N.G. Chandavarkar, Kt., J.
1. The suit was brought by the appellants, as usufructuary mortgagees, claiming relief by way of a permanent injunction to restrain the defendants from obstructing them in the enjoyment of their right as such mortgagees.
2. The Subordinate Judge who tried the suit found upon the evidence that in the Samvat year 1962 the defendants did obstruct and adopted 'a really ingenious method' of harass' ing and harming the plaintiffs. Accordingly he granted injunction only in respect of the produce, which the plaintiffs entitled to get in respect of their mortgage for the Samvat year in question. But as to the future years, the Subordinate Judge rejected the claim for injunction upon the ground that there was nothing to show that the defendants intended to invade or would invade the plaintiffs' right.
3. There was an appeal by the defendants and cross-objections were made by the plaintiffs. So far as the injunction granted by the Subordinate Judge in respect of the produce of one year was concerned, the lower appellate Court held that the plaintiffs were not entitled to that relief, having regard to the provisions of Section 54 of the Specific Relief Act. In other words, in the opinion of the appellate Judge, remedy by way of injunction was not the proper relief, because the plaintiffs could get damages in respect of the wrong. Now, that view would be correct if we were to look to the interruption or obstruction for the single year, and if that interruption or obstruction was not evidence, either by itself or taken with other circumstances, of a threat on the part of the defendants to continue to invade the rights of the plaintiffs in future years, so as to destroy them altogether as the rights of the usufructuffry mortgagees. On this point the lower appellate Court may usefully be referred to the decision of this Court in Apaji Patil v. Apa (1902) 4 Bom. L.R. 534 : I.L.R. 26 Bom. 735 where Jenkins C. J., after quoting the provisions of Section 54 of the Specific Relief Act, says:-' It appears to us that where a legal right, violated by another under colour of title, is established, the recurrence of violation cannot in ordinary cases be adequately met by damages, nor can those damages be satisfactorily ascertained.' Therefore, if such actual invasion of the right as has taken place and other circumstances of the case show that the invasion is likely to continue, then to say that the plaintiffs ought to sue for damages every time that the right is invaded is to drive them to a multiplicity of suits, whereas Section 56 says the proper remedy in such a case is by injunction. So the ground given by the lower appellate Court for reversing the decree of the Subordinate Judge fails.
4. Then, on the other question, on which both the Courts below have agreed, namely, that the plaintiffs are not entitled to a permanent injunction in respect of the years subsequent to the Samvat year 1962, what has already been said answers that point. It is not necessary that any positive evidence should be led by the plaintiffs for the purpose of showing that the defendants intended invading the rights for the subsequent years also. That is a question which can be determined on the probabilities of the case, the surrounding circumstances, and by the light of the conduct of the defendants in the actual obstruction which they have caused with reference to the produce of one year and with reference to the attitude which they have adopted in the present suit. In the present suit they have denied the plaintiffs' title. The lower appellate Court has not found whether the obstruction complained of by the plaintiffs for the Samvat year 1962 is proved or not-nor has it found any of the facts which would be required for the purpose of deciding the question whether a permanent injunction ought to go in respect of the subsequent years. The suit having been dismissed upon a preliminary point, we must reverse the decree of the lower appellate Court and remand the appeal for a fresh hearing on the merits.
5. Mr. Samarth in supporting the decree of the Court below has urged before us a point which was decided against him both by the Subordinate Judge in the Court of first instance and the Subordinate Judge with appellate powers. He argues that the suit is not maintainable under the provisions of the Talukdari Act, according to which no Court shall entertain a suit for partition of the Talukdari estate. It is contended that the present suit for relief by way of a permanent injunction is really a suit for partition in the disguise of a suit for a declaration and an injunction. But both the Courts below have found upon the evidence that the plaintiffs have been in receipt of their share of the produce as usufructuary mort-' gagees for several years and that they have been enjoying the property as tenants-in-common. Having regard to that finding of fact, it is clear to us that what is sought is not partition but a declaration of the right which the plaintiffs have as usufructuary mortgagees.
6. Should the Court below find on a consideration of the circumstances of the case that the proper relief to grant to the plaintiffs is by way of damages, not by an injunction, it should grant that relief instead of referring the plaintiffs to a separate suit. The Court has jurisdiction to give damages where relief by way of injunction only is sought but the right to it is not proved: Kaliandas v. Tulsidas(1).
7. We must, therefore, send the case back for disposal according to law. All costs including those of this appeal to be dealt with by the lower appellate Court.