SANTOSH SHIKAJI LOKHANDE Vs. SHANTABAI

JUDGEMENT

(1.) The original plaintiffs in Regular Civil suit No. 49 of 1991 for injunction, filed against the present non-applicants defendants, have come up in this revision challenging the order dated 7th November 1992 passed below Ex. 73 i.e. their application for reference to the Tenancy Court and/or for staying the proceedings in that suit, which stood rejected. The applicant-plaintiffs, as already stated, filed a suit for injunction being Regular Civil suit No. 49 of 1991. Original defendant no. 1 Shantabai filed a counter claim seeking partition and possession in that Regular Civil Suit No. 49/91. The plaintiffs claim to be in possession of the suit property being agricultural field since 1982 on the basis of sharing crops equally by them and legal representatives of the original owner. In this civil suit the plaintiffs filed an application Ex.73 for reference to the Tenancy Court or for staying the proceedings, under the provisions of the Bombay Tenancy and Agricultural Lands (V.R.) Act, 1958. The defendants filed their reply denying the claim of the applicants for making a reference and/or for staying the suit. By the impugned order dated 7-11-1992 the plaintiffs' application Ex. 73 for reference and/or for stay of the suit came to be rejected. Hence this revision application.

(2.) Heard Shri Patil, appearing on behalf of Shri A.V. Gupta, learned counsel for the applicants. It is contended that the trial Court erred in holding that the suit being for injunction simpliciter the issue with regard to the tenancy was not required to be framed and it was not necessary to stay the proceedings. The rejection of the application, it was contended, was, therefore, bad in law and the impugned order has to be quashed. It is also contended that the trial Court did not take into consideration the effect of filing on the counter claim for partition and possession of the suit property by one of the defendants while arriving at the conclusion on the plaintiffs' application Ex. 73. Reliance was placed on the decision of this Court Digambar Madhevas v. Sk. Yusof, 1985 2 BCR 617, as also on the decision in Pandurang Ramchandra Mandlik v.Shantabai Ramchandra Ghatge, 1989 AIR(SC) 2240.

(3.) Relying upon the decision in Gundaji v. Ramchandra, 1979 AIR(SC) 653 this Court in Digambar's case held that the Civil Court has to refer the issue of tenancy to the Tenancy Court in a suit for injunction simpliciter. In the decision of Gundaji's case the Supreme Court held as under :