Bombay High Court
Shivcharan Kanhaiyalal ... vs Gokulchand Govindlal Sananda And ... on 30 March, 2023
Bench: Avinash G. Gharote
(1) 2wp1471.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1471 OF 2023
Shivcharan Kanhaiyalal Dhandhore and ors__ Vs. ___Gokulchand Govindlal Sananda
and ors
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr.Anil Mardikar, Senior Advocate with Mr. V.R.Deshpande, Advocate for petitioner
Mr. Sunil Manohar, Senior Advocate with Mr. U.J.Deshpande, Advocate for Respondent No.1
CORAM : AVINASH G. GHAROTE, J.
DATE : 30/03/2023
1] Heard Mr. Mardikar, learned senior
counsel for the petitioner and Mr. Manohar, learned
senior counsel for the respondent no.1.
2] The petition challenges the concurrent
findings by the Courts below, whereby in a suit for
declaration and permanent injunction and
alternatively for specific performance in respect of
Plot no. 2, Survey no. 103, Nazul Sheet No. 24D,
admeasuring 6080 sq.ft., along with superstructure
of 1230 sq.ft, the application below Exh.5 seeking
temporary injunction against the petitioner/
defendant from disturbing the possession of the
respondent/plaintiff has been allowed by the order
dated 25.2.2019 (pg.281), which has in turn been
(2) 2wp1471.23
confirmed by the learned Appellate Court by the
judgment dated 17.11.2022.
3] Mr. Mardikar, learned senior counsel
submits that the first ingredient for grant of
injunction under Order 39 Rules 1 & 2 of the CPC,
namely the existence of a prima facie case is absent
in the matter, as the respondent/plaintiff has no
legal right to occupy the suit premises, in view of
which the Courts below could not have granted the
injunction against the petitioner/defendant. He
therefore submits, placing reliance upon Jamnadas
Dharamdas vrs. Dr. J. Joseph Farrei, AIR 1980 SC
1605; Kamla Devi vrs. Lalxmi Devi; AIR 2000 SC
1640 and Norman Joseph Ferreira vrs. Arjandas New
Andram; 2001(2) Mh.L.J 810, that the impugned
order below Exh. 5 and the judgment by the learned
Appellate Court need to be quashed and set aside.
4] Mr. Manohar, learned senior counsel for
the respondent no.1 supports the impugned order
and judgment and submits that even if it is held that
the right to occupy the land in question and the
structure erected thereupon, is held to have expired,
after the expiry of the period of original lease, the
(3) 2wp1471.23
plaintiff/respondent cannot be thrown out without
following the due process of law.
5] The factual position in the matter
indicates that, on 19.10.1919 a lease was executed
by Rao Bahadur Deshmukh in favour of one Devidas
Phadke, which was a lease for 95 years to expire on
1.10.2015, under the terms of which the original
leasee was permitted to make construction. After
making some construction, the construction and the
lease hold rights were assigned by Devidas Phadke
by a lease deed dated 9.8.1920 in favour of one
Vinayak Thosar. Vinayak Thosar in turn executed a
sale deed of the structure and lease hold rights on
23.11.1943 (pg.84) in favour of Narhari Kale, who
in turn has gifted the same on 11.9.1960 to
Janardhan and Mukund Kale. These persons in turn
have by a sale deed dated 19.10.1966 transferred
the same to the respondent no.1.
6] As the term expired on 01.10.2015 and
the respondent no.1 apprehended forceable eviction,
a suit came to be filed being RCS No.133/2018,
[Gokudas vrs Seema and ors], with the prayer as
indicated above, in which the relief of grant of
injunction by allowing Exh.5 has been granted,
(4) 2wp1471.23
which in turn has been confirmed by the learned
Appellate Court.
7] The contention that the respondent/
plaintiff would not have any legal right to continue
to occupy the premises and the land and therefore
there is no prima facie case in existence in favour of
the plaintiff, is clearly misconceived for the reason
that even if the term of the original lease may have
expired, the status of the leasees or their transferees
would be that of a leasee-holding-over and
therefore, since they are admittedly in possession,
they cannot be permitted to be thrown out by use of
force and any eviction has to be done by following
due process of law in that regard.
8] In Jamnadas Dharamdas (supra), a suit
was filed for eviction after the expiry of the period of
lease, which was also the case in Kamla Devi (supra)
and Norman Ferreira (supra). All these judgments
do not take a view that a leasee-holding-over has to
be thrown out without due process of law. In that
view of the matter, I am not inclined to interfere the
well reasoned order of the trial Court below Exh.5
dated 25.2.2019, as well as the judgment dated
(5) 2wp1471.23
17.11.2022 by the learned Appellate Court. The
petition is therefore dismissed. No costs.
9] It is however made clear that it will be
permissible for the petitioner to institute appropriate
legal proceedings for eviction of the respondents and
possession of the property in question.
JUDGE
Rvjalit
