1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 859 of 2007 WITH SECOND APPEAL NO. 860 OF 2007 Phanchu Kuber Halunde Age 48, Occ: Agriculturist, R/o. Ashta, Tal: Walva, Dist.Sangli. ... Appellant (Orig. Defendant) Vs. 1. Yashwant Kallappa Chougule, since deceased by legal representatives: 1a. Sonabai Kuber Halunde, since deceased by legal heirs R.No.1b & 1C. (Name deleted as per Court’s order dt.8.7.08) 1b Antu Kuber Halunde Age 58, Occu: Agriculturist. 1c. Vijaykumar Nana Chougule, Age 48, Occu: Agriculturual, All R/o. Ashta, Tal. Walva, Dist. Sangli. Respondents (Org.Plaintiffs) Mr. Tejpal S.Ingale,Advocate, for the appellant. Mr.Bhushan Walimbe,Advocate for the respondents Nos. 1b and 1c. & Respondents Nos. 1A and 1B in S.A.No.860 of 2007) CORAM: J.H.BHATIA,J. DATE: 6th August, 2009. 2 JUDGMENT. 1. Heard the learned Counsel for the parties. 2. Admitted facts are that the suit property originally belonged to one Kuber. He died leaving behind his wife Sonabai and two sons, viz. Antu and Panchu. The plaintiff Yashwant was father of Sonabai. IN 1963, when her both the sons were minor, Sonabai leased out the suit property in favour of her father Yashwant and on that basis he got possession of the property. Yashwant filed two suits bearing No.378 of 1983 and 368 of 1989 against the present appellant Panchu. for perpetual injunction restraining him from causing any interference in possession of the plaintiff. In 1993, Yashwant died. He had allegedly bequeathed the suit property in favour of his daughter Sonabai, her son Antu and his grandson Vijaykumar. They were brought on record as L.Rs. of Yashwant. It was contended on behalf of the defendant that during minority of himself and his brother Antu, his mother could not have executed the lease deed nor Yashwant could bequeath the tenanted property by executing a Will. It is contended that the District Court had already passed an order to take back that property and symbolic possession was given to Panchu,while the question of tenancy was left to be determined by the Tenancy Authorities. 3 3. The learned Counsel for the appellant contends that the Tenancy Courts have also held that the tenancy was not valid. According to him, the trial Cort was wrong in passing a decree of injunction in favour of th plaintiff and the appellate Court was also wrong in dismissing the appeals against the common judgment of the trial court. 4. In view of the facts and circumstances, one thing is clear that, rightly or wrongly, Sonabai had inducted Yashwant as a tenant in the property in 1963 and since then he was in continuous possession. Whether the tenancy was illegal and whether the property can be taken back is a question to be determined in a different proceeding. As Yeshwant was in settled possession for a long period, the trial court restrained the defednant permanently from obstructing and interfering the possession of the plaintiff over the suit land without following due procedure of law under the Tenancy Act. It is difficult to find any fault with the order. The said order was only to see that the land and order is maintained and nobody tries to take the possession forcibly. The present appellant was not prohibited from taking legal action to take back the possession and the remedy is still open to him. The learned counsel also contends that in the said order, the words “under Tenancy Act” should not have 4 been there because the possession could be taken back even on the basis of the decree for partition. The learned Counsel for the respondents concedes that he has no objection if the words “under Tenancy Act” are deleted. 5. In view of this, the Appeal stands d dismissed but clause (2) of and the operative order passed by the trial Court shall stand modified as follows :- “Defendant is hereby restrained permanently from obstructing and interfering the possession of Plaintiffs over the suit lands by tenancy rights without following due procedure of law.” With this modification, both the Appeals stand disposed of. (J.H.BHATIA,J.)