1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 212 OF 1987 1 Kishan Baburao Adsul died through legal representative Rajendra Vishwanath Adsul 2 Subrao Shankar Adsul .. APPELLANTS. VERSUS 1 Nivrutirao Namdeorao Gambhire 2 Bhagirathibai w/o Nivruti Gambhire 3 Bhagwan Baburao Adsul .. RESPONDENTS Shri P.B. Rakhunde, Advocate holding for Shri S.B. Bhapkar, Advocate for the appellants. Shri A.G. Dalal, Advocate holding for Shri V.D. Salunke, Advocate for respondent nos. 1 and 2. ===== CORAM : P. R. BORKAR, J. DATE : 23 rd JUNE, 2010. ORAL JUDGMENT : 1 This is an appeal preferred by original plaintiffs who succeeded in getting declaration of ownership to the extent of half share in the suit property bearing survey no. 26F admeasuring 3 acres and 29 guntha land alongwith three mango trees situate at villate Itkoor, Tq. Kalamb, Dist. Osmanabad, but whose prayer for perpetual injunction restraining 2 respondent nos. 1 to 3 from obstructing their possession was dismissed not only by the trial court i.e. Jt. Civil Judge, Jr.Dn., Osmanbad who decided Regular Civil Suit no. 89/1976 on 29-11-1980 but also by the District Judge, Osmanabad in Regular Civil Suit no. 9/1981 decided on 11-6-1986. 2 Many of the facts giving rise to this appeal are not disputed at this stage. Thus, it is not disputed that the suit land originally belonged to original plaintiff no. 1 Kisan and original defendant no. 3 Bhagwan who were brothers. Their father died about 25 years before filing of the present suit and it was their mother who looked after both the minor sons; plaintiff no. 1 Kisan and defendant no. 3 Bhagwan, and the suit property. Plaintiff no. 1 Kisan went to Pune for service and behind his back defendant no. 3 Bhagwan is said to have sold the suit property to defendant nos. 1 and 2 ( defendant no. 3 is present respondent no. 3 and defendant nos. 1 and 2 are present respondent nos. 1 and 2). Thereafter the present suit came to be filed in the year 1976 in which it is alleged that without consent of plaintiff no. 1 Kisan, respondent no. 3 Bhagwan alone had no right to sell the property and therefore, the sale-deed executed by respondent no. 3 in favour of respondent nos. 1 and 2 is void and not binding on the plaintiff / appellant to the extent of share of plaintiff no. 1 Kisan. To that extent, declaration is given 3 by the trial court. Said declaration was challenged by way of cross objection by the present defendants and ultimately, District court also confirmed the declaration given in favour of the appellants and there is no more dispute regarding same. 3 Trial court so also the first appellate court came to conclusion that appellants / plaintiffs were not in actual possession of the property and as such are not entitled to perpetual injunction. It is this part of the decree which is now subject matter of this appeal. At the time of argument, Adv. Shri Rakhunde, holding for Shri S.B. Bhapkar for appellant submitted that the appellants have made out specific case that appellant no. 2 Subrao was tenant of the suit land. He was inducted as tenant by appellant no. 1 Kisan. Respondents by their written statement have denied that respondent no. 2 was tenant or either of the two appellants was in actual possession of the suit property. It is submitted that in view of this, issue of tenancy ought to have been referred to the tenancy authorities. 4 Present appeal is admitted on substantial questions of law raised by ground nos. 6 and 7 of the appeal memo which are as below : 4 (6) That both the courts below failed to see whether the appellant no. 2 is the tenant over the land which is leased to him by plaintiff no. 1. (7) it ought to have been held that the issue regarding the tenancy ought to have been framed by the trial court itself but he did not, therefore, the decision confirming the decree of trial court is bad in law and is liable to be set aside. 5 Heard Adv. P. B. Shri Rakhunde, holding for Shri S, B, Bhapkar, Advocate for the appellants and Adv. Shri Dalal, holding for Shri V.D. Salunke, Advocate for respondent nos. 1 and 2. Trial court so also the first appellate court have come to a specific conclusion that the plaintiffs / appellants are not in actual possession of the property and as such are not entitled to possession. Trial court has framed issue no. 5 and answered it in the negative. In paragraph no. 13 of the judgment, trial court has stated that defendant no. 2 has contended that she got possession of the suit land on the basis of exh. 60 and 61 and defendant no. 1 was her husband. Exh. 60 shows that defendant no. 2 was put into possession of the property and said possession was confirmed vide exh. 61. 7/12 extracts are also produced for the year 1974-1975, 1975-1976, 1977-1978 to 1979-1980 and those extracts are clearly indicating that defendant no. 2 was in actual possession of the property. Mutation entries exh. 54 and 76 are also in favour of defendant no. 2. Thus, revenue entries clearly indicate possession of defendants. Some 5 revenue receipts are also produced on record. It is observed at the end of paragraph no. 13 of the judgment that it was not the case of the plaintiffs that those were in respect of the suit land. In paragraph no. 14 of the judgment of the trial court, it is observed that plaintiff nos. 1 and 2 have made out a case that the suit land was leased out to plaintiff no. 2 in the year 1975 and since then plaintiff no. 2 was cultivating the land on Batai basis but there was no ‘Batai Patra’. It is said to be oral agreement. An application was made to the Talathi for making entry of name of plaintiff no. 2 as Bataidar. In these circumstances, the court has come to a conclusion that plaintiffs are not in possession of the property but defendants are in possession of the property. Said finding of fact is confirmed by the first appellate court while considering point no. 2. 6 It is vehemently submitted that since there was issue raised by plaintiff no. 2 that he is tenant of plaintiff and said averment made in the plaint is denied by the respondents. At this stage, Shri Dalal, Advocate for the respondents has produced on record certain documents which are taken on record and marked ‘X’ for identification. It is not disputed that the issue of tenancy was raised by present plaintiffs in Regular Civil Suit no. 93/1976 and said issue no. 6 was decided by the Additional Tahsildar (Land Ceiling) 6 Osmanabad by order dt. 19-8-1985 in the negative. Said judgment was set aside in appeal by the Deputy Collector and the matter was remitted back for fresh enquiry and again in case no. 1981/TNC/99-A/12 the Upper Tahsildar (Land Ceiling) Kalamb decided the matter and it is held that respondent no. 2 Subrao also was not tenant in possession. It is submitted by Shri Rakhunde, Advocate for the appellants that stay is granted to the hearing of Regular Civil Suit no. 93/1976 by this court in Writ Petition no. 3569/2010 as the issue of tenancy was under consideration. In this case, the prayers made by the plaintiffs in the plaint as they stand, even today are regarding declaration of half share of original plaintiff no. 1 Kisan which is granted and regarding which there is no dispute; Second prayer is regarding injunction simplicitor restraining respondent nos. 1 and 2 from interfering enjoyment of plaintiffs over the suit property and mango trees therein. For perpetual injunction, it must be shown that plaintiffs are actually enjoying the possession of the property. Both the courts have concurrently held that respondent nos. 1 and 2 were in actual possession of the property. After giving anxious thought to reasons given by the trial court and the first appellate court, it does not appear that the findings are in any way perverse. There is no prayer for partition or possession even made alternatively in this case. Such prayer could have been made as an alternative prayer atleast in the appeal. 7 But this is not done. So the suit remains for declaration and perpetual injunction simplicitor. In these circumstances, in my considered view, framing of issue of tenancy was not necessary. If appellant no. 2 who is said to be the tenant is entitled to possession then he has every remedy to get back possession under law. He will have to resort to appropriate remedy. So in the facts of the present case, framing of issue of tenancy was not necessary. It would have been necessary if in the alternative the prayer for possession was made. Since proving possession is pre-condition for grant of injunction, in my considered view, in this case, reference of issue of tenancy was not necessary. What was necessary for the court to see was whether plaintiffs proved that they were in actual possession of the property and said issue is framed. In this view of the matter, in my considered view, this appeal has no merit. The same deserves to be dismissed. Appeal is accordingly dismissed. 7 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. ( P. R. BORKAR, J.) dyb/office/ sa212.87.odt