GOPAL SINGH MOHANSING RAJPUT AND ANOTHER v. JAISHREE BALISINGH CHAUDHARY DIED THR LRS ARJUNSINGHAND OTHERS

..1..17-fa-213-24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD17 FIRST APPEAL NO. 213 OF 2024GOPAL SINGH MOHANSING RAJPUT AND ANOTHERVERSUSJAISHREE BALISINGH CHAUDHARY DIED THR LRS ARJUNSINGHAND OTHERS…Advocate for Appellants : Mr. Shaikh Mujtaba Gulam MustafaAdvocate for Respondent Nos.1 to 4 : Mr. D. A. Madakeh/f. Mr. Bhosle Pratik Arvind Advocate for Respondent Nos.5 to 9 : Mr. Pratik P. Kotharih/f. Mr. Jaju Nikhil Santosh …CORAM : KISHORE C. SANT, SUSHIL M. GHODESWAR, J.J.DATE : 05.02.2026PER COURT :

Heard the parties.

Since the appeal arises out of the order passed by the learnedCivil Judge Senior Division allowing the application under Order 7 Rule11 of the Code of Civil Procedure and rejecting the suit.

This Court finds that present appeal can be disposed of at thestage of admission itself, the record is not necessary for the purpose ofdeciding the appeal. ..2..17-fa-213-244.The pleading in short in the suit is that, the mother of theplaintiffs / present appellants happened to be the sister of husband oforiginal defendant No.1 Jaishree who is now dead and succeeded bydefendant Nos. 1 (A) to 1(F). Defendant No.5 is the Developer firmand defendant Nos.6 to 9 are its partners.

The plaintiffs filed a suit seeking partition and separatepossession of the suit land and a declaration that the sale deed bearingNo.5361/2022 dated 06.10.2022 executed by defendant Nos. 1 to 4 infavour of defendant Nos. 5 to 9, is void ab-initio and not binding uponplaintiffs etc. It is their case that being a sister of late BalisingChaudhari, she has share to the property. The pleadings are simply onthat basis. In the suit, all the defendants have appeared.

Defendant Nos. 1 to 4 filed an application under Order VII Rule11 of the Code of Civil Procedure, (for short C.P. C.). It is the case ofthe defendants that the land happens to be a tenanted land. Tenancy isdeclared in favour of late Balising long back. Since the land is tenantedland, the issue of the tenancy also will have to be decided. Since theissue of tenancy is invoked, there is a bar of Section 99 of the ..3..17-fa-213-24Hyderabad Tenancy and Agricultural Lands Act, 1950.

This application was resisted by the plaintiffs. However, thelearned Civil Judge Senior Division, by way of impugned order dated03.07.2023, allowed the application Exhibit 17 and rejected the plaintunder Order VII Rule 11 of the C.P. C. The original plaintiffs/appellantsare, thus, before this Court.

Heard the parties.

The learned Advocate Mr. Mujtaba submits that in the presentcase, the right is claimed by the plaintiffs purely being the members ofthe family as the mother of the plaintiffs happens to be sister of originaltenant namely Balising, husband of defendant No.1-Jaishreebai. Noissue of tenancy is required to be decided as such. The learned trialCourt, however, wrongly observed that the issue of tenancy is requiredto be decided. He further submits that the learned trial Court haswrongly observed that the land was not ancestral land or self-acquiredland of plaintiffs and prima-facie the question of tenancy is involved. He submits that this observation is totally contrary to record. Hisfurther submission is that while deciding the application under OrderVII Rule 11 of the C.P. C., what it is to be seen is the pleading in the ..4..17-fa-213-24plaint and no part of the written statement of the defence is required tobe seen at the stage of deciding the application under Order VII Rule11. He submits that in the present case, it is the case put forth by thedefendant Nos. 1 to 4 in the application for the first time that the issueneeds to be referred to the tenancy authorities. He submits that Section 99-A of the Hyderabad Tenancy & Agricultural Lands Act, 1950(HTAL Act) does not prescribe that the partition suit in respect oftenanted property needs to be referred to the tenancy authorities, whenalready the tenancy rights have been decided in favour of Jaiyshreewhere the plaintiff was not a party.

The learned Advocate for the plaintiffs relies upon the judgmentreported in 2012 (6) Mh.L.J. page No.758, in the case of Bhau Ram Vs.Janak Singh and others. He further relies upon the judgment reportedin (2025) 4 SCC, page No. 38 in the case of Central Bank of India andanother vs. Prabha Jain and others.

The learned Advocate Mr. Madke for original defendant Nos. 1 to4 vehemently argued that in the present case admittedly the land is atenanted land. There is no dispute about the nature of the right overthe property. Even if the suit appears to be a partition suit, the issue of ..5..17-fa-213-24tenancy will have to be considered by the Court as in view of Section 99of the HTAL Act, there is clear bar of jurisdiction and no Civil Court canentertain the question as regards the tenancy and the tenantedproperty. He thus supports the order passed by the trial Court.

Learned Advocate for respondent Nos. 5 to 9 adopts thearguments of defendant Nos. 1 to 4. He submits that the mother of theplaintiffs married long back in the year 1963 and it is thereafter thetenancy rights were decided by the authorities in favour of Jaishreebai. He, thus, supports the order. 13. This Court has heard the parties. Section 99-A of the HyderabadTenancy & Agricultural Lands Act, 1950, reads as under :

99-A.- If any suit instituted in any Civil Court, involvesany issues which are required to be settled, decided or dealtwith by an authority competent to settle, decide or dealwith such issues under this Act (hereinafter referred to asthe competent authority) the Civil Court shall stay the suitand refer such suit to the competent authority fordetermination. (2) On receipt of such reference from the Civil Court, thecompetent authority shall deal with and decide such issuesin accordance with the provisions of this Act, and shallcommunicate its decision of the suit in acordance with theprocedure applicable thereto.

..6..17-fa-213-24This Court has thus, to consider from the plaint as to whether any ofthe question which is arising in the plaint requires consideration by thetenancy authorities under the Act.