Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M No.321/2019 1 Suit No.3244/2018
CNR No.MHCC010007842019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.321 OF 2019
IN
SUIT NO.3244 OF 2018
Dinesh Shankar Shinde .. Plaintiff
Versus
Abdul Ajiz Mohd. Khan and Another .. Defendants
Mr. Rajesh S. Thakur, advocate for plaintiff
Mr. Suraj S. Kudalkar, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 10th December, 2019
ORAL ORDER
By this notice of motion plaintiff is seeking temporary injunction
restraining defendants, their agents, representatives and servants from
disturbing, entering, interfering with peaceful possession of plaintiff
and/or entering into the suit land i.e. open plot of Land admeasuring
area about 15'x 60' sq. ft. of land bearing Survey No.160/1, situated at
Dargah Road, Khindipada, Bhandup (West), TalukaKurla, Mumbai78
and further sought direction to Senior Inspector of Police, Bhandup
Police Station to provide necessary police protection to plaintiff as and
when required.
2. It is contention of plaintiff that he is in actual use, occupation
and physical possession of suit land which is bounded as follows;
Towards east Dargah Road, towards west Sunshine Company
wall compound, towards north Gala of M/s. Makaiee Enterprises and
towards south Gala of Mr. Nitin Agarwal. Erstwhile land owner namely
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Atul Rajaram Ohal by an Agreement of Sale dated 25.05.2017 and
affidavit dated 25.05.2017 surrendered/sold all his rights, title, interest
and claim in respect of suit land permanently in favour of plaintiff. Land
owner has also executed power of attorney dated 25.05.2017 in respect
of suit land in his favour. He has paid total amount of Rs.5,00,000/
towards consideration of suit land. After execution of the aforesaid
documents; on the same day viz 25.05.2017 vacant and peaceful
possession of suit land was handed over to plaintiff and since then he is
in exclusive use, occupation and possession of suit land.
3. It is further contended that on 25.06.2017 suddenly land owner
along with other 5 to 6 unknown persons arrived at the spot of suit land
and demanded additional amount of Rs.10,00,000/. He also
threatened plaintiff about his dispossession from the suit land if he
refused to pay the aforesaid amount. Plaintiff refused to pay the said
amount. Thereafter he filed the Civil Suit bearing No.1525 of 2017
before this Court against land owner for permanent injunction. Said suit
came to be compromised on 16.09.2017 in terms of Consent Terms
dated 16.09.2017 and decreed in favour of plaintiff.
4. It is further contended that as debris and waste were lying on
the suit land; removal work of the same was going on in day time on
10th, 11th and 12th September, 2017. However, when the said work was
in progress on 12.09.2017 suddenly defendant No.1 and his son came
on the spot and tried to stop the work by calling the police. It is further
contended that on enquiry with land owner about the claim of
defendants over the suit land; land owner told the plaintiff that he has
never sold, transferred and/or created any third party rights either in
favour of defendants or any other person. Papers produced by the
defendants in respect of suit land are false, bogus and forged and he has
not signed any paper or document in favour of defendants. Therefore,
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plaintiff lodged written complaint dated 13.09.2017 against defendants
with police station Bhandup. Even land owner also lodged criminal
complaint dated 14.09.2017 against defendants. But Bhandup police
did not take any action against defendants. On the contrary, they under
influence of defendants dragged the matter before the Court of
Magistrate at Mulund under section 145 of the Cr.P.C for attachment of
suit land which is still pending.
5. It is further contended that till today plaintiff is in actual
physical possession of suit land. Since, March 2018 he is doing business
of parking of vehicles on the suit land. He has electricity meter
connection at the suit land and further CCTV cameras are installed at
the site of suit land. On 30.08.2018 some unknown persons have
damaged CCTV cameras and stolen the electricity meter which has been
installed at the suit land. Therefore, FIR No.310 of 2018 came to be
lodged on 31.08.2018. It is further contended that the suit land requires
to be protected and hence, he decided to put a safety fencing on the
front side of the suit land. But he apprehends unnecessary disturbance,
interference with highhandedness by defendants and entering the suit
land with the help of police and his dispossession. Hence, this notice of
motion.
6. Defendants filed their reply and denied each and every
contentions and allegations of the plaintiff. It is contended that
Agreement for Lease dated 27th March, 1994 has been executed
between land owner Atul Rajaram Ohal and defendant No.2 in respect
of land admeasuring 750 sq. ft. out of land comprising survey No.161
(part), CTS No.1, situated at Dargah Road, Duke Line, near Shivshambo
Temple, Khindipada, Bhandup (W), Mumbai. Said survey No.161 is
reflected in the map obtained from City Survey Office, Mulund. In the
year 1994, land owner had given physical possession of the above said
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plot of land. Defendants have taken the said plot of land for the purpose
of keeping goods and use it as Godown. Initially it was kept vacant and
thereafter defendants started using the said plot of land including
structure thereon for keeping goods. Tahsildar Encroachment, Kurla2
issued the pitch card in the name of these defendants. The said plot of
land was declared as slum by Government of Maharashtra. Defendants
are in possession of Hakkacha Patra showing survey No.161. These
defendants are in possession of the suit premises. They were regularly
paying lease rent to the owner after getting physical possession. But
land owner never issued any lease rent receipt. Therefore, defendants
stopped to make payment to him after 1998. As land owner started
giving threats to them; they paid sum of Rs.30,000/ on 20.07.2003 by
cash and Rs.20,000/ by cheque dated 24.09.2003 to land owner. Land
owner issued receipt to that effect. It is further contended that at the
time of agreement for lease, defendants have paid sum of Rs.20,000/
being lease deposit towards suit plot.
7. It is further contended that defendants are in exclusive use and
possession of suit plot along with temporary structure thereon. They
used to keep material on the said plot of land. Since 2006 onwards
wooden scraps were lying in the premises. In the year 2013, three
persons namely Ulhas Mansoori, Ali Ahmed and Salim Qureshi entered
into suit premises claiming to be owners of suit plot. They also
threatened defendants and their family members. These three persons
also went to take forcefully possession and deliberately set on fire
wooden scraps of these defendants. Therefore, they lodged complaint
and FIR was registered against Ulhas Mansoori. These defendants on
13.09.2017 also filed written complaint to Police Commissioner
complaining that 10 to 15 unknown persons came to the premises of
these defendants situated at Khindipada, Dargha Road, Bhandup (W),
Mumbai and demolished and damaged the premises. By letter dated
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18.09.2017 they further intimated that Ulhas Mansoori by way of illegal
and highhanded act trying to grab the property of defendants. It is
further contended that these defendants are in possession of suit plot of
land. However, after lodging complaint to police station against Ulhas
Mansoori, Ali Ahmad and Salim Qureshi, they started complaining to
Ward officer in relation to suit premises of these defendants. On their
complaint, ward officer had illegally taken action and wooden cabin
was demolished by them and collected charges of Rs.1200/ towards
the same from these defendants. They have also contended that
electricity connection was taken on the pretext of installing CCTV to
collect evidence and later on electricity department disconnected the
electricity. They also denied that plaintiff is in use, occupation and
possession of suit land. In light of above contentions defendants urged
to dismiss notice of motion.
8. By filing rejoinder plaintiff denied the contention of defendants
and submitted that defendants dishonestly created their own story
about different survey No.160/1 and 161 (part1). But infact there is
no survey No.161 (part1) as claimed by defendants. There is land
bearing survey No.161/A and same is still in the name of land owner
Atul Rajaram Ohal and Survey No.161/B is the in the name of M/s. Sun
& Shine Enterprises Ltd. Therefore, contention of defendants that they
are in possession of any land either survey No.160/1 or 161 (part1) is
false. Land owner has transferred all his rights, interest and title in
respect of suit land permanently in favour of plaintiff under consent
decree dated 16.09.2017. Accordingly, prayed to allow notice of
motion.
9. Perused notice of motion, affidavit in support of it, reply of
defendants and rejoinder of plaintiff. Heard learned advocate of
plaintiff and learned advocate for defendants. Learned advocate for
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plaintiff during the course of his submission placed reliance upon
authorities in the cases of Krishna Ram Mahale Vs. Shobha Venkat
Roa 1989 (4) SCC 131, M/s. Annamalai Club Vs. Government of
Tamilnadu and others decided on 23.10.1996 by Hon'ble Supreme
Court, Rame Gowda (E) by Lrs Vs. M. Varadrajan Naidu by (D) Lrs,
2004(1) SCC 769, Chandrashekhar Shankarrao Kulkarni Vs. Rahul
Shikshan Prasarak Mandal Sansar Nagar 2007(3) Bom. C.R. 181
and Smt. Pramila Lalbhai Dabhoya & Another Vs. Dr. Harish Lalbhai
Dabhoy, 2005 (4) ALL MR 288.
10. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under:
POINTS FINDINGS
1.Whether plaintiff has got prima facie case? …No.
2.Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is not granted?
…No.
3.Whether balance of convenience lies in favour of
plaintiff?
…No.
4. Whether it is necessary to give direction to Senior
Inspector of Police, Bhandup Police Station as sought
by plaintiff?
…Does not
survive.
5. What order? As per final
order
REASONS
As to point Nos.1 to 4:
11. Before dealing with the facts of the matter, I would like to
mention the ratio laid down in cited authorities supra.
Gist of authorities in the cases of Krishna Ram Mahale by legal
heirs, Rame Gowda by legal heirs and M/s. Annamalai Club cited
supra is that, person in settled possession of property has to be
protected and such person cannot be evicted without following due
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process of law.
In the case of Chandrashekhar Shankarrao cited supra, it is
held that in simple suit for perpetual injunction, it is not necessary for
the Civil Court, every time, to decide the title of the plaintiff and/or a
person seeking decree for perpetual injunction. It is sufficient if the
person seeking perpetual injunction proves his possession over the suit
property on the date of filing of the suit referable to some lawful right.
In that case such decree for perpetual injunction can be granted.
In the case of Smt. Pramila Lalbhai Dabhoya cited supra it is
held that even if plaintiff has failed to prove agreement, his possession
can only be disturbed by the defendant by following due process of law
and not by other means.
12. There is no dispute in respect of ratio laid down in all above
referred cited authorities. Now, I consider present notice of motion.
Plaintiff has claimed to have acquired right, title in the suit land as
described in plaint para 1 from one Atul Ohal vide Agreement of Sale
dated 25.05.2017 and affidavit dated 25.05.2017. He also claimed that
he came into possession of suit land on the same date. It is pertinent to
note that Agreement of Sale dated 25.05.2017 is an unregistered
document. Any transfer of immovable property valued more than
Rs.100/ by sale is required to be made by registered document. The
recitals in the document shows creation of interest in the land bearing
Survey No.160/1 situate at Bhandup, Taluka Kurla and consideration
of Rs.5,00,000/ is shown to have been passed to vendor but this
document being unregistered cannot be considered prima facie as a
proof for acquisition of title in the said land by the plaintiff. Plaintiff has
also placed reliance upon consent decree passed in Suit No.1526 of
2017 between him and his vendor Atul Rajaram Ohal to show that all
the rights in the said land has been surrendered by vendor of the
plaintiff in his favour and that possession of the said land has also been
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handed over to the plaintiff by his vendor on 25.05.2017. Even said
decree also does not confer title upon plaintiff in relation to said land. It
is pertinent to note that defendants herein were not parties to the suit
No.1526 of 2017 so that decree is not binding upon these defendants.
Plaintiff has also placed reliance upon copy of Udyog Adhar Registration
Certificate, electricity bills of different dates to show that same were
issued in the name of plaintiff at the address of 160/1, Dargah Road,
Khindipada, Bhandup. On the basis of these documents, plaintiff
claimed that he is in settled possession of the suit land as described in
plaint para 1. Merely on the basis of above referred documents it cannot
be said that plaintiff is in settled possession of the said land having four
side boundaries as described in plaint para 1. It is not clarified as to
where meter was installed when it is open land. It is also claimed that
plaintiff has started business of car parking including parking of
motorcycle and bicycle also from suit land. Merely on the basis of
certificate of the said business it cannot be inferred that physically and
actually said business was carried from the said land. Photographs of
said land does not show that same being in use for parking of above
referred vehicles.
13. I would like to mention that in the case of Rame Gowda cited
supra by the plaintiff, Hon'ble Apex Court referred observations in the
case of Puran Singh in relation to settled possession wherein it is laid
down that, “the settled possession must be (i) effective, (ii)
undisturbed, (iii) to the knowledge of the owner or without any attempt
at concealment by the trespasser.” Following test was laid down for
determining attributes of settled possession:
(i) That trespasser must be in actual physical possession of the
property over sufficiently long period.
(ii) That the possession must be to the knowledge either (express or
implied) of the owner or without any attempt at the
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concealment by the trespasser and which contains an elements
animuspossidendi. The nature of possession of the trespasser
would, however, be a matter to be decided on the facts and
circumstances of each case.
(iii) The process of dispossession of true owner by the trespasser
must be complete and final and must be acquiesced to by the
true owner and
(iv) That one of the usual tests to determine the quality of settled
possession, in the case of cultivable land would be whether or
not the trespasser after having taken possession, had grown any
crop. If, the crop had been grown by the trespasser, then even
true owner has no right to destroy the crop grown by the
trespasser and take forcible possession.
In present case from the materials placed on record
prima facie it cannot be said that plaintiff has satisfied the test for the
claim of settled possession over the said land.
14. Learned advocate for plaintiff has drawn my attention to the
admission of defendants in reply that electricity meter was taken on the
pretext of installing CCTV to collect evidence and later on, electricity
department disconnected the electricity. But merely by this stray
admission it cannot be prima facie said that plaintiff is in settled
possession of the land which is described by the four side boundaries in
para 1 of plaint. Learned advocate for plaintiff has also drawn attention
to the complaint of defendant No.1 dated 18.09.2017 to show that he
made allegations that 15 to 16 persons had entered into his land and
removed the board installed by him over the land of survey No.161/1,
Dargha Road, Duke line, Bhandup, Khindipada. It is pertinent to note
that that allegation relates to land of Survey No.161/1 while plaintiff is
claiming right over land of survey No.160/1. So, recitals in complaint of
defendant No.1 in that respect is not of much assistance to the plaintiff.
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15. I would like to point out that plaintiff has come with the case
that he has acquired right, title in relation to open plot of land
admeasuring 15 x 60 square feet of land bearing survey No.160/1,
situate at Dargah Road, Khindipada, Bhandup (West), Taluka Kurla,
Mumbai78 which is bounded towards east by Dargah Road, west by
Sunshine Company wall compound, north by Gala of M/s. Makaiee
Enterprises and south by Gala of Nitin Agarwal. In rejoinder to the reply
of defendants, plaintiff contended that land bearing survey No.161/B is
in the name of M/s. Sunshine Enterprises Limited. Even certified copy
of 7 x 12 extract of survey No.161/B shows that said land stands in the
name of M/s. Sun and Shine Entertainers Private Limited. It is
pertinent to note that as per description given by the plaintiff as pointed
above boundary wall of Sunshine Company is towards West of the suit
land bearing No.160/1. I have perused the copy of map. It is clear that
said map is issued by City Survey Office pertaining to Survey No.161/A,
B, C of Bhandup along with surrounding survey numbers. It is clear that
city survey No.161/A is to the southwest of City Survey No.160, while
city survey No.161/B is to the southwest of city survey No.161/A. Thus,
in between city survey No.160 and city survey No.161/B there is land of
city survey No.161/A. Admittedly, land of city survey No.161/B belongs
to Sunshine company while land of city survey No.161/A stands in the
name of Atul Ohal and others. The plaintiff claimed that he has
acquired 900 square feet land of city survey No.160/1 but the
description of the said land given in the plaint and copy of agreement
for sale relied by plaintiff particularly of west side boundary does not
match with the description of property i.e survey no. 160 given in the
city survey map read with relevant 7 x 12 extracts. Thus, prima facie it
is clear that boundaries of survey no.160/1 given in the plaint and
agreement does not tally with city survey map and it also shows that
plaintiff has not come with clean hands. It is pertinent to note that
defendants also have claimed his possession over the open land
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adjoining to the wall of M/s. Sun Shine Private Limited. Thus, it seems
that parties are making rival claims relating to possession over land
adjoining to the wall of M/s. Sun Shine Company. However, they have
mentioned different survey numbers relating to same land. As per
plaintiff it is survey No.160/1 while defendants claimed that it is 161/1.
But as pointed earlier description given by the plaintiff relating to land
of survey No.160/1 claimed to have acquired by him particularly of
west side is not inconsonance with city survey map and there is no wall
of Sun Shine Company adjacent to said land of city survey No.160/1.
On the contrary as pointed above there is land of city survey No.161/A
in between land of which plaintiff claimed to have acquired right and
land of Sun Shine Company. Prima facie land as per S. No. 160/1 is
different from land described by its boundaries in plaint and agreement.
That being so, contention of plaintiff prima facie does not inspire
confidence.
16. Plaintiff has filed copy of complaint dated 13.09.2017 lodged by
one Atul Ohal alleged vendor of plaintiff to show that owner of said
land has mentioned that he has not created any right in favour of
defendant No.1 or any other person and he has not handed over
possession of said plot to Abdul Aziz Khan but plaintiff has not filed
affidavit of said Atul Ohal. Defendants have filed copy of agreement for
lease dated 27.03.1994 to show that Atul Ohal has leased out 750
square feet land out of survey No.161/1 of village Bhandup Taluka
Kurla to defendant No.2. More so, defendants have also filed copy of
pitch card on record to show that defendant No.1 is shown owner of
1500 square feet of land of survey No.161/1 near Shiv Shambho
Temple, Dargah road, Duke Line, Khindipada, Bhandup. They have also
filed documents i.e. copy of reports of different dates to show that
interference has been caused to their possession over the land of survey
No.161/1 on different dates. They have also filed copy of report to show
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that incident of fire which caused burning of wood scraps lying on the
said land had taken place in the year 2013. They have also annexed
copy of receipt in respect of payment made towards demolition charges
by defendant No.1 and it is clear from the copy of register pertaining to
demolition issued under RTI that said demolition had taken place on
land of survey No.161/1. Thus, prima facie possession of defendants
over land of survey No.161/1 is apparent.
17. In report dated 13.09.2017 of Atul Ohal has mentioned that he
has sold two separate parts of open plot of land admeasuring area about
15 x 60 square feet each and both situate on land bearing survey
No.160/1 at Bhandup, Taluka Kurla and bounded towards east by
Dargah Road, west by wall compound of Sunshine company, north by
Gala of M/s. Makaiee enterprises and south by Gala of Nitin Agarwal. If
both the plots are adjoining and alleged to have been sold on same date
then how could be four side boundaries of the two separate parts would
be same. Certainly, one side would be bounded by part of another
purchaser. Above description also casts shadow over the contention of
the plaintiff and it can be said that plaintiff has not come with clean
hands.
18. As per the story of plaintiff he has taken electricity connection at
the suit land and further, CCTV cameras were installed at the site of suit
land. He further contended that on 30.08.2018, midnight some
unknown people have damaged CCTV camera and also stolen electricity
meters which are installed at suit land and he has lodged complaint in
that respect on 31.08.2018. Copy of complaint dated 31.08.2018 also
shows that two meters, one in the name of plaintiff and another in the
name of Rajesh S. Thakur were stolen from the suit land. Said report
was lodged on 31.08.2018. Plaintiff has produced on record copy of
electricity bill dated 09.09.2018 which shows that reading was recorded
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on 04.09.2018. Had the meter was stolen from the land of survey
No.160/1 then how reading was recorded on 04.09.2018. Plaintiff has
not come with the case that after 31.08.2018 new meter has been
installed with same consumer number at the land of survey No.160/1.
Further plaintiff has not produced CCTV footage of relevant period in
support of his contention. Thus, above facts also put cloud over the
story of the plaintiff and it also indicate prima facie that plaintiff has
suppressed material facts. In the facts of matter, I am of the view that
when plaintiff has not come with clean hands and he has suppressed
material facts then authorities cited supra by him are not of assistance
to him to claim equitable relief of injunction. In light of discussion made
above I hold that plaintiff has failed to prove prima facie case, that
balance of convenience lies in his favour and he will suffer irreparable
loss if relief sought is refused. Hence, I answer point Nos.1 to 3 in
negative.
19. In view of my answer to point Nos.1 to 3 in negative; question
of giving direction to Senior Inspector of Police, Bhandup Police Station
to provide necessary police protection to plaintiff as and when required,
does not arise. Hence, I answer point No.4 as does not survive.
In light of discussion made above notice of motion deserves to
be dismissed. Hence, pass following order.
ORDER
Notice of Motion No.321 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 10.12.2019 Gr. Bombay
Typed on : 10.12.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12.12.2019
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
10.12.2019
JUDGMENT/ORDER signed by P.O.
on
11.12.2019
JUDGMENT/ORDER uploaded on 12.12.2019
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