1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 738 OF 2009 1. Shri Mulla Shaikh Mahboob, 2. Smt. Azima Begum, Both major, residents of Patrong, Baina, Vasco da Gama. ... Petitioners versus 1. Shri Piedade Francisce Aguir, r/o Caranzalem, Madkai, Ponda Goa. 2. Shri Mulla Salim Mujawar, r/o Upper Bazar, Ponda Goa. 3. Deputy Collector & SDO, Ponda Sub Division, Ponda Goa. ... Respondents Shri P. A. Kholkar, Advocate for the Petitioners. Ms. S. Linhares, Additional Government Advocate for Respondent No.3. Shri Aruin Bras De Sa, Advocate for Respondent No.1. Shri I. Agha, Advocate for Respondent No.2. CORAM : N. A. BRITTO, J. DATE : 5TH AUGUST, 2010. ORAL ORDER Heard. 2 2. The Petitioners herein and Respondent No.2 are the owners of the property known as “Gorbatta” surveyed under Nos.468/3 and 470/4 of Village Madkai. Respondent No.1 claims to be a tenant of the said property. The Petitioners and Respondent No.2 had filed a Civil Suit bearing R.C.S. No.8/85 against Respondent No.1, and in that suit had obtained an Order of injunction against Respondent No.1 dated 1-6-1985. By virtue of this Order, Respondent No.1 was restrained from making any new construction in the suit property or from extending their house till the disposal of the suit, and was further restrained from interfering in the suit property until the disposal of the suit. The said Order has attained finality, and is still in force. 3. Respondent No.1 then filed an application under Section 7 of the Tenancy Act claiming tenancy before the Mamlatdar and also sought an ex- parte injunction which was declined to him by Order dated 19-1-1995. A revision application was filed to the Deputy Collector and was disposed off by Order dated 19-3-1998. The learned Deputy Collector directed the Mamlatdar to dispose off the inquiry within six months. 4. The Petitioners had filed a revision application against the Order of the Mamlatdar dated 21-11-2002 by which they were not allowed to produce certain documents. 3 5. Records and Proceedings of the learned Mamlatdar were called for. After the records and proceedings were called for, Respondent No.2 filed an application for temporary injunction claiming that on 21-1-2003 in the morning session, the Petitioners had dumped mud/soil in the said property through their labourers. That application came to be decided by the learned Deputy Collector by Order dated 3-4-2003. A revision against that Order came to be dismissed by the Tribunal by Order dated 23-9-2009 for want of jurisdiction. 6. The impugned Order of the Deputy Collector is sought to be defended by Shri Arun Bras De Sa, learned Counsel appearing for Respondent No.1, by submitting that the Deputy Collector being a revisional court could have passed the said Order, and in support of the said submission, Shri Bras De Sa has placed reliance on Prabhakar Vishnu Naik v. Union of India(AIR 1970 Bombay 285). Secondly, Shri Bras De Sa, learned Counsel has submitted that since the Order is in force from 22-1-2003, the same may not be interfered with. 7. On the other hand, Shri I. Agha, learned Counsel appearing for Respondent No.2, and as well as Shri P. A. Kholkar, learned Counsel appearing on behalf of the Petitioners have submitted that in granting temporary injunction in favour of Respondent No.1, the learned Deputy 4 Collector did not at all take into account the Order of the Civil Court dated 1-6-1985 by which Respondent No.1 was restrained from interfering in the suit property. Learned Counsel have also submitted that the learned Deputy Collector also did not take into account that the Mamlatdar had declined to entertain an application for injunction filed by Respondent No.1. Learned Counsel appearing for Respondent No.2 has placed reliance on Yeshwant Ganpat Khot v. Smt. Anusayabi Anna Khot and others(1979 Bom.C.R.54) wherein it is observed that a question whether a person is or is not in possession is not a matter which falls within the exclusive jurisdiction of the Tenancy authorities either under Section 70 of the Bombay Tenancy Act or under any other Section of that Act. On this question the decision of the Civil Court will have a precedence. 8. Admittedly, Respondent No.1 had filed the application for temporary injunction on a fresh cause of action having taken place on 21-1-2003 and if that be so, he ought to have filed the same before the Court of first instance i.e. before the Mamlatdar. In my view, it was highly improper on the part of the Deputy Collector to have entertained the application for temporary injunction only because the records and proceedings were before him. Learned Deputy Collector ought to have returned the records and proceedings to the Mamlatdar, to enable the Mamlatdar to decide the application. 5 9. Consequently, the impugned Order of the Deputy Collector is hereby set aside. Respondent No.1 is always at liberty to file an application for temporary injunction before the Mamlatdar, if circumstances of the case justify filing such application. 10. With the above observations, the Writ Petition is disposed off. N. A. BRITTO, J. RD