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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.490 OF 2007
WITH
CIVIL APPLICATION NO.832 OF 2007
1.Ramu Shivappa Agalgave
(since deceased) through LRs
1-A.Baburao R.Agalgave & Ors. .. Appellants.
Vs.
1.Imam Kashim Pathan & Ors. .. Respondents.
Ms.Leena Patil for the appellants.
Mr.Sandesh D.Patil for respondent no.2B and 2C.
CORAM : D.B.BHOSALE, J.
DATED : 24TH OCTOBER, 2007.
P.C.:
. Heard learned counsel for the parties.
2. This second appeal is by the original
plaintiff. The appellants had filed a suit for
declaration that a decree passed in Regular Civil
Suit No.80 of 1967 and confirmed in second appeal
No.749 of 1970 is illegal, against public policy and
is not binding on them. It appears that the
appellants were not party in the earlier round of
litigation. The earlier suit was filed by one
Ramchandra Koli, defendant no.2 in the present suit,
against Imam Pathan and Kallappa S.Agalgave,
defendant nos.1 and 3 in the present suit, for
specific performance of an agreement. That suit was
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decreed and the decree was confirmed upto this court.
Ms.Patil, learned counsel for the appellants submits
that an issue as to whether the appellants/plaintiffs
are the tenants in the suit property has not been
considered by the courts below. The trial court
ought to have framed the issue of tenancy and
referred it to the tenancy authorities under section
85A of the Bombay Tenancy and Agricultural Lands Act.
I perused the judgments of the courts below and more
particularly paragraph 17 of the appeal court’s
judgment dated 9.4.2007. The appellate court has
made reference to writ petition No.2609 of 1984
decided on 7.1.1992. That writ petition was arising
from the orders passed by the trial Court rejecting
the application seeking reference under section 85A
of the Bombay Tenancy and Agricultural Lands Act.
This court in writ petition confirmed the order
rejecting the prayer for reference. In my opinion,
there is absolutely no merit in the second appeal.
No subtantial question of law is either raised or
involved in this appeal. In the circumstances the
second appeal is dismissed. Consequently, the civil
application is also disposed of.
(D.B.BHOSALE, J.)
Ramu Shivappa Agalgave
Baburao R.Agalgave
Imam Kashim Pathan
D.B.Bhosale
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court