Smt. Mahananda Suresh Imade And ... vs Smt. Hemlata Vishnu Devkar And Anr
2021 Latest Caselaw 2496 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION
                          WRIT PETITION NO.3361 OF 2019



     Smt. Mahananda Suresh Imade & Anr.                 ..... Petitioners

             Vs.

     Smt. Hemlata Vishnu Devkar                         ....     Respondent


     Mr. Raghvendra B. Kulkarni for Petitioners
     Mr. R.S. Alange i/by Mr. Ajit V. Alange for Respondent No. 1.


                                         Coram : NITIN W. SAMBRE, J.

Date : 8TH FEBRUARY, 2021 P.C.:

1. This petition is by the defendant in Regular Civil Suit No.

626 of 2017, which is initiated by the Respondent/Plaintiff for

simplicitor injunction based on title. The said title claimed to have

conferred vide registered sale-deed dated 14th April, 2017 from the

predecessor- in-title of the Respondent/Defendant namely Kantabai

Mashal.

2. The trial Court rejected the prayer for grant of temporary

injunction vide order dated 22nd March, 2018. However, the learned

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District Judge reversed the same vide order impugned dated 1st

October, 2018. As such, this petition by the Defendants.

3. The submissions are, transfer in favour of predecessor-in-

title of the Respondent-Plaintiff was without any necessity. The suit

property is an ancestral property and that being so, Suit being Regular

Civil Suit No. 1704 of 2012 is pending adjudication for a decree for

partition and possession, at the behest of Defendant/Petitioner.

4. According to the learned counsel for the Petitioner, without

considering the aforesaid factual matrix, the Court has passed an order

of injunction. Further contention of the Petitioner are, suit for

simplicitor injunction is not maintainable when the title of the

Respondent-Plaintiff was under cloud in view of partition suit. Drawing

support from the Apex Court judgment in the matter of Anathula

Sudhakar Vs. P. Buchi Reddy (dead) thru. LRs, reported in A.I.R.

(2008) SC 2033, submissions are, the suit itself is not maintainable as

there is denial of the title of the Respondent and that being so, an

injunction ought not to have been granted.

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5. It is further claimed that the transfer is also questioned on

the ground that it was a mortgage transaction and as such the

possession was never parted with. While countering the submissions,

learned counsel for the Respondent submits that in a pending suit for

partition, no relief of injunction was claimed seeking possession for

more than eight years. According to him, the title documents in favour

of the Respondent/Plaintiff weighed in granting injunction and as such

impugned order does not call for any interference.

6. With the assistance, I have perused the plaint in Regular

Civil Suit No.1740 of 2012, wherein the title-deed in favour of

predecessor-in-title of the Respondent-Plaintiff executed on 11 th March,

2002 is subject matter of challenge and a decree for partition is also

claimed in the said suit.

7. The fact remains that for last eight years, no injunction is

claimed in the said proceedings seeking prayer of possession either

against the predecessor-in-title Kantabai Mashal or subsequent owner

Karim Shaikh through whom the Respondent/Plaintiff succeeded to the

title to the suit property.

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8. Apart from above, the fact remains that the title in favour

of Kantabai Mashal was conferred way-back on 8 th March 2002 and the

suit for setting aside said sale-deed is based on the cause of action

accrued in 2011.

9. The aforesaid delay on the part of the Petitioner- defendant

requires to be weighed in favour of the Respondent in the matter of

grant of injunction.

10. The fact remains that denial of the title by the present

Petitioner in the written statement is only to the extent of either the

mortgage transaction or that of sale was not of any necessity. However,

this Court cannot be oblivious to the fact that the transaction deed took

place and whether such transaction was a germane or genuine can be

established only in RCS No. 1704 of 2012 in the pending suit. As such,

on the issue of not maintainability of the suit of Respondent/Plaintiff

for simplicitor injunction cannot be accepted.

11. That being so, the suit for simplicitor injunction was very

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much maintainable as against the Petitioner/Defendant at the behest of

Plaintiff.

12. For the aforesaid reasons, no case for interference is made

out. The Petition lacks merits, stands dismissed.

( NITIN W. SAMBRE, J. )