Questions and answers on law (Part 70)

Q 1:-   Whether civil court can grant injunction even if issue of tenancy is referred to tenancy court?

Ans:- The question is not ultimately what the other reliefs are claimed in the suit. If the plaintiff is alleging that he is in possession and therefore he wants his possession to be protected by an appropriate order made under O. XXXIX R. 1 of the Code, then the Court, considering whether he is prima facie in possession and other such factors as the balance of convenience, can give interim relief by way of injunction restraining the drefendant from disturbing the plaintiffs possession. If other issues which can be decided only by the authorities under the Tenancy Act arise, then those issues may be referred to the appropriate tenancy authorities, but it cannot be said that unless those issues are answered by the proper tenancy authorities no interim relief can be given by the Civil Courts under O. XXXIX R. 1 of the Code.

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Whether legal necessity can be proved by statement of deceased recorded before tenancy court?

Exhibits 133 and 134 record of tenancy
proceeding which was filed by Laxmibai against husband
of Anjanibai shows that the proceeding was filed for
possession by Laxmibai on the ground that the husband of
Anjanibai was not giving crop share to her. These
documents include evidence of Laxmibai recorded before
the tenancy Court and there is both, the examination-inchief
and the cross-examination of Laxmibai. This record
is considered by the Courts below as Laxmibai is dead and
it is relevant matter under section 32 of the Evidence Act.
This record shows that maximum quantity of six mans
food-grains was given to Laxmibai by the husband of
Anjanibai in one year and in one year only three mans
food-grain was given. The record shows that Laxmibai had
tried to convince the husband of Anjanibai to give more
food-grains as crop share for her survival and that was
done through mediator also. But the husband of Anjanibai
had refused to give her crop share. In the cross
examination of Laxmibai it was suggested to her that

under agreement with husband of Anjanibai, land was
given for cultivation and she had no objection against the
husband of Anjanibai to cultivate the land if he was acting
as per the terms and conditions of lease. It was brought
on the record that Laxmibai had made attempts to give
the suit land to one Mohan for cultivation. Laxmibai had
stated that due to husband of Anjanibai, Mohan had
refused to cultivate the land. Thus, difficulties, which
Laxmibai had faced in cultivating the land and get it
cultivated through others were stated before the authority
by Laxmibai.
27) The aforesaid discussion shows that Laxmibai
had become helpless. The family of the plaintiff was not
taking care of her. She was not in a position to personally
cultivate the land. Further the land was not giving
sufficient income and for survival she was required to take
some steps. Considering the value of the land it was not
possible for her to raise money by mortgaging the land for
her survival. Further there would have been question of
repayment of loan. In view of these circumstances
Laxmibai sold the property to Tatyaba. It is specifically

mentioned in the sale deed that she wanted to repay the
loan and she wanted to use the remaining money, part of
the consideration, for family expenses, for maintenance.
This evidence was certainly sufficient to create probability
that there was legal necessity and there was no other
alternative before Laxmibai than to sell the property. The
effect of the aforesaid circumstances ought to have been
considered by the Courts below in view of the law laid
down in that regard. The aforesaid circumstances are not
separately and cumulatively considered by the Courts
below.
THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.55 of 1989
 Kisan Ramchandra Kokane

V
 Anjani w/o Laxman Kapase,


 CORAM: T.V. NALAWADE, J.
 DATE : 20th JUNE 2016.
Citation: AIR 2017 (NOC) 64 Bom

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Precaution to be taken court while framing of issues in bombay tenancy and agricultural lands Act

The court examined the facts and held that the trial judge had committed no illegality. Defendant 5 had himself not specifically raised the plea of his being the tenant. He left the defence to defendant 1. He showed no interest throughout the trial in getting an issue to this effect framed and referred to the Mamlatdar. On facts also the court found defendant 5's case to be fraudulent.

12. The court referred to Order XIV of the Code of Civil Procedure ("the Code" for short) which contemplates framing of issues by the court on application of mind, not only to the pleading but also to the documents produced, while Rule 4 thereof empowers it to examine any person and enforce production of additional documents for that purpose. The court observed that these provisions enable the court to frame correct issues and restrict the trial of the case only to the same and there is nothing in Section 85 or 85-A or any other provisions of the said Act, robbing the courts of these powers so indispensable for the effective adjudication of the cases. In the ultimate analysis the court laid down that the court has a duty to examine the substance and refuse to frame and remit any such issue, if the same appears to be demonstrably frivolous and malafide. This decision was followed in Ramu Shivappa's case (supra) by this Court.

13. The upshot of the above discussion is that though an issue as to whether a person is a tenant or not has to be decided be a tenancy court, a reference to tenancy court cannot be made for the asking. The judicially trained mind of the court must scrutinise the pleadings and the documents, make the necessary inquiry and find out whether the plea is genuine or is malafide and fraudulent aimed at procrastinating the litigation. Vague pleadings, unsubstantiated by prima facie material will put the court on guard. The court will also consider the stage at which the plea is raised. If the issue is never raised in the trial court, and application is made belatedly at the appellate stage then it may be a sure indication of an attempt to prolong the agony of litigation. While dealing with such application at the appellate stage the court will have to be more cautious.

Bombay High Court

Rama Hariba Khavale vs Gopika Ramling Survase And Ors. on 26 June, 2003

Equivalent citations: AIR 2003 Bom 449

Bench: R Desai

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Whether civil court can grant injunction even if issue of tenancy is referred to tenancy court?

The question is not ultimately what the other reliefs are claimed in the suit. If the plaintiff is alleging that he is in possession and therefore he wants his possession to be protected by an appropriate order made under O. XXXIX R. 1 of the Code, then the Court, considering whether he is prima facie in possession and other such factors as the balance of convenience, can give interim relief by way of injunction restraining the drefendant from disturbing the plaintiffs possession. If other issues which can be decided only by the authorities under the Tenancy Act arise, then those issues may be referred to the appropriate tenancy authorities, but it cannot be said that unless those issues are answered by the proper tenancy authorities no interim relief can be given by the Civil Courts under O. XXXIX R. 1 of the Code.

Referring the issue of tenancy by Civil Court to the

Tenancy Court, does not bar the Civil Court to grant interim relief

of injunction. 

Bombay High Court

Laxmi And Ors. vs Savanta Bapu Mali on 31 January, 1985

Equivalent citations: AIR 1986 Bom 169, 1988 (4) BomCR 278, (1985) 87 BOMLR 159

Bench: Jahagirdar

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When disputes relating to agricultural property relating to joint hindu family should not be referred to tenancy court?

 Learned counsel for the appellants placed
reliance on the decision given by this Court at Principal
Seat in Second Appeal No.375/1993 (between Rajaram
Gopal Govekar and Arjun Gopal Govekar). It appears that
this Court (other Hon'ble Judge) at Principal Seat held
that such proceeding falls under section 70B of the
Bombay Tenancy Act and it needs to be referred to the
tenancy Court. On the basis of this observation, learned
counsel for the appellants submitted that in the present
matter also when there is dispute about certificate

granted under section 32-M of the Tenancy Act, the
dispute ought to have been referred by the Civil Court to
the Tenancy Court. He submitted that it was not open to
the Civil Court to give finding that this property was
cultivated by joint Hindu family and certificate was issued
in favour of defendant No.1 as Karta of the joint Hindu
family.
23) The aforesaid proposition made by the learned
counsel for the appellants is not at all acceptable in this
case. Firstly, the bar of jurisdiction under Bombay
Tenancy Act is applicable only with regard to the subject
matters mentioned in the Bombay Tenancy Act. Secondly,
the bar does not mean that for all purposes the
jurisdiction of Civil Court is taken away. Under the
Bombay Tenancy Act, the tenant's rights are hereditary.
Tenancy rights can be acquired by single person or more
persons or even by joint Hindu family. The disputes which
are between tenant and the landlord are expected to be
considered by the tenancy Court. In the present matter,
the question is, whether the three properties mentioned in
three certificates given under section 32-M of the Bombay

Tenancy Act are joint Hindu family properties. Such
dispute can be and needs to be decided by Civil Court.
This is partition suit and only on the basis of certificate
granted under section 32-M of the Bombay Tenancy Act
defendant No.1 cannot contend that it is his self acquired
property. No such inference is possible when there are
facts and circumstances of the case like present one. This
Court has no hesitation to hold that the dispute of the
present nature cannot be dealt with under the Bombay
Tenancy Act. Reliance is placed on the case reported as
2006 (2) Mh.L.J. 243 (Savitra Bapu v. Rau Rama).
24) When it is proved that at the relevant time the
parties were members of joint Hindu family and they were
having ancestral and joint Hindu family properties, the
burden of proof is on the member who claims that
particular property is his self acquired property. This
burden is more on the Karta of joint Hindu family.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 1132 of 2004
 Rajaram Mahadu Dahatonde

Versus
 Babu Mahadu Dahatonde,

 CORAM: T.V. NALAWADE, J.

 DATE : 29th OCTOBER 2015
Citation;2016(2)ALLMR 326

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