Kalidas Duryodhan Kadam And Ors vs Akash Balu Kadam
2022 Latest Caselaw 2418 Bom

                                                                                 WP-283-2020.doc

BDP-SPS-TAC


 BHARAT
 DASHARATH
 PANDIT                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIVIL APPELLATE JURISDICTION
 Digitally signed by
 BHARAT
 DASHARATH
 PANDIT
 Date: 2022.03.11



                                          WRIT PETITION NO. 283 OF 2020
 11:06:56 +0530




                       KALIDAS DURYODHAN KADAM & ORS. ..... Petitioners.
                                V/s
                       AKASH BALU KADAM                         .... Respondent.
                       ----
                       Dr. Abhinav Chandrachud i/b Mr. Datta Mane for the Petitioners.
                       Mr. Satyajeet A. Rajeshirke for the Respondent.
                       ----

                                           CORAM: NITIN W. SAMBRE, J.

                                            DATE:    MARCH 10, 2022

                       P.C.:-

                       1]       Impugned in the Petition is an order dated 16/04/2019 passed

by the District Judge-10, Sangli in Misc. Civil Appeal No.64 of 2019

whereby the Petitioners are injuncted from carrying out construction

and disturbing possession of the Respondent/Plaintiff over the suit

property.

2] Respondent/Plaintiff initiated Regular Civil Suit No.36 of 2019

against the Petitioners claiming that suit property was purchased by

him on 25/03/2015 for a consideration of Rs 2 lakhs. According to

him, the Petitioners started construction on the aforesaid property over

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which he has title and his request to stop construction was since not

adhered to, he was prompted to file suit for withdrawal of the

construction material by way of order of mandatory injunction, by way

of injunction not to carry out construction and not to dispossess him

from the suit property. It is also claimed that till decision of the suit,

construction carried out be removed.

3] In the said suit for permanent and perpetual injunction, a prayer

is made vide Exhibit-5, seeking temporary injunction restraining the

Petitioners/Defendants from carrying out construction activity over 25

feet X 30 feet of area situated in 4 annas share of Gat No.299 at

Mouje Pimpari, Taluka - Atpadi i.e. in suit property. The said prayer is

rejected by the Trial Court vide order dated 8/3/2019.

Respondent/Plaintiff, feeling aggrieved, preferred an appeal under

Order 43 of the Code of Civil Procedure being Misc. Civil Appeal No.64

of 2019 which came to be allowed vide impugned order dated

16/04/2019 passed by District Judge-10 Sangli. As such, this Petition.

4] Dr. Chandrachud, learned Counsel for the Petitioners would urge

that the Petitioners have initiated Regular Civil Suit No.159 of 2018 on

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the file of Civil Judge, Senior Division, Atpadi for partition, separate

possession, cancellation of sale deed and injunction.

5] According to him, property mentioned in the order impugned

and the sale deed is also a subject matter of challenge in the said suit.

He would invite attention of this Court to the consent letter issued by

Duryodhan in favour of the Plaintiff to the said suit i.e. Kalidas who is

Petitioner No.1, thereby permitting use of the suit property since

28/4/2004. In addition, his contentions are, in response to the

aforesaid suit for partition, Respondent/Plaintiff has filed his Written

Statement, alleging that the Plaintiff to this suit is son of Defendant

No.30 in the said suit. According to him, it is claimed that there was

oral partition of the suit property which was acted upon only for the

purpose of effecting revenue entries. He would further claim that Sale

Deed dated 25/3/2015 which is questioned in the suit for partition

was claimed to have been executed based on nominal payment of

consideration. That being so, he would claim that the transfer of the

suit property in favour of the Plaintiff for nominal consideration is not

lawful transfer and as such Sale Deed itself is void.

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6] His further contentions are, the suit simpliciter for injunction

based on title is not maintainable as very title of the

Respondent/Plaintiff is under cloud as same is disputed by the

Petitioners. Drawing support from the judgment of the Apex Court in

the matter of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs and

others reported in (2008) 4 SCC 594, particularly para 13.3, he claims

that the suit simpliciter for injunction in case of dispute of title is not

maintainable as there has to be declaration of title claimed. As such,

he would urge that the order impugned is not sustainable and that

being so, the order impugned is liable to be quashed and set aside.

7] Mr. Rajeshirke, learned Counsel for the Respondent/Plaintiff

would urge that it is the specific case of the Respondent/Plaintiff that

partition is effected inter se between the parties from common

ancestor viz Duryodhan by executing Sale Deed for nominal

consideration. According to him, since Sale Deed for nominal

consideration remained to be executed in favour of the Plaintiff by the

common ancestor Duryodhan, Sale Deed in question came to be

executed in his favour. He would claim that since the suit is based on

title, the suit for simpliciter injunction is very much maintainable. In

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addition, his contentions are, the claim put-forth by the

Petitioners/Defendants of permissive use of the suit property vide

consent letter dated 28/4/2004 has no recognition in the eyes of law,

particularly under the Evidence Act. According to him, registered Sale

Deed in his favour has absolute evidentiary value as same is for valid

consideration and that being so, court below was justified in granting

injunction. So as to substantiate his claim that in favour of all

coparceners partition was effected by executing Sale Deed in the past,

that too by nominal consideration, could be inferred from the

pleadings in the Written Statement.

8] I have considered rival submissions.

9] Trial Court while rejecting prayer for grant of injunction has

considered that the Petitioners have come out with contradictory plea

in the plaint of R.C.S. No.36 of 2019 and Written Statement in

Regular Civil Suit No.159 of 2018 which is for partition and

possession. The Court then considered that since the

Plaintiff/Respondent has come out with contradictory pleadings, he is

not entitled for injunction. The lower Appellate Court while reversing

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the said finding has considered available evidence on record in detail

and upon scrutiny of the same has noticed that there is prima facie

case in favour of the Plaintiff so also balance of convenience and

likelihood of suffering of irreparable loss if temporary injunction is not

granted and as such has proceeded to grant temporary injunction,

thereby restraining the Petitioners from carrying out construction on

the suit premises mentioned in para 1(b) of the Plaint.

10] The fact remains that Plaintiff/Respondent claimed to have title

over the suit property by virtue of registered Sale Deed executed by

Duryodhan in his favour on 25/3/2015 i.e. father of Petitioner No.1 in

respect of the property being Gat No.299 and 303. Vide said Sale Deed

for consideration of Rs 2 lakhs, land to the extent of 4 annas share out

of Gat No.299 total area 75R (0.02 pot kharaba) with specific

boundaries was conveyed in favour of the Plaintiff. The challenge in

the suit preferred by the Petitioner is to the Sale Deed dated

25/6/2015 executed by father of present Petitioner No.1 Duryodhan in

favour of the Plaintiff in relation to land Gat Nos.303 and 299 to the

extent of share transferred by virtue of Sale Deed and there is

incorrect mention of the date to be 25/06/2015 whereas same is

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25/3/2015. Apart from above, what is required to be noted is, the suit

property described in plaint is land admeasuring 25 feet X 30 feet out

of land Gat No.299 which is surrounded by the land which is conveyed

to the Plaintiff by Duryodhan vide aforesaid Sale Deed. As such, it

appears that Plaintiff has perfected his title and possession by virtue of

aforesaid registered document. The Petitioners claim that they have

permissive possession over the suit property by virtue of consent letter

dated 28/4/2004 executed by Duryodhan in their favour. There is no

affidavit given by Duryodhan in favour of the Petitioners to support the

said unregistered consent letter permitting use of the suit property.

The said document has hardly any evidentiary value to infer settled

possession of the Petitioners over the suit property. Rather

Plaintiff/Respondent's lawful possession could be inferred from the

title conveyed to him vide registered Sale Deed dated 25/3/2015.

11] In the aforesaid backdrop, if we appreciate the contradictory

stand as has been alleged against the Respondent/Plaintiff in partition

suit and present suit, fact remains that such contradictory stand is

specifically explained by him while amending the suit which fact is

duly appreciated by the lower Appellate Court. Contention of the

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counsel for the Petitioners that Sale Deed is executed for nominal

consideration as has been claimed in the recitals from the Sale Deed

can be looked into at appropriate stage of the proceedings so as to

infer that such transaction is not lawful in the eyes of law and can be

termed as void. However, as on date, there exists valid title which is

not disturbed by any judicial pronouncement and that being so, claim

of the Petitioners that registered Sale Deed will not vest any title in

Respondent/Plaintiff will be hardly of any consequence at this stage.

Support drawn from the judgment of the Apex Court in the matter of

John Tinson & Co. Pvt. Ltd and Others vs. Surjeet Malhan (Mrs) and

another reported in (1997) 9 SCC 651, particularly para 6 will be of

hardly any consequence at this stage of the proceedings, particularly

when the Court is required to prima facie appreciate the issue of

settled lawful possession. Apart from above, it is claimed that since

the Petitioners have questioned the title of the Respondent/Plaintiff

over the suit property in the pending partition suit so also has denied

his title in the present suit by way of Written Statement, same is under

cloud. Fact remains that Plaintiff/Respondent appears to be in lawful

peaceful possession of the suit property by virtue of registered Sale

Deed in his favour. Such possession is interfered and threatened by

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the present Petitioners/Defendants and as such Respondent/Plaintiff's

suit for simpliciter injunction is very much maintainable. Support can

be drawn from the observations in para 13.1 of the judgment of the

Apex Court in the matter of Anathula Sudhakar, cited supra, which

read as under:-

"13.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the right owner."

12] In the aforesaid backdrop, I hardly see any reason which

warrants any interference in the extraordinary jurisdiction. That

being so, Petition fails and same stands dismissed.

( NITIN W. SAMBRE, J. )