KALAVATI GULABRAO LIHITKAR Vs. BAPURAO

JUDGEMENT

(1.) THIS appeal filed under provisions of Order 43 Rule 1(u) of the Code of Civil Procedure 1908 (for short the Code) takes exception to the order passed by the first Appellate Court remanding the proceedings to the trial Court with a direction to frame an issue regarding tenancy on the basis of pleadings of the parties with a further direction to refer said issue to the competent authority for decision.

(2.) THE facts giving rise to the present appeal are that the present appellant is the original plaintiff who was the owner of field Gat No. 29 admeasuring 2 Hectares 73R. According to the appellant, the respondent had filed Regular Civil Suit No. 40/2001 for specific performance of an agreement under which it was claimed that the present appellant had agreed to sell the suit field to the respondent. Said suit had been dismissed by the trial Court after which the appellant had issued notice to the respondent to hand over possession of the same. As the possession of the suit field was not handed over, the appellant filed Regular Civil Suit No. 19/2008 for possession and perpetual injunction.

(3.) AFTER the parties led their evidence, the trial Court held that the appellant had proved her ownership and hence, was entitled for possession of the suit field. The suit accordingly came to be decreed on 31 -8 -2009. Being aggrieved, the respondent filed Regular Civil Appeal No. 57/2009. The Appellate Court held that the respondent was in possession of the suit land on the basis of Theka and as he was claiming that he was a tenant of the suit field, the trial Court ought to have framed an issue regarding tenancy and it ought to have referred the same to the tenancy Court. Hence, by the impugned order, the Appellate Court set aside the decree passed by the trial Court and remanded the proceedings to the trial Court for framing the issue as regards tenancy with a direction to refer such issue to the tenancy Court.