Sundari Ganapati Pille vs Vimalchand Ghevarchand Jain And ...
2021 Latest Caselaw 1724 Bom

       This Order is modified/corrected by Speaking to Minutes Order dated 01/02/2021


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ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION

                           WRIT PETITION (ST) NO. 96454 OF 2020

      Sundari Ganapati Pille                                                 ....Petitioner

              V/s.

      Vimalchand Ghevarchand Jain                                            .....Respondents
      and others

      Mr. Pramod N. Joshi a/w Mr. Pratik Rahade for the Petitioner
      Mr. Vimalchand G. Jain Respondent no. 1 in person & POA holder for
      all respondents


                               CORAM :      NITIN W. SAMBRE, J.

                               DATE:        JANUARY 27, 2021.

      P.C.:

      1]      This petition is by original plaintiff questioning the legality of

the impugned Order dated 16 September 2020 passed by District

Judge-1 Niphad in Mis. Civil Appeal No. 06/2019 wherein the prayer

for injunction moved by the Petitioner came to be rejected.

2] Facts necessary for deciding the petition are as under.

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3] Petitioner initiated Special Civil Suit No. 24/2016 against

Respondent praying therein declaration that he is the owner of land

to the extent 555.25 Sq. Mtrs. out of land gut number 462/2 by

virtue of a sale deed dated 26/02/2003. A further prayer is made

that Judgement delivered in RCS number 62 of 95 by the Apex Court

be declared as illegal. An injunction is prayed that Respondent

should not interfere with the possession of the Petitioner.

4] Claim of the Petitioner is based on registered sale deed dated

19/07/2000 executed by one Ramakant Eknath Jaju in favour of the

Petitioner. It is the case of the Petitioner that based on same sale

deed, name of the Petitioner is mutated and the Petitioner has

obtained loan from the bank of Maharashtra by mortgaging the said

property. It is further claimed that property was already developed by

constructing shopping mall and an English high school.

5] According to Petitioner, Respondent had some dispute with said

Mr. Jaju, as such lodged objection to the sale deed in question with

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the revenue authorities. It is further claimed that Respondent as

such was having knowledge about the title and possession of the

Petitioner to the suit property

6] Based on above pleadings in the Plaint, Application for

injunction came to be moved under order 39 rule 1 and 2 of Code of

Civil Procedure, 1908 ('C.P.C.') which came to be rejected vide order

below exhibit 5 by Civil Judge Senior Division Niphad on

15/12/2018. Feeling aggrieved, Petitioner preferred Misc. Civil Appeal

No. 6 of 2019 which was also dismissed on 16/09/2020. As such this

petition.

7] Mr Joshi, learned counsel appearing for the Petitioner would

invite my attention to the recitals in the registered sale deed executed

in favour of the Petitioner by Ramakant Jaju on 19/07/2000.

According to him Eknath Jaju was original owner who transferred

the property by registered sale deed in favour of Respondent on

29/06/1978. Respondents then executed a leave and licence deed in

favour of said Ramakant Jaju. Since aforesaid transaction was only

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for paper purpose and was not to be acted upon possession and title

remained with the said Ramakant Jaju from whom the said property

was purchased by the Petitioner on 19/07/2000.

8] There is one more angle to the litigation and that is Respondent

initiated a suit for recovery of possession based on the title deed

dated 29/06/1978 in the civil proceedings. I am informed that

though civil suit was dismissed so also appeals before this court,

Supreme Court decreed the said claim in favour of the Respondents.

In the aforesaid background, submissions of learned counsel for the

Petitioner are, Petitioner is purchaser of the property without notice

about the litigation between Respondent and said Ramakant Jaju . It

is further claimed that the possession of the Petitioner as on

19/07/2020 pursuant to the sale deed, was well within the

knowledge of the Respondent and as such on the date of the fling of

the suit, Petitioner has perfected his title by way of adverse

possession. Mr Joshi then would urge that provisions of section 52 of

Transfer of Property Act in regard to lis-pendens will not be attracted

for want of satisfaction of ingredients.

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9] Relying on the Judgment of Apex Court in the case of

Narasamma and Others Vs. A. Krishnappa (Decd) Through Lrs

reported in [2020 SCC OnLine SC 672] particularly paragraph 17 and

24 onwards, the submissions are plea of adverse possession is prima

facie established by the Petitioner particularly in view of his settled

possession since 2000. That being so, court below have committed an

error in rejecting the prayer for injunction. That being so there is

prima facie case in favour of the Petitioner as the Petitioner is in

settled possession of the suit property.

10] While countering the aforesaid submissions Respondent no. 1

who appears in person opposed the claim and submits that Petitioner

in an evidence which was recorded at preliminary stage in the very

suit has admitted the title of the Respondent and also has the

knowledge of pendency of suit between Respondent and said

Ramakant Jaju. He would further urge that an objection is preferred

by the Petitioner in the execution proceedings initiated through

Special Darkhast No. 250 of 2015 under Order 21 Rule 97 of the

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C.P.C. and as such in view of provisions Order 21 Rule 101, the suit

itself is not maintainable. As such, according to him, petition is liable

to be dismissed with exemplary cost.

11]    Appreciated rival submissions.




12]    Perusal of the Plaint and other proceedings in the Suit in

question in which the injunction is refused, prima facie demonstrates

that on the date of fling of the Suit, Petitioner was aware of existence

of a Decree of eviction passed by the Apex Court in favour of the

Respondent against the predecessor in title of the Petitioner.

13] Apart from above, it is to be noted that in examination-in-chief,

Petitioner has stated that he was not having any knowledge about

dispute between Respondent and Ramakant Jaju, however, in the

cross-examination it appears that Petitioner has admitted the

acquaintance about the pendency of dispute between Respondent

and said Ramakant Jaju.

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14] Judgment of the Apex Court in the matter of Civil Appeal No.

1784 of 2009 arising out of SLP (C) 12154 of 2007 in my opinion is

worth referring to.

15] In the said Judgment, Apex Court had held that Deed of Sale

executed in favour of Respondent contains stipulations as regards

construction, lawful title of the vendor i.e. Eknath Jaju. Full

description of vended property, conveyance, right, title and interest,

use, inheritance, possession, beneft and equity of the vendor and as

such interpreted the same in favour of Respondent's for inferring title

to the Suit property.

16] Apex Court further observed that right of possession over the

property is facet of title. Since the deed of sale is registered deed, title

passes to the vendee. Even in terms of stipulation made in the deed

of sale, he is bound to deliver the possession of the property sold and

as such, if not complied with, vendor makes him liable for damages.

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17] In the aforesaid background, it is amply clear that no lawful

title was with the predecessor in title of the Petitioner to transfer the

same in favour of the Petitioner and as such, the very title of the

Petitioner is defective. Once it is noticed that Petitioner's title to the

Suit Property was defective, his right to claim temporary injunction

being in unlawful possession of Suit property is rightly so rejected by

the Court below.

18] Apart from above, the admissions given by the Petitioner that

he was aware of pendency of litigation between the Respondent and

Ramakant Jaju apparently establishes the fact about knowledge of

pendency of proceedings between predecessor in title i.e. Ramakant

Jaju & Respondent before the sale was executed in favour of the

Petitioner. As such, his claim that he is purchaser of Suit property

without notice is contrary to record.

19] In the aforesaid background, it is diffcult to infer that Petitioner

is entitled to establish the plea of adverse possession, particularly

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when predecessor in title of the Petitioner had no title to the suit

property. Even if it is presumed that Petitioner has received

possession of the suit property sometime in 2000, however, that by

itself will not entitle the Petitioner to establish the plea of adverse

possession particularly when Suit for eviction and possession of the

Respondent against predecessor in title of the Petitioner was pending

adjudication and as such thereby the very title of the Petitioner was

under question.

20] In the aforesaid background, it is really diffcult to infer that the

Petitioner remained in settled possession for last 12 years of the suit

property so as to raise a plea of adverse possession.

21] In the aforesaid background, the view expressed by both the

Courts below appears to be a perfect view.

22] As such, Petition lacks merits, stands dismissed.

[NITIN W. SAMBRE, J.]