1 SSK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (LODGING) NO. 335 OF 2010 IN NOTICE OF MOTION NO.4018 OF 2009 IN SUIT NO. 3018 OF 2009 Ratan Dhakliya Ahide & Ors. ....Appellants Versus Sillo Dhanjishah Mistri & Ors. ....Respondents Mr. Mihir Desai a/w. Ms.Chetna Birje for the Appellants. Mr. D. D. Madon, Sr. Counsel i/b. Mr. Sharan Jagtiyani, Mr.H.Toor and Ms.Athithi Thakkar, Advocates for Respondents. CORAM : F. I. REBELLO & R. V. MORE, JJ. DATE : 14TH JUNE, 2010. P.C.: The Appellants/Original Defendants challenges the legality and propriety of the impugned order dated 5th May, 2010 passed by the learned Single Judge in notice of motion no. 4018 of 2009 whereby the above notice of motion preferred by the Respondents/Original Plaintiffs is allowed in terms of prayer clause a(i), thereby restraining the Appellants by themselves or through their family members, agents and hirelings from entering upon any part of the suit property. 2 2. The dispute is about suit property being Survey Nos. 5, 6, 7, 8, 9, 10, 11, 18, 158, 159, 160, 165, 166, 167 and 168 admeasuring about 49 acres and 5 1/2 guntas situated at Village Saigaon/Saitukdi in Taluka-Borivali, Bombay Suburb District (hereinafter called as suit property). The Respondents/Original Plaintiffs filed a suit for declaration that the Appellants/Original Defendants have no right of whatsoever nature in respect of any part of the suit property. The Respondents also claimed permanent injunction restraining the Appellants from entering upon any part of the suit property. The Respondents claimed to be the Owners of the suit property and their ownership is not disputed by the Appellants. The Appellants, however, claimed to be agricultural tenants in respect of some of the Survey Nos. of the suit property. 3. Admittedly, one Francis Soz was a tenant of the Respondents’ predecessor-in-title, in respect of the suit property. Francis sublet the suit lands to four persons viz. Gundiya Dhakaliya, Kalu Ghatal, Ramji Ladkya, Ramchandra Warkya Ghatal. The Respondents’ predecessor filed tenancy proceedings being suit nos. 13 & 14 in the month of March, 1957 against Francis for termination of the lease on two grounds viz. non-payment of rents and subletting. The Mamlatdar disposed of these proceedings by his order dated 28h October, 1957. In these proceedings, Francis admitted default in payment of rent and also sub-lease to above said four persons. 3 The above four persons agreed that they were not tenants of the Respondents’ predecessor-in-title at any time. The Mamlatdar consequentially passed the order on 28h October, 1957, thereby declaring that the tenancy of Francis is terminated. 4. The possession of the suit property in pursuant of this order came to be restored to the Respondents’ predecessor-in-title which fact is evident from the possession receipts issued by Francis in May, 1958. 5. Francis also filed a suit in the City Civil Court being suit no. 851 of 1967 for protection of alleged possession. His application for interim relief taken out in this suit was dismissed, against which an appeal was filed by him. During the pendency of the Appeal, a compromise was entered into between Francis and Respondent No.1. Francis again declared that he was not in possession and he had no right, title and interest or claim and would not enter upon the suit properties and disturb the possession of the owners. 6. The Appellants claims that they are cultivating some of the suit property as legal heirs and representatives of the above mentioned four sub-tenants viz. Gundiya Dhakaliya, Kalu Ghatal, Ramji Ladkya, Ramchandra Warkya Ghatal. The Appellants, however, could not point 4 any material on record to show that they are lineal descendant or successor of the said four sub-tenants. The Trial Court in this regard, discussed the claim of the Appellants in paragraph nos. 19 to 24 of the impugned order and came to prima-facie conclusion that the Appellants failed to show that they are successors of the above four sub-tenants or they are cultivating in any part of the property out of the suit property as claimed by them. We after re-appreciating the facts do not find any error in the said finding. 7. The title and ownership of the Respondents is not at all disputed by the Appellants. The documentary evidence on record, especially various mutation entries in respect of the suit property, the proceedings before the Mamlatdar and the suit in the City Civil Court prima-facie do show the Respondents’ possession over the suit property. The suit is filed for declaration that the Respondents are trespassers and for permanent injunction. The Appellants have claimed tenancy and also have filed proceedings before the Mamlatdar for declaration of their tenancy. The said proceedings are pending. The Appellants have not obtained any interim orders in these proceedings from the Mamlatdar. The Appellants claim about tenancy, ultimately will be decided on the basis of evidence and after hearing both the sides by the Competent Authority i.e .Mamlatdar under the Bombay Tenancy and Agricultural Lands Act, 1948. 5 8. It is the case of the Respondents that after termination of the tenancy of Francis, the possession of the suit land was restored to them and all the time they were in possession of the same. However, only in the month of July, 2009, the Appellants have trespassed on some of the suit property and therefore, they are entitled for injunction. 9. In view of our finding that the Respondents have proved their prima- facie possession in the suit land and the Appellants have failed to show that they are successor in title of original four sub-tenants, we are of the opinion that the Respondents were rightly held to be entitled for temporary injunction. The Appellants’ right, ultimately will be decided by the competent authority i.e. Mamlatdar under the Bombay Tenancy and Agricultural Lands Act, 1948. 10. Mr.Madon, learned Senior Counsel for the Respondents, at this stage also makes a statement that Respondents will not develop or part with or create third party interest in the suit property in which the Appellants claim tenancy during the pendency and final disposal of the suit. They will however continue to manage the property including appointing Caretaker. This statement, in our view, protect the interest of the Appellants, needless to say that the impugned order will be subject to the outcome of the tenancy proceedings initiated by the Appellants for declaration of their right 6 under the Bombay Tenancy and Agricultural Lands Act, 1948. In the above facts and circumstances, we dispose of the Appeal by passing the following order: i) The Appeal is dismissed. ii) The statement of Mr.Madon, learned Senior Counsel for Respondents that the Respondents will not develop or part with or create third party interest in the suit property except normal managerial functions including appointment of Caretakers in which the Appellants claim tenancy during the pendency and final disposal of the suit, is accepted. iii). The above observations are prima-facie and made for the purpose of disposal of this Appeal. The tenancy proceedings initiated by the Appellants shall, however, be decided independently on its own merits and without being influenced either by this order or the order impugned in the Appeal. Order accordingly. (R. V. MORE, J.) (F. I. REBELLO, J.)