LAXMI Vs. SAVANTA BAPU MALI

JUDGEMENT

(1.) The respondent in this petition filed a suit, being Regular Civil Suit No. 1 of 1982, in the Court of the Civil Judge, Junior Division, at Tasgaon, praying, among other things, for a perpetual injunction restraining the petitioners, who were the defendants in that suit, from interfering with his peaceful possession of the suit lands as a tenant. Obviously the suit was based upon the threatened interference with the right of the plaintiff to the possession of the suit lands. Some history of the litigation between the parties has been given to me. It is the allegation of the petitioners that though the respondent was originally a tenant of the suit lands, prior to the tillors day the possession of the same has been handed over to the petitioners under a valid order of surrender made by the Tahsildar. The case of the respondent, however, was that that surrender was a sham and bogus one, not to be acted upon. Despite that surrender, the respondent contended, he continued to be in possession of the suit lands.

(2.) In the suit the respondent filed an application under Order 39, Rule 1 of the Code of Civil Procedure for a temporary injunction restraining the petitioners from interfering with his possession of the suit lands. The trial Court granted the injunction as prayed for by its judgment and order dated 30th of October, 1982. The appeal Court, in Miscellaneous Civil Appeal No. 120 of 1982 preferred by the petitioners, has confirmed the said order by its judgment and order dated 8th of November, 1983. Hence this petition by the original defendants.

(3.) Mr. Gokhale, the learned Advocate appearing for the petitioners, has contended that the prayers in the plaint could not be granted at all by a Civil Court because it has been prayed by the respondent that the petitioners be restrained from denying the title of the respondent in the suit lands. There is some substance in this contention of Mr. Gokhale. However, there is no substance in the further contention that no relief by way of temporary injunction could be granted in favour of the respondent in a suit of this type. Mr. Gokhale has relied upon a judgment of D.S. Deshpande, J., in (Shravan Bagaji v. Arun Manikrao) 1982 Mh.L.J. 777. It has been held in this judgment that unless the plaintiffs status as a tenant is adjudicated upon by the Tenancy Court, Civil Court will have no right to grant temporary injunction. According to this judgment, the trial Court should refer the tenancy issue to the Tenancy Court and if the issue is answered in the affirmative, then it should proceed to decide the question of temporary injunction. The learned Judge has in paragraph 3 of the judgment referred to an unreported (however reported in (1977) T.L.R. 29) judgment of Tulzapurkar, J., (as he then was) in (Pandurang Appa Patil v. Ananda Bhau Ulpe) Civil Revision Application No. 42 of 1974 decided on 28th April, 1976, Another judgment of Kanade, J, in Civil Revision Application No. 5-A of 1982 decided on 23rd February, 1982 was also brought to the attention of the learned Judge, but the learned Judge held that the following to be found in the judgment of Kanade, J., was only a general observation :---