JUDGMENT - N.P. CHAPALGAONKAR, J. :---In Regular Civil Suit No. 380 of 1980, plaintiff Kishan sought the relief of declaration that the decree in Regular Civil Suit No. 105 of 1968 is not binding on him and is invalid and also for perpetual injunction restraining defendants from interfering into his possession. The property in dispute is Survey No. 196/A situated at Village Chousala in taluka and district Beed.

2. It is not in dispute that the property is an inam land which was abolished under the provisions of Hyderabad Abolition of Inams and Cash Grants Act, 1954 and is not service inam. The occupancy of the said land was given to Babu Gopala Naikwade- the husband of the defendant Nos. 1 and 2 and father of defendant No.3. It is also not in dispute that Kishan is the nephew of said Babu being brother of Dashrath who is real brother of Babu. It is the case of plaintiff that because of the oldness of Babu, he gave these lands for cultivation on batai basis to the plaintiff and, therefore, plaintiff is the tenant of the suit land. It appears that an issue was framed as follows :---

"Whether the plaintiff proves that he was cultivating suit land on the strength of this agreement entered with deceased Babu ?"

and this issue is referred under section 99 A of the Hyderabad Tenancy and Agricultural Lands Act, 1950 to the tenancy authorities for decision. Subsequent to it, the defendant No. 2 approached Court with an application praying for calling back of the reference on account of the fact that the plaintiff is the nephew (son of brother of husband) of the defendant and, therefore, allegation of the plaintiff regarding his status as tenant is without any legal basis.

3. Learned Joint Civil Judge, Junior Division, Beed on 31-7-1986 passed an order that reference made to the tenancy Court be called back. He relied on judgment of this Court in the case of (Nilavabai Sida Khajure v. Chanamalappa Bassappa Khajure and others)1, reported in 1977 Mah.L.J. 443. Today, Shri M.R. Challani, the learned Counsel appearing on behalf of the respondent, invited my attention to a judgment of this Court in (Syed Ibrahim Syed Ashraf and another v. Zamarrudbi Nizammddin and others)2, reported in 1990 Mh. L.J. 631, besides Nilavabai's case (supra) which was also cited in the trial Court. It is the submission of Shri Challani that plaintiff petitioner being the nephew of Babu and also defendant Nos.1 and 2, he cannot claim any tenancy rights because even assuming that he is separate from defendant No. 1 and 2, his cultivation shall be deemed to be the cultivation of the landlord and he cannot be deemed to be the tenant within the provisions of section 5 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter called `Hyderabad Tenancy Act' for the sake of brevity).

4. Relevant portion of section 5 of the Act of 1950 reads :

"5. A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the landholder and if such person is not---

(a) a member of the land-holder's family, or

Both Nilavabai's case reported in 1977 Mh.L.J. 443 and Syed Ibrahim's case reported in 1990 Mah.L.J. 631 speak about the status of near blood relations in respect of right to claim tenancy. Both these cases go to show that if a near relation like nephew is cultivating the land and even if he is separated, he cannot be deemed to be a tenant under section 5 of the Hyderabad Tenancy and Agricultural Lands Act because he is not cultivating the land belonging to another. Therefore, in cases wherein such a relation is found to be in possession of the property belonging to another, a near relation, the deeming provision of section 5 of the Hyderabad Tenancy and Agricultural Lands Act cannot be brought into play. But this does not mean that if a nephew or a like relation is separate from the family of landlord, he can in no circumstances enter into contract of tenancy with his uncle or like relation

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