LAXMINARAYAN DEO Vs. NARAYAN FULA MARATHE

JUDGEMENT

(1.) ORIGINAL plaintiff in Regular Civil Suit No. 327 of 1980 on the file of the learned Civil Judge, Junior Division, Dhule, has presented the present second appeal.

(2.) THE appellant -plaintiff brought the said Regular Civil Suit No. 327 of 1980 to get the possession of the suit property and arrears of rent from the respondents -defendants. The suit property is an agricultural land situated within the Municipal limits of Dhule. The said land was leased out by the appellant -plaintiff in favour of the respondents -defendants by registered lease deed dated 31st August, 1971 for a period of ten years. The appellant -plaintiff terminated the tenancy of the respondents -defendants by issuing notice on 23rd July, 1979. The claim of the appellant -plaintiff was denied by reply dated 27th July, 1979 and, therefore, the plaintiff filed the suit in the Court of the Civil Judge, Junior Division, Dhule, to get a decree of possession, arrears of rent and future mesne profits. 2. The respondents -tenants, contested the claim of the plaintiff by filing the written statement at Exhibit 11. They contended that as they are the tenants of the land in question, the Civil Court had no jurisdiction to entertain the said suit and the plaintiff's suit was not tenable in law and, therefore, the same should be dismissed with costs.

(3.) BEING aggrieved by the said decision of the trial Court, the tenants preferred Civil Appeal No. 159 of 1982 in the District Court of Dhule and the said appeal was heard by the learned Extra Assistant Judge, Dhule. The learned first Appellate Judge came to the conclusion that the suit of the plaintiff was not tenable as the plaintiff had not specifically pleaded in his plaint that the plaintiff had obtained a certificate of exemption under section 88 -B of the Bombay Tenancy and Agricultural Lands Act and, therefore, the learned Judge held that though the evidence was led regarding the obtaining of the certificate under section 88 -B and though the certificate of exemption under section 88 -B was produced in the trial Court, that cannot be looked into. Hence, the tenants' possession was protected under section 29 of the Bombay Tenancy and Agricultural Lands Act and, therefore, the learned Judge allowed the appeal and dismissed the suit of the plaintiff.