Bombay High Court
Bhagwanrao S/O Jijaba Auti vs Ganpatrao S/O Mugaji Raut And Anr. on 7 August, 1987
Equivalent citations: 1987(3)BOMCR258
JUDGMENT B.G. Deo, J.
1. In view of the conflict of decisions by this Court, resulting in uncertainly of law and consequent confusion in the minds of the litigants, mostly agriculturists, a question of far-reaching importance has been referred to the Division Bench of this Court for decision by the Honourable the Acting Chief Justice, at the instance of Pratap. J., of this Court.
2. The question referred is as under :---
"In a suit simpliciter for a permanent injunction, is it necessary to frame an issue of tenancy either of the plaintiff or of the defendant?"
3. This reference arose out of Regular Civil Suit No. 71 of 1979 filed by plaintiff-Bhagwanrao in the Court of the Civil Judge (Junior Division), Bevarai, District Beed, for a permanent injunction simpliciter for restraining the defendant No. 1---Ganpatrao and defendant No. 2---Mrs.. Kamlabai from disturbing his possession over the suit field being a portion of survey No. 260, situated at Umapur. Bhagwanrao contends that he is a tenant in possession in respect the suit field by virtue of a Batai-Patrak, dated 8-5-1978, executed by defendant No. 1 - Ganpatrao in his favour. The defendant s disputed plaintiff's possession over the suit field, much-less by virtue of the alleged Batai-Patrak.
4. The plaintiff obtained a temporary injunction which was confirmed throughout and which his still subsisting.
5. On the basis of the pleadings, about five issues were struck by the learned Civil-Judge. Issue No. 1 reads thus :
"Does plaintiff prove his possession of suit land on the basis of Batai Partrak?"
6. The plaintiff, thereafter, by an application sought reference of this Issue No. 1 to the tenancy authority for decision. The prayer made by the plaintiff-Bhagwanrao for referring Issue No. 1 to tenancy Court was rejected by the learned Civil Judge by an order, dated, 15-1-1983. The relevant portion of the order reads thus :
"From the contents of Batai-Patrak, it is clear that defendant No. 1 has obtained Rs. 2000/- from the plaintiff also given the land for cultivation for a period of five years. It is also mentioned in the Batai-Patrak that the defendant will return the amount to the plaintiff after expiry of five years and get possession under the usufructuary mortgage, and bound himself to pay Rs. 2000/- on expiry of five years period, which is one of the essential ingredients of mortgage transaction. In such type (of) covenants of repayment of any amount does not exist, hence, the plaintiffs is in possession on the basis of mortgage and he is not in possession on the basis of leased transaction. Hence, the issue is not required to be referred to Revenue Court for getting findings of tenancy of the plaintiff on the suit land. The application is liable to be rejected".
ORDER Application is rejected.
No order as to costs.
Dated : 15-1-1983.
Sd/-".
7. Plaintiff-Bhagwanrao challenged this order of rejection of reference of issue No. 1 to tenancy Court in Civil Revision Application No. 138 of 1985. Defendants-Ganpatrao and Kamlabai have also preferred Civil Revision Application No. 24 of 1987 for modification of issue No. 1, contending inter alia, that in suit simpliciter for injunction, if filed, an issue as regards tenancy is not required to be decided, as it is not involved, within the meaning of section 99-A of the Hyderabad Tenancy Act. The defendants contended that the issue about tenancy was not involved in the suit of this nature and the reference to Tenancy Court made by the Civil Court was uncalled for and without jurisdiction. This defendants prayed in their Revision Petition No. 24 of 1987 that the issues framed in Regular Civil Suit No. 71 of 1979 may, therefore, be suitably ordered to be modified.
8. Our learned brother, Pratap, J. having heard both the revision petitions, noticed that there was a conflict of decisions of this Court on the question as to whether in a suit simpliciter for injunction, an issue as regard tenancy of either plaintiff or defendant is involved and whether it needs to be referred to the Tenancy Court for decision. On his request, the learned Acting Chief Justice referred the aforesaid issue to the Division Bench of this Court for decision.
9. We have heard at length the learned Advocate Shri Yeotekar for the plaintiff-Bhagwanrao, and the learned Advocate Shri Bora for the defendants---Ganpatrao and one another, on this much debated question and referred to the various authorities cited by them.
10. There is, by no means, consensus of judicial opinion on this vexed question. On the other hand, there are two diametrically opposite views one held by the then Acting Chief Justice, M.N. Chandurkar, J., in Baliram v. Dadu, (Writ Petition No 1704 of 1979; decided on 12-9-1983 reported in 1985 Maharashtra Law Journal page 311; and the other held by Shri Justice S.J. Deshpande in Digambar v. Sk. Yasin, :
11. In Baliram's case, a suit simplicitor for injunction was filed by the plaintiff who claimed to be a tenant in respect of the suit land, for restraining the defendant from interfering with this possession. The defendant claimed that he was in possession as purchaser of half the land. A reference as regards the question of tenancy was made to the Tahsildar who negatived the case of tenancy. An appeal against that order of the Tahsildar was also dismissed. The matter went before the Maharashtra Revenue Tribunal in revision. The Revenue Tribunal came to the conclusion that the plaintiff was a tenant. The order of the Revenue Tribunal was challenged in a writ petition under Article 227 of the Constitution of India. The Acting Chief Justice, Shri Chandurkar (as he then was), found that the reference itself was misconceived and that the entire proceedings, including the orders passed by the authorities below were liable to be quashed, along with the order of making the reference. The learned Judge observed in para-6 of the judgment that the Civil Court seems to have made the reference almost mechanically, the moment the plaintiff raised the plea of tenancy. According to the learned-Judge, Shri Chandurkar, the question as to whether the plaintiff was a tenant or not, would not be material for the purpose of such a suit at all. The learned Judge observed;
"But, all this is not very relevant so far as the fact of possession on the date of the suit was concerned. If the plaintiff was able to prove that he was in possession then only the nature of his possession could become relevant. However, if the plaintiff is not able to prove his possession in respect of the area purchased by defendant No. 2, a suit for injunction simpliciter against defendant No. 2 will not be maintainable. If the plaintiff was out of possession of one acre twenty five gunthas which has been purchased by defendant No. 2 and the plaintiff claimed possession as a tenant, then a suit for possession in a Civil Court will not lie. Therefore, the question as to whether the plaintiff was a tenant or not would not be material for the purpose of the suit at all."
Later, in para-6, however, the observations run as under :---
"The Civil Court will first record a finding on the question of posses of one acre twenty five gunthas, which is the land purchased by defendant No. 2. It is only if the plaintiff succeeds in proving that on the date of the suit he was in possession that the further question as to whether he was a tenant of the suit land, namely, the land standing in the name of defendant No. 2, will arise, and then a reference can be made to the Revenue Authorities referring the question as to whether the plaintiff is a tenant of the land purchased by defendant No. 2. If, on the other hand, the plaintiff falls to prove that he is in possession of the land purchased by defendant No. 2, the suit will have to be dismissed, because if the plaintiff is claiming a tenancy right in respect of that part of the land the Civil Court will not be competent to grant possession to the plaintiff as a tenant thereof."
12. The view, therefore, seems, to be that the question as to tenancy of the plaintiff would not be involved, unless the plaintiff proves his possession on the date of the suit. With respect, to the learned Judge, we may only say at this stage that in a suit simpliciter for injunction, on the claim that the plaintiff is in possession on the date of the suit, the issues involved are, whether the plaintiff is in possession, and if so, whether the plaintiff is entitled to a permanent injunction against the defendant who contends that he is a tenant-in possession. It is while considering the second issue that we have to find as to whether the question of tenancy is involved in the suit or not.
13. Another case was also decided by the Acting Chief Justice, Shri M.N. Chandurkar, (as he then was) on 16-9-1983 in Writ Petition No. 2079 of 1979 reported in 1983 Maharashtra Law Journal 958 Maruti Sambha Surve v. Parshuram Krishna Koratkar and another. In that case, it was the defendant who contended that he was a tenant-in possession on the date of the suit, while the plaintiff had filed a suit for injunction simpliciter by contending that he was in possession of the suit field. The same view, that the issue of tenancy is not involved in such a suit and is, therefore, not relevant for the decision of the suit, was taken. The reasons can be found in para-5 of the judgment;
"Now, in a suit for injunction simpliciter by a plaintiff who claims to be in possession, the plaintiff will be entitled to injunction only if he proves his possession on the date of the suit. It the plaintiff proves his possession on the date of the suit, the status of the defendant, who is alleged to disturbing the possession of the plaintiff, is wholly irrelevant, because a tenant is not entitled to forcibly dispossess any person in possession against whom the tenant may have a right to claim possession. On the other hand, if the plaintiff in a suit for injunction simpliciter fails to prove his possession on the date of the suit, again, the status of the defendant becomes immaterial. In such a case, it may be that the plaintiff might like to amend the plaint, but till such amendment is prayed for and granted, the question as to whether the suit for possession can be decreed against the defendant who claims to be a tenant cannot arise. It is only if a claim for possession is to be inquired into that the status of the defendant as a tenant will become relevant. However, in either case, when a suit for injunction simpliciter is filed, an issue with regard to the tenancy of the defendant is not required to be decided at all and it is not material or relevant for the purposes of the suit."
14. The reasoning, therefore, appears to be that it is only in the case of a suit for possession that the status of the defendant as a tenant will become relevant, and not in a suit for injunction simpliciter. Our learned brother Pratap, J., in one earlier case also followed the aforesaid view while deciding Civil Revision Application No. 249 of 1985 Kaduba Khanderao Shinde and others v. Bahdrinath Krishan Parlhad and others.
15. The opposite view, that unless plaintiff's status as a tenant is adjudicated by the Tenancy Court the Civil Court has no right to grant injunction in such cases, has been held in 1982 Maharashtra Law Journal 777 Shrawan Bagaji Nadre and others v. Arun Manikrao Kadam. In yet another ruling reported in 1986 Maharashtra Law Reporter (Revenue Section) , Digamber Madhavasa v. Sk. Yasin Sk, Imam and another, S.J. Despande, J., (since retired), did not approve of the view held in Maruti Sambha Surve v. Parshuram Krishna Koratkar and another, 1983 Mh.L.J. 958 and came to the conclusion that if an issue as regards tenancy is involved in a suit simpliciter for injunction, it has to be referred to the Tenancy Court. The learned Judge referred to Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi, and quoted the relevant observation to be found at page 658 as follows :---
"If there is an issue which had to be settled, decided or dealt with by competent authority under the Tenancy Act, the jurisdiction of the Civil Court, notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it will have to be referred to the Competent Authority under the Tenancy Act. By such camouflage of treating issues arising in a suit as substantial or incidental or principal or subsidiary, Civil Court cannot arrogate to itself jurisdiction which is statutorily ousted. This unassailable legal position emerges from the relevant provision of the Tenancy Act."
16. The provisions of the Bombay Tenancy Act are pari materia and almost similar to the provisions of Hyderabed Tenancy and Agricultural Lands Act. There is no difference between the provisions of section 85-A of the Bombay Act and section 99-A of the Hyderabed Act. Relying on the aforesaid observations of the Supreme Court, S.J. Deshpande, J., held that an issue, which is to be settled, decided or dealt with by Competent Authority under the Tenancy Act, the jurisdiction of the Civil Court, notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it will have to be referred to the Competent Authority under the Tenancy Act. By such camouflage of treating issues arising in a suit as substantial or incidental or principal or subsidiary, Civil Court cannot arrogate to itself jurisdiction which is statutorily ousted. According to the learned judge, this unassailable legal position emerges from the relevant provisions of the Tenancy Act. In Maruti's case (supra), there was no reference to the judgment of the Supreme Court in Gundaji v. Ramchandra,
17. The aforesaid decision of the Supreme Court in Gundaji v. Ramchandra, clinches the issue. In para-10 of the judgment, it has been observed :
"In a civil suit nomenclature of the issue as principal or subsidiary or substantial or incidental issue is hardly helpful because each issue, if it arises, has to be determined to mould the final relief. Further, sections 85 and 85-A oust jurisdiction of Civil Court not in respect of civil suit but in respect of questions and issues arising therein and section 85-A mandates the reference of such issue as are within the competence of the Competent Authority. It there is an issue which had to be settled, decided or dealt with by Competent Authority under the Tenancy Act, the jurisdiction of the Civil Court, notwithstanding the fact that it arises in an incidental manner in an civil suit, will be barred and it will have to be referred to the Competent Authority under the Tenancy Act."
18. We were also referred to conflict of decisions given by the Single Judges of this Court on the question of necessity of referring the question of tenancy to the Tenancy Court, while granting temporary injunction under Order 39 of the Code of Civil Procedure. Although such an issue is not referred to us, we propose to consider those cases also in our judgment only with a view to find out whether an issue of tenancy is involved at all or not in a suit simpliciter for injunction.
19. In our opinion, the question of necessity of framing an issue of tenancy, or for that matter, considering the question of tenancy, either of the plaintiff or of the defendant, in a suit simpliciter for permanent injunction, can be resolved having regard to the nature of the relief claimed in such a suit simpliciter for injunction.
20. Perpetual Injunction can be granted under section 38 of the Specific Relief Act, 1963, to the plaintiff "to prevent the breach of an obligation existing in his favour whether expressly or by implication." It can also be granted when the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of property.
21. Sections 38 and 41 of the Specific Relief Act, 1963, are to be read together and as supplementary to each other. Section 38 shows as to when perpetual injunction may be granted, while section 41 enumerates cases where injunction may not be granted.
22. In a suit simpliciter for perpetual injunction, although the relief of injunction is a substantive relief by itself, a declaration is implicit in the grant of the said relief, although declaration may to be claimed in so many words. When a plaintiff comes to the Court for such a relief simpliciter on the basis of his previous possession, he implied seeks from the Court a declaration of his possessory title.
23. Now, when a party, claiming to be in possession, claims a perpetual injunction, he can obtain it on the strength of his possession in the date of the suit against the entire world, except against those who can show a better title to the property in themselves. In M. Kallappa Shetty v. M.V. Lakshminarayana Rao, the Supreme Court has held that plaintiff in possession of the suit property can, on the strength of his possession, resist interference from defendant who has no better title than himself and get injunction restraining defendant from disturbing his possession. In para-5, the Supreme Court has observed :
"The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial Court and the first Appellate Court have done, that the plaintiff was in possession of the property ever interference by someone who is not proved to have a better title than himself to the suit property."
24. Section 37 of the Specific Relief Act, 1963, provides that temporary injunctions are such as are to continue until a specified time, or until the further order of the Court, and they may be granted at ay stage of a suit, and are regulated by the Code of Civil Procedure, 1908, while a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit ; the defendant is thereby perpetually enjoined from the assertion of a rights, or from the commission of an act, which would be contrary to the rights of the plaintiff. Section 37(2) is the key to the entire controversy. Even in a suit for a permanent injunction simpliciter, where rival contentions as regards possession are made, it has to be considered on merit as to who has a better right for possession. Obviously, when a plaintiff claims to be a tenant and is in possession, and it is established that he is in possession on the date of the suit, perpetual injunction can be granted in his favour, only if the defendant has no better right than him (Plaintiff). If the defendant is the owner of the property, the plaintiff as a tenant in the present state of tenancy legislation has certainly a better right than the owner for possession, provided he establishes tenancy rights. It is only in such a case that perpetual injunction can be issued in his favour. For deciding the issue of perpetual injunction, a question as regards the rights of either the plaintiff or the defendant as a tenant is necessarily involved and has to be decided first, and when such a question is to be dealt with only by the authority under the Tenancy Act, Civil court's jurisdiction to consider and decide such a question is barred and a reference becomes absolutely necessary.
25. In Sangawwa and others v. Yemnppa and another, a similar view has been expressed. A suit for permanent injunction simpliciter on the basis of prior possession cannot be decreed unless the trial Court has decided the question of the lawful possession of the plaintiff on the date of the suit. . In that case, plaintiff had filed a suit for permanent injunction against defendants restraining them by way of an injunction for not interfering with the alleged lawful possession of plaintiffs as tenants, and the defendants claimed to be the owners of the land on the basis of their possessory titled which rested on their alleged tenancy in respect of the suit land. It was held in para-4 as under:
"It is undisputable that the plaintiffs brought their action for permanent injunction against the defendants who claim to be the owners of the land in question on the basis of their possessor title rested on their alleged tenancy in respect of the suit land. The crucial point that was for the determination of both trial Court as well as the lower appellate Court in this case was the lawful possession of the suit land by the plaintiffs on the date of the suit The plaintiffs have specifically alleged in their plaint that they were in possession of the suit land as tenants. In other words, the case set up by them was that they were in lawful possession of the suit land on the date of the suit as they were the tenants of the suit land. The claim was against the defendants who claim to be the owners of the land in question. The plaintiffs could not maintain their suit for permanent injunction unless they establish that their possession was lawful and in order to establish that question they must establish that they were the tenants of the suit land as alleged by them. Unless the trial Court has decided the question of lawful possession of the plaintiffs on the date of the suit, the suit of the plaintiffs cannot be decreed since it was directed against the true owners of the land. In such a situation, it is well settled that the question of tenancy is involved for the decision of the Court in a suit for injunction."
25. We are in respectful agreement with this view. The reason is not far to seek. The contention, that once possession is established, the plaintiff would be entitled to a permanent injunction ipso facto, cannot be accepted. The relief of perpetual injunction is discretionary. The law of perpetual injunction, although codified, only expresses in general terms the rules acted upon by Courts of equity, because they are in accordance with justice, enquiry and good conscience. Sections 38, 39 and 42 of the Specific Relief Act mention the circumstances under which perpetual injunction can or cannot be granted. But thee section do not exhaust all the possibilities.
26. Where there is a duty enforceable by law, whether express or implied, whether arising out of a contract or otherwise, the relief of injunction can be granted, unless considerations of expediency or convenience determine the discretion of the Court otherwise. Perpetual injunction can be granted where right exists or where right is created, or where right is cognizable by law. It can be granted to prevent the infringement of that right. When a tenant comes to the Court contending, inter alia, that he is a tenant-in-possession and that there is a real threat to his possession from the defendant, who may either be a trespasser a or a land-owner, an injunction to protect his possession can be granted, provided the tenant establishes the alleged right of tenancy, if it is disputed. He has to prove that he is not only in possession but that his possession is referable to his tenancy right. A corresponding obligation is cast on the defendant, if he is an original owner, not to disturb the right of the plaintiff in respect of possession. A decree can be passed only when the tenancy right of the plaintiff is established in such a situation. To grant relief only on the basis of possessory title would cause injustice, may led to multiplicity of proceedings and in some case deprive the rightful owner of enjoyment of the property.
27. It was contended by Shri Bora, the learned Counsel for the defendant, that once it is established that the plaintiff is in exclusive possession then injunction restraining the defendant from dispossessing the plaintiff must be issued as a matter of course. We are, however, of the opinion that an injunction may not be granted as matter of course in all cases. The conduct of the plaintiff seeking equitable relief of permanent injunction has necessarily to be seen. It must not be tainted with illegality. In other words, the possession alleged by the plaintiff must be a lawful one. The plaintiff cannot also be allowed to seek advantage of his own wrong. The plaintiff must come with clean hands, i.e., in respect of transaction between the parties to the suit. In other words, the plaintiff must be in a position to satisfy the conscience of the Court that his own acts and dealings in the matter have been fair, honest and free from any taint of fraud or illegality. A suppression of material fact can be a ground for refusing the relief of permanent injunction. Thus, in a case of plaintiff who claims to be a tenant-in-possession, it is necessary for the Court to satisfy itself that the plaintiff is really a tenant-in-possession and has a legal right to be in possession, and then only a perpetual injunction can be granted. It is, therefore, that when a plaintiff alleges tenancy rights under the Land Reforms Legislation in Maharashtra and other States, the same has to be investigated before a decree for permanent injunction can properly be granted in his favour. Similar is the case when a suit for permanent injunction is resisted by a tenant. A permanent injunction would not ordinarily be granted against a tenant who has a better right than plaintiff. This, however, would depend on the establishment of the tenancy right, and which can be decided only in Tenancy Courts.
28. In short it is the relief claimed which moulds the enquiry and raises issues and questions. A relief of permanent injunction necessarily leeds to an enquiry as regards the nature of the rights of plaintiffs and defendants. Where, therefore, in a suit for permanent injunction, plaintiff or defendant resists the question of tenancy, the Court will have to consider that question, and since the Civil Court has no jurisdiction to deal with that question it will have first to be referred to the Tenancy Court and after receiving the decision of the Tenancy Court alone will it be possible for the Civil Court to decide whether to grant or not permanent injunction. In view of this position, and particularly in view of the clear and unequivocal mandate of law to the Civil Court, not to deal with any question or issue about tenancy which arises in a suit and which is necessary for granting or not granting the relief of permanent injunction, that even in suit simpliciter for permanent injunction an issue of tenancy be framed, when it is raised, and it be referred to the Tenancy Court for decision. We, therefore, agree with the view expressed by S.J. Deshpande, J., in Digamber v. Sk. Yasin, and find that the view expressed in 1983 Maharashtra Law Journal page 958, Maruti v. Parshuram is not good law.
29. Before answering the issue referred to us, we have also to consider the question canvassed at length before us about necessity of such an issue being referred, before considering an application for temporary injunction under Order 39 of the Code of Civil Procedure. Here also there is a conflict. In 1982 Maharashtra Law Journal 777 Shrawan Bagaji Nadre and others v. Arun Manikraj Kadam. D.B. Deshpande, J., (since retired), held that in a suit for perpetual injunction, temporary injunction cannot be granted, unless the Tenancy Court adjudicates upon plaintiff's tenancy rights. In para 3 of the judgment, it is observed :
"For the purpose, he (learned Counsel for the revision petitioners) relied upon the decision of this Court in Pandurng Appa Patil v. Ananda Bhau Ulpe, Civil Revision Application No. 42 of 1974, decided on 28-4-1976, Tulzapurkar, J., (as he then was). This ruling, therefore, definitely supports the contention raised by Shri Deshpande (learned Counsel for the revision petitioners) and it goes to show that the person, who comes to the Civil Court on the ground of his tenancy, can succeed only if tenancy is held an his favour by the Tenancy Court."
30. A contrary view was expressed by R.A. Jahagirdar, J., in 1985 Maharashtra Law Journal 314 Laxmi w/o Sonu and others v. Sawanta Bapu Mali. In that case, the plaintiff filed a suit for permanent injunction restraining the defendants from interfering with his peaceful possession of the land as a tenant. The defendants contended that the plaintiff had already handed over possession under a valid order or surrender. An application under Order 39, Rule 1 of the Civil Procedure Code for temporary injunction was filed by the plaintiff. It was granted by the trial Court. The appeal was dismissed by the District Court. On a writ petition, it was contended that no relief by way of temporary injunction could be granted in the suit of this type. The reasons negativing the contention, are stated in para 8 of the judgment:
"The question is not ultimately what the other reliefs re 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 Order 39. Rule 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 defendant from disturbing the plaintiff's possession."
31. We have already observed the difference between a temporary injunction and a permanent injunction. A temporary injunction can be granted at any stage of the suit. It is regulated by the Code of Civil Procedure and it continues only up to specified time. Unlike temporary injunction, a perpetual injunction is granted upon merits of suit, after hearing both the parties. A decree for perpetual injunction, as the nomenclature shows, perpetually restrains the defendant from assertion of a right or from commission of an act. The difference between the two is real and substantial; one is a temporary measure, the other is a perpetual restraint by a decree. A relief of perpetual injunction on merits cannot be granted, unless relative rights are considered. What is required under Order 39 of the Code of Civil Procedure is only a prima facie case, which means physical possession to the date of the suit which, if found proved, would necessarily lead to the conclusion that the balance of inconvenience lies in favour of the plaintiff. The question of tenancy has neither to be dealt with nor arises while deciding the question of temporary injunction. Its proper place is the trial on merit. We are, therefore, of the opinion that while temporary injunction can be granted without referring the question of tenancy to the Tenancy Court, a relief of permanent injunction on merit cannot be granted in a suit simpliciter for permanent injunction, unless an issue is raised, referred and decided by the Tenancy Court in accordance with the provisions of the Tenancy Act.
32. Having, therefore, considered the conflicting views in the field, we are of opinion that in a suit simpliciter for permanent injunction, it is necessary to frame an issue of tenancy either in favour of the plaintiff or the defendant, as the case may be.
33. We, thus, answer the issue referred to us in the affirmative.
34. The matter shall, now, be placed before the Hon'ble the Acting Chief Justice for further directions.