D.B. Deshpande, J.
1. The only question which arises for consideration in this writ petition is whether the order dated 11-9-1981 passed by the learned Civil Judge (Senior Division), Aurangabad, directing a reference to be made to the Tenancy Court about the following issue---
'Whether the plaintiffs prove that they were put in possession of the suit land and they are in possession of the suit land as tenants.'
is correct, and it arises in the following manner.
2. The petitioners in this Court are original defendants Nos. 1, 3 and 4 and respondent No. 4 is the original defendant No. 2 and is also formal respondent. Respondents Nos. 1 to 3 are original plaintiffs.
3. On 6-4-1978 the plaintiffs filed a suit for specific performance of contract dated 11-9-1973 alleged to have been executed by one Kaushallyabai, the mother of the defendants, in favour of the plaintiffs in respect of 15 acres 33 gunthas out of 18 acres 33 gunthas of Survey No. 130 for an amount of Rs. 3200/-. In this very plaint in Clause 3 of the plaint the plaintiffs averred that prior to this agreement in June, 1973 Kaushallyabai inducted them into this land as tenants under an oral contract of lease and put them in actual possession of the same as tenants.
4. As already pointed out the plaintiffs have filed this suit for specific performance of contract and we are not concerned with other averments in the plaint.
5. The defendants resisted the suit and contended that the plaintiffs were not inducted as tenants by Kaushallyabai in June, 1973 as alleged by the plaintiffs. We are not concerned with other contentions.
6. Issues were framed by the trial Court and I have reproduced Issue No. 3 earlier. The plaintiffs' gave an application Ex. 31 in the trial Court requesting the trial Court to refer the question of issue of tenancy to the Tenancy Court. This application was filed on 9-4-1981. By virtue of the application Ex. 34 the defendants resisted this request, but the learned trial Judge passed an order of making a reference to the Tenancy Tahsildar, Aurangabad, for giving a finding on the question of tenancy set up by the plaintiffs. Feeling aggrieved, the petitioners filed this writ petition.
7. Shri S.C. Bora appearing on behalf of the petitioners first of all made a reference to Order 14, Rule 5 of the Code of Civil Procedure, which empowers the courts to delete certain issues which are not necessary for decision of the suit. There can hardly be any dispute about the provision embodied in Order 14, Rule 5 of the Code of Civil Procedure. According to Shri Bora, this question need not be decided at all as it is a suit for specific performance of contract. His second contention is that this question has already been decided by the Tenancy Court in a petition separately filed by the plaintiffs before the Tenancy Authorities. We will consider both these contentions separately.
8. Taking the first ground first, it is apparent that the plaintiffs averred that the sale-agreement was dated 11-9-1973. Similarly, the plaintiffs averred that prior to the date of this agreement, they were inducted into this land in June, 1973 by Kaushallyabai as tenants and actual possession of the land was handed over to them in June, 1973 by Kaushallyabai. Shri Bora agrees that for the purposes of decision of this suit, the decision on the question of possession is necessary. This possession is referable to the tenancy is set up by the plaintiffs and, therefore, I do not find any force in the contention of Shri Bora that it is not necessary to decide the question of tenancy in this suit. The very basis of plaintiffs' possession depends upon their case that they were inducted into this land as tenants. Shri Bora places reliance on the Division Bench decision of this Court in Fulmati v. Ramkrishna 1981 Mh.L.J. 321. He placed reliance on the following observations :---
'These sections (Ss. 85 and 85-A of the Tenancy Act) provide for remittance of issues only if and when the same are framed, on being found to arise, on such scrutiny after that stage that the Civil Court ceases to have jurisdiction with regard to the same till the finding is certified by the Tenancy Authorities.'
There is nothing in these observations which supports the contention raised by Shri Bora. Then there are further observations in this very ruling and they are as follows :---
'The Court has thus a duty to examine the substance and refuse to frame and remit any such issue, if the same appears to be demonstrably frivolous and mala fide.'
In the instant case it does not appear that the contentions raised by the plaintiffs is demonstrably frivolous or mala fide. Smt. K.M. Kanade appearing on behalf of the plaintiff invited my attention to the extract of 7/12 produced by the plaintiffs along with the plaint to show their possession etc. She invited my attention to the fact that the name of the lessor is mentioned by the plaintiffs and the time when the oral lease was made is also mentioned by the plaintiffs. She made reference to another decision of this Court delivered by the learned Single Judge in Pandu Dhondi Yerudkar v. Ananda Krishna Patil, : AIR1975Bom52 . Kantawala, C.J. (as he then was) laid down that when a vague plea is made by the defendant tenant about his tenancy, the Court should hesitate to frame such an issue on such a vague plea, etc. I have already pointed out that most of the necessary particulars are given by the plaintiffs in the plaint and I have, also, as far pointed out that the question of plaintiffs' possession being referable only to the tenancy, it is necessary to decide the issue of tenancy in the suit and hence I do not find force in the first contention of Shri Bora.
9. The second contention of Shri Bora is that this question is already decided by the Tenancy Court in a petition filed by the plaintiffs separately on 29-4-1977 before the Tenancy Authority. To this, there was a rejoinder on behalf of the other side that the said petition was dismissed in default and, as such, it was not a decision on merits. Whatever that may be, if the earlier decision operates as res judicata, it is open for the defendants to contend before the Tenancy Authority that it was not necessary to try the issue again and that reference should be answered on the basis of the decision already given. That is the domain of the Tenancy Court and it is not for the Civil Court to adjudicate upon that issue. It is open for the defendants to contend before the reference Court accordingly, and that is the exclusive domain of the reference Court. The Civil Court cannot, even by a far fetched way, say that the issue about tenancy is already decided and is barred by res judicata and, therefore, the plaintiffs are not the tenants. I, therefore, do not find any force in the second contention also.
10. The result is that there is no merit in this petition and accordingly, it is dismissed. Rule is discharged, but in the circumstances of the case, there will be no order as to costs. As far as possible the reference Court should decide the reference within six months from today.