Marybai Marshal Pimenta and anr. Vs. Ramnath Gopal Bhuskute and ors. - Court Judgment

Excerpt:
civil procedure code (act v of 1908), sections 94, 10; order xxxix, rule 1 - bombay tenancy and agricultural lands act (bom. lxvii of 1948), sections 85a, 85--claim for interim injunction to protect possession of land by plaintiffs on ground that he was in possession as tenant of land--civil court whether has no jurisdiction to grant injunction because of having no jurisdiction to decide issue of tenancy of land.;it is well settled that at the time of considering whether an injunction should or should not be granted in favour of a party to protect his possession, all that the court has to do under order xxxix, rule 1 is to find out whether the party has prima facie established his possession in some capacity or the other. a civil court has jurisdiction to grant an injunction to protect possession of the alleged tenant notwithstanding the fact that it has no jurisdiction to decide the issue of tenancy in view of the provisions of section 85a of the bombay tenancy and agricultural lands act, 1948.;shrawan v. arun [1982] mah. l.j. 777 [by d.b. deshpande j. at aurangabad bench-civil revn. appln. no. 79a of 1982 decided on june 24, 1982] overruled.;pandurang appa patil v. anant bhau ulpe [1977] t.l.r. 29 explained.;sujanbai v. motiram [1980] mah. l.j. 578, maruti sambha v. parshuram [1983] mah. l.j. 958 : (1983) 86 bom. l.r. 1, baliram maruti v. dadu govind [1985] mah. l.j. 311, laxmi sonu v. sawanta bapu [1985] mah. l.j. 314 : (1985) 87 bom. l.r. 159 approved. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. - 3. the trial court as well as the appeal court have come to the conclusion that the plaintiffs have proved their possession. dalvi appearing for the plaintiffs-petitioners, this view is contrary to the decision of earlier as well as later judgments of this court. we, therefore, fail to see what relevance that case had to the issue which fell for consideration before the learned single judge who took the contrary view. 6. it is well settled that at the time of considering whether an injunction should or should not be granted in favour of a party to protect his possession, all that the court has to do under order 39, r.sawant, j.1. this is a reference made by a learned single judge. the short question that arises in the case is: has the civil court jurisdiction to protect the possession of a party to the suit when he claims to be in possession in his capacity as the tenant either while 'making the reference or pending the reference under section 85a, bombay tenancy and agricultural lands act, 1948 (hereinafter referred to as 'the act').2. in the present case, the plaintiffs claim to be the tenants of an agricultural land situate at dhovali, taluka vasai, district thane. it is also claimed by them that they were entitled to be declared as statutory purchasers of the suit land under the provisions of the act. however, for some reasons the proceedings for fixation of the price of the land which are once commenced were subsequently dropped they claim to be in possession of the land since many years prior to the suit and have approached the court since the defendant-landlords are trying to interfere with the possession. it also appears that the proceedings under section 145, cr.p.c. had preceded the suit and an order of attachment of the land was also passed by the taluka magistrate in the said proceedings. the defendants had claimed that possession of the land was taken over by the magistrate from the plaintiffs under the said order of attachment, which claim is however contested by the plaintiffs.3. the trial court as well as the appeal court have come to the conclusion that the plaintiffs have proved their possession. however, an interim injunction claimed by the plaintiffs against the defendants to protect the possession was refused by them solely on the ground that in view of the provisions of section 85 a of the act the issue as to whether the plaintiffs were tenants of the suit land could not be decided by the civil court and had to be referred to the tenancy authorities for their decision.4. against the order of refusal of injunction by the courts below, the present civil revision application is preferred to this court. the learned single judge before whom the application came referred the issue to this court in view of the view taken by another learned single judge which is reported in 1982 mah lj 777, shravan v. arun, where it is held that since the civil court had no jurisdiction to decide the issue of tenancy it, has also no jurisdiction to protect the possession of the alleged tenant by way of an interim injunction.5. as has been urged by mr. dalvi appearing for the plaintiffs-petitioners, this view is contrary to the decision of earlier as well as later judgments of this court. it has been held in the following decisions that notwithstanding that the civil court has no jurisdiction to decide the issue of tenancy, the possession of the party, if prima facie proved, can be protected by an interlocutory order. those cases are :(1) sujanbai v. motiram, : air1980bom188 . (2) maruti sambha v. pershuram 1983 mah lj 958; (3) baliram maruti v. dadu govind 1985 mah lj 311; and (4) laxmi sonu v. sawanta bapu, : air1986bom169 .the learned single judge who has taken the contrary view has relied on the decision of another learned single judge of this court reported in pandurang appa patil v. ananda dhau ulpe (1977) tlr 29. we have examined the said decision and find that the facts in that case have no relevance to the issue which was involved before the learned judge and which is also involved in the present case. in that case, the question was whether the trial court was justified in refusing to make a reference of the issue of tenancy to the tenancy court. the trial court had refused to make the reference on the ground that the relief claimed in the suit was for injunction simpliciter. this court came to the conclusion that the relief was both for declaration that the plaintiff was in possession of the suit property in his capacity as a tenant and also for injunction. in this view of the matter, this court held that it was incumbent upon the trial court to refer the issue to the tenancy court, if the court came to the conclusion that prima facie the plaintiff had proved his possession. it was also held that the plaintiffs' alleged claim of tenancy was also relevant for the purpose of considering whether or not the plaintiffs were entitled to injunction as prayed for by them. it may also be mentioned here that it does not appear that in that case the issue whether pending the hearing and final disposal of the suit, the plaintiff could be granted as interim relief of injunction protecting his possession was in issue. we, therefore, fail to see what relevance that case had to the issue which fell for consideration before the learned single judge who took the contrary view.6. it is well settled that at the time of considering whether an injunction should or should not be granted in favour of a party to protect his possession, all that the court has to do under order 39, r. 1 is to find out whether the party has prima facie established his possession in some capacity or the other. as is apparent from the facts of the present case, the plaintiffs had claimed that they were in possession of the suit land as tenants for many years prior to the suit. in fact, proceedings for fixation of the price of the land were started on one occasion, althouth they were dropped thereafter for some reason or the other. it was also not disputed that in fact proceedings under section 145 criminal p.c. were adopted and in those proceedings the taluka magistrate had attached the suit land. according to the defendants themselves, the possession of the land was taken from the plaintiffs in those proceedings, though this was denied by the plaintiffs. whatever that be, the contention of the defendants itself shows that prior to the attachment of the land in those proceedings, it was the plaintiffs who were in possession of the suit property. the fact that the plaintiffs were in possession of the suit property for a number of years was also not disputed. all that is disputed before the civil court is the capacity in which they are so in possession. both the courts below have further come to the conclusion that the plaintiffs were in possession but as stated earlier, have denied the relief to the plaintiffs . on the only ground that the civil court had no jurisdiction to decide the issue of the tenancy.7. since we are of the view that the civil court has jurisdiction to grant an injunction to protect the possession of a party, if it comes to the conclusion that the party is in possession of the land, the reference will have to be answered accordingly. the decision of the learned single judge reported in the case of shravan v. arun 1982 man lj 777, is hereby overruled and it is held that the civil court has jurisdiction to grant an injunction to protect possession of the alleged tenant notwithstanding the fact that it has no jurisdiction to decide the issue of tenancy in view of the provisions of section 85a of the act.8. the revision application is accordingly allowed and the rule is made absolute with costs.