Advocates appeared :
D.S. Sawant, for petitioner.
Anil Y. Sakhare, for respondent No. 1.
CHANDURKAR M.N., Actg.C.J.: - This petition under Article 227 of the Constitution of India arises out of a reference under section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Tenancy Act) by which the Civil Judge, Junior Division, Kagal, referred the following two issues to the Tahsildar, Kagal:
1. Does the plaintiff prove that he is the tenant of the suit land?
2. Does he further prove that he is in possession of the suit land as a tenant?
2. A suit for injunction restraining the present petitioner and one Dattu Govind Tipugade, his vendor who is now dead, has been filed by the present respondent No. 1 alleging that he had been cultivating the field bearing Survey No. 46/1 of village Kardyal as a tenant and the present petitioner (original defendant No. 2) has no connection whatsoever but that he is interfering with the possession of respondent No. 1 on the ground that he has purchased the field. Now, admittedly the dispute relates to what is now Survey No. 46/1 which originally belonged to one Smt. Ushadevi Khot. The said owner sold the entire survey number admeasuring three acres twelve gunthas to respondent No. 2 Dattu, who was the brother of the plaintiff, Dadu. Dattu had given Advocates notice on 29th November, 1956. An application for possession under section 29 of the Tenancy Act filed on behalf of Dattu on 23rd March, 1957 was, however, withdrawn on 27th June, 1958 and the reason for this withdrawal is not available on record.
3. Sometime in the year 1972 Dattu, defendant No. 1 sold the said field to the present petitioner Baliram by a registered sale deed. The present suit was filed by the plaintiff on 6th September, 1972. In the written statement filed before the trial Court, Dattu had taken the stand that he had been the owner of the field from the date of his purchase and that Dadu had at no time been in possession. Now, it appears that the moment the plaintiff claimed the rights of tenancy the two issues reproduced above came to be referred to the Tahsildar.
4. The Tahsildar held that the plaintiff had failed to prove that he was a tenant and that he was in possession as a tenant. An appeal filed by him was also dismissed by the Sub-Divisional Officer, Kolhapur. However, in a revision application filed by the plaintiff the Revenue Tribunal relied mainly on the fact that the plaintiffs name was shown from 1948 to 1974 as being in cultivation of the said field coupled with the fact that Dattu had filed an application for a certificate under section 88-C of the Tenancy Act and that earlier a notice under section 31 of the Act was also given and came to the conclusion that the petitioner was a tenant and was in actual possession as such. This order of the Revenue Tribunal is now challenged in this petition.
5. At the very outset it has to be mentioned that issue No. 2 which has been referred by the Civil Court proceeds on the assumption that the plaintiff was in physical possession of the entire field including the portion purchased by the present petitioner. The suit filed by the plaintiff is one for injunction on the footing that he is in possession. Both the defendants have denied that the plaintiff is in possession. The crucial fact which has to be determined in the instant case before the question relating to the alleged tenancy of the plaintiff could be agitated was, whether the plaintiff was at all in possession of the field either the whole of it or a part of it. Defendant No. 2 is not claiming ownership of the entire field. He is claiming ownership of only half of the field which has been purchased by him and the revenue records disclose that for the years 1972-73 and 1973-74 the plaintiff has been shown to be in actual cultivation of one acre 25 gunthas. Defendant No. 2 is the successor in interest of defendant No. 1 and the revenue records disclose that for the years 1956-57 and 1957-78 though the name of the plaintiff is shown for the years 1958-59 and 1959-60 defendant No. 1 is shown to be in cultivating possession. For the years 1960-61 to 1962-63 the plaintiffs name is shown in pencil. For the year 1963-64 the column is blank but from 1964-65 to 1971-72 separate cultivation of the plaintiff and defendant No. 1 has been shown each to the extent of one acre 25 gunthas. Thereafter, for the year 1972-73 and 1973-74 the name of defendant No. 2 finds place instead of the name of the defendant No. 1. The revenue records, therefore, prima facie, show that a separate half area of the field was in the cultivation of the vendor of the present petitioner. The trial Court was, therefore, not justified in framing issue No. 2 on the footing that the plaintiff was already in possession. Undoubtedly, notice under section 31 of the Tenancy Act was issued by Dattu and an application under section 88-C was also made. But, all this is not very relevant so far as the fact of possession on the date of the suit was concerned. If the plaintiff was able to prove that he was in possession then only the nature of his possession could become relevant. However, if the plaintiff is not able to prove his possession in respect of the area purchased by defendant No. 2, a suit for injunction simpliciter against defendant No.2 will not be maintainable. If the plaintiff was out of possession of one acre twenty five gunthas which has been purchased by defendant No. 2 and the plaintiff claimed possession as a tenant, then a suit for possession in a Civil Court will not lie. Therefore, the question as to whether the plaintiff was a tenant or not would not be material for the purpose of the suit at all. Admittedly, defendant No.2 is not making any claim in respect of half the area of one acre twentyfive gunthas which is not purchased by him.
6. The Civil Court seems to have made a reference almost mechanically the moment the plaintiff raised a plea of tenancy. The Civil Court ought to have realised that a reference on the issue of tenancy is not to be made the moment a plea has been raised by a person. Reference of the issue to the revenue authorities becomes necessary only when that issue required to be settled or decided for the purpose of decision of the suit. The whole reference, therefore, in my view, was misconceived and the entire proceedings in the reference including the two orders and the order of reference are liable to quashed. The Civil Court will first record a finding on the question of possession of one acre twentyfive gunthas, which is the land purchased by defendant No. 2. It is only if the plaintiff succeeds in proving that on the date of the suit he was in possession that the further question as to whether he was a tenant of the suit land, namely, the land standing in the name of defendant No. 2, will arise, and then a reference can be made to the revenue Authorities referring the question as to whether the plaintiff is a tenant of the land purchased by defendant No. 2. If, on the other hand, the plaintiff fails to prove that he is in possession of the land purchased by defendant No. 2, the suit will have to be dismissed, because if the plaintiff is claiming a tenancy right in respect of that part of the land the Civil Court will not be competent to grant possession to the plaintiff as a tenant thereof.
7. Accordingly, the petition is allowed and the orders of the revenue authorities are quashed. The reference made by the Civil Court is also quashed. The Civil Judge, Junior Division, Kagal, is now directed to proceed with the suit as indicated above. A copy of this judgment should be sent to the Civil Judge, Junior Division, Kagal. The suit being a very old one will be disposed of expeditiously by the Civil Court. In the circumstances of the case, there will be no order as to costs.
Petition allowed.
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