JUDGMENT - A.A. CAZI, J.:---The trial Court by its order dated 1st December, 1983 refused to frame an issue as to whether the plaintiff's (present petitioners) prove that the suit land is leased to the plaintiff's and defendant No. 6 is a joint family and that they were in possession of the suit land as tenants. It is against this order of refusal to frame that issue, the petitioners (original plaintiff's) have filed the present writ petition.

2. It is urged that the plaintiff's made a specific claim in their plaint that they were the tenants in respect of the suit land having taken lease of the same from respondent No. 1 and that this tenancy was prior to 1st April 1957 and that since this claim has been denied by respondent No. 2, the reliefs claimed by the petitioners in that suit cannot be decided without deciding upon this claim made by the petitioners and that therefore the trial Court was bound to frame the above said issue and then refer the same to the Tenancy Court under the provisions of section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948 and await the decision of the Tenancy Court before proceedings to decide the suit. The merits of this contention will have to be considered in the light of certain facts and views expressed by a Division Bench of this Court reported in 1981 Maharashtra Law Journal 321 (Pulmati Shyamlal Mishra v. Ramkrishna Gangaprasad Bajpai)1.

3. The facts are as follows : On 20th April, 1967 respondent No. 1 - original owner of the suit land agreed to sell the suit land to respondent No. 2. Thereafter in May or June 1967 respondent No. 1 purported to mortgage the said land to respondent No. 3. Respondent No. 2 having cause to believe that respondent No. 1 was trying to get out of the agreement dated 20th April, 1967, filed a suit being Suit No. 80 of 1967 in the Civil Court for specific performance of the agreement to sell and obtained a decree on 29th November, 1968. Respondent No. 3 had been made a party to the said suit. Thus the decree for specific performance was against respondent No. 1 but it was also bound respondent No. 3. An appeal was filed against the decree dated 29th November, 1968, but the Appellate Court dismissed that appeal on 29th July, 1970. A second appeal was also filed in that Court, but that was dismissed on 29th September, 1978. Thus the agreement of 20th April, 1967 was avoided by respondents Nos. 1 and 3 for more than 11 years i.e. until 29th September, 1978. Then on 16th February, 1979 the present suit was filed asking for reliefs which would prevent respondent No. 2 from executing his decree for specific performance and would perpetuate the object of respondents Nos. 1 and 3 to avoid the decree. It is in this light that the merits of the contention of the present petitioners would have to be looked into. Now, what is the claim of the present petitioners? It is their claim that much before the agreement of 20th April, 1967 in fact prior to 1st April, 1957, respondent No. 1 had leased out the land to the present petitioners and they were in possession of the suit land as tenants and that their possession could not be disturbed or otherwise interferred with by any decree obtained by respondent No. 2 against respondent No. 1 in any suit to which the present petitioners were not a party. After the suit was filed, the petitioners obtained ad interim injunction restraining respondent No. 2 from executing his decree. The petitioners as plaintiffs in the suit filed an application before the trial Court requesting it to frame the issue of tenancy which has been mentioned earlier, but the trial Court rejected that application. In Pulmati Mishra's case it was observed that it is not correct to assume that the Court is under any obligation to frame and remit the issue of tenancy mechanically without judicial satisfaction of its necessity and justification. It was pointed out that cases could be conceived when tenancy plea appeared to be patently frivolous, fraudulent

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