TARABAI Vs. KRISHNA PANDURANG POWAR

JUDGEMENT

(1.) This revision petition has been referred to a Division Bench for disposal by the order dt. 16-10-1869 made by Narayana Pai, J., as he then was.

(2.) The petitioner is the plaintiff in O.S No.171 of 1963 on the file of the Court of the Munsiff at Jamkhandi and the respondent is the defendant in the said suit. The plaintiff sued for a permanent injunction restraining the defendant from interfering with the plaintiff's possession of the suit lands. The plaintiff's case is that she was in lawful possession of the suit land on the date of the suit and that the defendant is unlawfully interfering with her possession. Therefore, she prayed for a permanent injunction. The defendant filed a written statement denying the plaintiff's possession of the suit lands and further contending that he is the protected tenant of the suit lands under the Bombay Tenancy and Agricultural Lands Act, 1948. On the basis of the said pleadings, the learned trial Judge framed issue No.2 raising the question of the protected tenancy set up by the defendant. The said issue reeds thus "Whether the defendant is the protected tenant of the suit lands? " On 21-9-1966, the Court below referred issue No 2 fcr decision by the Tahsildar under S.85-A of the BTAL. Act The Tahasildar, by his order dt.20-6-lS67 decided the issue against the defendant. The defendant preferred an appeal to the Assistant Commssioner, who affirming the decision of the Tahsildar, dismissed the appeal on 27-3-1968 After the finding of the Tahsildar as confirmed by the Assam Commissioner was received by the Court of the Munsiff, the defendant appears to have contended that the reference was without jurisdiction and ought not have been made and that the issue should be decided by the Court itself. That contention found favour with the Court below and by its order dt 25-11-69, it held that the defendant is entitled to ignore the findings given by the Tahsildar as confirmed by the Assistant Commissioner, and thereafter posted the suit for evidence on all the issues. Aggrieved by the said order, the plaintiff has preferred the above revision petition.

(3.) When the revision petition came up before Narayana Pai, J., on 18-10-1969, the learned Counsel for the petitioner appears to have urged that the matter is concluded by the decision of this Court in Civil Petition No.201 of 1962 dated 19-6-1864. Sri Joshi learned Counsel for the respondent, sought to distinguish the present case and he appears to have urged that the rule of estoppel laid down in C P.No 201 of 1962 has no application to the facts of this case.