1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISIOIN APPLICATION NO.327 OF 1995 01. Janardhan s/o Kaduji Khange age 45 years, occup. agril. r/of Bidkin, Taluka Paithan, District Aurangabad. 02. Harischandra s/o Kadu Khange, age 42 years,occup. and r/o as above. 03. Bhagchand s/o Kadu Khange, age 37 years,occup. and r/o as above, 04. Dashrath s/o Kadu Khange, age 37 years, occup. and r/of as above. 05. Smt. Gitabai w/o Kaduji Khange age 63 years, occup.household r/of as above. Petitioners/ Versus 01. Smt. Indirabai w/o Digambar Deshpande, age 71 years, occup.household r/o Nevasa, District Ahmednagar. 02. Sou.Ashalata w/o Pandurang Rajhansa, age 60 years, occup. household, r/o Sone, Nevasa, District Ahmednagar. 03. Suryakant s/o Dattatraya Deshpande, age 35 years, 2 occup. agril. r/o Gumpha, Taluka Shevgaon, District Ahmednagar. 04. Mhasu s/o Sagaji Khange age major, occup. Agril. R/of Bidkin, Tq.Paithan. 05. Kisan s/o Mahadji Khange, age major, occup. and r/o as above. 06. Nana s/o Mahadji Khange, ... Respondents age major, occup. and r/o as above. Shri N.K.Kakade, Advocate, for the appellants. Shri A.M.Dabir, Advocate, for Respondents 4 and 6. Coram: P.R.Borkar J. Date: 11.08.2009. Oral Judgment 01. By this revision application, original defendant Nos. 1 and 2 and three others are challenging rejection of application Exhibit 39 in R.C.S. No. 96 of 1984 for referring issue of tenancy to the tenancy authorities for decision. The impugned order is passed by Joint Civil Judge, Junior Division, Paithan on 30.1.1995. 3 02. Briefly stated, original plaintiffs are present Respondent Nos. 1 and 2. They filed RCS No.96 of 1984 for declaration and possession in in respect of land bearing survey No.581, Gat No. 1067 admeasuring 12 hectare 60 R. situated at village Bidkin, Taluka Paithan as described in plaint para 1. This property originally belonged to Vishnupant Khanderao Kulkarni who died in or about 1957-58 After his death, name of his wife Ramabai was entered as legal heir in revenue record. Ramabai died on 28.10.1959. Vishnupant and Ramabai had no issue and, therefore, plaintiffs- Respondent Nos.1 and 2 claimed heirship certificate as they were daughters of Dwarkabai who was sister of Vishnupant. It is stated that after death of Ramabai, name of Shridhar Damodhar Kulkarni was entered in the record of Gram Panchayat as a owner. However, though Shridhar was brother of Vishnupant, he was given in adoption to his cousin uncle Shri Damodhar Gopalrao Kulkarni and as such he could not inherit property of Vishnupant and Ramabai. 4 Shridhar expired in 1961 and thereafter name of his sister Smt. Sundarabai Dattatraya Deshpande was entered as owner of the property. Sundarabai sold portion of 2 hectare and 2 R out of the suit land to applicant No.2-Defendant No.1 Harsichandraon 24.6.1981 for Rs.10,000/=. She also sold portion of 2 hectare 17 R. out of suit property on same day to applicant No.4-Defendant No.2 Dashrath Kaduji for Rs.10,000/=. It is said that Sundarabai had no right to sell and the defendants have no concern with the suit property and, therefore, suit was filed seeking declaration that the plaintiffs were the owners of the property and that Shridhar and Sundarabai had no right in the property and the sale deeds executed by Sundarabai in favour of original defendant Nos. 1 and 2 were null and void. Defendant No.4 was not adoptive son of Sundarabai and since in 7x12 extract, defendant Nos. 1 and 2 were shown as possessor and defendant Nos. 5 to 8 were shown as actual cultivator in respect of the suit property, a declaration was sought that their possession was illegal and they had no legal 5 right over the suit property. 03. Defendant Nos. 1 to 3 and 5 filed their written statement and claimed that they have been been in possession of the suit property as tenants. They have purchased part of the suit property from owner and remaining property is in their possession as tenant and accordingly issue Nos. 9 and 10 were framed which are as below. (9) Whether they prove that till the year 1981 they cultivated suit fields as a tenant and thereafter acquired a legal and valid title in view of purchase of the same from land lady Sundarabai. ? (10) Whether they prove that on the date of the suit they are in possession of suit field restricted to 10 acres and odd gunthas by defts. Nos. 1 to 3 and 5 acres and odd gunthas by deft. 5 as a tenant ? 04. Since the suit was also for possession, an application (Exh.39) was filed on 6.2.1989 for referring issue of tenancy to the Tahsildar, 6 Paithan. However, by order dated 30.1.1995, learned Joint Civil Judge, Junior Division, Paithan, rejected that application. 05. After hearing Shri N.K.Kakade, learned counsel for the appellant and Shri A.M.Dabir, learned counsel for Respondent Nos.4 to 6 and since no one is present for Respondent Nos. 1 to 3 and 5 in spite of service, in my opinion, the trial court committed no error in not referring the issue of tenancy to the competent authority- the Tahsildar. 06. The main relief which Respondent Nos. 1 and 2 wanted is of possession along with declaration of their title and for the same, it was necessary to ascertain whether Defendant Nos. 1 to 3 and 5 were entitled to retain their possession as tenant even if the court holds that the sale deeds were not valid and Sundarabai had no right to execute the sale deeds. 7 07. The trial court is directed to refer following issue to the tenancy authority. " Whether defendant Nos.1 to 3 and 5 prove that they were in possession as tenants of entire suit land, since prior to the sale deed dated 24.6.1981 ?" 08. Issues No. 9 and 10 as originally framed are accordingly modified and the learned Civil Court is directed to refer theabove said issue for decision to Tahsildar. 09. Civil Revision Application allowed and disposed of. Rule made absolute accordingly. pnd/cra327.95 (P.R.BORKAR, J.)