Bombay High Court
Shri.Sudhir Jotiram Abhange And Others vs Shri.Prakash Bapu Mayane on 7 May, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:20340
13-SA-467-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.467 OF 2018
WITH
CIVIL APPLICATION NO.1058 OF 2018
1. Shri Sudhir Jotiram Abhang
Age: 45 years, Occu: Agriculture
R/o. Yede, Tal. Kadegaon
Dist: Sangli
2. Dinkar Ganpati Shinde
(Since deceased, through legal heirs)
2A. Gangubai Dinkar Shinde
Age: 80 years, Occu: Nil
2B. Sambhaji Dinkar Shinde
Age: 54 years, Occu: Nil
2C. Namdev Dinkar Shinde
Age: 54 years, Occu: Nil
2D. Hanmant Dinkar Shinde
Age: 48 years, Occu: Nil
2E. Suresh Dinkar Shinde
Age: 45 years, Occu: Nil
2F. Sitabai Shrirang Suryanvanshi
Age:57, Occu: Nil
Respondents 2A-2F R/o Nevari,
Tal. Kadegaon, Dist: Sangli. ...Appellants/
Applicants
Versus
Shri Prakash Bapu Mayane,
Age: 67 years, Occu: Service
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R/o. Yede, Tal. Kadegaon
Dist: Sangli ...Respondent.
------------
Adv. Umesh R. Mankapure for the Appellant/Applicants.
Adv. S. P. Thorat for the Respondent.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : April 18, 2024.
Pronounced on : May 7, 2024.
JUDGMENT :
1. The Second Appeal is at the instance of the Plaintiff who was
unsuccessful before the Appellate Court in Regular Civil Appeal No.
165 of 2011 preferred by the original Defendant No. 1 against the
judgment and decree dated 15 th April, 2011 passed by the Trial Court
in Regular Civil Suit No. 240 of 2008 declaring the Plaintiff to be the
owner of the property and restraining the Defendant No. 1 from
causing any obstruction to the Plaintiff's possession of the suit
property and dismissing the counter claim filed by the Defendants. By
the impugned judgment, the Appellant Court reserved the findings of
the Trial Court and dismissed the suit and decreed the counterclaim.
FACTUAL MATRIX :
Plaint:
2. Regular Civil Suit No. 292 of 2000 was filed by the Plaintiff
seeking declaration of ownership in respect of suit property described
as undivided portion admeasuring 2R out of land bearing Gat No. 42
admeasuring 72R and for injunction restraining Defendant No. 1 from
interfering with the Plaintiff's peaceful possession. Gat No. 42 is the
ancestral property of Defendant No. 2. In the year 1996, Defendant
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No. 2 sold portion of land situated on eastern side of Gat No. 42 to
Defendant No.1 who thereafter erected certain structures with
consent of Defendant No. 2. By registered sale deed dated 9 th
October, 2000 executed for consideration of Rs. 20,000/-, the
Defendant No. 2 sold to the Plaintiff 2R land east-west 33ft. and
north-south 66ft. out of Gat No. 42 bounded on the eastern side by
the property purchased by Defendant No. 1, on the southern side by
house of Defendant No. 2, on the western side by Kadepur Puse-savali
road and on the northern side by east-west access road and beyond
the access road the property of Defendant No 2.
3. For the purpose of fencing his property, the Plaintiff made
certain arrangement on 15th October, 2000 when the Defendant No. 2
caused obstruction to the work being carried out restraining the
Plaintiff from carrying out the work of fencing. As such, the suit came
to be filed.
WRITTEN STATEMENT OF DEFENDANT NO. 1 :
4. The Defendant No. 1 contended that by way of registered sale
deed on 7th May, 1996, 2R land was sold by the Defendant No. 2 to the
Defendant No. 1 for sale consideration of Rs. 37,000/-. The purchased
property is situated at a distance of about 80ft. from centre of the
Kadepur Puse-savali road as per the development regulations. After
being put in possession, in the year 1997, the Defendant No. 1 has
constructed five shops facing western side Kadepur Puse-savali road
with the knowledge and consent of Defendant No. 2 and there is no
other access road to approach the shops except from the western side
from Kadepur Puse-savali road. The Defendant No. 2 in collusion with
the Plaintiff has sold the space left open in the Defendant No. 1's sale
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deed as road widening area to the Plaintiff by way of an illegal sale
deed dated 9th October, 2000. It was contended that the Defendant
No.1 in the year 1996 has relinquished his ownership right to use the
80ft. road widening area from centre of the road and thus the
Defendant No. 2 had no right to execute the sale deed in favour of the
Plaintiff in respect of the said property.
WRITTEN STATEMENT OF DEFENDANT NO. 2 :
5. The Defendant No. 2 contended that the Defendant No. 1 was
allowed to use the way from remaining western side portion to
approach the building constructed by Defendant No. 1. He admitted
the sale deed dated 9th October, 2000 and that possession has been
handed over to the Plaintiff. The Defendant No. 1 has no right in the
80ft. open space and there is no fencing by the Defendant No. 1 of his
own property. The Defendant No. 2 has sold portion of his land to the
Plaintiff after leaving distance of 47ft. from centre of the road.
COUNTERCLAIM :
6. By way of counterclaim, the Defendant No. 1 prayed for
injunction restraining the Plaintiff from disturbing the peaceful
possession of the Defendant No. 1 in the suit property being 80ft.
road widening area from the centre of Kadepur Puse-savali road out
of Gat No. 42.
COURT COMMISSIONER'S REPORT :
7. The Court Commissioner came to be appointed by the Trial
Court for spot inspection. The map prepared by the Court
Commissioner depicts the location of the Defendant No. 1's
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construction. The report notes that there is no way to approach the
Defendant No. 1's construction except from the western side.
FINDINGS OF THE TRIAL COURT :
8. The Trial Court noted that the Defendant No.1 has carried out
construction in property forming subject matter of his sale deed. The
Trial Court held that as the property purchased by the Defendant No.
1 was at a distance of 80ft. from the centre of the road, the
Defendant No. 2 had right to sell the suit property to the Plaintiff. The
Court Commissioner's report shows that the Plaintiff's property is
separate from Defendant No. 1's property and both are in possession
of their respective properties. The Trial Court noted the admission of
the Defendant No. 1 about causing obstruction to the Plaintiff's
possession. The Trial Court decreed the suit and rejected the counter
claim.
FINDINGS OF APPELLATE COURT :
9. Appeal came to be filed by the Defendant No. 1 being Regular
Civil Appeal No. 169 of 2000 before the District Court, Sangli. The
Appellate Court framed and answered the points for determination as
under:
Sr. No. Points Findings
1. Whether the learned trial Court
erred while holding that there is no In the
disturbance to right of way of affirmative.
defendant No. 1 by act of purchasing
suit land portion by the plaintiff
from defendant No. 2?
2. Whether the learned trial Court
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erred in holding that defendant No. In the
1 has disturbed peaceful possession affirmative.
of the plaintiff over suit land
portion?
3. Whether the learned trial Court In the
erred in decreeing suit and affirmative.
dismissing counter claim ?
4. Whether interference of this Court is In the
warranted? affirmative.
5. What order ? As per final
order.
10. The Appellate Court noted the recital in the sale deed of 7 th
May, 1996 that the Defendant No. 2 will not claim right of ownership
over the western portion of the property and that he will not disturb
the right of use of the Defendant No. 1. The Appellate Court
considered the report of the Court Commissioner stating that there is
no alternate way for Defendant No. 1 to approach his building except
from the western open space. The Appellate Court held that the
Defendant No. 2 has sold the suit land to the Plaintiff by committing
breach of the terms and conditions mentioned in the sale deed
executed with the Defendant No. 1. The Appellate Court held that the
Plaintiff has failed to adduced any documentary evidence to show
that there is approach way available to the Defendant No. 1 from
northern side boundary to approach main road. The Appellate Court
allowed the Appeal dismissing the Regular Civil Suit No. 248 of 2008
and decreed the counter claim of Defendant No. 1.
SUBSTANTIAL QUESTION OF LAW :
11. The Second Appeal came to be admitted by this Court on the
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following substantial question of law wide order dated 18 th June,
2018 :
"Whether the Appellate Court was right in decreeing the
counter claim of the original defendant No. 1 without there
being any challenge raised to the subsequent sale deed dated
9th October, 2000 at Exhibit 81 on the basis of which plaintiff
claims to be in possession ?"
SUBMISSIONS :
12. Mr. Mankapure, learned counsel for the Appellant-original
Plaintiff submits that considering the case of Defendant No. 1 that
the suit property was agreed to be left open by Defendant No. 2 for
his ingress and egress, counter claim simpliciter for injunction would
not lie. He points out to the sale deed executed between the
Defendant Nos. 1 and 2 and would submit that the property sold to
the Defendant No. 1 is situated at distance of 80ft. from the center of
Kadepur Pusesavali road. He submits that the area sold to the
Defendant No. 1 is different from the area which is sold to the
Plaintiff and the Plaintiff is therefore entitled to a declaration of
ownership in respect of the suit land forming part of his sale deed. He
submits that the ownership rights in respect of suit property being
transferred to the Plaintiff, without challenging the sale deed of the
year 2000, the Defendant No. 1 has no right to seek injunction. In
support of his submission he relies upon the following decisions of the
Apex Court :
Anathula Sudhkar vs. P. Buchi Reddy (dead) by Lrs.
And Ors., [(2008) 4 SCC 594].
T. V. Ramakrishna Reddy vs. M. Mallappa & Anr. [In Civil
Appeal No. 5577 of 2021 (Supreme Court of India].
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13. Per contra, Mr. Thorat, learned counsel for the Respondent-
original Defendant would submit that it is not necessary to challenge
the sale deed executed with the Plaintiff as by way of sale deed of the
year 1996 the Defendant No. 2 had relinquished is right over the suit
property. He would further point out to the findings of the Court
Commissioner that the shops of the Defendant No. 1 are facing
towards western side and there is no other approach way except from
the western side. He submits that in view of the Court Commissioner's
report, the Appellate Court has rightly allowed the counter claim. He
would further point out that the suit property sold to the Plaintiff is
within the road widening area and certificate has been obtained on
24th December, 2010 from the Executive Engineer Kadegaon and the
notification dated 9th March, 2001 to that effect.
14. The reliance placed on the certificate on the certificate of 24 th
December, 2010 or the notification of 9 th March, 2001 to show that
the Plaintiff's land is comprised in road widening area is opposed by
Mr. Mankapure as the same is not part of record.
15. Mr. Thorat would further point out to the sale deed of the year
1996 executed between the Defendant Nos. 1 and 2 and submits that
the recitals in the sale deed makes it evident, that the Defendant No.
2 has relinquished his ownership right in respect of the road widening
area which is thereafter sold by Defendant No. 2 to the Plaintiff. He
submit that in 1996, 2R land was sold for sum of Rs. 37,000/- whereas
the Plaintiff has purchased the same area in the year 2000 at Rs.
20,000/- which shows the collusion between Defendant No. 2 and the
Plaintiff only to cause harassment to the Defendant No.1. He submits
that the right of way of the Defendant No. 1 will be obstructed if
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injunction is not granted. In support of his submissions he relies upon
the following decision.
Movva Butchamma vs. Movva Venkateswararao
And Ors. [AIR 1969 Andhra Pradesh 136].
REASONS AND CONCLUSION :
16. It is not in dispute that the Defendant No. 2 is the owner of Gat
No. 42 and by virtue of the sale deeds of the year 1996 and 2000, the
Plaintiff and Defendant No.1 have purchased separate and distinct
portions of Gat No. 42. The ownership rights of the Plaintiff is sought
to be obstructed by the Defendant No. 1 contending that by virtue of
the covenant contained in his sale deed dated 7 th May, 1996, the
Defendant No. 2 agreed not to exercise his ownership rights in
respect of the open space on the western side of the property sold to
the Defendant No. 2 which would obstruct the Defendant No. 2's
ownership rights and right of vahiwat/use.
17. The Defendant No. 1 does not claim to be in actual possession
of the suit property and what is claimed is easementary right of way,
which according to him is secured by the covenant contained in his
sale deed dated 7th October, 1995. The Defendant No. 1 claims breach
of obligation existing in his favour and has sought injunction to
prevent the breach of the said obligation. The Plaintiff on the other
hand claims ownership right in the said open space which constitutes
the subject matter of his sale deed dated 9 th October, 2000. The
counterclaim has been filed simplicter for injunction under Section 38
of the Specific Relief Act which reads thus :
38. Perpetual inunction when granted. ― (1) Subject to
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the other provisions contained in or referred to by this
chapter, a perpetual injunction may be granted to the
plaintiff to prevent the breach of an obligation existing in
his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the
Court shall be guided by the rules and provisions contained
in Chapter II.
(3) When the defendant invades or threatens in
invade the Plaintiff's right to, or enjoyment of, property, the
Court may grant a perpetual injunction in the following
cases, namely : ―
(a) where the defendant is trustee of the property for the
plaintiff;
(b) where there exists no standard for ascertaining the actual
damage accused, for likely to be caused, by the invasion ;
(c) Where the invasion is such that compensation in money
would not afford adequate relief ;
(d) where the injunction is necessary to prevent a multiplicity
of judicial proceedings.
18. The Apex Court in the case of Anathula Sudhakar (supra) has
laid down general principles as to when a mere suit for permanent
injunction of land can be filed and when it is necessary to file a suit for
declaration and/or possession with injunction and has held in
paragraph No. 21 as under :
"21. To summarise, the position in regard to suits for
prohibitory injunction relating to immovable property, is as
under:
(a) Where a cloud is raised over the plaintiff's title and he
does not have possession, a suit for declaration and
possession, with or without a consequential injunction, is
the remedy. Where the plaintiff's title is not in dispute or
under a cloud, but he is out of possession, he has to sue for
possession with a consequential injunction. Where there is
merely an interference with the plaintiff's lawful possession
or threat of dispossession, it is sufficient to sue for an
injunction simpliciter.
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(b) As a suit for injunction simpliciter is concerned only with
possession, normally the issue of title will not be directly
and substantially in issue. The prayer for injunction will be
decided with reference to the finding on possession. But in
cases where de jure possession has to be established on the
basis of title to the property, as in the case of vacant sites,
the issue of title may directly and substantially arise for
consideration, as without a finding thereon, it will not be
possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for
injunction, unless there are necessary pleadings and
appropriate issue regarding title (either specific, or implied
as noticed in Annaimuthu Thevar²). Where the averments
regarding title are absent in a plaint and where there is no
issue relating to title, the court will not investigate or
examine or render a finding on a question of title, in a suit
for injunction. Even where there are necessary pleadings
and issue, if the matter involves complicated questions of
fact and law relating to title, the court will relegate the
parties to the remedy by way of comprehensive suit for
declaration of title, instead of deciding the issue in a suit for
mere injunction.
(d) Where there are necessary pleadings regarding title, and
appropriate issue relating to title on which parties lead
evidence, if the matter involved is simple and
straightforward, the court may decide upon the issue
regarding title, even in a suit for injunction. But such cases,
are the exception to the normal rule that question of title
will not be decided in suits for injunction. But persons
having clear title and possession suing for injunction, should
not be driven to the costlier and more vexatiously or
wrongfully makes a claim or tries to encroach upon his
property. The court should use its discretion carefully to
identify cases where it will enquire into title and cases
where it will refer to the plaintiff to a more comprehensive
declaratory suit, depending upon the facts of the case."
19. The decision of Anathula Sudhakar (supra) was noted by the
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the Apex Court in case of T.V. Ramakrishna Reddy (supra). If the facts
of the instant case is examined against the settled position of law, the
counter claim is not a simple case of grant of injunction based on
possession. The report of the Court Commissioner relied upon by Mr.
Thorat states that there is no approach road to the Defendant No. 1's
construction except through the open space. The claim of Defendant
No.1 is easementary right over the suit property, the ownership rights
whereof has been transferred to the Plaintiff under the sale deed
dated 9th October, 2000. Thus rival claims have to be adjudicated
before injunction can be granted as the grant of injunction will result
in obstructing the Plaintiff's ownership rights in the suit property. The
grant of injunction has to be preceeded by an inquiry into various
issues as regards the relinquishment of right in the suit property by
the Defendant No. 2, easementary right of the Defendant No. 1 and
ownership rights by the Plaintiff. It was thus necessary for the
Defendant No. 1 to seek appropriate declaration as regards his right
over the suit property as also qua the sale deed dated 9th October,
2000. As the Plaintiff claims ownership rights under the sale deed
dated 9th October, 2000, a cloud is raised over the Defendant No. 1's
right of way by the Plaintiff and thus the counter claim simpliciter for
injunction will not lie.
20. Reliance placed by Mr. Thorat on decision of Andhra Pradesh
High Court in Movva Butchamma (supra) is misplaced as the issue
involved in that case was right to use the public street and for removal
of obstruction. In facts of that case, there was no issue of
maintainability of the suit simpliciter for injunction considered and the
facts are clearly distinguishable and inapplicable to the present case.
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21. The substantial question of law is accordingly answered in
favour of the Appellant. The counterclaim simpliciter for injunction is
not maintainable in the absence of seeking appropriate declaration
qua the Defendant No. 1's right in the suit property and the
subsequent sale deed dated 9 th October, 2000. Resultantly, the
counter claim filed by the Defendant No. 1 stands dismissed.
22. In view of above, Civil/Interim Application if any, taken out
herein does not survives for consideration and the same is disposed
of.
23. At this stage request is made by learned counsel for the
Respondent for extension of interim relief operating in his favour. The
said request is opposed by learned counsel for the Appellant. As
interim relief has been operating for considerable period, I am inclined
to extend the same for a period of 8 weeks from the date of
uploading of the order.
[Sharmila U. Deshmukh, J.]
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Signed by: Harish V. Chaudhari
Designation: PA To Honourable Judge
Date: 08/05/2024 11:27:54
