Bombay High Court
Mr. Shatrughan Jayaram Gupta vs Mr Vrindavan Jayaram Gupta on 2 August, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:31134
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1378 OF 2014
Mr. Shatrughan Jayaram Gupta ... Appellant.
Versus
Mr Vrindavan Jayaram Gupta ... Respondent.
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Mr. Laxman S. Deshmukh, for the Appellant.
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Coram : Sharmila U. Deshmukh, J.
Date : August 02, 2024
P. C. :
1. Heard.
2. The Appeal takes exception to the judgment dated 14 th June,
2012 dismissing Short Cause Suit No.1869 of 2009 filed by the present
Appellant.
3. Short Cause Suit No.1869 of 2009 was filed by the Appellant
seeking declaration that the Respondent has no right, title and
interest in the ground floor of Ganesh Murty Nagar No.II CEN-259,
being Room No.160, for mandatory injunction directing the
Respondent to remove himself from the suit premises i.e. Room
No.160 ground floor Ganesh Murty Nagar No.II, and for prohibitory
injunction restraining the Respondent from disturbing the peaceful
possession of the Appellant in respect of the suit premises i.e. Room
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No.160 on ground floor.
4. The case of the Appellant was that the suit premises was owned
by his paternal uncle who had executed a power of attorney in the
Appellant's favour in the year 2008. Based on the power of attorney,
the Appellant contended that the Appellant is in possession and
despite his request the Respondent has not vacated the ground floor
being Room No.160.
5. The Respondent filed his written statement and denied the
contentions. It was contended that the Respondent is the step
brother of the Appellant and that the Respondent has constructed
the suit premises in the year 1990 in the slum locality adjacent to his
father's Room No.159 and thereafter was residing in the suit
premises.
6. The parties went to trial and the Trial Court after consideration
of the evidence held that the Appellant is in possession of the first
floor of the suit premises. The Trial Court held that the irrevocable
power of attorney will not create any right, title and interest in the
Appellant in respect of the suit premises i.e. Room No.160. The Trial
Court thus, dismissed the suit.
7. Learned counsel appearing for the Appellant would submit that
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the admitted position is that the Appellant's uncle was the owner of
the premises which consists of the ground floor and the first floor. He
submits that by virtue of power of attorney, his uncle had transferred
the possession of the first floor as well as the ground floor in favour
of the Appellant. He would fairly concede that although the power of
attorney will not create any right, title and interest in the property,
the Appellant is entitled to an injunction against the Respondent from
disturbing the possession of the first floor of the premises. He
submits that the Appellant is residing on the first floor of the
property whereas the Respondent is residing on the ground floor.
8. Considered the submissions and perused the record.
9. The prayers in the suit would indicate that a negative
declaration is sought that the Respondent does not have right, title
and interest in the suit property which is the Room No.160 of the
ground floor and an order of eviction was sought in respect of the
ground floor room as well as the prohibitory injunction was sought in
respect of the ground floor room. The contention of the learned
counsel for Appellant as regards the injunction restraining the
Respondent from interfering with his possession of the first floor
which is not the relief which was sought in plaint. The settled position
of law is that the power of attorney cannot create any right, title and
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interest in the property and without any right in the property, the
Appellant cannot claim any declaration qua the title of the
Respondent nor seek any eviction against the Respondent. The
Appellant is entitled to his possession and to protect his possession.
However, in the present case, it is found that the Appellant is in
possession of the first floor of the suit premises which has been fairly
admitted by the learned counsel for the Appellant. However, there is
no relief which has been sought restraining the Respondent from
disturbing the peaceful possession of the Appellant in respect of the
first floor of the premises. The suit premises stated to be the ground
floor which is admittedly in possession of the Respondent.
10. As the Trial Court has rightly appreciated the evidence on
record and come to a finding that the Appellant is in possession of the
first floor of the suit premises, the Trial Court has held that the
Appellant is not entitled to the relief sought in the suit and has
dismissed the suit.
11. Considering the admitted position, the Trial Court has rightly
appreciated the evidence. The Appeal being devoid of merits stands
dismissed.
[Sharmila U. Deshmukh, J.]
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Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 06/08/2024 14:51:38
