LAWS(BOM)-2005-9-128

VISHNUM SANKAR NAIK Vs. ANANTA AYU NAIK

Decided On September 23, 2005
VISHNUM SHANKAR NAIK Appellant
V/S
ANANTA AYU NAIK Respondents

JUDGEMENT

(1.) This is plaintiff's second appeal arising from R. C. S. No. 10/76 and was admitted on 3 substantial questions of law by virtue of Order of this Court dated 5-7-2001. Question No. 2 on which arguments have been advanced on behalf of both the parties reads as follows :-"whether the Additional District Court could have ignored that the declaration in order dated 21-9-98 in Tenancy Case no. 9/94, declaring the appellant to be a tenant in respect of the suit property when the said judgment might have attained finality and was not challenged by the respondents who were the parties to the proceedings in which the said Judgment and Order was passed".

(2.) The parties hereto shall be referred to in the names as they appear in the cause title of the said Civil Suit. The dispute between both the parties was regarding a property belonging to Vasant Gangadhar Sinai kenkre and others known as "jacobichem bhat" and surveyed under Nos. 6/2 and 16/0 bf village Bhoma. The plaintiff claimed to be a tenant of the said property and so did the defendant, and the plaintiff filed the said Civil suit for permanent injunction to restrain the defendant from disturbing the peaceful possession and enjoyment of the said property by the plaintiff.

(3.) Although, the plaintiff as well as the defendant (now represented by his legal heirs) had claimed to be the tenants of the said kenkres, the issue of tenancy was not referred to for the decision of the Mamlatdar and the learned trial Court by his Judgment/order dated 31-10-1990 came to the conclusion that the plaintiff was not in possession of the suit property at the time of filing of the suit and, therefore, relief of permanent injunction simpliciter could not be granted to the plaintiff.