Shaikh Kalimulla Niyamatmiyan ... vs Mohammad Abdul Sattar Md Abdul ...
2021 Latest Caselaw 13720 Bom

                                                                          952.WP.4819.21.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                             WRIT PETITION NO.4819 OF 2021

1.       Shaikh Kalimulla S/o Niyamatmiyan [died]

2.       Shaikh Sattar S/o. Shaikh Mahmood
         Age :72 years, Occu. Agriculturist
         R/o. Mouje Talwada,
         Tq. Georai, Dist. Beed                       ...       PETITIONERS
                                                              (Orig. Plaintiffs)
                 VERSUS

1.       Mohammad Abdul Sattar S/o. Md. Abdul Gafur
         Age : Major year, Occu: Agriculturist
         R/o. House No.2-4-556/A, Khilawat
         Hyderabad, Andhra Pradesh.
2.       Mohammad Abdul Mansoor S/o Md Abdul Gafur
         Age : Major year, Occu: Agriculturist
         R/o. House No.2-4-556/A, Khilawat
         Hyderabad, Andhra Pradesh.
3.       Mohammad Abdul Basith S/o Md Abdul Gafur
         Age : Major year, Occu: Agriculturist
         R/o. House No.2-4-556/A, Khilawat
         Hyderabad, Andhra Pradesh.
4.       Mohammad Abdul Gafur S/o Md Abdul Saleem
         Age : Major year, Occu: Agriculturist
         R/o. House No.2-4-556/A, Khilawat
         Hyderabad, Andhra Pradesh.
5.       Mohammad Javed Jafari S/o Md Abdul Ghani
         Age : 44 years, Occu: Service
         R/o. House No.17-4-641, Yakuthpura
         Hyderabad, Andhra Pradesh.            ...     RESPONDENTS
                                                    (Orig. Defendants)

                              ...
Advocate for Petitioner: Mr. H.V. Tungar
Advocate for Respondents : Ms. A.N. Ansari
                              ...

                                    CORAM   :   MANGESH S. PATIL, J.

                                    DATE    :   23.09.2021








                                                                           952.WP.4819.21.odt


ORAL JUDGMENT :

Heard. Rule. The Rule is made returnable forthwith. At the

request of the parties, the matter is heard finally at the stage of admission.

2. The petitioner plaintiff submitted an Application for framing an

issue regarding tenancy and its reference to the Tenancy Court as

contemplated under Section 99A of the Hyderabad Tenancy and Agricultural

Lands Act, 1950. The respondents defendants opposed that Application and

by the impugned order the learned Civil Judge rejected the Application.

Hence this Writ Petition.

3. The learned advocate for the petitioner submits that though the

suit filed by them is for perpetual injunction, they have specifically asserted

the source of possession as protected tenant. Though there is a delay in

submitting the Application on which the impugned order is passed the issue

goes to the root of the matter and can only be decided by a tenancy court.

4. The learned advocate would further point out that at initial

stage when the petitioners were insisting for decision on the Application for

temporary injunction the respondents by moving Application (Exhibit-47)

had sought such an issue regarding tenancy to be framed and decided even

before the decision on the Application for temporary injunction. When it

was rejected they had approached this Court in Writ Petition No.2539/2013

and this Court dismissed the Writ Petition by the order dated 01.04.2013

thereby confirming the observations and conclusions of the trial court that

that was not the stage at which a request for framing the issue and its

952.WP.4819.21.odt

decision as a preliminary issue was needed. The learned advocate then

refers to the decision of the Division Bench of this Court in the case of

Bhagwanrao S/o Jijaba Auti Vs. Ganpatrao S/o Mugaji Raut And Anr.; 1987

(3) Bom.C.R. 258 and submits that even if the suit is simplicitor for

perpetual injunction, no sooner the issue regarding tenancy arises, a

reference under Section 99A of the Hyderabad Tenancy and Agricultural

Lands Act is imperative.

5. The learned advocate for the respondents Ms. Ansari submits

that the Application for framing the issue and its decision by the Tenancy

Court has been filed at the fag end of the suit. At earlier point of time, the

petitioner had specifically taken a stand that no such issue arose and no

such reference could be made. Taking a summer sault they now want the

same relief. She would further point out that the petitioners have allowed

the trial to commence and even their witness (Exhibit-122) admitted to have

received possession of property in dispute under some agreement of sale,

which stand is inconsistent with the claim of the petitioners of being tenants.

It is because of such an inconsistent stand and the delay in moving the

Application that the learned Judge by the impugned order has rightly

dismissed the Application. There is no illegality and the Writ Petition be

dismissed.

6. I have carefully gone through the pleadings.

7. The petitioners specifically claimed in the plaint to be the

protected tenant in the suit property and the respondent have denied the

952.WP.4819.21.odt

fact. Consequently, irrespective of the fact as to if the suit is for perpetual

injunction simplicitor and does not seek any declaration as to the title, the

issue as regards the tenancy of the petitioners in the suit property does arise.

8. Once it is found that the assertion of the petitioners of being

protected tenant in the suit property has been controverted by the

respondents, there is no escape from the conclusion that irrespective of the

final relief being claimed in the suit the issue regarding tenancy does arise

and consequently it is imperative that the Civil Court would have no

alternative but to frame the issue and refer it for decision under Section 99A

of the the Hyderabad Tenancy and Agricultural Lands Act.

9. True it is that at earlier point of time it was the respondents

who were making such a request but the petitioners had opposed it and the

Application (Exhibit-47) filed by the respondents was rejected. However, it

is pertinent to note that while rejecting that Application, the learned Judge

was alive to the fact that at some point of time such an issue needed to be

framed and referred. It was his observation that the time was not

appropriate for taking recourse to framing of the issue and its reference.

This is what has been precisely observed and decided by this Court while

dismissing Writ Petition No.2539/2013 preferred by the respondents, being

aggrieved by rejection of their application (Exhibit-47).

10. As has been laid down by the Division Bench in the case of

Bhagwanrao Jijaba Auti (supra) even if the suit is for perpetual injunction

simplicitor, no sooner a dispute as to the tenancy arises, there is no escape

952.WP.4819.21.odt

from following the ordeal of making a reference under Section 99A of the

Hyderabad Tenancy and Agricultural Lands Act.

11. The learned Civil Judge in the impugned order seems to have

got swayed away by the mere fact that there has been a delay in making the

request. Needless to state that the learned Judge himself also could have

taken initiative no sooner the issues were framed to go through the

pleadings and frame an issue regarding tenancy which arises from the

pleadings and follow the course contemplated under Section 99A of the

Hyderabad Tenancy and Agricultural Lands Act. It is inconsequential if he

does so on a request of a party or otherwise. He was under obligation to

frame the issue and refer it for decision under Section 99A.

12. Again, the learned Judge has indulged in scrutinizing the

evidence to ascertain as to if ultimately the issue regarding tenancy could be

decided in favour of the petitioner or otherwise. He has referred to some

admission purportedly given by one of the petitioners' witnesses about being

in possession of the suit property on the basis of some agreement of sale.

What is the effect of the admission cannot be prejudged. When the statute

requires the issue to be referred to a Tenancy Court for decision, no

comment at this stage could have been made referring to such an admission.

The learned Judge has clearly erred in recording some observation referring

to such admission.

13. In the result, the impugned order is erroneous and is liable to

be quashed and set aside.

952.WP.4819.21.odt

14. The Writ Petition is allowed. The impugned order is quashed

and set aside. The Application (Exhibit-149) stands allowed. The learned

Judge shall now frame the issue and refer it for decision under Section 99A

of the Hyderabad Tenancy and Agricultural Lands Act. The concerned

Tenancy Court shall make every endeavor to decide the issue at the earliest.

15. The Rule is made absolute in above terms.

(MANGESH S. PATIL, J.)

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