S.S.Dhavan, J. - (1.) This is a defendants' second appeal against the decree of the Second Civil Judge, Meerut, confirming a decision of the trial court b'y which the plaintiff-respondents' suit for an, injunction restraining the defendant-appellants from interfering with their possession over the plot of the land in dispute and for a declaration, that he was entitled to receive the sale price of the crop deposited in court was decreed. The facts which have led to this appeal, yery briefly, are these. In the year 1951 there was a dispute between the plaintiff-respondents and the defendant-appellants over a plot of land which led to an apprehension of breach of the peace. Proceedings under Section 145 Cr. P. C. were initiated, and the trying Magistrate attached the land in dispute as well as the standing crop. A supurdar was however appointed by the court and the crop was sold by him for Rs. 700/- and the amount deposited in. court. The plaintiff-respondents were also permitted to cultivate the land in dispute for the Kharif season of 1951 in consideration of payment of a sum of Rs. 100/- to the court. on 11th December, 1951, the Magistrate passed an order under Section 145 (4) Cr. P. C. holding that the defendant-appellants were in possession. The operative part of his order runs thus: "The attached crops shall be released in favour of the opposite party (the present defendant-appellants). The first party (the present plaintiff-respondents) is prevented from interfering in the possession of the opposite party until otherwise ordered by a competent court. They will be put in possession." The plaintiff-respondents filed a revision against this order, which was dismissed on 6th February, 1952. However he had remained in possession of the land in dispute which had been given to him for cultivation by an order of the court. It appears that the direction of the Magistrate that the defendant-appellants should be put in possession was not carried put immediately. On 8th February, 1952, the plaintiff-respondents filed the suit which led to the present second appeal. They prayed for a permanent injunction restraining the defendant-appellants from interfering with their possession of the plot in dispute and for a declaration that they were entitled to the amount of Rs. 800/-which had been deposited before the Magistrate in proceedings under Section 145 Cr. P. C. It must be carefully noted that the plaintiff- respondents did not pray for possession of the land but asked for an injunction restraining the defendants from interfering with their possession. On 12th February, 1952, the defendant-appellants filed their written, statement in which they admitted the allegation that the plaintiffs were in pos session, but resisted the suit on the ground that the defendants were tenants on batai for the last eight years and had been cultivating on the plot _ as batai-tenants. The plaintiff-respondents obtain ed a temporary injunction from the trial court restraining the defendants from interfering with their possession. It appears, however, that the temporary order must have been vacated, for the defendants took the possession of the plots in dispute by virtue of the order of the Magistrate under Section 145(4) Cr. P. C., and filed a dakhalnama in the civil suit. The plaintiff-respondents thereupon, on 23-4- 1952, filed a suit under Section 180 of the U. P. Tenancy Act in the revenue court for the ejectment of the defendants and for damages. On 19th March, 1953, this suit was decreed by the revenue court, and two days later, on 21-3-1953, the plaintiff-respondents re-acquired possession _ of the plots in dispute by another dakhalnama obtained under the decree of the revenue court. On 9th April, 1953, the plaintiff-respondents filed this dakhalnama and a copy of the judgment of the revenue court in the civil suit. On 24th April, 1953, the civil suit itself was decreed by the learned Munsif, who held that the defendants, were not the batai-tenants of the land in dispute, that the plaintiffs were in possession of the disputed plots as bhumidars and that the attachment of the plots under Section 1.45 Cr. P. C. was made when the plots were in the plaintiffs' possession. Accordingly, the learned Munsif passed a decree declaring that the plaintiffs were entitled to the sum of Rs. 800/-deposited in the court of the Magistrate during the proceedings under Section 145 Cr. P. C. He also issued an injunction restraining the defendants from interfering with the plaintiffs' possession. The defendants' appeal was dismissed by the learned Second Civil Judge Meerut who confirmed the finding of the lower court that the plaintiffs were in actual possession of the land. Against this decision the defendants have come to this Court in second appeal.
(2.) It is necessary to note the ultimate result of the suit filed by the plaintiff-respondents in the revenue court. It has been stated above that the suit was decreed by that court. The defendants however filed an appeal, and the Additional Commissioner held that the procedure adopted by the trial court was irregular and set aside the decree. He remanded the case to the trial court for decision according to merits. The plaintiff-respondents filed a second appeal before the Board of Revenue which is still pending. The Board passed an order staying the hearing of the remanded suit and there the matter stands today.
(3.) Another fact must be noted before passing on to the merits of this appeal. In the civil suit filed by the plaintiff-respondents, the defendants had set up a plea that they were batai-tenants. The plaintiffs had alleged that they were the bhumidars of the land in dispute. The trial court framed two issues (1) whether the plaintiffs were the bhumidars; and (2) whether the defendants were batai-tenants? Both these issues were referred to the revenue court for decision. That court held that the plaintiffs were bhumidars and that the defendants were not batai-tenants. No objection was taken by the defendants to the action of the trial Court in sending these issues to the revenue court for decision. They appeared before the revenue court without protest and led evidence in support of their case. Subsequently, in the other suit filed by the plaintiff-respondents under Section 180 of the U. P. Tenancy Act, the question arose whether the defendants were batai-tenants of the land in dispute: and the revenue court framed an issue. It did not hear any evidence afresh but, relying on the evidence already heard by it when, deciding the issues remitted by the civil court in the other suit and relying on its decision on those issues, it held that the defendants were not batai-tenants.;