Bombay High Court
Maniram S/O Ramnarayan Shukla vs Praful @ Bablu Bhongade Since Dead ... on 15 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.4525 OF 2015
PETITIONER: Maniram S/o Reamnarayan Shukla,
Aged about years Occ: Business, R/o
Plot No.269, Dhadiwal Layout Suyog
Nagar Chowk, Ring Road Ajni Dist.
Nagpur.
-VERSUS-
RESPONDENTS: 1. Praful @ Bablu Bhongade since dead
through his LR
A) Savita W/o Praful Bjhongade,
ig Agedf about Major Occ: Housewife,
B) Prajakata Praful Bhongde, Aged
about 20 yrs, occ: Student
C) Tejankit S/o Praful Bhongade,
aged about 22 yrs Occ: Student,
All R/o Plot no.259 Dhadival Layout
Suyog Nagar Chowk, Ring Road
Nagpur-440 027.
2. Sarla W/o Prashant Bjhongade, Aged
about 38 years, Occ: Housewife,
R/o Plot no.270 Dhadival Layout
Ring Road Nagpur-440 027.
3. Smt. Pratima W/o kisan Patil,
Aged about 50 yewars, Occ-
Housewife R/o Plot no.270 Dhadival
Layout Ring Road, Nagpur - 440027.
4. Smt. Meena Bahadure, Aged about 40
years, Occ-Housewife, R/o plot
no.274 Dhadival Layout Ring Road
Nagpur 440 027.
5. Smt. Saroj W/o Raju Bahadure, Agedf
about 45 years, occ: Corporator, R/o
C/o Public Relation office : Plot
no.55, Shri Siddhivinayak Apartment,
Renuka Bihar Colony, Shatabdi
Chowk Rameshwari, Ring Road
Nagpur.
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6. Smt. Mohini Dhadiwal Since dead
Through her LR
Shri Prabhat S/o Surajmal Dhadiwal
Aged major, Occ-Business R/o
Dhadiwal Complex Chaoni, Katol
Road Nagpur.
7. Ekta Bahu Uddeshiya Mahila Mandal
Dhadiwal Layout through its
President Sau Alka W/o Dilip
Kkamble, Aged 50 years Occ: Social
Worker, R/o plot no.74, Dhadiwal
Layou Suyog nagar Chowk, Ring
Road Ajni, Dist. Nagpur.
8. Nagpur municipal Commissioner
through its Commissioner, Civil Lines,
ig Nagpur.
Shrin P. S. Tiwari, Advocate for the petitioner.
Shri A. P. Dubey, Advocate for the respondent No.8.
CORAM: A.S. CHANDURKAR, J.
DATED: 11
th JULY, 2016.
ORAL JUDGMENT :
1. The notice for final disposal was issued on the
respondents which has been duly served. On 28-6-2016 as the
contesting respondents did not appear, the writ petition was kept
on 8-7-2016 to grant an opportunity to them to appear and contest
the proceedings. Today also there is no appearance on behalf of
the contesting respondents.
2. The learned Counsel for the petitioner and the
respondent no.8 have accordingly been heard by issuing Rule and
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making the same returnable forthwith.
3. The petitioner is the original plaintiff. He has filed suit
for perpetual injunction along with the declaration that he had
valid title to the suit property which was a plot bearing no.268.
According to the plaintiff, by virtue of sale deed dated 1-7-2013,
the aforesaid property was purchased from the defendant no.6 and
since then he was in possession thereof. The defendant nos.1 to 4
had initially sought to encroach upon the suit property.
Subsequently, the defendant no.8 was also impleaded in the suit.
As the defendants tried to take possession of the suit property, the
plaintiff approached the trial Court with the aforesaid suit. Along
with the suit, an application for temporary injunction was also
moved. According to the defendant Nos.1,3,4 & 8, a gift deed
dated 27-4-2001 was issued in their favour, and hence, they had
title to the suit property. The trial Court by its order dated
28-2-2014 allowed the application for temporary injunction and
restrained the defendant nos.1 to 4 and 8 from interfering with the
plaintiff's possession. Being aggrieved,the said defendants filed
Misc. Appeal and by the impugned order, the same has been
allowed.
4. Shri P.S. Tiwari, the learned Counsel for the petitioner
submitted that the petitioner had valid title over the suit property
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in view of the sale deed dated 1-7-2013. The gift deed on the basis
of which the said defendants were claiming title was an
unregistered document which was only notarized. He submitted
that the Notary had filed his affidavit denying notarizing said
document. He submitted that the contesting defendants taking
advantage of the plaintiff's absence had sought to encroach upon
the suit property without any legal basis. Even the original owner
of the suit property in her written statement supported the stand
of the plaintiff. He, therefore, submitted that the appellate Court
was not justified in interfering with the discretion exercised by the
Court.
5. Shri A. P. Dubey, the learned Counsel appeared for the
respondent no.8.
6. I have heard the respective Counsel and have perused
the documents filed on record. While the plaintiff claims title on
the basis of the registered sale deed dated 1-7-2013, the contesting
defendants claim title on the basis of an unregistered gift deed
dated 27-4-2001. It is pertinent to note that this gift deed has
been notarized and bears the signature of one Shri Ashok N.
Satpute as the Notary. The said Notary has filed affidavit before
the trial Court on 10-3-2014 stating therein that he had not signed
on the said gift deed and it appeared that the same was executed
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by playing a fraud. Further the defendant no.6 - original owner of
the suit property by filing written statement below Exhibit-55
admitted the execution of the sale deed in favour of the petitioner
on 1-7-2013 and also denied execution of any gift deed on
27-4-2001 by her power attorney holder. She has stated that the
power of attorney given by her did not empower the said holder to
execute a gift deed. The trial Court also considered the
communication issued by the Nagpur Municipal Corporation.
After considering this material, the trial Court came to a prima
facie finding that the plaintiff was entitled for an order of
temporary injunction.
7. The appellate Court though recorded a finding in para
22 of its order that the plaintiff had a prima facie case in support of
the title allowed the miscellaneous appeal on the ground that the
contesting defendants appeared to be in possession. Once when
the prima facie case as regards the title of the plaintiff was shown
to have been made out and the plaintiff was claiming title on the
basis of the registered sale deed, there was no reason whatsoever
for the appellate Court to have interfered with the order of the
trial Court. The appellate Court has not recorded any finding that
the discretion exercised by the trial Court while granting
injunction was either incorrect or contrary to the documents on
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record. By confirming the finding in so far as the prima facie title is
concerned, the appellate Court has in fact, accepted the case of the
plaintiff to that extent. The stand of the respondent no.8 as well as
the original owner of the suit property supports the case of the
plaintiff. In that view of the matter, the order passed by the
appellate Court cannot be sustained and is liable to be set aside.
8. In view of aforesaid, the following order is passed.
(a) The order dated 10-4-2015 passed in Misc. Civil
Appeal No.90/2014 is quashed and set aside. The order passed by
the trial Court below Exhibit-5 is restored.
(b) It is made clear that the suit shall be decided on its
own merits without being influenced by any observations made in
this order.
(c) The writ petition is allowed in aforesaid terms. No
costs.
JUDGE
//MULEY//
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