Bombay High Court
Abhijeet Sheshrao Patil (Hage) vs Gayabai Wd/O Rambhau Patil (Hage) ... on 13 June, 2025
2025:BHC-NAG:5458
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.115/2024
Abhijeet Sheshrao Patil (Hage),
aged about 41 Yrs., Occ. Agriculturist,
R/o Adarsha Colony, Hirabai Plot,
Akola, Tq. & Distt. Akola. ... Petitioner
(Original Defendant No.D-3)
- Versus -
1. Smt. Gayabai Wd/o Rambhau Patil (Hage),
(deceased), R/o Sukali (Mhaispur),
Tq. Barshitakli, Distt. Akola.
2. Sau. Suman W/o Shankarrao Patil (Kale),
aged about 67 Yrs., Occ. Agriculturist,
R/o Flat No.9, Tale Apartment No.6,
Sawantwadi, Ranpisenagar,
Akola 444 001. (Original Plaintiff Nos.1 & 2)
3. Ranjeet Sheshrao Patil (Hage),
aged about 43 Yrs., Occ. Agriculturist,
R/o Sukali (Mhaispur),
Tq. Barshitakli, Distt. Akola. (Original Defendant No.2)
4. Sheshrao S/o Ramkrishna Patil (Hage),
(deceased), Occ. Agriculturist,
R/o Sukali (Mhaispur),
Tq. Barshitakli, Distt. Akola.
through L.Rs.
R-1. Smt. Chitra Sheshrao Patil (Hage),
aged about 61 Yrs., Occ. Housewife.
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R-2. Ku. Sweta Sheshrao Patil (Hage),
aged about 37 Yrs., Occ. Agriculturist.
Both R/o Adarsha Colony, Hirabai Plot,
Tq. & Distt. Akola. (Original Defendant No.D-1 & D-4)
... Respondents
-----------------
Mr. H.R. Gadhia, Advocate for the petitioner.
Mr. K.S. Chiwarkar, Advocate for respondent No.2.
----------------
CORAM: MRS.VRUSHALI V. JOSHI, J.
DATE OF RESERVING THE JUDGMENT: 10.6.2025.
DATE OF PRONOUNCING THE JUDGMENT: 13.6.2025.
JUDGMENT
Rule. Rule made returnable forthwith. Heard finally
with the consent of learned Advocates for the parties.
2. The challenge in this petition is to the order dated
26.10.2023 passed by the Civil Judge, Junior Division, Barshitakli
below Exh.191 in Regular Civil Suit No.36/2005 thereby
rejecting the application filed by the petitioner for staying the suit
and referring the issue of tenancy of defendants for determination
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by competent authority under Sections 124 and 125 of the
Maharashtra Tenancy and Agricultural Lands Act, 1958.
3. The petitioner herein is the original defendant No.3
in the civil suit. The suit was filed for declaration, permanent
injunction and possession in respect of the land bearing Gat
Nos.109, 155 and 127 situated at Mouja Sukali (Mhaispur), Tah.
Barshitakli, District Akola.
4. The respondent No.3 has filed the written statement
claiming tenancy of petitioner over the suit properties and
claiming existence of oral agreement to sell the suit properties in
his name by the respondents. Before commencement of trial the
defendant i.e. petitioner moved an application at Exh.154 for
recasting of issue No.3. The trial Court by order dated 4.2.2016
rejected the said application. The said order was challenged
before this Court in Writ Petition No.3251/2016 and in said
petition on 11.10.2018 this Court has passed the order and
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remitted the matter back to the trial Court for consideration of
application at Exh.154 and for passing fresh order after hearing
both the parties.
5. On 13.10.2022 the trial Court recast issue No.3 in the
suit as under:-
"Do the defendants prove that they are holding
possession of field Gat Nos.109, 155 and 127 of
village Sukali as tenant?"
6. After framing of this issue the petitioner/defendant
No.3 has filed an application at Exh.191 for staying the suit and
referring the issue of tenancy of defendants for determination by
the competent authority under Sections 124 and 125 of the
Maharashtra Tenancy and Agricultural Lands Act, 1958.
7. The respondent Nos.1 and 2 resisted the application
stating that there is no need to refer the matter as there is no
express bar on civil Court to decide the issue of tenancy. The trial
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Court Barshitakli rejected the application filed by the petitioner
for staying the suit and referring the issue of tenancy for
determination by the competent authority.
8. Learned Advocate for the petitioner has submitted
that the application was rejected on the ground that similar
application was already rejected by the trial Court in civil suit on
22.2.1996. The suit regarding same relief is not maintainable as it
will be hit by the principle of res judicata. Another ground was
that by relying on the judgment of Potu Bhawani V/s. Udhao
Vithoba Khade reported in 1963 Mh.L.J.563 the Court has
observed that the said issue can be determined and the civil Court
has jurisdiction, which is not totally excluded. It is also submitted
by the learned Advocate for the petitioner that the respondents
have not pointed out the earlier litigation and the orders passed
by this Court and the Hon'ble Apex Court wherein the Hon'ble
Apex Court has observed that the issue relating to the tenancy
will be considered on its own merits and in accordance
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with law. The order passed by this Court on 20.3.2023 in Writ
Petition No.1706/2023 is also not pointed out by the respondents
before the trial Court while deciding the application (Exh.191).
Hence it is prayed to dismiss the petition.
9. The learned Advocate for the respondents has filed
the reply and opposed the petition stating that the issue is already
decided by this Court. The suit is pending since 1995. The
petitioner is prolonging the matter by filing such applications at
belated stage. Once the issue is already decided, the application
which is filed by the petitioner at Exh.191, is not maintainable.
10. He has further argued that the petitioner has relied on
the order passed by this Court in Writ Petition No.3251/2016 on
13.6.2016 wherein the petitioner himself has shown his
willingness to deposit Rs.25,000/- per year before the trial Court
till the disposal of the civil suit but after disposal of said petition
the petitioner has not deposited the amount before the trial
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Court. As the issue is already decided by the trial Court he has
prayed to reject the application.
11. Heard both sides and perused the record.
12. On perusal of record it appears that the petitioner has
suppressed the earlier litigation filed by the respondents. The
orders passed by this Court and the Hon'ble Apex Court are not
disclosed by the respondents when the order below Exh.191 was
passed by the trial Court. The petitioner was not aware about the
said order passed by this Court in Writ Petition No.1706/2023
and by the Hon'ble Apex Court as the petitioner was not the party
to the said proceedings.
13. After going through the said orders, it reveals that the
issue of tenancy is already reflected in written statement filed by
the petitioner/defendant and specific averments are there about
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the status of the defendants as tenant as per the tenancy created
by plaintiff No.2.
14. The petitioner has relied on the judgment in support
of his argument that he has not continued to deposit the amount
before the trail Court. On disposal of petition, the interim order
merges in final order. In view of it, this Court has observed in
Writ Petition No.3251/2016 that the plea of tenancy is neither
vague nor mala fide.
15. The Hon'ble Apex Court has directed in its order to
consider the issue relating to the tenancy. These orders are
suppressed by the respondents before the trial Court when the
trial Court has passed the order below Exh.156 on 13.10.2022.
There is no question of res judicata as in 1995 the application was
filed under Section 9A of the Code of Civil Procedure, however,
at that time the issue about tenancy was not framed and it was not
decided. The application was rejected without framing the issues.
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Therefore, principle of res judicata will not be attracted in this
case.
16. The petitioner has relied on the observations of the
Hon'ble Apex Court in case of National Bal Bhawan and another
V/s. Union of India and others reported in (2003) 9 SCC 671
which are as under:-
"4. It is no longer res integra that once a writ
petition is finally disposed of by the High Court, any
interim order passed in pending writ petition merges
with the final order. If the respondents were
aggrieved by the interim order in terms of which the
writ petition was disposed of, it was incumbent upon
the respondents either to have amended the memo of
appeal by challenging the final order passed by the
Single Judge of the High Court or ought to have
preferred fresh letters patent appeal against the final
order passed by the Single Judge. In that view of the
matter, the orders under challenge are set aside.
However, we permit respondents 1 and 2 herein to
move an application for amendment of the memo of
appeal by challenging the final order passed by the
Single Judge of the High Court. In case such an
application is filed, the High Court shall condone the
delay in filing the amendment application. The
appeal may be decided expeditiously. We may clarify
that we have not expressed any opinion on the merits
of the matter."
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17. While rejecting the application the trial Court has also
placed reliance on the judgment of Potu Bhawani (supra) in
which it is observed that the civil Court is not totally barred. In
para 4 of said judgment the Hon'ble Apex Court has also
observed as follows:-
"......Unless, therefore, it is possible to uphold the
contention that the exclusive jurisdiction of the
Tenancy Court embraced other variety of questions
relating to the status of a tenant claimed by any
person, whether the claim is put forward as against
the landlord or otherwise, we shall be unduly
enlarging the ambit of exclusion. In my opinion, the
scheme of the Act does not warrant such a
conclusion. So far as Clauses (3) to (19) of Section
100 are concerned, it could definitely be said that
most of the questions required to be determined by
the Tahsildar under these clauses are questions
between a landlord and tenant. It is difficult to hold,
therefore, that the question whether a person is an
agriculturist under Clause (1) or the question
whether a person is a tenant, a protected lessee or an
occupancy tenant under Clause (2) is a general
question to be decided at large without reference to
the landlord or even in his absence. In my opinion, a
more appropriate construction of the section would
be that even in respect of decision of such question as
to the status of a person claiming to be a tenant, a
protected lessee or an occupancy tenant, or claiming
to be an agriculturist, it must have reference in the
context of the claim against a landlord. It is only to
that extent that the jurisdiction of the civil Court is
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barred and reference is required to be made to the
Tenancy Court."
18. In case in hand the issue is framed to decide that the
petitioner is a tenant then the reference is required to be made to
the tenancy Court.
19. In para 15 of Hansu Dhondba Uike and another V/s.
Sahebrao Chintaman Salam and another reported in 2014 (4)
Mh.L.J. 240 this Court has observed as under:-
"This issue, under Section 125 of the Tenancy Act, is
required to be settled and decided by the Competent
Authority and the Civil Court would have no
jurisdiction to decide the same and till the time it is
settled and decided, the suit would have to be stayed
by the Civil Court. But, before giving any finding as
to whether or not this issue ought to be framed and
referred to the Competent Authority by the Civil
Court, it would be necessary for this Court to
consider whether the issue, being in the nature of
alternative plea, could be raised at all by the
respondents in the facts and circumstances of this
case."
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20. Though the order passed by this Court in Writ
Petition No.1706/2023 is of 20.3.2023 and order passed by the
Hon'ble Apex Court in Special Leave to Appeal (C)
No.9312/2023 is of 15.5.2023, the respondents have not brought
them to the notice of the trial Court while passing the impugned
order which shows that the respondents have not proceeded with
clean hands. Issue of tenancy is required to be decided first by
competent authority. In view of the above-said observations, the
application (Exh.191) is allowed. The impugned order passed by
the trial Court is quashed and set aside.
(i) The trial Court is directed to refer the issue of tenancy
of defendants for determination by the competent authority
under Sections 124 and 125 of the Maharashtra Tenancy and
Agricultural Lands Act, 1958.
(ii) The civil suit is stayed during the pendency of the
proceedings before the Mamlatdar's Court i.e. Tahsildar.
(iii) The competent authority i.e. Tahsildar shall make an
endeavour to decide the tenancy as early as possible and in any
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case, within a period of three months from the date of receipt of
this order.
(iv) The civil Court shall dispose of the civil suit within a
period of six months after receipt of the decision regarding
determination of tenancy from the competent authority.
21. Rule is made absolute in the above terms. There shall
be no orders as to costs.
(MRS.VRUSHALI V. JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 13/06/2025 15:48:43
