1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6409 OF 2005 Balkrishna Ramu Tippe .. Petitioner versus Smt.Akkatai Shankar Patil & Ors. .. Respondents Mr.Rahul P. Walvekar for the petitioner. Mr.V.B.Rajure for respondent Nos.2, 4 to 6. CORAM : A.S.OKA, J. DATE : 5th October 2009. P.C: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. The challenge in this writ petition under Article 227 of the Constitution of India is to the judgment and order dated 17th October 1994 passed by the trial Court by which the application made by the petitioner (1st defendant) for framing an issue of tenancy and for referring it to the Tribunal under the Bombay Tenancy and Agricultural Lands Act, 1948 has been rejected. 2. A suit is filed by the 1st and 2nd respondents against the petitioner and other respondents for declaration that the alleged Deed of Mortgage dated 4th June 1975 has been procured by fraud by the petitioner. Further prayer in the alternative is that if the trial Court comes to the conclusion that the 2 document of mortgage was legal and valid, a decree may be passed for redemption of mortgage. The petitioner filed a written statement contesting the claim of the 1st and 2nd respondents. One of the contentions raised is that prior to 4th June 1975 the petitioner was an agricultural tenant in respect of the suit land and therefore even assuming that the 1st and 2nd respondents established their case on merits, the Civil Court cannot pass a decree for possession against the petitioner. 3. The prayer for framing additional issue of tenancy has been rejected on various grounds. The finding of the learned trial Judge is that there is no material on record to show that prior to execution of alleged Deed of Mortgage the petitioner was a tenant in possession. The learned Judge observed that merely because the petitioner says that he is the tenant that is no ground to frame an issue and to refer it to tribunal. 4. The learned counsel appearing for the petitioner invited my attention to Deed of Mortgage dated 4th June 1975. He pointed out that in the said Deed itself, there is a recital that the petitioner was in possession as an agricultural tenant and his possession has been continued under the Deed of Mortgage. It must be noted here that the Deed of Mortgage subject matter of the suit was executed by the husband of the 1st respondent (1st plaintiff). The defendant Nos.2 to 5 are the children of the 1st respondent-plaintiff. He submitted that in view of the fact that in the document of mortgage itself there is a recital that the petitioner was in possession as a tenant, no further 3 material was required to substantiate the plea of tenancy. 5. The learned counsel appearing for the 1st and 2nd respondents submitted that the revenue record does not support the plea of tenancy of the petitioner. He pointed out that the case of the petitioner is that prior to 4th June 1975 the petitioner was agricultural tenant. He submitted that no interference is called for. 6. I have carefully considered the submissions. In the suit the 1st respondent came out with the case that her husband had executed a document of mortgage dated 4th June 1975. However, the said document was got executed as additional security for repayment of loan by the petitioner instead of taking promissory notes. The first prayer in the suit is for declaration that the Deed of Mortgage has been fraudulently obtained by the petitioner and for possession. The prayer in the alternative is essentially for redemption of mortgage and possession. 7. The execution of the document of mortgage by the husband of the 1st respondent has not been disputed. There is a clear recital in the said document that the petitioner (1st defendant) was a tenant in possession and his possession has been continued on the basis of the said document. This recital in the document was itself sufficient to frame the issue of tenancy. The 1st and 2nd respondents are seeking to dispossess the petitioner as there is a prayer for decree for possession. Therefore, the petitioner was justified in making a prayer for reference. 4 8. There was another prayer made in the application at Exhibit 31 which was for framing additional issue as to whether the 1st and 2nd respondent proved that the transaction was in the nature of mortgage. On plain reading of the pleadings, it is not necessary to frame the said issue. 9. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 17th October 1994 is quashed and set aside. (b) The application at Exhibit 31 is partly allowed. The trial Court will frame the issue of tenancy as prayed in the said application and thereafter a reference will be made to the Tribunal in accordance with provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. (c) All contentions of the parties on merits are kept open. (A.S.OKA,J)