1 W.P. 6007.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6007 OF 2011 1. Paruba S/o Dhondiba Tupe ( Since died through L.Rs. ) : 1-a. Tulsabai Wd/o Paruba Tupe Age : 75 Yrs., Occ. Agril, 1-b. Maruti S/o Paruba Tupe Age : 50 Yrs., Occ. Agril, 1-c. Dwarkabai Laxman Shinde Age : 53 Yrs., Occ. Agril, 1-d. Sitabai Bajirao Paigwan Age : 47 Yrs., Occ. Agril, All R/o : Aland, Tq. Phulambri, Dist. Aurangabad. .... PETITIONERS V E R S U S 1. Kashinath S/o Ganpat Kalam Age : 60 Yrs., Occ. Agril, 2. Mandabai W/o Trimbak Kalam Age : 50 Yrs., Occ. Agril, 3. Samindrabai W/oTrimbak Kalam Age : 45 Yrs., Occ. Agril, 4. Rangnath S/o Raghunath @ Sandu Kalam Age : 45 Yrs., Occ. Agril, 5. Nana S/o Raghunath @ Sandu Kalam Age : 40 Yrs., Occ. Agril, 6. Kailas S/o Raghunath @ Sandu Kalam Age : 37 Yrs., Occ. Agril, 2 W.P. 6007.2011 - [ J ] All R/o : Chinchkheda, Tq. Sillod, Dist. Aurangabad. .... RESPONDENTS Mr. D.P.Palodkar, Advocate for the petitioner. Mr. P.F.Patni, Advocate for Resp.Nos. 1 to 6. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 05/12/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. Mr. Palodkar, the learned counsel for the petitioners submits that the Court had framed issue no. 3 with regard to the status of the petitioner as protected tenant. The petitioner in ignorance of the fact that the issue was framed earlier, filed an application [ Exh. 57 ] for framing of the Issue as under : “ Do the defendant prove that he is protected tenant over the suit land by virtue of Section 38-E of Hyderabad Tenancy and Agricultural Lands Act and he is owner and possessor accordingly ? ” 3 W.P. 6007.2011 - [ J ] 3. The trial Court rejected the said application on the ground that the said issue was framed and it was deleted by the Court vide Order dated 3/8/2009. On 3/8/2009, the trial Court had deleted the said issue no. 3 on the ground that the Court can not decide the said issue and as such was wrongly framed. The learned counsel contends that the merits of the matter were not at all considered by the Court. 4. Mr. P.F.Patni, the learned counsel for the respondents submits that the necessity to frame the issue of tenancy does not arise in view of the pleadings of the parties. The issue of tenancy needs to be framed only if the defendant in his Written Statement comes with a specific case and the issue of tenancy can not be framed on vague averments. The learned counsel contends that the defendant in his Written Statement had contended that declaration U/s 38-E of the Hyderabad Tenancy and Agricultural Lands Act [ For short, ‘ Tenancy Act ’ ] was given to Dhondiba. If that is so, then the certificate can be produced by the defendant to that effect and there would be no need to frame that issue. 5. The Order deleting issue no. 3 was with regard to the status of the defendants as protected tenant. The said Order reads as under : 4 W.P. 6007.2011 - [ J ] “ Issue no. 3 pertains to protected tenant can not be decided by present Court hence same needs to be deleted as wrongly framed issues be amended ”. 6. The Court has deleted Issue no. 3 only on the count that the Court can not decide the said issue. 7. It is true that in view of the provisions of the Tenancy Act, the Civil Court can not decide the issue of tenancy, but if in view of the pleadings of the parties, the issue of tenancy arises, then it has to refer the said issue to the tenancy Court. For framing the issue also, the Court has to consider the averments made therein and the contentions raised, so also whether it would be necessary to be proved in the Suit as is brought by the plaintiff. All these aspects are required to be considered before framing or deleting the issue relating to the status of the parties as tenant. 8. From the Perusal of the impugned order, it is manifest that nothing of this sort has been considered by the learned Judge while passing the order. But, under the mis-conception that the Civil Court can not decide the issue, has deleted the issue. 9. In view of the above, the order impugned can not be 5 W.P. 6007.2011 - [ J ] sustained. The trial Court shall consider the aspect of framing of the issue with regard to the status of the defendant as a tenant and after hearing the respective parties and considering the pleadings and documents on record. 10. Rule accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 6007.2011 - [ J ]