Civil Revision Application No.1071 of 1993

16th July, 1996

Petitioner Counsel: Shri S.R.DESHPANDE
Other Counsel: Shri S.L.KOTWAL

JUDGMENT

JUDGMENT :- This judgment shall govern the above-referred to revisions as the questions are common and the civil suits in which the injunction was claimed are filed by the common plaintiff.

2. The plaintiff Pundlik filed a civil suit, inter alia, contending that his brother Govind had leased out field survey No.65/3 to him, while in the other suit, he claimed that his sister Indirabai has leased out field survey No.65/4F to him, in the year 1992-93 and that he was in exclusive possession thereof. He alleged that defendants Govind and Indirabai had become the owners of the suit fields after the death of their father in the year 1975, that there was partition in the year 1989 inter se between the brothers and the sisters and then in 1989, the abovementioned lease was created in his favour. He also alleged that he was in exclusive possession as a tenant and had acquired the tenancy rights and as such the defendants, namely, Govind in one suit and Indirabai in the other, had no right to disposses him. On that count, he claimed a declaration that being a tenant, the defendants had no right to dispossess him. He also claimed a temporary injunction by way of a separate application. The trial Court did not grant injunction to him, holding that he did not have a prima facie case at all. The trial Court came to the conclusion that the plaintiff had not proved that he was in possession of the suit lands in both the suits. Appeals came to be filed against these orders and the appellate Court disposed of both these appeals by a common order. The appellate Court came to the conclusion that the plaintiff had proved his prima facie possession and, therefore, was entitled to have a temporary injunction. It is this common order granting the injunction in respect of both the Gat Nos.65/3 and 65/4 that is being challenged in the present revisions.

3. Shri S.R.Deshpande, learned Counsel appearing on behalf of the applicants in both Civil Revision Applications, pointed out that after the civil suits were filed by the present plaintiff/non-applicant No.1, he also started proceedings in the tenancy Court under section 50 of the Bombay Tenancy and Agricultural Lands Act and that it was held that he was not a tenant in respect of the suit fields. From this, Shri Deshpande urged that since the status of the plaintiff as a tenant itself has been unsettled and since it is now found that he is not a tenant, his claim for an injunction upon that basis must fail. He also argued that it could not be said that the plaintiff and so-called tenant was and is in possession of the suit fields. He contended that the order of the appellate Court holding the plaintiff to be prima facie in possession of the suit fields is patently incorrect.

4. Before the merits are considered, it will be worthwhile to see the main prayer in the suits. The prayer in the suits is for a declaration that the plaintiff, being a tenant, the defendants have no right to disposses him. I also went through the plaint, the copy of which was fairly supplied by Shri Kotwal, learned Counsel for the non-applicant/plaintiff. The whole plaint suggests that the plaintiff was in possession of the suit lands in his capacity as a tenant as the tenancy was created by the landlords, the present applicants. The whole claim, thus, in the plaint depends upon the plea of tenancy. Had that been the case and had the simple declaration been claimed that the plaintiff could not be dispossessed from the suit lands, the matters would have been all right, but the declaration claimed in the suit is in the typical manner whereby a declaration of the status of tenancy is also claimed. What is claimed is that the plaintiff being a tenant of the suit lands could not be dispossessed by the defendants. In this declaration, in reality what is claimed is firstly a declaration of the status of a tenant and then a consequent declaration that the tenant could not be dispossessed by the defendants. Section 124 of the Bombay Tenancy Act completely bars the jurisdiction of the Civil Court to deal with any question which is or under the act required to be decided or dealt with by the Tahsildar or Tribunal. This also includes the question whether a person is or was at any time in the past a tenant. Section 100(2) of the said Act, which speaks of the duties of the Tahsildar, runs as under :-

"For the purposes of this Act, the following shall be the duties and functions to be performed by Tahsildar -

(1) - - - - - - - - - - - - - - - ;

(2) to decide whether the person is or was a tenant, a protected lessee or an occupancy tenant."

Therefore, it is trite that the Civil Court has absolutely no jurisdiction whatsoever to decide a question as to whether a person is a tenant or not.

5. The main relief in both the suits is for the declaration that the plaintiff, being tenant, the defendants have no right to disposses him. In this, it is of necessity a finding is invited from the Civil Court in respect of the status of the plaintiff as a tenant. All this is clearly barred by Section 124. The suit itself thus was not maintainable at all. In a defective suit such as this, an injunction could never have been claimed. In that view of the matter, the order granting the injunction passed by the appellate Court will be rendered illegal. The Court does not want to go into the question as to who is in possession, for the simple reason that it was not necessary to go into that question considering the fact that the suit itself was not tenable. Both the Courts below have completely ignored this question as have been hovering around the question and to who, in fact, was in possession. It is trite law that in an untenable suit, an injunction could not have been prayed for. For this reason alone, the applicants must succeed.

6. In the result, the Civil Revision Applications are allowed. The injunction orders passed by the appellate Court are set aside. It will be for to the parties now to go before the Court below and take such steps as are permissible to them in law. In the circumstances, there shall be no order as to the costs of both these Civil Revision Applications.

Petition allowed.