A Civil Court should not make a reference to revenue authorities under section 85-A of the Tenancy Act mechanically upon a plea of tenancy being raised. Reference is necessary only when the issue of tenancy requires to be settled for the decision of the suit.

JUDGMENT - 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 Advocate's 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for possession under section 29 of the Tenancy Act filed on behalf of Dattu on 23rd March, 1957 was, however, withdrawn on 27th June, 1958 and the reason for this withdrawal is not available on record.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 plaintiff's 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

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