1. This revision petition has been referred to a Division Bench for disposal by the order dated 16-10-1969 made by Narayana Pai, J.. as he then was.
2. The petitioner is the plaintiff In O. S. No. 171 of 1963 on the file of the court of the Munsiff at Jamkhandi and the respondent is the defendant in the said suit. The plaintiff sued for permanent injunction restraining the defendant from interfering with the plaintiff's possession of the suit lands. The plaintiff's case is that she was in lawful possession of the suit lands on the date of the suit and that the defendant is unlawfully interfering with her possession. Therefore, she prayed for a permanent injunction. The defendant filed a written statement denying the plaintiff's possession of the suit lands and further contending that he is the protected tenant of the suit lands under the Bombay Tenancy and Agricultural Lands Act. 1948. On the basis of the said pleadings, the learned trial Judge framed Issue No. 2 raising the question of the protected tenancy set uq by the defendant. The said issue reads thus:--
'Whether the defendant is the protected tenant of the suit lands?'
On 21-2-1966, the Court below referred issue No. 2 for decision by the Tahsildar under Section 85-A of the B. T. A. L. Act. The Tahsildar, by his order dated 20-6-1967 decided the issue against the defendant. The defendant preferred an appeal to the Assistant Commissioner, who, affirming the decision of the Tahsildar, dismissed the appeal on 27-3-1968. After the finding of the Tahsildar as confirmed by the Assistant Commissioner was received by the Court of the Munsiff, the defendant appears to have contended that the reference was without jurisdiction and ought not to have been made and that the issue should be decided by the court itself. That contention found favour with the court below and by its order dated 25-11-1968, it held that the defendant is entitled to ignore the findings given by the Tahsildar as confirmed by the Assistant Commissioner, and thereafter posted the suit for evidence on all the issues. Aggrieved by the said order, the plaintiff has preferred the above revision petition.
3. When the revision petition came up before Narayana Pai, J., on 16-10-1969, the learned counsel for the petitioner appears to have urged that the matter is concluded by the decision of this court in Civil Revn. Petn. No. 201 of 1962, D/- 19-6-1964 (Mys). Sri Joshi, learned counsel for the respondent, sought to distinguish the present case and he appears to have urged that the rule of estoppel laid down in C. P. No. 201 of 1962 (Mys) has no application to the facts of this case.
4. The principle laid down In Civil Petn. No. 201 of 1962 (Mys) and also in Shaik Abdul Rahim v. Chintarnanrao Madhavarao, (1964 Mys LJ (Supp) 721) is that a party at whose instance a reference is made cannot later turn round when the decision goes against him and challenge the jurisdiction of the very tribunal, on the principle that a party cannot approbate and reprobate. In our opinion the principles laid down in the above decisions have no relevance for the purpose of the decision of this revision petition. The suit as already stated, is one for permanent injunction on the allegation that the plaintiff is in lawful possession of the suit lands, and that the defendant is unlawfully interfering with her possession. In such a suit, the only question that arises for decision is whether the plaintiff was in possession of the suit lands on the date of the suit. If the plaintiff is able to establish that fact, then, she is entitled to a decree for injunction. In such a suit, no issue regarding the plea of tenancy set up by the defendant arises for decision. When the issue of tenancy does not arise in a suit of this nature, it was unnecessary to raise such an issue and refer the same for decision by the Tahsildar.
In C. R. P. Nos. 1313 and 1315 of 1965 (Mys), Naravana Pai, J. (as he then was) has taken a similar view.
In M. S. A. No. 135 of 1968 (Mys), Malimath, J., has also expressed the same view.
5. In the result, for the reasons stated above we allow this revision petition and direct the court below to delete issue No. 2 and proceed to trial on the rest of the issues. No costs.