clear that the Respondent will be free to proceed against the Petitioners by issuing fresh notice, if so advised. That proceedings will have to be decided on its own merits in accordance with law. All questions in the said proceedings are left open. 5. Counsel for the Petitioners on instruction 3 has admitted before this Court that the Petitioners as of today are in occupation of area admeasuring 23’ x 28 ft.only. In view of the statement, the Respondent accepts the Petitioners as tenants in respect of the said area in occupation of the Petitioners. This statement made by both the sides is placed on record. 6. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)