Bombay High Court

Saiyyed Wase Ahmed Barkat Ahmed vs Shegji Bhengya Padvi And Others on 11 August, 2021

Bench: M. G. Sewlikar

                                     {1}                WP 3509 OF 2020.


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

                   923 WRIT PETITION NO.3509 OF 2020

 .        Saiyyed Wase Ahmed s/o. Barkat Ahmed
          Age: 56 years, Occu.: Agri.,
          R/o. Nandurbar, Tq. & Dist.Nandurbar. ..Petitioner

                                 VERSUS

 1.       Shegji Bhengya Padvi
          [Died through his L.Rs.]

          1/A] Shri Suklal Shegji Padvi
               Age: 55 yrs., Occu.: Agril.

 2.       Vajaya Bhengya Padvi
          [Died through his L.Rs.]

          2/A] Shri Sandeep Vajaya Padvi
               Age: 50 yrs., Occu.: Agril.

 3.       Lalu Bhengya Padvi
          Age: 69 years, Occu.: Agri.

 4.       Jitendra Vantu Padvi
          Age: 35 years, Occu.: Agri.

          All R/o. Kepada, Tq.Nawapur,
          Dist.Nandurbar.                               ..Respondents
                                                        ( Ori. Plaintifs
                                     ...
      Advocate for Petitioner : Shri S.R.Sapkal h/f. Shri V.D. Sapkal
           Advocate for Respondent Nos.1A, 2A, 3 and 4 :
                                  Shri Gajendra Devichand Jain
                                    ...
                               CORAM :       M.G.SEWLIKAR, J.

                               DATE:         11th August, 2021

 ORAL JUDGMENT:-


 1.       Rule. Rule made returnable forthwith.





                                          {2}                  WP 3509 OF 2020.

2. With the consent of learned counsel for both the parties,

taken up for fnal hearing at the admission stage.

3. Heard.

4. Respondents herein fled R.C.S.No.19 of 2007 in the Court

of Civil Judge (Junior Division , Nawapur, District Nandurbar. It is

alleged that respondents - original plaintifs are in possession of

land Gut Nos.117, 48, 60 and 83. Father of respondent Nos.1 to

3 and grandfather of respondent No.4 namely Bhengya Karma

cultivated those lands as tenant. After his death on 19 th June,

1973, respondents started cultivating those lands as tenants.

Petitioner started obstructing possession of respondents over the

suit property. Therefore, respondents fled suit for permanent

injunction restraining the petitioner from interfering in the

possession of the plaintifs over the suit property.

5. Petitioner fled written statement denying all the

allegations of respondents in toto.

6. Learned trial Court framed issues on 3 rd September, 2010

as under:

ß&% eq+nns %& 1- oknh gs fl/n djrkr dk; dh] oknhps ofMy gs okn feGdr dqG Eg.kqu [ksVr gksrs \

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2- oknh gs fl/n djrkr dk; dh] oknhaps ofMykaaP;k eqR;wuarj iklwu oknh gs dk;ns'khjfjR;k okn feGdrhps rkcsdjh vkgsr \

3- oknh fujarj eukbZ gqdqe feG.ksl vf/kdkjik= vkgsr dk; \

4- dk; vkns'k o U;k;fu.kZ; \Þ

7. Thereafter, on 12th January, 2018, petitioner fled

application for referring issue No.1 to Tenancy Court as the Civil

Court has no jurisdiction to entertain and try this issue.

8. Learned Civil Judge (Junior Division , Nawapur, after

hearing both the parties, declined to refer the issue to Tenancy

Court on the ground that in a suit for perpetual injunction, issue

of tenancy need not be referred to the Tenancy Court. This order

was passed on 19th July, 2019.

9. Shri S.R.Sapkal, learned counsel for the petitioner

submitted that in terms of Section 85A of the Bombay Tenancy

and Agricultural Lands Act, 1948 ( 'the BT and AL Act' for short ,

the Civil Court has no jurisdiction to entertain and try this issue.

If issue is raised, it has to be referred to the Tenancy Court in

terms of the aforesaid Section. He submitted that in a suit for

perpetual injunction also if plea of tenancy is raised, Civil Court

is enjoined to frame the issue and refer it to the Tenancy Court.

{4} WP 3509 OF 2020.

He submitted that the learned trial Court rightly framed the issue

but committed gross error in declining to refer it to the Tenancy

Court. He placed reliance on the decision of Division Bench of

this Court in the case of Bhagwanrao s/o. Jijaba Auti Vs.

Ganpatrao s/o. Mugaji Raut & another [1987 (3) Bom.C.R.258].

10. Shri G.D.Jain, learned counsel for respondent Nos.1A, 2A, 3

and 4 submitted that in the frst place, issue ought not to have

been framed. In a suit for perpetual injunction, the Court only

has to see whether the plaintif is in possession of the property.

Nature of possession of plaintif is immaterial. He further

submitted that reference of issue to Tenancy Court is not at all

warranted. He placed reliance on the decision of this Court in

the case of Mohammad Hayatkhan Karimkhan and another Vs.

Taramati Sadhu Khindkar and others in Writ Petition No.576 of

2010, dated 14th September, 2010 .

11. Section 85A of the BT and AL Act is reproduced here for

facility of reference:

"85A. Suits involving issues required to be decided under this Act (1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent

{5} WP 3509 OF 2020.

authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination.

(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto."

12. From bare reading of Section 85A of the BT and AL Act, it is

clear that the Civil Court has no jurisdiction to decide any issue

which falls within the jurisdiction of the Revenue Authorities.

Tenancy issue is a issue over which the Civil Court has no

jurisdiction and it has to be referred to the Tenancy Court. In the

case of Bhagwanrao s/o. Jijaba Auti (supra , this very question

was involved. The question referred to the Division Bench of this

Court was 'whether in a suit simpliciter for permanent injunction,

is it necessary to frame a issue of tenancy either of the plaintif

or of the defendant ?'. While answering this issue, the Division

Bench of this Court in paragraph No.28 held thus:

"28. In short it is the relief claimed which moulds the enquiry and raises issues and questions. A relief of permanent injunction necessarily leads to an enquiry as regards the nature of the rights of plaintifs and defendants. Where, therefore, in a suit for permanent injunction, plaintif or defendant resists the question of tenancy, the Court will have to consider that question, and since the Civil Court has no jurisdiction to deal with that question

{6} WP 3509 OF 2020.

it will have frst to be referred to the Tenancy Court and after receiving the decision of the Tenancy Court alone will it be possible for the Civil Court to decide whether to grant or not permanent injunction. In view of this position, and particularly in view of the clear and unequivocal mandate of law to the Civil Court, not to deal with any question or issue about tenancy which arises in a suit and which is necessary for granting or not granting the relief of permanent injunction, that even in suit simpliciter for permanent injunction an issue of tenancy be framed, when it is raised, and it be referred to the Tenancy Court for decision. We, therefore, agree with the view expressed by S.J. Deshpande, J., in 1985(2) Bom.C.R.617 : 1986 Maharashtra Law Reporter (Revenue Section) page 1 Digamber v. Sk. Yasin, and fnd that the view expressed in 198n Maharashtra Law Journal page 958, Maruti v. Parshuram is not good law."

13. In the case of Pandu Dhondi Yerudkar Vs. Ananda Krishna

Patil [1974 Mh.L.J. 548] It has been held that ' once the tenancy

issue is raised, it is obligatory upon the Court to refer this issue to the

authorities under the Act for determination '.

14. Thus, when in a suit for perpetual injunction, issue of

tenancy is raised, the Civil Court has no jurisdiction to deal with

this issue. It has to be referred to the Tenancy Court. Only after

receiving the decision of the Tenancy Court, it will be possible for

the Civil Court to decide whether to grant perpetual injunction or

not.

{7} WP 3509 OF 2020.

15. Thus, in a suit for perpetual injunction, if issue of tenancy is