Bombay High Court
Sultana Farjad Ali And Others vs Salamatulla Farjad Ali And Others on 11 July, 2016
Bench: S.P. Deshmukh
1 WP-836.14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 836 OF 2014
1. Sultana Farjad Ali
Age: 57 years, Occu. Household,
2. Kamarbano Farjad Ali
Age: 52 years, Occu. Ration Shop Holder
3. Parveenbano Parvez Khan
Age: 47 years, Occu. Teacher
All R/o. Opposite Dr. Sanjay Desale's Clinic
Nehru Nagar, Deopur, Dhule
Tq. & Dist. Dhule ...PETITIONERS
(Orig.Defendants No.1 to 3)
VERSUS
1. Salamattulla Farjid Ali
Age: 81 years, Occu. Nil,
R/o. Nehru Nagar, Bhand Pura, ...RESPONDENTS
Lane No.2, Dhule, Tq. & Dist. Dhule
Respondent No.1
Orig.Plaintiff
2. Dhule Municipal Corporation
Through its Commissioner,
Dhule Municipal Corporation Building,
Dhule, Tq. & Dist. Dhule
3. The Administrative Officer
Educational Department,
Dhule Municipal Corporation,
Dhule, Tq. & Dist. Dhule Respondents
No. 2 and 3
Original Defendants
No. 4 and 5.
.....
Mr. C. R. Deshpande, Advocate for petitioners
Mr. G. R. Syed, Advocate for respondent No.1
.....
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CORAM : SUNIL P. DESHMUKH, J.
DATE : 11th JULY, 2016
ORAL JUDGMENT :
1. Rule. Rule returnable forthwith. Heard Mr. C. R.
Deshpande, learned counsel for the petitioners and Mr. G. R.
Syed, learned counsel for respondent No.1 finally, with
consent.
2. Respondent No.1 has instituted Regular Civil Suit No. 19
of 2011 in the court of Civil Judge, Senior Division, Dhule,
seeking declaration of ownership and injunction against the
present petitioners and respondents No. 4 and 5 - Municipal
Corporation, Dhule and its officer in respect of properties
bearing CTS No.4025 and 4245A-1A, both situated within the
limits of Municipal Corporation, Dhule.
3. Learned counsel Mr. Deshpande, submits that late
Farjad Ali had two wives - one Fatimabi who has three
children - the petitioners i.e. defendants No. 1 to 3 and other
Sakina. Plaintiff has been begotten to said Farjad Ali from
said Sakina. According to him, suit property bearing CTS
No.4245A-1A had been given to Fatimabi - mother of
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defendants No. 1 to 3 by Farzad Ali absolutely, about 60 years
before aforesaid suit had been instituted by plaintiff-
respondent No.1. He submits that after demise of Fatimabi,
said property had been divided among the petitioners -
defendants No. 1 to 3 and has been accordingly dealt with by
them. Aforesaid property had been given on rent to Municipal
school and rent was being uninterruptedly paid to them.
There is lot of record available showing and establishing
above.
4. Learned counsel further contends that the municipal
authorities on some pretext under a purported resolution,
shown property bearing CTS No. 4245A-A1 to have been
delivered to plaintiff-respondent No.1. He submits that in the
circumstances the real owners - defendants No. 1 to 3 have
been deprived of the benefit from the property which had
been illegally shown to have been delivered to plaintiff-
respondent No.1. Plaintiff has no rights over said property.
5. It is further being contended that the plaint has been
craftily drafted without referring to that the relationship
among the parties is a step relationship. He further contends
that taking stock of the situation the trial court has rightly
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rejected the request for temporary injunction under an
application Exhibit-5 filed by the plaintiff.
6. He submits that, however, the appellate court in
Miscellaneous Civil Appeal No. 30 of 2012 filed by the
plaintiff-respondent No.1 took altogether different view and
has reversed the judgment and order of the trial court on
Exhibit-5 and has allowed the appeal and thus, the petitioners
are before this court.
7. Mr. C. R. Deshpande, learned counsel submits that the
appellate court has unnecessarily gone into the aspects which
are not germane. It is being shown that plaintiff is having
possession over aforesaid property. He submits that
purported/contended delivery of possession, a circumstance
alone, would not have any significance since it is apparent
from record that the plaintiff-respondent No.1 cannot stake
any claim on suit property. He, therefore, submits that grant
of injunction in favour of plaintiff is not legal and proper and
is unwarranted and such the order is untenable.
8. Countering aforesaid submissions, Mr. Syed, learned
counsel appearing for respondent No.1 submits that at this
stage of interlocutory application for interim relief, prima-facie
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case balance of convenience and irreparable loss has been
properly adjudged by the court and no interference is required
in the findings in favour of plaintiff-respondent No.1 about his
possession over the suit property. He submits that the
contention of the petitioners at this stage has no semblance
right and would be too premature and cannot be considered
without facing trial in suit. He submits that the documents
which have been sought to be relied on, may not be the
documents which can be said to give title to the defendants
over the suit property. He submits that upon death of Farjad
Ali, plaintiff has succeeded to property as his son, and as
such, he has all rights to the suit property and accordingly,
having regard to aforesaid, no wrong can be said to have
been committed in handing over possession of CTS No.
4245/A1 to respondent No.1 by the municipal authorities. He
submits that there are lot of questions which will have to be
decided and having regard to law, at this interlocutory stage,
it cannot be said at all that the plaintiff-respondent No.1 has
no right to the suit property.
9. Learned counsel Mr. Syed goes on to submit that it is an
undisputed position, which emerges on record that the
plaintiff-respondent No.1 is in fact in possession of the suit
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property. Its legality or otherwise would emerge only after
adjudication of rights and not before. When plaintiff-
respondent No.1 is in possession of the suit property,
meddling with the same by defendants is required to be
contained. The appellate court has rightly judged upon the
factual position that all the ingredients required for injunction
are in favour of plaintiff-respondent No.1.
10.
After going through the orders passed by the courts
below and upon hearing the parties, the position emerges
that as on the date, there does not appear to be a dispute
with regard to that the suit property referred to above i.e.
CTS No.4245/1A is in possession of plaintiff-respondent No.1
and further that present defendants have claimed back the
possession. The appellate court while reversing the order of
trial court on Exhibit-5 has given reasons in the judgment
and order impugned in this writ petition, more particularly, in
paragraph No.18 therein. Under the circumstances, I do not
see that this is a matter good enough to interfere with the
aforesaid position.
11. As such, writ petition is not being entertained and
stands rejected. Rule is discharged.
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12. However, having regard to the relationship between the
parties, particularly plaintiff and defendants No. 1 to 3, suit be
proceeded with as expeditiously as possible and be disposed
of preferably within a period of nine months from the date of
receipt of writ of this order.
13. It is further made clear that the observations
hereinabove are made for the purpose of rejection of this writ
petition and would not have efficacy in any other proceedings
and the suit be decided un-influenced by aforesaid
observations. It would further be taken into account that the
observations in the order passed in miscellaneous civil appeal
also are at the stage which was interlocutory.
( SUNIL P. DESHMUKH, J. )
sms
