A.V.SAVANT, J. - (1.) THIS Revisions Application seeks to challenge the Order dated 16th October 1989, passed by the Court of Small Causes, at Bombay, in Injunction Notice No. 3202 of 1989 in R.A.D. Suit No. 2222 of 1989. Under the impugned order, the learned Trial Judge has answered the preliminary issue in the affirmative. The preliminary issue framed was as under :- "Whether this Court has Jurisdiction to try and entertain the plaintiff's Declaratory Suit ?"
(2.) A few facts may be stated as under :- "On 5th December, 1975 there was an Agreement of Sale between the Oshiwara Land Development Company Private Limited (in short, "the Comany") and the first petitioner Vinod Mahajan for the purchase of land out of Survey No. 41, situate at village Oshiwara, taluks : Andheri District : Greater Bombay. On 8th February 1979, there was a modification of this agreement dated 5th December, 1975. On the 21st September, 1980, there was an Agreement of Sale in favour of the petitioners, who are defendants Nos. 1 to 3 in the present suit filed by the first respondent Abdul Rehman Kashmiri. This agreement relates to an area of 1.40,000 sq. yds. from out of said Survey No. 41 mentioned above. On the very day viz. 21st September 1980 the possession of the said portion of the land was handed over by the Company to the petitioners and it is the petitioners 'case that they are in actual possession of the said land since thereafter and have been paying the taxes and assessment in respect thereof which is the 'suit property'. On 6th February, 1986, there is a conveyance executed in favour of the petitioners by the Company for a consideration of Rs. 52.75.009/-. This conveyance has been produced at Exh. "C", Page 51 of the Civil Revision application. In September, 1988, defendant No. 2 Yasin S. Rasool M. Khan threatened to trespass into the suit property in the petitioner's possession. This resulted in the petitioner filing Suit No. 7383 of 1988, in the City Civil Court, at Bombay, for injunction on 13.9.1988, and on that day itself the petitioners were able to obtain and interim injunction against the said Yasin Khan, who is defendant No. 2 in the present suit - respondent No. 3 in this Civil Revision Application. On the 13th, September 1988, itself the City Civil Court appointed a Commissioner to visit the suit property and make a Report about the actual possession of the suit property. On the 14th September, 1988, the Commissioner visited the suit property and made a Report to the effect that the petitioners were in actual possession of the suit Property. On the basis of the material before it, on 3/5th December, 1988, the City Civil Court made the Notice of Motion absolute in Suit No. 7383/88, being Notice of Motion No. 5778/88. Defendant No. 2, Yasin Khan preferred Appeal from Order No. 100 of 1988 to this Court challenging the said order dated 3/5th December 1988. On the 10th February, 1989, this Court summarily dismissed the said Appeal from Order. A Special Leave petition was filed to the Supreme Court, being S.L.P. No. 3560 of 1989. It appears that after arguments the said S.L.P. was withdrawn and in the result the said SLP was dismissed as withdrawn on 7th April 1989.
(3.) THE plaintiff has filed the present suit on the 14the June 1989 on the basis of the alleged tenancy agreement executed by the first defendant Virendra Gaur in his favour. It appears that Virendra Gaur claims to have a Power of Attorney in his favour executed by the Company on 15th January 1981. He also claims to have development agreement in his favour executed by the Company on the same day Defendant No. 2 Yasin Khan also claims to have a sub-development agreement from the defendant No. 1 Virendra Gaur executed on the 30th August 1988. In fact on the 6th September, 1989, Yasin Khan filed suit No. 7012 of 1988, against one Ashok Padekar, security agent of the petitioners and obtained in junction against the said Padekar. Immediately on the next day viz. 7th September, 1988, there were consent terms filed between the said Padekar and Yasin Khan, who was the plaintiff in Suit No. 7012 of 1988. It appears that it was on the basis consent decree obtained by said Yasin Khan on 7th September, 1988, that he tried to interfere with in possession of the petitioners in the month of September, 1988, as referred to above. As already stated, the interim order passed in favour of the petitioners in the said City Civil Court suit has been confirmed by the Supreme Court.;