Bombay High Court
Roshanlal Ranglalji Kothari, Prop. ... vs Sampatlal Geharilalji Parmar ... on 21 December, 2023
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2023:BHC-AS:39092
kishor 1/16 AO 680 of 22 & 164 of 23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.164 OF 2023
WITH
IA/2098/2023 IN AO/164/2023
Tarunkumar Bhavarlaji Parmar And Another ... Appellants
Versus
Roshanlal Ranglalji Kothari And Others ... Respondents
WITH
APPEAL FROM ORDER NO.680 OF 2022
WITH
IA/10227/2022 IN AO/680/2022
Roshanlal Ranglalji Kothari, Prop. Real Gold ... Appellants
Versus
Sampatlal Geharilalji Parmar (deceased) Thr.
Lrs. Kamla S. Parmar & Ors. ... Respondents
...
Mr. Amogh Singh, i/b. Mr. Jeet Gandhi for Appellant in AO/164/2023
for Appellant.
Mr. Rajesh Kanojiya, for Respondent (C) in AO/164/2023.
Mr. Fayzan Khan, for Respondent No.6 in Both AO.
Mr. Vivek Shukla, (through VC) a/w. Ms. Bhushra Sayed i/b. V. Shukla &
Associates for Appellant in AO/680/2022 & Respondent No.1(B) in
AO/164/2023.
...
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 12 DECEMBER 2023.
PRONOUNCED ON : 21 DECEMBER 2023.
::: Uploaded on - 22/12/2023 ::: Downloaded on - 01/03/2024 23:55:45 :::
kishor 2/16 AO 680 of 22 & 164 of 23.doc
JUDGMENT :
These Appeals arise out of proceedings filed between same
parties and have therefore been taken up for hearing together. In Appeal
No. 680 of 2022, the Appellants therein have challenged Order dated 13
June 2022 passed by the City Civil Court rejecting Notice of Motion No.
1212 of 2021 filed by Appellants-Plaintiffs seeking temporary injunction.
Notice of Motion No. 1212 of 2021 was filed in SC Suit No. 882 of 2021
instituted by Roshanlal Ranglalji Kothari challenging Deed of Transfer
dated 02 February 2021 between Sampathlal Geharilalji Parmar and
Mahendra B. Parmar (Jain) and to restrain defendants therein from
obstructing Plaintiff's possession over the suit shop.
2. In Appeal No. 164 of 2023, the Appellants-Plaintiffs have
challenged Order dated 06 January 2023 refusing ad interim relief in
Notice of Motion No. 3881 of 2022 filed in S.C. Suit No.2557 of 2022.
That suit is filed by the Appellants-Plaintiffs to restrain the Defendants
therein from obstructing Plaintiffs' possession over the suit shop.
3. Thus there are competing claims by Plaintiffs in both the
suits to claim possession over the suit shop. The City Civil Court has
refused to grant interim / ad interim injunction in favour of Plaintiffs in
both the suits.
4. Facts are common to both Appeals and need to be narrated
for better understanding of the exact nature of dispute between the
parties. One Mithilesh Umakant Joshi was the owner of Shop No.12 (O)
kishor 3/16 AO 680 of 22 & 164 of 23.doc
admeasuring 287 sq. ft. carpet area situated at 'Natraj Market', S.V. Road,
Malad (W), Mumbai-64. Cooperative Society has been formed by the
occupiers of the structures in the building 'Natraj Market'. Said Mithilesh
Joshi was the member of the society. By Deed of Transfer dated 10 July
2009, Mithilesh Joshi sold and transferred the suit shop in the names of
Shri. Sampatlal Geharilalji Parmar, Shri. Tarunkumar Bhawarlalji Parmar
and Shri. Roshanlal Ranglalji Kothari. This is how Sampatlal,
Tarunkumar and Roshanlal acquired 1/3 share each in the Suit Shop. The
society transferred the membership and shares in their names. There is
some degree of dispute between the parties about possession of the suit
shop after acquisition of 1/3rd rights each by Sampatlal, Tarunkumar and
Roshanlal. A Partnership Deed dated 08 December 2011 was executed
between Sampatlal and Roshanlal under which it was specifically agreed
that jewellery business in partnership was to be carried out in the suit
shop. Roshanlal claims that he alone was carrying out said jewelry
business operation of jewellery shop in the Suit Shop. On the contrary, it
is the case of Tarunkumar that the shop largely remained shut after
acquisition by the trio.
5. By Deed of Transfer dated 02 February 2021, one of the co-
owners, Sampatlal sold his 33.33 % undivided share in the Suit Shop in
favour of one Mr. Mahendra Bhavarlalji Parmar. The other co-owner-
Roshanlal instituted SC Suit No.882 of 2021 in the City Civil Court
challenging the Deed of Transfer dated 02 February 2021 executed in
favour of Mahendra. In that suit, Roshanlal impleaded Sampatlal
kishor 4/16 AO 680 of 22 & 164 of 23.doc
(Vendor), Tarunkumar (1/3 owner) and Mahendra (purchaser) as well as
Society as Defendants. Roshanlal claimed exclusive possession of the Suit
Shop and also sought relief for restraining Defendants from causing
obstruction to his possession over the Suit Shop. In his suit, Roshanlal
filed Notice of Motion No.1212 of 2021 seeking stay to the
implementation of Deed of Transfer dated 02 February 2021 and further
to restrain Defendants from causing breach of peace or nuisance as well as
from creating any third party rights in respect of the Suit Shop or from
entering into the Suit Shop or dispossessing the Plaintiff without
following due process of law. It appears that an ad interim order of status
quo was granted in the Motion. It is case of other co-owners-
Tarunkumar and Mahendra that order of status quo was misused by
Roshanlal and his legal heirs who took forcible possession of the Suit
shop by breaking open the lock. Notice of Motion No. 1212 of 2021
came to be dismissed by the City Civil Court by Judgment and Order
dated 13 June 2022 inter alia observing that it is permissible for a co-
owner to transfer his share in the property. City Civil Court also recorded
a prima facie finding that Roshanlal failed to prove exclusive use,
occupation and enjoyment of the suit shop and that possession of one co-
owner is possession by all co-owners.
6. After rejection of application for temporary injunction for
exclusive use of Suit Shop by Roshanlal, the other two co-owners Shri.
Tarunkumar and Mahendra instituted SC Suit No.2557 of 2022 in the
City Civil Court seeking injunction against Roshanlal and his legal hairs
kishor 5/16 AO 680 of 22 & 164 of 23.doc
from obstructing their possession and enjoyment of the suit shop and for
appointment of Court Receiver to take physical possession of the suit
shop and to hand over the same to Plaintiffs. In the suit, Tarunkumar and
Mahendra filed Notice of Motion to seek temporary injunction to
restrain Defendants from interfering with their possession of Suit Shop
and for police assistance to enter the Suit Shop. It was the case of
Tarunkumar and Mahendra that since application of Roshanlal for
temporary injunction is rejected, Tarunkumar and Mahendra must be
allowed to jointly enjoy the possession of the Suit Shop in their capacity
as co- owners. The City Civil Court however refused to grant any ad-
interim relief in favour of Tarunkumar and Mahendra by Order dated 06
January 2023, which is the subject matter of challenge in the Appeal
No.164 of 2023.
7. This is how the issue raised in both the Appeals is about
entitlement of Tarunkumar, Mahendra and Roshanlal to use and occupy
the Suit Shop.
8. Mr. Shukla would appear on behalf of legal heirs of Roshanlal
who are Appellants in Appeal from Order No.680 of 2022 and for
respondent No.1(B) in Appeal from Order No.164 of 2023. He would
submit that Roshanlal has been in settled possession of the Suit Shop
since its purchase in 2009. He would take me through the list of
documents filed before the City Civil Court to prove exclusive possession
of Suit Shop by Roshanlal. He would submit that Sampatlal had actually
sold his 1/3 share in favour of Roshanlal and had accepted consideration
kishor 6/16 AO 680 of 22 & 164 of 23.doc
of Rs.4,25,000/-. That therefore the transfer deed dated 02 February
2021 executed in favour of Mahendra is ab initio void. Mr. Shukla would
place reliance on Partnership Deed dated 08 December 2011 executed
between Sampatlal and Roshanlal, under which it was specifically agreed
that jewellery business in partnership was to be carried out in the suit
premises. That Roshanlal alone was carrying out said jewellery business
and has been occupying Suit Shop right since inception. That
Mahendra's title itself is in doubt and therefore Roshanlal's possession of
Suit Shop cannot be disturbed either by Mahendra or by Roshanlal.
10. Mr. Shukla would submit that once settled possession is
proved by Roshanlal, even a true owner cannot dispossess a person who is
in settled possession. He would rely upon Judgment of the Apex Court in
Rame Gowda Vs. M. Varadappa Naidu, (2004) 1 SCC 769. Relying on
judgment in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain
Singh and Ors., AIR 953 SC 487, Mr. Shukla would contend that a
coparcener cannot alienate his undivided interest in joint family property
without consent of other coparceners. He would therefore submit that
Deed of Transfer executed in favour of Mahendra is clearly void. Mr.
Shukla would rely on Judgment of Rame Gowda (supra) in support of his
contention that in absence of any physical partition of undivided
property, transferee of a co-sharer cannot be put in possession. He would
further relay upon Judgment of the Apex Court in State of UP & Ors. Vs.
Ram Sukhi Devi, (2009) 9 SCC 733 in support of his contention that
final relief cannot be granted as an interim relief and would accordingly
kishor 7/16 AO 680 of 22 & 164 of 23.doc
oppose Appeal from Order No.164 of 2023 filed by Tarunkumar and
Mahendra.
11. Mr. Kanojiya, the learned counsel appearing for another heir
of Roshanlal (Sanjay Roshanlal Kothari) who is Respondent No. 1(C) in
Appeal from Order No.164 of 2023 and Appellant No.1(C) in Appeal
from Order No.680 of 2022, would adopt submissions made by Mr.
Shukla. Additionally, he submits that remedy for Tarunkumar and
Mahendra is to file suit for partition. Without filing suit for partition and
separate possession, Tarunkumar and Mahendra could not seek
possession of their shares. That suit filed by them for injunction
simplicitor is not maintainable. He would place reliance on paragraph
No.19 of the Judgement in Ram Sukhi Devi (supra).
12. Mr. Singh, the learned counsel appearing for Tarunkumar
and Mahendra, who are Appellants in Appeal from Order No.164 of
2023 and Respondent Nos.2 and 3 in Appeal from Order No.680 of
2022, would submit that Roshanlal was never in exclusive possession of
the Suit Shop. Inviting my attention to electricity bills he would submit
that Suit Shop remained locked for several years. He would also place
reliance on Society's letter dated 08 July 2021. He would submit that
Roshanlal took forceable possession of the Suit Shop by misusing the
status quo Order passed by the City Civil Court. That Roshanlal does not
have any authority to exclusively occupy the Suit Shop. That since
Roshanlal's Motion for claiming exclusive possession of Suit Shop is
rejected, the City Civil Court ought to have granted add interim relief in
kishor 8/16 AO 680 of 22 & 164 of 23.doc
favour of Tarunkumar and Mahendra in the joint possession of suit
property alongwith Roshanlal / his legal heirs. That Tarunkumar and
Mahendra are not seeking exclusive possession of the Suit Shop.
However, their right for joint possession of Suit Shop alongwith
Roshanlal/ his legal heirs cannot be denied. Mr. Singh would submit that
no injunction can be granted against a co-owner and in support of his
contention he would rely upon Judgment of this court in Prakash Vs.
Mansoorkhan, 1996 (2) Mh.L.J 30 and Gochwal Leasing & Finance (P)
Ltd. Vs. Harish Chand Jhamb, 1996 (37) DRS(DB). He would pray for
dismissal of Appeal No.680 of 2022 and grant of an ad interim relief by
setting aside the City Civil Court's Order dated 06 January 2023 in
Appeal No.164 of 2023.
13. Mr. Fayzan Khan would appear for Respondent No.6 in both
the Appeals (legal hairs of Sampatlal) and would submit that the legal
hairs of Sampatlal have already instituted separate Suit to challenge deed
of Transfer dated 02 February 2021 executed in favour of Mahendra.
That therefore title of Mahendra is not perfect and therefore he cannot
seek any injunctive relief against other co-owners.
14. Rival contentions of the parties now fall for my
consideration.
15. The shop has undoubtedly been purchased jointly by
Sampatlal, Tarunkumar and Roshanlal by Deed of Transfer dated 10
April 2009 and each of them owned 1/3 share in the Suit Shop. The
kishor 9/16 AO 680 of 22 & 164 of 23.doc
share of Sampatlal is shown to have purchased by Mahendra by Deed of
Transfer dated 02 February 2021. Thus, as of now Roshanlal,
Tarunkumar and Mahendra claim 1/3 ownership each in the suit shop.
For the purpose of deciding the present Appeals, what is relevant is the
right to possess the suit shop. It is contention of Roshanlal / his legal heirs
that he/they alone have right to possess the Suit Shop on account of
Roshanlal's exclusive possession since 2009. On the contrary,
Tarunkumar and Mahendra do not claim right to exclusively possess the
suit shop, but according to them, in their capacity as 1/3 owner each, they
cannot be prevented from jointly possessing suit shop alongwith
Roshanlal/ his legal heirs. As observed above, the City Civil Court has
proceeded to reject Application for temporary injunction filed by
Roshanlal holding that he is not in exclusive possession of the suit shop.
So far as the suit filed by Tarunkumar and Mahendra is concerned, the
City Civil Court has refused to grant ad-interim relief to restrain
Roshanlal/ his legal heirs from permitting Tarunkumar and Mahendra to
jointly occupy the suit shop. Both the Orders are under challenge in the
present Appeals.
16. There can be no dispute to the settled proposition that one of
the co-owners cannot seek an injunction against other co-owners in
absence of partition of property. It is also equally settled proposition that
one co-owner can alienate his/ her share in joint property but cannot put
the purchaser in exclusive possession. The only option for the purchaser,
after acquiring undivided right in the property, is to file suit for partition.
kishor 10/16 AO 680 of 22 & 164 of 23.doc
Keeping in mind these broad settled propositions of law, I proceed to
examine the dispute between the parties to possess the suit shop.
17. Roshanlal has filed Suit No. 882 of 2021 essentially to
challenge Deed of Transfer dated 02 February 2021 executed by
Sampatlal in favour of Mahendra. The City Civil Court has held that
there is no prohibition on transfer of undivided right of Sampatlal in
favour of Mahendra. I do not see any error in the said prima facie finding
of the Trial Court. In fact, in Ram Sukhi Devi relied upon by Mr. Shukla
the Apex Court has recognized right of co-sharer to transfer his
undivided share. Therefore, admissibility of Roshanlal's challenge the
Deed of Transfer dated 02 February 2021 prima facie becomes
questionable but the same can be considered by the City Civil Court at
the time of final hearing of the suit. As of now, for determining the issue
of entitlement for temporary injunction, I do not see any patent error in
that transaction. The Deed of Transfer dated 02 February 2021 is also
challenged by legal heirs of Sampatlal by filing separate suit.
18. So far as question of possession of the suit shop is concerned,
Roshanlal claims to be in settled possession since the date of purchase.
Reliance is placed on various documents, list whereof given in paragraph
No.8 of the affidavit-in-reply to the Motion filed in Suit No.2557 of
2022. I have gone through the said documents. Almost all the
documents, except Gumasta License dated 27 July 2011 and invoices,
pertain to the period after the year 2019. Gumasta License is not placed
on record and it is difficult to know whether same was issued in the
kishor 11/16 AO 680 of 22 & 164 of 23.doc
exclusive name of Roshanlal. Also issuance of Gumasta License would, by
itself, not prove exclusive possession of Roshanlal over the suit shop as
Municipal Corporation may have issued license in the name of one of the
three co-owners. Invoices relied on pertain only to the years 2011 and
2012, which cannot conclusively prove that Roshanlal operated the
jewellery business in the suit shop continuously till filing of his suit.
19. On the contrary Mr. Sing has relied on electricity bills which
shows 'zero' consumption for several years. Tarunkumar and Mahendra
have complained about obtaining forceable possession of suit shop by
Roshanlal by misusing the status quo order passed by the City Civil
Court. The allegation finds some support in Society's letter dated 08 July
2021. In that letter, the Society has confirmed that the suit shop was
closed for several years and that unknown persons forcibly entered the
shop on 02 July 2021. It is therefore difficult to believe at this stage that
Roshanlal has been in exclusive possession of suit shop. Reliance by Mr.
Shukla on the Partnership Deed would also not cut any ice in that the
Partnership Deed only envisaged conduct of jewellery business in the
name of M/s. Real Gold Palace in partnership of Sampatlal and
Roshanlal. The Partnership Deed can, at the highest, envisage joint
possession of Roshanlal with Sampatlal. There nothing to show as to why
Tarunkumar, who is admittedly 1/3 owner, permitted only Sampatlal and
Roshanlal to carry on business in partnership in the suit shop. Therefore,
it is difficult to hold, at this stage, that only Roshanlal was in exclusive
possession of the suit shop.
kishor 12/16 AO 680 of 22 & 164 of 23.doc
20. Mr. Shukla's reliance on various Judgments does not take his
case any further. In Rame Gowda (supra) the Apex Court has held that if
a trespasser is in settled possession, he cannot dispossessed without
following due process of law. However, in the present case settled
possession of Roshanlal itself is not proved and therefore Judgment in
Rame Gowda would have no application to the case in hand.
21. In Sidheshwar Mukharji (supra) the issue was about right of
co-parceners holding undivided interest in the joint family property with
consent of his coparceners. In the present case the shop is not a joint
family property nor party are coparceners. The Judgment would therefore
have no application to the present case. On the contrary, in Ramdas
(supra) the Apex Court has recognized right of co-sharer to transfer his
undivided share without putting vendee in position.
22. I therefore do not find any patent error in the Order of the
City Civil Court dated 13 June 2022 rejecting Notice of Motion No.1212
of 2021 in S.C. Suit No.882 of 2021 filed by Roshanlal.
23. The next issue is whether ad interim relief could be granted
in favour of Tarunkumar and Mahendra in Notice of Motion filed by
them in S.C. Suit No.2557 of 2022. Here the City Civil Court appears to
have committed an error in treating the relief sought for by Tarunkumar
and Mahendra to be identical as was sought Roshanlal. Roshanlal had
sought to restrain Defendants from disturbing his 'exclusive' possession of
suit shop. On the contrary in Notice of Motion No.2557 of 2022,
kishor 13/16 AO 680 of 22 & 164 of 23.doc
Tarunkumar and Mahendra inter alia sought restraint order against
Defendants from denying them ingress and egress to the Suit Shop. In
this connection, prayers of Notice of Motion No.3881 of 2022 are
reproduced thus :-
a. That pending hearing and final disposal of the present suit,
this Hon'ble Court be pleased to grant temporary injunction
restraining the Defendants, their servants, agents, representative
and/or person or persons claiming through or under them in any
manner, directly or indirectly be restrained from interfering with
the possession of the Plaintiff of the suit premises and unlawfully
preventing the Plaintiff from ingress and egress to the said suit
premises;
b. That pending hearing and final disposal of the present suit,
this Hon'ble Court be pleased to grant temporary injunction
restraining the Defendants, their servants, agents, representative
and/or person or persons claiming through or under them from in
any manner directly or indirectly restrain the Plaintiffs from
entering into the suit premises;
c. That pending the hearing and final disposal of the present
suit, the Plaintiff be provided assistance and protection of two
local constables to enter into the suit premises;
d. The interim and ad-interim reliefs in terms of prayer (a),
(b) and (c) above be granted;
e. Cost of this Notice of motion;
f. For such other and further reliefs as the nature and
circumstances of the case may require.
24. It appears that on account prayer sought to restrain
Defendants from interfering with possession of Plaintiff over Suit Shop,
the City Civil Court has apparently assumed that Tarunkumar and
kishor 14/16 AO 680 of 22 & 164 of 23.doc
Mahendra also sought same prayers as was sought by Roshanlal in his
Notice of Motion. Mr. Singh has clarified that Tarunkumar and
Mahendra dod not claim exclusive possession of suit shop and that they
are only prayer for an entry to shop in their capacity as joint owners since
Notice of Motion claiming exclusive possession of Roshanlal is rejected.
25. Since the City Civil Court has held that Roshanlal is not in
exclusive position of Suit Shop and has refused interim injunction to
restrain Tarunkumar and Mahendra from entering in Suit Shop, the
natural corollary was to permit other co-owners also to possess the suit
shop. City Civil Court therefore ought to have permitted Tarunkumar
and Mahendra to jointly occupy suit shop alongwith Roshanlal. The net
result of two Orders passed by the City Civil Court is such that none of
the three owners would be in position to occupy the suit shop. This
appears to be an error on the part of City Civil Court in passing Order
dated 06 January 2023. Rejection of temporary injunction in favour of
Roshanlal would automatically entitle an Order in favour of Tarunkumar
and Mahendra to occupy the suit shop jointly. I am therefore of the view
that City Civil Court ought to have granted ad-interim relief in favour of
Tarunkumar and Mahendra by permitting them to enter the Suit Shop
and possess the same jointly with legal heirs of Roshanlal.
26. The suit shop is undoubtedly in joint ownership and
possession of Roshanlal (his heirs), Tarunkumar and Mahendra. In such
circumstances Tarunkumar and Mahendra cannot be restrained from
entering Suit Shop. In fact, rejection of ad-interim relief in suit filed by
kishor 15/16 AO 680 of 22 & 164 of 23.doc
Tarunkumar and Mahendra has virtually resulted in grant of injunction
in favor of Roshanlal, which was earlier denied by the City Civil Court
vide Order dated 13 June 2022. It is for this reason that the Order dated
06 January 2022 passed in Notice of Motion No.3881 of 2022 filed by
Tarunkumar and Mahendra needs to be modified.
27. I accordingly proceed to pass following order :-
i) Appeal No.680 of 2022 is dismissed.
ii) Appeal No.164 of 2023 is partly allowed. There shall
be ad-interim relief in favour of Plaintiffs in S.C. Suit
No.2557 of 2022 instituted by Tarunkumar and
Mahendra in the form of restraint Order against
Defendants therein from preventing entry to the
Plaintiffs (Tarunkumar and Mahendra) to the Suit
Shop till decision of Notice of Motion No.3881 of
2022.
iii) Appeal from Order No.164 of 2022 is accordingly
disposed of.
iv) Since Appeals are disposed of, nothing survives in the
Interim Applications and the same are also disposed of.
v) There shall be no order as to costs.
SANDEEP V. MARNE, J.
kishor 16/16 AO 680 of 22 & 164 of 23.doc
28. After the Judgment is pronounced, the learned counsel
appearing for the legal heirs of Roshanlal Kothari would pray for stay of
the Order for a period of 04 weeks.
29. The request is opposed by the learned counsel appearing for
Tarunkumar and Mahendra. Considering the findings recorded in the
Order, the request for stay is rejected.
SANDEEP V. MARNE, J.
KISHOR by KISHOR
VISHNU
VISHNU KAMBLE
KAMBLE Date:
2023.12.22
16:33:43 +0530
