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Maruti Sambha Surve Vs. Parshuram Krishna Koratkar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number W.P. No. 2079 of 1979 (Bom)
Judge
Reported in(1984)86BOMLR1; 1983MhLJ958
AppellantMaruti Sambha Surve
RespondentParshuram Krishna Koratkar
DispositionPetition allowed
Excerpt:
.....possession of land - issue with regard to tenancy of land by defendant not involved--reference of issue of tenancy to authorities under tenancy act whether without jurisdiction.;section 85-a of the bombay tenancy and agricultural lands act, 1948 permits only such issue to be referred as is involved in the suit. when section 85-a refers to an issue being involved in the suit, it obviously means that the issue is relevant for the decision of the suit.;in a suit for injunction simpliciter by a plaintiff who claims to be in possession of the land, an issue with regard to the tenancy of the defendant is not required to be decided at all and it is not material or relevant for the purposes of the suit. section 85-a is conditional upon an issue being involved in the suit and hence when an issue..........ajinath, who is the owner of survey no. 85/3c, area 1 acre and 20 gunthas.2. respondent no. 1 has filed a suit for injunction simpliciter, alleging that he is in possession and the defendant has been obstructing his possession and he should, therefore, be restrained from interfering with the possession of the plaintiff. one of the defences raised by the present petitioner is that he is the tenant of the suit land in dispute and has been recorded as such. the alleged tenancy is dated april 1, 1972 granted by a lease deed by owner ajinath. one of the issues framed by the trial court reads : -whether the defendant is lawful tenant of the suit land since before 27-5-1974.3. when the issue was referred to the tahsildar, he held that the present petitioner was a lawful tenant since before may.....
Judgment:

M.N. Chandurkar, Acting C.J.

1. This is one more case in which the trial Court has mechanically made a reference under Section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 referring the issue with regard to the status of the defendant to the revenue Court. There is an agreement of sale dated May 27, 1974 executed in favour of respondent No. 1 by one Ajinath, who is the owner of survey No. 85/3C, area 1 acre and 20 gunthas.

2. Respondent No. 1 has filed a suit for injunction simpliciter, alleging that he is in possession and the defendant has been obstructing his possession and he should, therefore, be restrained from interfering with the possession of the plaintiff. One of the defences raised by the present petitioner is that he is the tenant of the suit land in dispute and has been recorded as such. The alleged tenancy is dated April 1, 1972 granted by a lease deed by owner Ajinath. One of the issues framed by the trial Court reads : -

Whether the defendant is lawful tenant of the suit land since before 27-5-1974.

3. When the issue was referred to the Tahsildar, he held that the present petitioner was a lawful tenant since before May 27, 1974. An appeal filed by the plaintiff came to be dismissed. However, in the revision application filed by the plaintiff, both the orders holding that the present petitioner was a tenant were set aside. This petition is now filed by the defendant challenging the order of the Maharashtra Revenue Tribunal.

4. At the very outset, it has to be made clear that, civil Courts seem to be following a practice of referring the issue of tenancy to the Tahsildar straightway without ascertaining whether the decision of that issue is material for the decision of the suit. Section J5-A of the Bombay Tenancy and Agricultural Lands Act, 1948 permits only such issue to be referred as is involved in the suit. When Section 85-A refers to an issue being involved in the suit, it obviously means that the issue is relevant for the decision of the suit.

5. Now, in a suit for injunction simpliciter by a plaintiff who claims to be in possession, the plaintiff will be entitled to injunction only if he proves his possession on the date of the suit. If the plaintiff proves his possession on the date of the suit, the status of the defendant, who is alleged to be disturbing the possession of the plaintiff, is wholly irrelevant, because a tenant is not entitled to forcibly dispossess any person in possession against whom the tenant may have a right to claim possession. On the other hand, if the plaintiff in a suit for injunction simpliciter fails to prove his possession on the date of the suit, again, the status of the defendant becomes immaterial. In such a case, it may be that the plaintiff might like to amend the plaint, but till such amendment is prayed for and granted, the question as to whether the suit for possession can be decreed against the defendant who claims to be a tenant cannot arise. It is only if a claim for possession is to be inquired into that the status of the defendant as a tenant will become relevant. However, in either case, when a suit for injunction supplicate is filed, as issue with regard to the tenancy of the defendant is not required to be decided at all and it is not material or relevant for the purposes of the suit. Consequently, in my view, the whole reference made by the civil Court was uncalled for and the proceedings under reference were all irrelevant for the decision of the suit. In a sense, the reference becomes completely without jurisdiction because the issue of tenancy cannot be said to be involved in the suit at the present stage and this must prevent the Court from exercising its jurisdiction under Section 85-A of the Bombay Tenancy and Agricultural Lands Act, which is conditional upon an issue being involved in the suit. Consequently, the orders of all the three authorities, namely, the Tahsildar, the Sub-Divisional Officer and the Maharashtra Revenue Tribunal, are all quashed. The reference itself is quashed. The civil Court is now directed to deal with the suit expeditiously. It is made clear that if at some stage after the finding with regard to possession an issue of tenancy becomes relevant for the decision of the suit, it will still be open to the trial Court to make such a reference. As the suit is fairly old, it should be given priority.

6. The petition is thus allowed. Rule made absolute. However, there will be no order as to costs in this petition.


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