SUMANBAI WAMANRAO PATIL THROUGH POWER OF ATTORNEY WAMANRAO YESHWANTRAO PATIL AND OTHERSversusVASANT SHRIPATI KUMTHE AND OTHERS

2026:BHC-AUG:18352
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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       BENCH AT AURANGABAD

                                   998 WRIT PETITION NO. 3780 OF 2017

                SUMANBAI WAMANRAO PATIL THROUGH POWER OF ATTORNEY
                         WAMANRAO YESHWANTRAO PATIL AND OTHERS
                                              VERSUS
                             VASANT SHRIPATI KUMTHE AND OTHERS
                                                  ...
               Ms. M. S. Mhase h/f. M/s. Lex Aquila, Advocate for the Petitioners.
               Mr. M. A. Kulkarni, Advocate for Respondent No.1.
                                                  ...

                                             CORAM :         SIDDHESHWAR S. THOMBRE, J.
                                             DATE     :      18th APRIL, 2026
               P.C.:-

               1.            Heard learned Advocates for the respective parties.

               2.            By the present petition, the Petitioners are aggrieved by the

               order dated 22.06.2016 passed below Exhibit-50 by the learned Joint

               Civil Judge, Senior Division, Nilanga in R.C.S. No. 520 of 2012,

               whereby the application filed by the Petitioners below Exhibit-50

               seeking recasting of the following issue came to be rejected:-

                        “Does Defendant prove Nivarti Ekanth Kumthe was protected
                        tenant under Hyderabad Tenancy Act in respect of suit property ?

                        Does Defendant prove they are entitled remain in possession on
                        the suit property?

                        Does defendant prove suit property belongs to the Government of
                        Maharashtra and decree in R.C.S. No.316/93 is illegal and not
                        executable?”


               3.            Ms. M. S. Mhase, learned Advocate for the Petitioners,
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invited my attention to the plaint, particularly paragraph No. 2,

wherein it is specifically stated that the issue regarding occupancy

rights in respect of Survey No. 51 was adjudicated up to the High Court

in favour of Amratrao Deshmukh, and accordingly, he became the

absolute owner of the land admeasuring 15 Acres and 41 Gunthas. By

referring to the written statement, she further submitted, that the

Defendants have raised a specific contention disputing the ownership

and possession of the Plaintiffs and their predecessors. According to the

Defendants, the suit land was allotted to Nivrutti Eknath Kumthe under

the provisions of the Act, and a certificate was issued by the concerned

Tahsildar recognizing him as a protected tenant. It is further contended

that no ownership certificate exists in favour of Madhavrao Deshmukh

in respect of the tenancy, nor have any tenancy rights been declared by

the State Government of Maharashtra in his favour.


4.        In view of these specific pleadings in the written statement,

learned   counsel    submitted     that    it   was   necessary     for      the

Petitioners/Plaintiffs to seek recasting of issues so as to include an issue

relating to tenancy. However, the learned Trial Court rejected the said

application.


5.        Per contra, Ms. M. A. Kulkarni, learned Advocate for

Respondent No. 1, submitted that the suit filed by the Petitioners is one

for removal of encroachment, and no tenancy issue arises therein. She
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submitted that the only question to be determined is whether the

Defendants have encroached upon the suit property. According to her,

no tenancy issue was either raised or required to be adjudicated before

the Trial Court, and therefore, the learned Trial Court has rightly

rejected the application for recasting of issues.


6.        Having heard the learned Advocates for the respective parties

and upon perusal of the documents placed on record, including the

plaint, it is evident that the Plaintiffs have filed the suit for removal of

encroachment. In the plaint itself, it is specifically pleaded that the

issue of tenancy had already been adjudicated up to the High Court in

favour of Amratrao Deshmukh, who is the predecessor-in-title of the

Petitioners.


7.        Considering the pleadings of the parties, it is clear that no

tenancy issue arises from the plaint. The Defendants alone have

attempted to raise a contention regarding their possession based on

alleged occupancy rights. However, once the Plaintiffs have asserted

that the tenancy issue has already been finally decided in favour of

their predecessor, and considering that the suit is limited to removal of

encroachment, I find that no independent tenancy issue arises for

determination before the Trial Court.


8.        In that view of the matter, I am of the opinion that the
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          learned Trial Court has not committed any error in rejecting the

          application for recasting of issues.


          9.        In view of the above, the present petition stands dismissed.

          No order as to costs.


          10.       Learned Advocate for the Petitioners submits that the suit is

          of the year 2012 and that this Court, by its impugned order dated

          03.07.2017, had stayed further proceedings of the suit. In view thereof,

          the Trial Court is directed to proceed with the matter and decide the

          same in accordance with law, as expeditiously as possible, preferably

          within a period of one year from today.



                                                 (SIDDHESHWAR S. THOMBRE, J.)

Tauseef