Both the learned counsels agree on the proposition
that such a suit claiming simpliciter permanent injunction
cannot be said to be barred by Section 85 of the said Act.
They submit that if issue of tenancy arises out of the pleadings
of the parties, then the matter can be referred to the tenancy
Court and the decision in the suit need to be waited for that.
The learned counsel for the plaintiff submits that the
suit is simpliciter for grant of injunction on the basis that the
plaintiff is in possession of the suit property. Both the Courts
below have not recorded any finding as to whether the plaintiff
is in possession of the suit property or not. The Courts below
have committed an error of law in holding that such a suit is
barred by Section 85 of the said Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(Civil Appellate Jurisdiction)
SECOND APPEAL NO. 263 of 2013
Shri Pandurang Damodar Bhoir
.. Versus ..
Shri Baddruddin Abbasbhai Patel,
CORAM : R.K.Deshpande, J.
DATED : 6th JULY, 2015.
Citation:2016(3) ALLMR162
1] On 26th March, 2015, this Court had issued notice for
final disposal of the matter.
Both the courts below had dismissed the suit on the
ground that the civil suit claiming permanent injunction
restraining the defendant from interfering with the possession
of the plaintiff over the suit property is barred by Section 85 of
the Bombay Tenancy and Agricultural Lands Act, 1948. The
Court, therefore, framed the question as to whether the suit
can be said to be barred by Section 85 of the said Act?
Admit.
Heard finally by consent of the learned counsels
appearing for the parties.
2] It is not in dispute that the Courts below had not
gone into the merits of the controversy involved in the matter.
The suit has been dismissed by the trial Court and the decision
is confirmed by the appellate Court on the ground that such a
suit is barred by Section 85 of the said Act.
3] Both the learned counsels agree on the proposition
that such a suit claiming simpliciter permanent injunction
cannot be said to be barred by Section 85 of the said Act.
They submit that if issue of tenancy arises out of the pleadings
of the parties, then the matter can be referred to the tenancy
Court and the decision in the suit need to be waited for that.
4] The learned counsel for the plaintiff submits that the
suit is simpliciter for grant of injunction on the basis that the
plaintiff is in possession of the suit property. Both the Courts
below have not recorded any finding as to whether the plaintiff
is in possession of the suit property or not. The Courts below
have committed an error of law in holding that such a suit is
barred by Section 85 of the said Act.
5] In the result, the second appeal is allowed. The
judgment and decree dated 04.10.2010 passed in Regular Civil
Suit No. 155 of 2008 by the trial Court, as has been confirmed
in Civil Appeal No. 7 of 2012 by the lower appellate Court on
20.12.2012, are hereby quashed and set aside. The matter is
remitted back to the trial Court to decide the suit on its own
merits in accordance with law by giving the parties an
opportunity of leading evidence in support of their rival claims.
The parties to appear before the Trial Court on 27th
July, 2015. No order as to cost.
(R.K.Deshpande, J.)
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that such a suit claiming simpliciter permanent injunction
cannot be said to be barred by Section 85 of the said Act.
They submit that if issue of tenancy arises out of the pleadings
of the parties, then the matter can be referred to the tenancy
Court and the decision in the suit need to be waited for that.
The learned counsel for the plaintiff submits that the
suit is simpliciter for grant of injunction on the basis that the
plaintiff is in possession of the suit property. Both the Courts
below have not recorded any finding as to whether the plaintiff
is in possession of the suit property or not. The Courts below
have committed an error of law in holding that such a suit is
barred by Section 85 of the said Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(Civil Appellate Jurisdiction)
SECOND APPEAL NO. 263 of 2013
Shri Pandurang Damodar Bhoir
.. Versus ..
Shri Baddruddin Abbasbhai Patel,
CORAM : R.K.Deshpande, J.
DATED : 6th JULY, 2015.
Citation:2016(3) ALLMR162
1] On 26th March, 2015, this Court had issued notice for
final disposal of the matter.
Both the courts below had dismissed the suit on the
ground that the civil suit claiming permanent injunction
restraining the defendant from interfering with the possession
of the plaintiff over the suit property is barred by Section 85 of
the Bombay Tenancy and Agricultural Lands Act, 1948. The
Court, therefore, framed the question as to whether the suit
can be said to be barred by Section 85 of the said Act?
Admit.
Heard finally by consent of the learned counsels
appearing for the parties.
2] It is not in dispute that the Courts below had not
gone into the merits of the controversy involved in the matter.
The suit has been dismissed by the trial Court and the decision
is confirmed by the appellate Court on the ground that such a
suit is barred by Section 85 of the said Act.
3] Both the learned counsels agree on the proposition
that such a suit claiming simpliciter permanent injunction
cannot be said to be barred by Section 85 of the said Act.
They submit that if issue of tenancy arises out of the pleadings
of the parties, then the matter can be referred to the tenancy
Court and the decision in the suit need to be waited for that.
4] The learned counsel for the plaintiff submits that the
suit is simpliciter for grant of injunction on the basis that the
plaintiff is in possession of the suit property. Both the Courts
below have not recorded any finding as to whether the plaintiff
is in possession of the suit property or not. The Courts below
have committed an error of law in holding that such a suit is
barred by Section 85 of the said Act.
5] In the result, the second appeal is allowed. The
judgment and decree dated 04.10.2010 passed in Regular Civil
Suit No. 155 of 2008 by the trial Court, as has been confirmed
in Civil Appeal No. 7 of 2012 by the lower appellate Court on
20.12.2012, are hereby quashed and set aside. The matter is
remitted back to the trial Court to decide the suit on its own
merits in accordance with law by giving the parties an
opportunity of leading evidence in support of their rival claims.
The parties to appear before the Trial Court on 27th
July, 2015. No order as to cost.
(R.K.Deshpande, J.)
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