IMPORTANT POINT
High Court was wrong in adding clarification. Thus that part of the judgment under appeal whereby possession has been directed to be delivered in favour of the plaintiff may be set aside.

JUDGMENT

S.B. Sinha, J.-This appeal arises out of a judgment and decree dated 14-12-1990 passed by the Bombay High Court in First Appeal No.640 of 1979 affirming a judgment and decree passed by the Court of Civil Judge, Senior Division at Nashik in Special Civil Suit No.57 of 1974.

2. The appellant herein is said to be an agricultural tenant and in occupation of the property in question admeasuring 4 acres, 16 gunthas being Gut No. 189 (Survey Nos. 23/2 and 23/3) situated at Village Palse in the District of Nashik. The said property admittedly belonged to Original Defendant No.1 (since deceased). On or about 2.7.1970, an agreement of sale was executed by him in favour of Defendant No.7. Ganu Mahadu Gayakhe. The said agreement was cancelled. Defendant No.1 thereafter agreed to sell the suit land to the Defendant No.8. The said agreement was also cancelled by Original Defendant No.1 and the amount of advance taken by him was repaid. He then entered into another agreement with the plaintiff in respect of the suit land, the consideration whereof was fixed at Rs.20,000/-. By way of earnest money, a sum of Rs.10,000/- was paid by the plaintiff to Defendant No.1. At the relevant time, Original Defendant No.1 had taken a loan from the Land Mortgage Bank on the security of the suit land. From the amount he received from the plaintiff, Original Defendant No.1 repaid his earlier loans. He thereafter allegedly received a sum of Rs. 6,000/- from the plaintiff.

3. The co-sharers of the Original Defendant No. 1 by a notice to the plaintiff raised a contention that the said property is a joint family property and thus the said Defendant was not the sole owner thereof.

4. The appellant herein, claiming himself to be a tenant in the said lands also sought to get his name entered in the revenue records. The Original Defendant No.1, however, at the instance of the plaintiff, requested the revenue authorities not to enter the name of the appellant herein in the revenue records.

5. The Original Defendant No.1, however, avoided to execute the sale-deed in favour of the plaintiff. He filed a suit for specific performance of the agreement to sell as also for a direction upon Respondent No. 7 to cause delivery of possession to him and a decree for perpetual injunction against Defendant No.8 (Appellant herein) as also against Defendant Nos. 3 to 6 thereof as they had claimed interest in the property. The appellant herein in his written statement, inter alia, contended that as he had been cultivating the suit land since last five years as a tenant, Defendant Nos.1 to 5 and 7 had no concern with the possession of land and as he was a tenant in possession, the Civil Court had no jurisdiction to investigate into the rights of the tenant.

6. On the pleadings of the parties the learned Trial Court framed as many as 16 issues including :

"(9) Does defendant No. 7 prove that he is the tenant in the suit property described in para 1 of the plaint?

(9A) Whether the contentions for defendant Nos. 7 and 8 as regards tenancy are bona fide contentions necessitating the reference ?

(10) Does defendant No. 8 prove that he is the tenant in the suit property described in para 1 of the plaint?

(11) Whether the specific performance of the sale agreement can be granted in view of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 ?"

7. The learned trial court decreed the suit directing :

"(a) The Defendant No. 1 do execute sale deed of the suit property in favour of the plaintiff on the latter s making payment of Rs. 4,000/- in accordance with the terms and the conditions of the agreement Exhibit 130.

(b) The Defendant Nos. 1 to 6 are hereby permanently restrained by mandatory injunction from getting the names of the Defendant Nos. 2 to 6 entered to the suit land by way of final entries.

(c) The Defendant Nos. 1 and 8 are hereby restrained permanently by mandatory injunction from getting the final entry of the nam