Bombay High Court
Mr. Devendra Ramchandra Palasmkar vs Mr. Gajanan Raghunath Patkar And Ors on 13 February, 2025
2025:BHC-AS:7107
28 FA660-13.doc
TRUSHA IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TUSHAR
MOHITE CIVIL APPELLATE JURISDICTION
Digitally signed by
TRUSHA TUSHAR
MOHITE
Date: 2025.02.13
17:07:23 +0530
FIRST APPEAL NO.660 OF 2013
WITH
CIVIL APPLICATION NO.2138 OF 2013
Devendra Ramchandra Palsamkar .. Appellant
Versus
Gajanan Raghunath Patkar .. Respondent
Mr. Pradeep Thorat a/w Ms.Aditi Naikare a/w Mr.Aniesh Jadhav,
Advocate for the Appellant
Mr.Ashutosh Kaushik a/w Ms.Namrata Parmar, Ms.Laxmi Mishra i/b
M/s.Kaushik and Co., Advocate for the Respondent Nos.1 to 3.
CORAM: FIRDOSH P. POONIWALLA, J.
RESERVED ON: 5th DECEMBER, 2024
PRONOUNCED ON: 13th FEBRUARY, 2025
Judgement:
1. This First Appeal is filed by the Original Defendant No.1
challenging the Judgement dated 1 st October 2012, passed by the Bombay
City Civil Court at Dindoshi, decreeing Suit No.1341 of 2010.
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2. In the present Judgement, the parties are described in the same
manner as they were described in the Suit.
3. Suit No.1341 of 2010 was filed seeking the following relief:
"a) That this Hon'ble Court be pleased to restrain the
defendant No.1 his servants, agents, contractor/s or any
person or persons claiming through under or by him
permanently by an order and injunction of this Hon'ble
Court from entering into, remaining upon, dispossessing
the Plaintiffs and/or disturbing the peaceful possession of
the plaintiffs on the suit property and/or constructing
unauthorised sheds/structures/chawl's and/or from carrying
out any unauthorised construction activities of whatsoever
nature of otherwise from encroaching upon the suit
property i.e. the land admeasuring m24 Gunthas equivalent
to 2458.5sq. meters or thereabouts bearing survey No.178,
Hissa No.1, Corresponding C.R.S.NO.171, 171/1 to 6 of
Village Malad (East) Taluka Borivli, District Mumbai
suburban together with three structures assessed for the
property taxes under Ward Nos. PN6438-299A, PN 6438-2-
299 AB, P-6438(3) 299-AC standing thereon known as
Patkar Wadi, Manchhubhai R Road, Malad (East) Mumbai
400097 and as more Particularly delineated by red colour
on the plan annexed and marked Exhibit -A to the Plaint or
any part or portion thereof.
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4. The Plaintiffs' case in the Plaint is as under:
a. The Plaintiffs and Defendant Nos.2 to 7 are the co-owners
of the property admeasuring 24 Gunthas, equivalent to 2458.5
sq.meters or thereabouts, bearing survey No.178, Hissa No.1,
corresponding to C.T.S.No.171, 171/1 to 6 of Village Malad (East)
Taluka Borivli, District Mumbai Suburban, together with three
structures, assessed for property taxes, standing thereon known as
Patkar Wadi, Manchhubhai Road, Malad (East), Mumbai 400 097
("the suit property").
b. By a Deed of Conveyance dated 18th October 1897, one
Purshottam Atmaram Patkar, the grand father of the Plaintiffs and
Defendant Nos.2 to 7, purchased the suit property from Haridas
Narayandas for the consideration and on the terms and conditions
mentioned therein. The said Purshottam Atmaram Patkar died in
the year 1920 leaving behind him three sons namely (i) Raghunath
Purshottam Patkar (ii) Krishnarao Purshottam Patkar and (iii)
Pandharinath Purshottam Patkar. The said Pandharinath
Purshottam Patkar died intestate as a bachelor on 28 th October
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1940. The said Raghunath Purshottam Patkar died on 6 th March
1968 leaving behind him his widow Sumati Raghunath Patkar, his
three sons, namely the Plaintiffs, and his six married daughters,
namely Defendant Nos.2 to 7, as his only heirs and legal
representatives. The mother of the Plaintiffs, Sumati Raghunath
Patkar, died on 23rd December 1982. Further, the said Krishnarao
Purshottam Patkar died intestate as a bachelor on 9 th October 1973.
Accordingly, the Plaintiffs and Defendant Nos.2 to 7 became the co-
owners of the suit property by virtue of operation of law.
c. The name of Krishnarao Purshottam Patkar is shown as
Kabjedar in Village Form Nos.7, 7A and 12 in respect of the suit
property. The names of the Plaintiffs, their mother and sisters
(Defendant Nos.2 to 7) are shown as holders in the extract of
Property Register Cards in respect of the suit property. The
Government of Maharashtra has issued Sanads and map in respect
of the suit property under the provisions of the Maharashtra Land
Revenue Code, 1966, in the joint names of the said Raghunath
Purshottam Patkar and Krishnarao Purshottam Patkar, the father
and uncle respectively of the Plaintiffs.
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d. The suit property is assessed for non-agricultural taxes.
The Assistant District Deputy Collector, Mumbai Suburban
District, Andheri, vide his Order dated 28 th June 1968 has
regularised the unauthorised N.A. use of the suit property in the
name of the uncle of the Plaintiffs. The Plaintiffs have paid the
non-agricultural taxes in respect of the suit property. The
predecessor in title of the Plaintiffs had constructed three sheds,
one well and W.C. blocks on the suit land. The said sheds are
assessed for property taxes by the P/North Ward of the Brihan
Mumbai Municipal Corporation ("BMC") in the name of
Krishnarao Purshottam Patkar, the uncle of the Plaintiffs. The
Plaintiffs are paying the property taxes to the BMC regularly. The
rooms in the said structures are let out on monthly tenancy basis to
various tenants by the Plaintiffs. The Plaintiffs have filed two suits
for eviction against the tenants on the suit property. In one of the
said suits, a decree has been passed by the Court of Small Causes at
Bandra, Mumbai, in favour of the Plaintiffs.
e. The land adjoining the suit property, bearing C.T.S.No.170,
belongs to one Mukhtar Mistry and others. The said land has access
through its North side. As the said access was blocked by the Union
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of India, through COD Mumbai, the said Mukhtar Mistry and
others filed a Suit, being S.C. Suit No.417 of 1978, before the
Hon'ble City Civil Court at Mumbai, against Union of India and
Military Estate Officer for clearing the said access to the said land
bearing C.T.S.No.170. The said suit was decreed but the Union of
India has preferred a First Appeal and same is pending before this
High Court.
f. Since the said access to the said land bearing C.T.S.No.170
through its North side was blocked by the Union of India, the said
Mukhtar Mistry and others were trying for access through the suit
property. The Plaintiffs filed a suit, being S.C.Suit No.5326 of 2000,
before the City Civil Court at Mumbai, against the said Mukhtar
Mistry and others, for restraining them from using the suit
property as ingress and egress to the said land and for others
reliefs. In the said suit, it was held by the Court that the Plaintiffs
are the owners of the suit property. However, the said suit was
dismissed and the Plaintiffs have filed a First Appeal against the
said order of dismissal of the Suit, which is pending before this
Court.
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g. During the pendency of the said First Appeal, the said
Mukhtar Mistry and others have sold and transferred their interest
in their said land in favour of M/s.Dheeraj Developers. The said
M/s.Dheeraj Developers put pressure upon the Plaintiffs to sell the
suit property to them, however, the Plaintiffs refused to sell the suit
property as it was an ancestral property of the Plaintiffs and they
did not want to dispose of the same. The said M/s.Dheeraj
Developers had addressed a letter dated 17th July 2009 to the
Plaintiffs requesting them for temporary access through the suit
property, for twenty four months, in order to remove the debris of
the already demolished existing ground plus three storey building
and to bring building materials for constructing a new building on
the said adjoining plot of land. The said letters had two annexures,
being letters dated 23rd January 2009 and 5th February 2009,
purported to be issued by the Central Ordinance Depot in favour of
the Executive Engineer, Building Proposal, Kandivali. The
Plaintiffs made an enquiry about the genuineness of the annexures
to the said letter dated 17th July 2009. The Plaintiffs received a
letter dated 8th March, 2010 from the Public Information Officer
informing them that the said annexures are fake and a preliminary
enquiry in the matter was in progress. The Plaintiffs also received a
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letter dated 5th May 2010 from the Sr. Inspector of Police,
Dindoshi Police Station, stating that the said two letters were not
genuine. The Plaintiffs filed a complaint dated 28 th July 2009 with
the Additional Commissioner of Police (Crime) to take action in
respect of the said fake annexures. However, no action was taken.
h. Even thereafter, M/s.Dheeraj Developers were unlawfully,
illegally and high handedly trying to get access from the suit
property but the Plaintiffs objected to the same.
i. The said M/s.Dheeraj Developers, in order to harass the
Plaintiffs, instigated Defendant No.1 to put up unauthorised
construction on the open portion of the suit property, though
Defendant No.1 is in no way concerned with the suit property or
any part thereof. On 24th April 2010, Defendant No.1
unauthorisedly and illegally constructed a shed on the east side of
the suit property. The Plaintiffs immediately addressed a letter
dated 24th April 2010 to the Senior Inspector of Police, Dindoshi
Police Station, against Defendant No.1. A copy of the said lettter
was forwarded to the Assistant Engineer, Building and Factory
Department, and other officers of the BMC. By the said letter, the
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Plaintiffs requested the removal of the said unauthorised
construction and registration of a case of criminal trespass against
Defendant No.1. On 28th April 2010, Defendant No.1 again
unauthorisedly and illegally constructed a shed on a part of the suit
property. The Plaintiffs addessed a letter dated 24 th April 2010 to
the Officers of the BMC and lodged a complaint for removal of the
said unauthorised sheds. The Plaintiffs lodged another complaint
dated 28th April, 2010 with the Deputy Commissioner of Police,
Zone XII, against Defendant No.1. Further, the Plaintiffs addressed
another letter dated 4th May 2010 to the said Deputy
Commissioner of Police Zone-XII regarding their complaint. The
Senior Inspector of Police addressed a letter dated 11th May 2010
to the Assistant Municipal Commissioner, P/North Ward, of the
B.M.C. and requested him for removal of the said unauthorised
construction put up by Defendant No.1 on the suit property.
j. The said unauthorised sheds constructed by Defendant
No.1 on the suit property were demolished on 20th May 2010 by
the Officers of the P/North Ward of the BMC with the help of Police
of Dindoshi Police Station. The Defendant No.1 again illegally and
unauthorisedly re-erected the said unauthorised sheds on the suit
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property. The Plaintiffs again addressed a letter dated 21st May
2010 to the Municipal Offices as well as to the Sr. Inspector of
Police, Dindoshi Police Station, for removal of the said
unauthorised sheds re-erected by the Defendant No.1 on the suit
property and also requested to register a criminal case against him.
The Plaintiffs further addressed a letter dated 24th May 2010 to the
Deputy Municipal Commissioner, Zone-IV, Andheri, for removal of
the said unauthorised sheds put up by Defendant No.1 on the suit
property.
k. Plaintiff Nos.1 and 3 filed a Caveat No.412 of 2000 before
the City Civil Court at Dindoshi against Defendant No.1 on 25th
May 2010 in respect of the said unauthorised sheds. The said
Caveat was sent for service upon Defendant No.1 by courier and
came back with the remark 'person not there'.
l. On 26th May 2010, the BMC, with the help of officers of
the Dindoshi Police Station, again demolished the unauthorised
sheds re-erected by Defendant No.1 on the suit property. The
Plantiffs received a Demolition Report from the office of P/North
Ward of the BMC confirming the demolition of the said premises.
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m. Thereafter, the Plaintiffs approached the Sub-Engineer
P/North Ward of the BMC on 5th June 2010 and requested him to
initiate action under Section 52 of the MRTP Act, 1966 against
Defendant No.1. The Plaintiffs came to know that the Defendant
No.1 had filed a suit, being L.C. Suit No.1282 of 2010, against the
BMC, in respect of the unauthorised sheds constructed by him on
the suit property but no reliefs were granted in his favour. The
Plaintiffs, through their Advocates, took search of the papers and
proceedings of the said suit by filing a search praecipe on 7th June
2010. After going through the papers and proceedings of the said
suit, the Plaintiffs came to know that Defendant No.l had filed the
said Suit on 25th May 2010 against the BMC only to protect the
said unauthorised shed on the suit property. Defendant No.1 had
moved for ad-interim relief before the City Civil Court on 26th May
2010 without any notice or intimation to the Plaintiffs. However,
taking cognizance of the Caveat filed by Plaintiff Nos.1 and 3, the
City Civil Court at Dindoshi was pleased to direct Defendant No.1 to
serve notice upon the Caveators, i.e. Plaintiff Nos.1 and 3, and then
to press for ad-interim relief of injunction. The notice was made
returnable on 28th May, 2010. On 28th May 2010, neither
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Defendant No.1 nor his Advocate appeared before this Hon'ble
Court nor did Defendant No.1 comply with the directions given by
the Court on 26th May 2010. It is the submission of the Plaintiffs
that it was obvious as to why Defendant No.1 or his Advocate did
not remain present on 26 th May 2010 - as the unauthorised sheds
constructed by Defendant No.1 on the suit property had been
demolished.
n. It is the submission of the Plaintiffs that Defendant No.1,
in the said Suit filed by him, had relied upon forged and fabricated
documents, being Agreement for Sale dated 20th February 1974
purported to be executed by one Krishanao Pandurang Patkar in
favour of Narayan Vithal Mhambale and Agreement for Sale dated
1st November, 1996 purported to be executed by Narayan Vithal
Mhambale in favour of Defendant No.1. The Plaintiffs further
submitted that the alleged Krishnarao Pandurang Patkar was not
the owner of the suit property at any point of time. Moreover,
Krishnarao Purshottam Patkar, the uncle of the Plaintiffs, had
passed away on 9th October 1973 i.e. even before the Agreement for
Sale dated 20th February 1974 was purported to be executed. The
Plaintiffs further submitted that Defendant No.1 had forged and
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fabricated the signatures of Krishnarao Purshottam Patkar on the
said Agreement for Sale. The Plaintiffs further submitted that
Defendant No.1 not only forged and fabricated the documents
annexed to the said Plaint but has gone one step ahead and has
used the same by filing the said suit and tried to snatch an
injunction order behind the back of the Plaintiffs. It is also the case
of the Plaintiffs that Defendant No.1 is not in possession of any part
or portion of the suit property nor, at any point of time, was he in
possession of the suit property or any part or portion of the suit
property.
o. The Plaintiffs visited the suit property on 7th June 2010, at
about 4.30 p.m., and saw construction material like G.I. Sheets A.C
sheets, bamboos and wooden posts lying near the suit property on
C.T.S.No.170. The Plaintiffs made enquiry from their tenants on
the suit property who informed them that Defendant No.1 had
brought the said construction material. Defendant No.1, alongwith
his hirelings, also came to the suit property. The Plaintiffs asked
Defendant No.1 as to why he had brought the said building
materials and warned him not to put up any unauthorised
construction on the suit property. Defendant No.1 and his hirelings
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started abusing the Plaintiffs and tried to exercise force upon
them. Defendant No.1 and his hirelings threatened the Plaintiffs to
leave the suit property and stated that, otherwise, they would
assault the Plaintiffs. Defendant No.1 threatened the Plaintiffs that
he would again put up construction on the suit property. It is the
submission of the Plaintiffs that Defendant No.1 is a notorious
person involved in land grabbing activities by constructing
unauthorised structures/sheds on lands belonging to various
innocent persons of the locality. It is also the submission of the
Plaintiffs that the officers of the BMC as well as the police of the
Dindoshi Police Station are hand in glove with Defendant No.1, at
the instance of the said M/s.Dheeraj Developers. It is also the
submission of the Plaintiffs that Defendant no.1 gets muscle and
money power from the said M/s.Dheeraj Developers.
p. In these circumstances, the Plaintiffs approached the Duty
Officer of Dindoshi Police Station on 7th June 2010, at about 7.00
p.m., in order to lodge a complaint against Defendant No.1. But
the Duty Officer, instead of taking the complaint of the Plaintiffs,
advised the Plaintiffs to approach the Civil Court and obtain a
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prohibitory order against Defendant No.1 in order to avoid day to
day disputes.
q. It is in these circumstances that the Plaintiffs filed the
present Suit.
5. In the Suit, the Defendant No.1 chose not to file any written
statement.
6. The Plaintiffs led oral evidence by filing an Affidavit in lieu of
Examination in Chief dated 28 th September 2011 of Plaintiff No.3, namely,
Vinayak Raghunath Patkar, by which Plaintiff No.3 gave evidence of the facts
stated in the Plaint. Further, the Plaintiffs produced the following documents
in evidence:
Exh.9 Certified copy of Deed of Conveyance
Exh.10 Death Certificate of Pandharinath P. Patkar
Exh.11 Death Certificate of Raghunath P. Patkar.
Exh.12 Death Certificate of Suman R.Patkar
Exh.13 Death Certificate of Krishnarao P. Patkar
Exh.14 Certified copy of Extract of Village form No.7,
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7A & 12
Exh.15 Certified copy of Extract of Property Register Cards.
Exh.16 Sanad and Map issued by Special District Inspector
Land Record-I, M.S.D.
Exh.17 True copy of N.A. Order dt. 28/6/1968
Exh.18 Receipt for payment of N.A. Tax
Exh.19 Municipal Assessment Bills and payment receipts of
Municipal Taxes.
Exh. 20 Certified copy of Decree dated 7.5.2009 in R.A.E. & R
Suit No.237/1995.
Exh.21 Certified copy of Judgement dt. 20/4/2006 in Suit
Exh.22 Roznama Dt. 7.10.2010 in Suit No.1282/10
Exh.23 Letter dt. 17.10.2009 with two annexures
Exh. 24 Letter dt. 8.3.2010
Exh.25 Letter dt. 5.5.2010
Exh. 26 Complaint dtd. 28.7.2009
Exh.27 Letter dtd. 24.4.2010
Exh. 28 Complaint dtd. 28.4.2010
Exh. 29 Letter dt. 4.5.2010 to Home Minister
Exh.30 Letter dt. 4.5.2010 to Dy. Commissioner of Police
Sone
Exh. 31 Letter dt. 7.5.2010 to Minister Urban Development
Dept. & Asstt. Mun.Commissioner P/North Ward
Exh. 32 Letter dt. 11.5.2010
Exh.33 Letter dt. 21.5.2010
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Exh.34 Letter dt. 24.5.2010
Exh.35 Demolition report
Exh.36 Letter dt. 12.7.10.
7. On the other hand, Defendant No.1 chose not to cross-examine
Plaintiff Nos.3 and only made oral arguments. By Judgement dated 1 st
October 2012, the City Civil Court at Dindoshi decreed the Suit of the
Plaintiffs.
8. Mr.Thorat, the learned Advocate appearing on behalf of the
Appellant (Defendant No.1), made submissions impugning the said
Judgement dated 1st October 2012. Mr.Thorat referred to the Judgement of
the Hon'ble Supreme Court in C.N.Ramappa Gowda vs. C.C.Chandregowda
(Dead) by Lrs. And Another1 and submitted that, as per the said Judgement,
even if the Defendant has not filed a Written Statement, the Plaintiff has to
prove his case and the Court has to record satisfaction that the case is proved.
9. Next, Mr.Thorat submitted that there was no averment in the
Plaint stating that the Plaintiffs are in possession of the suit property. He
further submitted that the impugned Judgement does not record any finding
1 (2012) 5 SCC 265
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that the Plaintiffs are in possession of the suit property, which is essential for
granting a permanent injunction, and relied upon the Judgement of the
Hon'ble Supreme Court in Thimmaiah vs. Shabira and Others 2 in support of
this submission.
10. Further, Mr.Thorat submitted that, in view of the averments in
paragraph 13 of the Plaint, there was a cloud on the title of the Plaintiffs.
Considering the same, and in view of the Plaintiffs' own pleadings that the
Agreements for Sale dated 20 th July 1974 and 1st November 1996, relied upon
by Defendant No.1, were forged and fabricated, the Plaintiffs should have
sought a declaration of title and also a declaration to the effect that the said
Agreements are forged and fabricated.
11. Mr.Thorat further referred to the Roznama dated 26 th May 2010
in L.C.Suit No.1282 of 2010 filed by Defendant No.1 and submitted that the
said Roznama showed that Defendant No.1 was claiming ownership in
respect of the suit property. Further, Mr.Thorat also referred to the Order
dated 22nd December 2011 passed by the Deputy Collector (Appeals) Mumbai
Suburban District, in an Appeal under Section 247 of the Maharashtra Land
Revenue Code, 1966. Mr.Thorat submitted that the submissions of
Defendant No.1, as recorded in the said Order, also showed that Defendant
2 (2008) 4 SCC 182
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No.1 was claiming ownership in respect of the suit property. Mr.Thorat
submitted that the said Roznama and the said Order passed by the Deputy
Collector (Appeals) were on record before the Trial Court. The pleadings in
the Plaint were also on record. This showed that Defendant No.1 was
claiming ownership in respect of the suit property and, therefore, there was a
cloud on the title of the Plaintiffs in respect of the suit property. However,
despite the same, the Plaintiffs did not seek a declaration of title in respect of
the suit property and the Trial Court has passed a decree of permanent
injunction without considering the said fact.
12. Mr.Thorat submitted that, for all the aforesaid reasons, the
present First Appeal should be allowed and the impugned Judgement dated
1st October 2012 be set aside by this Court.
13. On the other hand, Mr.Ashutosh Kaushik, the learned Advocate
appearing on behalf of Respondent Nos.1 to 3 (Plaintiff Nos.1 to 3), supported
the impugned Judgement. Mr.Kaushik referred to the Deed of Conveyance
dated 18th October 1897 and submitted that it had never been the case of
Defendant No.1 that the Plaintiffs are not the owners of the suit property.
Mr.Kaushik submitted that, in the Suit, there was no challenge to this Deed of
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Conveyance from which the Plaintiffs and Defendant Nos.2 to 7 derived title
to the suit property.
14. Mr.Kaushik further submitted that the submission of Defendant
No.1 that the impugned Judgement does not record that the Plaintiffs were in
possession of the suit property is incorrect and, in this context, referred to
paragraph nos.33 and 34 of the impugned Judgement. Mr.Kaushik
submitted that the said paragraphs clearly record a finding regarding
Plaintiffs' possession of the suit property.
15. As far as the submission of Defendant No.1 that the Plaintiffs
should have sought a declaration that the Agreements for Sale dated 20 th July
1974 and 1st November 1996 are forged and fabricated is concerned,
Mr.Kaushik submitted that the said Agreements have not been produced by
Defendant No.1 before the Trial Court, and, therefore, the question, of the
Plaintiffs challenging them or seeking any declaration in respect of the same,
did not arise at all.
16. As far as Defendant No.1's reliance on the Roznama dated 26 th
May 2010 in Suit No.1282 of 2010 is concerned, Mr.Kaushik submitted that
Defendant No.1 could not rely on the same to show that he was claiming
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ownership in respect of the suit property as Defendant No.1 had withdrawn
the said Suit on 7th October 2010.
17. Mr.Kaushik further submitted that the facts pertaining to the
said Conveyance, City Survey Maps, 7/12 extracts, property cards, N.A.
orders etc. had been referred to in the Plaint and in the Affidavit in lieu of
Examination in Chief of Plaintiff Nos.3. In addition, Municipal Assessment
Bills and Suits filed by the Plaintiffs against their tenants have also been
mentioned. The Plaintiffs have produced and proved these documents in
evidence. Mr.Kaushik submitted that these documents also clearly showed
that the Plaintiffs are in possession of the suit property.
18. Mr.Kaushik also referred to a letter dated 17th July 2009
addressed by the said M/s.Dheeraj Developers to the Plaintiffs whereby they
requested the Plaintiffs to grant them permission for utilising the road
through the suit property for a period of 24 months, and submitted that this
clearly showed that even the said M/s.Dheeraj Developers accepted that the
Plaintiffs are the owners of the suit property.
19. Mr.Kaushik further submitted that the grounds raised by
Defendant No.1 for challenging the Judgment dated 1 st October 2012 were
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without any merit, and, therefore, the present First Appeal ought to be
dismissed and decree passed by the City Civil Court at Dindoshi be
confirmed.
20. I have heard the learned Advocates for the parties and perused
the documents on record.
21. Before dealing with the submissions of Defendant No.1 to the
effect that the Plaintiffs had not established that they were in possession of
the property in order to get a decree for permanent injunction, it would be
appropriate to refer to the Judgement of the Hon'ble Supreme Court in
Thimmaiah vs. Shabira and Others (Supra) in this regard. Paragraph 10 of
the said Judgement is relevant and reads as under:
"10. Undisputedly, the suit was one for permanent
injunction and in such a suit the plaintiff has to establish that he
is in possession in order to be entitled to a decree for permanent
injunction. The general proposition is well settled that a plaintiff
not in possession is not entitled to the relief without claiming
recovery of possession. Before an injunction can be granted it
has to be shown that the plaintiff was in possession."
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22. In my view, there cannot be any dispute with the proposition
that, in a suit for permanent injunction, the Plaintiff must establish that
he/she is in possession in order to get a decree for permanent injunction.
However, in my view, the case of Defendant No.1, that the Plaintiffs have not
pleaded in the Plaint that they were in possession of the suit property, cannot
be accepted. In paragraph 4 of the Plaint, the Plaintiffs have pleaded that
their names, along with the names of their mother and sisters, are shown as
holders in the extract of the Property Register Cards in respect of the suit
property. Further, in paragraph 5 of the Plaint, the Plaintiffs have pleaded
that they are paying property taxes to the BMC regularly. The Plaintiffs have
also pleaded that the rooms in the said structures on the suit property are let
out on monthly tenancy basis to various tenants and that the Plaintiffs have
filed Suits for eviction against tenants on the suit property, and in one of the
Suits a decree has been passed by the Court in favour of the Plaintiffs. In
paragraph 8 of the Plaint, the Plaintiffs have referred to the said letter dated
17th July 2009 addressed to them by M/s.Dheeraj Developers requesting
them for access through the suit property. The Plaintiffs have also proved the
documents referred to by them in paragraphs 4, 5 and 8 in evidence in the
Suit. In paragraph 9 of the Plaint, the Plaintiffs have referred to various
actions taken by them in order to protect the possession of the suit property
when Defendant No.1 had unauthorisedly and illegally constructed a shed on
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the suit property. Similar pleadings have also been made in paragraph 10 of
the Plaint. Further, the documents relied upon in these paragraphs have also
been proved by the Plaintiffs in evidence in the Suit. Further, in paragraph 16
of the Plaint, the Plaintiffs have categorically averred that they seriously
apprehended that Defendant No.1 would dispossess the Plaintiffs, disturb the
peaceful possession of the Plaintiffs in respect of the suit property and re-
erect unauthorized sheds on the suit property. In prayer (a) of the Plaint, the
Plaintiffs have sought a permanent injunction restraining Defendant No.1
from interalia dispossessing the Plaintiffs and/or from disturbing the
peaceful possession of the Plaintiffs in respect of the suit property. In my
view, the said averments made in the Plaint, and the documents produced
and proved by the Plaintiffs in evidence in support thereof, clearly show that
the Plaintiffs have pleaded in the Plaint that they are in possession of the suit
property and have even proved the same.
23. Further, in my view, the case of Defendant No.1, that the
impugned Judgement dated 1st October 2012 does not record any findings
that the Plaintiffs are in possession of the suit property, also cannot be
accepted. In paragraph nos.11 and 12 of the Judgement, the Trial Court has
noted that, after the death of the predecessor in title of the Plaintiffs, the
names of the Plaintiffs, their mother and sisters have been recorded as
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holders in the extract of the Property Register Cards of the suit property. In
paragraph 12 of the Judgement, the Trial Court has noted that the Property
Register Cards have been placed on record and have been admitted in
evidence. Further, in paragraph nos.33 and 34 of the Judgement, the Trial
Court has arrived at a finding that the Plaintiffs are the owners of the suit
property and in possession of the suit property. Paragraph nos.33 and 34 of
the said Judgement read as under:
"33. From the evidence produced on record admittedly the
plaintiffs are the owner of CTS N.171, 171/1 to 6. The Plaintiffs,
have produced the 7/12 extract of survey No.178, Hissa No.1
CTS N.171 and 171/1 to 1781/6. Considering the documentary
evidence on record defendant No.1 in my view has no right to
obstruct and interfere the peaceful possession of the plaintiff
The Defendants have claimed right of way by writing letter to
the plaintiff and the said permission so sought also does not
seem to be valid permission for any of the authority as stated by
the defendants in their letter to the Plaintiff. In fact a formal
complaint has been lodged to check the veracity of the letters,
which is sufficient to hold at this stage that the same cannot be
relied upon. There is nothing on record brought by the defendant
to show that the said permission was sought from any authority.
34. Admittedly the Plaintiffs are paying N.A. Assessment
and assessment to B.M.C. Defendant is not having any right title
and interest in the suit property. According to me if the
defendants are allowed to enter/encroach the property
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irreparable loss will be caused to the Plaintiff, The oral
arguments advanced by the Ld. Advocate for the defendant No.1
according to me are not sufficient to brush aside the voluminous
document tendered by the Plaintiff specially in the
circumstances where the defendants No.1 has nowhere filed his
written statement nor conducted cross examination It is settled
principle of law that challenge to oral evidence must be
reflected on the course of cross-examination, If the defendants
decline to put the essential material setting out their case in
cross-examination, it would have to be regarded virtually as an
admission and that such an uncontroverted evidence must be
acted upon by the Court. The position in law is crystal clear."
24. Further, it is the case of the Defendant No.1 that there is a cloud
on the title of the Plaintiffs i) in light of the averments made in paragraph 13
of the Plaint ii) in light of the documents on record of the proceedings which,
according to the Defendant No.1, show that Defendant No.1 was claiming title
in respect of the suit property and iii) in light of the Agreements dated 20 th
July 1974 and 1st November 1996 referred to by the Plaintiffs. It is further the
case of Defendant No.1 that, in light of the same, the Plaintiffs should have
sought a declaration of title to the suit property and a declaration that the
said Agreements for Sale dated 20th July 1974 and 1st November 1996 are
forged and fabricated. Since the Plaintiffs did not do so, the Trial Court
ought to have dismissed the Suit.
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25. The law in this regard is laid down by the Hon'ble Supreme
Court in the case of Anathula Sudhakar vs. P.Buchi Reddy (Dead) By LRS.
And Others3, which has been referred to by the parties. Paragraph 21 of the
said Judgement is relevant and reads as under:
"21. To summarize, the position in regard to suits for
prohibitory injunction relating to immovable property, is as
under :
(a) Where a cloud is raised over 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 plaintiff's
lawful possession or threat of dispossession, it is sufficient to
sue for an injunction simpliciter.
(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.
3 (2008) 4 SCC 594
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(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 Thevar (supra)]. 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 straight-forward,
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
cumbersome remedy of a suit for declaration, merely because
some meddler 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 plaintiff to a more
comprehensive declaratory suit, depending upon the facts of the
case."
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26. In the case of Anathula Sudhakar (Supra), the Hon'ble Supreme
Court clearly laid down that 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. However, in the same
Judgement, the Hon'ble Supreme Court has also held that persons having
clear title and possession suing for injunction should not be driven to the
costlier and more cumbersome remedy of a suit for declaration, merely
because some meddler vexatiously or wrongful makes a claim or tries to
encroach upon his property. The Hon'ble Supreme Court has held that the
Court should use its discretion carefully to identify cases where it will enquire
into title and cases where it will refer the Plaintiff to a more comprehensive
declaratory suit, depending upon the facts of the case. Therefore, it has to be
considered carefully whether there is any cloud on the title of the Plaintiffs
for any of the reasons given by Defendant No.1.
27. I am unable to accept the submission of Defendant No.1 that the
contents of paragraph 13 of the Plaint show that there is a cloud on the title of
the Plaintiffs. In paragraph 13 of the Plaint, the Plaintiffs have mainly
referred to the conduct of the Defendant No.1 of filing L.C.Suit No.1282 of
2010 without making the Plaintiffs a party to the said Suit and trying to
obtain an ad-interim order in his favour despite a caveat having been filed by
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the Plaintiffs. The said paragraph further states that, in the said Suit filed by
him, Defendant No.1 relied upon certain forged and fabricated documents.
In my view, none of the averments made in paragraph 13 of the Plaint show
that there is any cloud on the title of the Plaintiffs.
28. As far as L.C.Suit No.1282 of 2010 filed by Defendant No.1 is
concerned, the same also does not raise any cloud on the title of the Plaintiffs.
In the said Suit, no ad-interim relief was granted to Defendant No.1. Further,
on 7th October 2010, Defendant No.1 has withdrawn the said Suit. In these
circumstances, in my view, the said Suit also does not raise any cloud on the
title of the Plaintifffs.
29. The Order dated 22nd December 2011 passed by the Deputy
Collector (Appeals), Mumbai Suburban District, also does not raise any cloud
on the title of the Plaintiffs. In fact the findings and operative part of the said
Order are entirely in favour of the Plaintiffs and, therefore, the question, of
the said Order raising any cloud on the title of the Plaintiffs, does not arise at
all.
30. Further, the Agreements for Sale date dated 20 th July 1974 and
1st November 1996 referred to by the Plaintiffs as forged and fabricated, in
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the narration of facts in the Plaint, have not been brought on record of the
Suit by Defendant No.1. In the absence of Defendant No.1 bringing these
documents on record in the Suit and proving the same, the question, of the
Plaintiffs seeking a declaration that the said documents are forged and
fabricated, does not arise at all. Only if Defendant No.1 had produced the
said Agreements on record and had proved the same in evidence, would there
arise a question of the Plaintiffs seeking a declaration that the said
documents are forged and fabricated.
31. Further, in my view, if Defendant No.1 wanted to set up an
adverse title in himself, he ought to have filed a Written Statement in the Suit
and led evidence to that effect. Not only has Defendant No.1 failed to do so,
Defendant No.1 has not even cross-examined the Plaintiffs' witness.
32. In these circumstances, in my view, there is no cloud on the title
of the Plaintiffs requiring them to file a Suit for declaration of their title, as
alleged by Defendant No.1.
33. In my view, if the Plaintiffs are driven to file a suit for title, it
would amount to persons, having clear title and possession, suing for
injunction, being driven to the costlier and more cumbersome remedy of a
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suit for declaration, merely because some meddler like Defendant No.1
vexatiously or wrongfully makes a claim or tries to encroach upon their
property, which the Hon'ble Supreme Court has expressly said should not be
done. As rightly held by the Hon'ble Supreme Court in Anathula Sudhakar
(Supra), the Court should use its discretion carefully to identify cases where it
will enquire into title and cases where it will refer the plaintiff to a more
comprehensive declaratory suit, depending upon the facts of the case. In my
view, in the facts of the present case, the question, of driving the Plaintiffs to
file a suit for declaration of their title, does not arise at all.
34. Further, in my view, the Trial Court has correctly appreciated the
facts and the law and has rightly decreed the Suit.
35. In the light of the aforesaid discussion, and for the aforesaid
reasons, the following order is passed:
a. The First Appeal is dismissed.
b. In view thereof, Civil Application does not survive. The
same is also dismissed as infructuous.
b. The decree passed by the Bombay City Civil Court at
Dindoshi in Suit No.1341 of 2010 is confirmed.
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c. In the facts and circumstances of the case, there will be no
order as to costs.
[FIRDOSH P. POONIWALLA, J.]
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