Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.39818 in SU 362208
CNR No. MHCC010015802018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.398 OF 2018
IN
SUIT NO.3622 OF 2008
(HIGH COURT SUIT NO.1040 OF 2008)
Babibai Moreshwar Patil & Ors. ...Applicants / Org. Plaintiffs.
V/s.
M/s. Om Enterprises & Ors. ..Respondents/Org. Defendants.
Appearances:
Ld. Adv P.D. Gandhi for the applicants / org. plaintiffs.
Ld. Adv Samant for respondents /org. defendant nos.1, 3 & 4.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 01st DECEMBER, 2018
ORDER
1. This is notice of motion taken by the applicants / plaintiffs for
temporary injunction restraining the defendants, their agents, servants
or any other person acting on their behalf from illegally entering and
disturbing the possession of the applicants /plaintiffs by illegally
trespassing in the suit property.
2. Plaintiffs Power of Power Ranchod Pandya filed affidavit in
support of notice of motion. His contention is that defendants
/respondents are illegally obtained an order dated 31.01.2017 from the
Ld. Divisional Commissioner, Konkan Division, thereby bringing their
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names on the 7/12 extract of the suit property. It is pertinent to note
that the said order dated 31.01.2017 of the Divisional Commissioner
was passed solely on the basis of dismissal of the suit which has now
been restored. It further contended that respondents have illegally
without having any right, title and interest in the suit property brought
their names on the 7/12 extract and on the basis of the said 7/12
extract the respondents are harassing the applicants continuously by
illegally entering upon or trespassing into the suit property alongwith
local goons to threaten the applicants. It is pertinent to note that suit
property is in his possession and he is running business of renting the
suit property for marriages and other functions. He had made police
complaint dated 20.09.2017, a letter dated 05.10.2017, also by a letter
dated 16.12.2017 brought the above facts to the notice of the Senior
Police Inspector of the police station at MHB Police Station, Link Road
Borivali (West), Mumbai, also to the Commissioner of Police at
Crawford Market, Mumbai, the Additional Commissioner of Police at
Thakur Village, Kandivali East, Mumbai and the Deputy Commissioner
at Dahisar East, Mumbai. However, no action has been taken by the
Police Department, on the contrary the respondents have through their
influential approach succeeded in provoking the police department
against the applicants /plaintiffs. It further contended that photographs
of hoardings and boards in respect of his business carried out on the
suit property by him and also all the covered G.I. sheet wall fence
boundaries of the suit property which clearly shows that he is in
possession of the suit property. There is electricity connection taken on
the suit property which is standing in his name since several years,
thereby confirming that he is in possession of the suit property. Despite
of the above facts on 17.11.2017, the respondents have with the help of
local goons tried to trespass in the suit property and on refusal of the
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watchmen and security guards to open the gate of the suit property, the
respondents adhered to forceful criminal trespass by climbing the closed
gate and on defensive step taken by the watchmen and security guards
the respondent went back from the suit property. It further contended
that it is pertinent to note that the respondents have also adhered to
illegal criminal acts not simply by entering into the suit property but
also the respondent nos.3 and 4 have forcefully destroyed the cameras
installed in the suit property by the applicants. Plaintiffs have taken the
video CD of the CCTV footages confirming the above illegal and
criminal acts of the respondents thereby clearly showing the illegal
trespass and destructing of CCTV camera installed in the suit property.
In view of the above facts and circumstances, the applicants / plaintiffs
stated that it is in the interest of justice and equity that pending the
hearing and final disposal of the suit, the respondents, their agents,
servants or any other person acting on their behalf be restrained from
entering upon the suit property thereby disturbing the possession of the
applicants in respect of the suit property. It further contended that
unless the reliefs as prayed are not granted, applicants will suffer grave
and irreparable loss, harm and injury which cannot be compensated in
terms of money. On the contrary, no prejudice will be caused to the
respondents if the injunction is allowed and respondents will not suffer
any irreparable loss, harm and injury. The balance of convenience is in
favour of the applicants.
3. The Power of Attorney of plaintiffs also filed additional affidavit
in support of notice of motion. His contention is that he had put on
record the photographs of hoardings and boarding in respect of his
business carried out the suit property by him and also all the covered
G.I. Sheet wall fenced boundaries of the suit property which clearly
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shows that he is in possession of the suit property. His further
contention is that he had also hired a security agency viz Sandeep
Protection Service (SPS) for protecting the suit property from
trespassers, thieves other illegal alienating factors. The said agency
plotted their security guards for 24 hours shift basis of 8 hours. The
digital photographs showing presence of the security guards of the said
security agency, on the suit property so as to protect the suit property
from illegal trespass, theft and alienation. It further contended that
despite of the above facts confirming his ownership, possession,
occupation and use of the suit property the defendant no.3 with the
help of local goon and have take law into their own hands by trying to
illegally enter upon or illegally trespassing the suit premises thereby
disturbing his use, occupation and possession of the suit possession.
Recently on 12.02.2018, the youngest brother of defendant nos.3 and 4
once again tried to enter into the suit property so as to disturb his
possession, when he in his individual capacity alongwith his security
guards restrained him from entering upon the suit property. After
rigorous and painful efforts, he succeeded to stop or restrict them from
entering upon the suit property of which the digital photographs are
produced on record. It further contended that whenever he undertake
marriages or other functions contracts, the defendant nos.3 and 4 with
the help of local goons disturbs and spoils the whole function, thereby
further causing monetary loss and injury to his reputation so, due to the
above facts, he is unable to undertake any contracts of marriage and
other functions and have already suffered great loss in terms of money
and reputation. If the said alleged acts on the part of defendant nos.3
and 4 continues further then there are possibilities that his business
may collapse due to which he may become bankrupt and his family will
also have to bear the consequences of the same.
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4. Defendant nos.1, 3 and 4 have filed reply for limited purpose for
opposing adinterim relief. Their contention is that as per the directions
of the Hon'ble Bombay High Court dated 08.12.2017 in Appeal From
Order no.527 of 2015, the Hon'ble Bombay High court has restored the
original suit and directed to decide the entire suit on or before
31.12.2018. Inspite of direction for expedite hearing, the present notice
of motion has been moved to delay the hearing of main suit by way of
misrepresentation and suppression of material facts from the Hon'ble
Court.
5. Defendants further contention is that Power of Attorney Holder of
plaintiffs is trying to secure his alleged personal rights in respect of suit
property from present suit. The Hon'ble court has already rejected the
Chamber Summons No.97 of 2012 of plaintiffs for adding Power of
Attorney Mr. Ranchod Pandya, as party to present suit. The said Power
of Attorney is well aware of that order and inspite of that he has moved
the present notice of motion to secure his allege rights, which are not
subject matter of the present suit. The said Power of Attorney of
plaintiffs has filed separate chamber summons for replacing the
plaintiffs with himself and other purpose amendment in plaint.. This
conduct of the Power of Attorney Holder itself falsify his claim in
present notice of motion and shows his illegal intention. Defendant
further contention is that since the date of filing of the suit before
Hon'ble High Court, till today the Hon'ble High Court has not granted
any interim or adinterim protection to the plaintiffs and therefore, no
urgency to grant any injunction in favour of plaintiffs. The plaintiffs
Power of Attorney cannot use this proceedings to protect his alleged
rights which are admittedly subsequent to the rights of these defendants
through Registered Deed of Conveyance dated 05.06.2007. It further
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contended that admittedly the present 7/12 extract of suit properly is
upon the defendants and that prima facie proves that the defendants
are owners and in occupation of the suit property by virtue of Deed of
Conveyance dated 05.06.2007 and mutation entry no.5423. It further
contended that by virtue of agreement dated 09.03.1989, these
defendants are in vacant and peaceful possession of suit property, which
was subsequently confirmed in Deed of Conveyance dated 05.06.2007.
Defendants are conducting their business of allowing customer to
conduct their small functions upon suit property. With this, defendants
prayed for dismissal of notice of motion.
6. Thereafter, again defendant nos.1, 3 and 4 have filed additional
affidavit in reply on 26.02.2018 and raised similar contentions. It
further contended that from the plaintiffs own documents attached to
the plaint itself proves that defendants have been in occupation and
possession of the suit property since 22.03.1985 and thereafter, the
plaintiffs themselves have attached first agreement of 22.03.1985
executed by the plaintiffs in favour of defendant no.2 in respect of suit
property for consideration, where the plaintiffs have handed the vacant
and peaceful possession of suit property to the defendant no.2 for the
purpose of development. The defendants reproduced relevant clause of
said agreement.
7. Defendants further contention is that in support of reply Article of
Agreement dated 09.03.1989, the plaintiffs have also executed
development Power of Attorney dated 09.03.1989 in favour of these
defendants in respect of the suit property and thereby allowed the
defendants to develop the suit property. Defendants further contention
is that by virtue of above referred agreements and power of attorney
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relied by the plaintiffs itself proves that these defendants are in
possession and occupation of the suit property since 22.03.1985 by
defendant no.2 and since 09.03.1989 by all the defendants. It further
contended that plaintiffs have relied false and fabricated documents i.e.,
Deed of Cancellation dated 29.03.1994 purportedly signed by plaintiff
no.1 and defendant nos.2 and 3 for cancellation of previous
agreements. They never executed such types of agreement with
plaintiff no.1. It further contended without admitting the contents and
execution of said Deed of Cancellation, there is no reference of or terms
for handing back the vacant possession of the suit property to plaintiffs
and therefore, prima facie claim of plaintiffs in respect of their alleged
possession is false and frivolous. It further contended that defendants
have published paper notice dated 22.12.2004 through their Advocate
in new paper i.e., Navshakti regarding their rights in suit property and
no claim or objections were received to said notice from the plaintiffs. It
further contended that photographs and CCTV Camera recording relied
by the plaintiffs in their two affidavits in support of notice of present
motion are not of suit property and he denied the correctness of
contents of said photographs. It further contended that suit property is
in their possession and in support of them they are relying upon old as
well as new photographs of the suit property showing that they are in
actual occupation and possession. It further contended that they have
already put their notice board upon suit property, which is covered by
them by AC metal sheet. Defendants denied incidents narrated by
Power of Attorney in respect of incident dated 20.09.2017, 17.11.2017
and 12.02.2018 in his affidavits are false and frivolous, as they are in
possession so, no question of disturbing the possession of the plaintiffs.
It further contended that electricity bill relied by plaintiffs itself proves
that bill is not document of ownership and possession over the property.
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It further contended that Ranchod Pandya is owner of adjoining
property i.e., CTS No.1754 i.e., Survey no.66/11 of Village Eksar and
therefore, he is taking undue advantage of his position and trying to
take possession of the suit property. It further contended that Ranchod
Pandya is obstructing them to enter upon their suit property and
therefore, they have filed NC No.2901 dated 28.11.2017 and police
complaints dated 30.11.2017 against Ranchod Pandya with MHB police
station. It further contended that plaintiff has not approached the
Hon'ble Court with clean hand and suppressed the material facts from
the Court. The plaintiffs have no prima facie case. It further contended
that if the injunction as sought is granted, then these defendants shall
suffer more harm and injury than the plaintiffs, but if injunction is
refused then plaintiffs shall not suffer any injury or loss. With this,
prayed for dismissal of notice of motion.
8. I have heard both the parties.
9. Advocate for plaintiffs submitted that admittedly plaintiff nos.1 to
5 are legal heirs of Moreshwar Ganpat Patil, who was the absolute
owner of the piece and parcel of agricultural land bearing Survey
No.65, Hissa No.9, CTS No.1758, Area 1990.3 sq meters lying and
situated at Village Eksar, Taluka Borivali. After death of Moreshwar
Patil, plaintiff nos.1 to 5 succeeded property and their names were
included in 7/12 extract as a owners vide Mutation Entry no.4245.
10. Advocate for plaintiffs further submitted that Rajaram
Ramchandra Parulekar gave cash of Rs.15,430/ and cheque of
Rs.15,340/ in the name of plaintiff no.1 drawn on Saraswat Co
operative Bank, Borivali West on 21.03.1985. Then for security of loan
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on 22.03.1985 Babibai Moreshwar Patil and five others have executed
Unregistered Sale Agreement in favour of Rajaram Ramchandra
Parulekar and on the same day executed Unregistered Power of
Attorney to Rajaram Ramchandra Parulekar who is defendant no.2.
Advocate for plaintiffs further submitted that as per Unregistered Sale
Agreement dated 22.03.1985 amount of Rs.30,681/ was paid as
earnest money. On 16.08.1988 amount of Rs.5,000/ paid to Smt.
Babibai Moreshwar Patil and Rajendra Moreshwar patil by defendant
no.2 Rajarama Ramchandra Parulekar. On 21.10.1988 undertaking by
Smt. Babibai Moreshwar Patil and Rajendra Moreshwar Patil stating
that they have sold the land bearing Survey no.65, Hissa no.9 to
defendant no.2 Rajaram Ramchandra Parulekar. Advocate for plaintiffs
further submitted that further to create finance Rajaram Parulekar
entered into Partnership Deed with Pratap T. Surve, Sharad T. Surve,
Sharda Ankush Surve and Tukaram Ramchandra Surve on 16.02.1989.
Thereafter, on 09.03.1989 Unregistered General Power of Attorney
executed by Smt. Babibai Moreshwar Patil and five others to defendant
no.2 Rajendra Ramchandra Parulekar. 14 receipts issued on behalf of
plaintiffs as payment consideration amount of suit in between
09.03.1989 to 05.10.1993. There was Unregistered Articles of
Agreement dated 09.03.1989 executed between Smt. Babibai
Moreshwar Patil and others and M/s.Om Enterprises i.e., defendant
no.1. Advocate for plaintiffs further submitted that M/s. Om
Enterprises could not raise the evidence as land is No Development
Zone, it was decided to cancel agreement dated 22.03.1985 and
09.03.1989 alongwith Power of Attorney in between Babibai
Moreshwar Patil and others with M/s. Om Enterprises and Rajendra
Moreshwar Patil have repaid an amount of Rs.2,50,000/ to M/s. Om
Enterprises and executed Unregistered Deed of Cancellation on
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29.03.1994. Thereafter, Rajendra Moreshwar Patil wrote a letter to
Rajaram Parulekar asking him to return the original Agreement and
Power of Attorney as the said documents have been cancelled vide Deed
of Cancellation dated 29.03.1994 so, agreement executed in favour of
Rajaram Parulekar and M/s. Om Enterprises were cancelled and
property remained with plaintiff as a owner. Advocate for plaintiffs
further submitted that there is no any document to show that on the
basis of agreement dated 22.03.1985 and 09.03.1989 Rajaram
Parulekar or M/s. Om Enterprises have done any act of development of
property. Their names were not recorded in 7/12 extract or anywhere.
Advocate for plaintiffs further submitted that since 29.03.1994
defendants have not raised any objection in respect of Deed of
Cancellation dated 29.03.1994 so, plaintiff nos.1 to 5 enjoyed and in
possession of suit property. Advocate for plaintiffs further submitted
that plaintiff Babibai Moreshwar Patil issued public notice for
cancellation of the Power of Attorney. She also issued notice through
Advocate on 07.12.2004 in respect of suit property calling objection,
that notice was replied by Advocate Narayan G. Samant on behalf of
defendants stating that the Agreement dated 09.03.1989 is valid. The
plaintiffs reply to letter of Advocate Narayan G. Samant stating that
agreement dated 09.03.1989 was cancelled pursuance to the agreement
dated 29.03.1994 and also informed that Power of Attorney are duly
cancelled. Thereafter, Advocate for plaintiffs made a complaint to
police station on 04.02.2005 against unknown person by complainant
that plaintiffs are owners and unknown person obstructing plaintiffs
possession by criminal trespass. Advocate for plaintiffs further
submitted that on 11.12.2006 received DP remarks vide
No.CHE/927/DPWS/R indicating that the said property is in No
Development Zone. Advocate for plaintiffs further submitted that
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Rajaram Parulekar filed false affidavit that Agreement and Power of
Attoreny is vaild and on the same day, purported Deed of Conveyance
fraudulently executed by the defendants in their own favour on the
basis of cancelled Power of Attorney bearing Registration
no.BDR/12/4376/2007 by Smt. Babibai Moreshwar Patil and five
others to Pratap Tukaram Surve, Prasad Tukaram Surve, Rajaram
Ramchandra , then, plaintiffs made inquiry and came to know that
defendants themselves deposited an amount in the account of Rajendra
Moreshwar Patil to show that defendants have made payment to
plaintiffs. However, the plaintiffs Rajendra Moreshwar Patil raised
objection about deposited cheque amount and remitted the said amount
back to defendants. Then, on 29.10.2007 legal notice by S.R. Mishra on
behalf of plaintiff to Rajaram Parulekar and others and M/s. Om
Enterprises. Advocate for plaintiffs further submitted that as the
plaintiffs came to know that defendants on the basis of cancelled Power
of Attorney got executed Deed of Conveyance dated 05.06.2007 in their
favour, the plaintiffs immediately filed suit to revoke the Deed of
Conveyance dated 05.06.2007 as null and void. Advocate for plaintiffs
further submitted that thereafter, the plaintiffs by registered Deed of
Conveyance bearing registration no.BDR/12/4376/2007 by Smt.
Babibai Moreshwar Patil and others to Ranchod Pandya registered in
the office of Sub Regisrar, Borivali by giving cheque of Rs.21 lakhs in
favour of Babibai Moreshwar Patil and cheq of Rs.30 lakhs in favour
Rajendra patil. Then, Power of Attorney of Babibai Moreshwar Patil
and others in favour Ranchod Pandya was executed on 27.10.2009.
Advocate for plaintiffs further submitted that plaintiffs and their Power
of Attorney Ranchod Pandya is in possession of suit property. Plaintiffs
have taken chamber summons for adding Ranchod Pandya as a
defendant, which came to be rejected. After restoration of suit,
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Ranchod Pandya has taken chamber summons for adding him as a
plaintiff and accordingly, he added as plaintiff no.6. Legal heirs of
defendant no.2 are brought on record. Advocate for plaintiffs further
submitted that legal heirs of defendant no.2 have executed confirmation
of cancellation of agreement in favour of Ranchod Pandya being
constituted attorney of plaintiff and had confirmed that plaintiff by
virtue of Deed of Cancellation dated 29.03.1994 cancelled the
agreement dated 22.03.1985 and 09.03.1989. Advocate for plaintiffs
further submitted that plaintiffs Power of Attorney Ranchod Pandya i.e.,
plaintiff no.6 is in possession of property on behalf of himself and
plaintiffs. Advocate for plaintiffs further submitted that after execution
of Deed of Conveyance in favour of Power of Attorney Ranchod Pandya,
he has taken electricity bill in the suit property and electricity bill is
produced on record. It shows that prior to filing this present notice of
motion, plaintiff Ranchod Pandya is in possession of property. Advocate
for plaintiffs further submitted that defendants obstructing possession of
plaintiffs as well as Ranchod Pandya so, police complaint is made on
21.05.2017 and one letter dated 05.10.2017 to police station. Advocate
Sanjay S. Mishra gave written complaint on behalf of Ranchod Pandya
dated 16.12.2017 in police station. He further submitted that plaintiffs
have produced photographs to show that defendant nos.1, 3 and 4 are
trying to trespass by climbing fencing wall. He further submitted that
plaintiff Ranchod Pandya using the suit property for marriage party and
keeping his articles by closed it by G.I.Sheet. He further submitted that
17.02.2018 defendants tried to illegal trespass and made attempt to
enter in suit property so, the plaintiffs have taken photographs.
Ranchod Pandya has installed camera in which clearly shows that
defendants making attempt to enter into property and to disturb the
possession of plaintiff. He further submitted that there is no single
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document produced by defendants to show their possession and for
what purpose they are using. Admittedly, plaintiff has sufficient
evidence to show that the plaintiffs and their Power of Attorney is in his
possession of property. He further submitted that plaintiffs have
produced CCTV footage and its photographs to show that the plaintiffs
are in possession of suit property given for marriage purpose. The
plaintiff no.6 stored articles. The plaintiff no.6 also put CCTV cameras
of which the defendant broken. He further submitted that as the
defendants disturbing or obstructing plaintiff's possession, plaintiff no.6
has engaged security guards and security guards are provided to secure
the property. He further submitted that prima facie i.e., plaintiff's
Power of Attorney Ranchod Pandya is in possession of property and the
defendants are obstructing possession. He further submitted that if the
defendants obstructing or making such illegal act to disturb possession
of plaintiff, it will cause loss to plaintiff which cannot be compensated
in terms of money therefore, he prayed for interim injunction.
11. Advocate for defendants submitted that admittedly, plaintiff nos.1
to 5 have executed agreements dated 22.03.1985 and 09.03.1989 in
favour of defendants and if those agreements are perused, it is clearly
mentioned in the documents that the plaintiffs handed over possession
to defendants. He further submitted that according to defendants, both
agreement to sale were cancelled on 29.03.1994 but he nowhere it
mentioned alleged Deed of Cancellation possession was returned to
plaintiff so, plaintiff cannot claim possession. He further submitted that
Deed of Conveyance dated 05.06.2007 plaintiff confirmed possession of
defendants. He further submitted that in this present case, it seems that
Ranchod Pandya Power of Attorney of plaintiff by registered Deed of
Conveyance dated 26.10.2009 then, plaintiff nos.1 to 5 are not in
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possession of property. He further submitted that Ranchod Pandya who
is added as a plaintiff no.6 is not amended plaint and pleaded that he is
in possession of suit property on the basis of registered Deed of
Conveyance dated 26.10.2009. That registered Deed of Conveyance
was executed after filing of the suit so, there is no pleading in plaint
about possession of Ranchod Pandya so, he cannot get injunction. He
further submitted that notice of motion is not for plaintiff nos.1 to 5 but
it is for Ranchod Pandya so, it can be said that to grab the possession,
he has taken notice of motion. He further submitted that the
defendants name is recorded in 7/12 extract as per Deed of Conveyance
dated 05.06.2007 which is earlier in time. He further submitted that it
is well settled presumption that entry in 7/12 extract are true and
correct and defendants are in possession. He further submitted that
plaintiff by taking disadvantage of last page agreement to sale dated
09.03.1989 prepared, Deed of Cancellation which clearly seems that
page no.1 of Deed of Cancellation is of different type writing and page
no3 is of different typewriting. He further submitted that Power of
Attorney was given by plaintiff in favour of defendants and it nowhere
cancelled so, on that basis defendants executed Deed of Conveyance in
2007 in their favour which is legal and valid. He further submitted that
the plaintiffs prepared the documents like police complaint,
photographs only to create evidence. He further submitted that
Ranchod Pandya is having other property adjacent to suit property so,
electricity connection is in the property of Ranchod Pandya and not in
suit property. He further submitted that defendants are in possession of
property and if interim injunction issued against them then, it will cause
irreparable loss to them and they will dispossess therefore, notice of
motion be rejected.
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12. I have gone through pleadings of both the parties. It is an
admitted fact that plaintiffs have executed agreement dated 22.03.1985
in favour of defendant no.2 Rajaram Parulekat for sale of suit property
and executed power of attorney. Thereafter, again on 09.03.1989
plaintiffs have executed agreement in favour of M/s. Om Enterprises, of
which defendants were partner. The agreement was executed for
development of property. It is fact that plaintiff again executed General
Power of Attorney dated 08.03.1989 in favour of Om Enterprises and its
partner. After perusal of both these agreements, it mentioned that
plaintiffs have handed over vacant and peaceful possession of the suit
property in favour of defendants. However, there is no any document
to show after execution of these two agreements, the defendants have
taken any steps for development of property and they were in
possession of property so, mere recitals in agreement about handing
over possession is not sufficient to prove possession of defendants. The
plaintiffs have produced unregistered Deed of Cancellation in between
M/s. Om Enterprises and plaintiffs in which M/s. Om Enterprises
cancelled the agreement dated 22.03.1985 and 09.03.1989 alongwith
Power of Attorney due to lack of fund available for development and
plaintiffs have repaid an amount of Rs.2,50,000/ to M/s. Om
Enterprises. At this stage, it cannot be decided whether Deed of
Cancellation is fraudulently obtained with the help of page no.2 of
agreement dated 09.03.1989 so, prima facie shows by Deed of
Cancellation dated 29.03.1994 defendants have cancelled agreement
dated 22.03.1985 and 09.03.1989 and cancelled the agreement. From
the record, it shows that Deed of Cancellation dated 29.03.1994 till
impugned registered Deed of Conveyance dated 05.06.2007, the
defendant have not produced any document to show their possession.
The plaintiffs have challenged Deed of Conveyance dated 05.06.2007 in
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between plaintiffs and defendants which is alleged to be executed by
Rajaram Parulekar, Pratap T. Surve and Sharad T. Surve being Power of
Attorney holder of plaintiffs in favour of Pratap Surve, Sharad Surve
and Rajaram Parulekar so, question is to be decided whether after
cancellation of Power of Attorney holder and specifically alleged power
of attorney holder of plaintiff can execute Deed of Conveyance in favour
of Power of Attorney holder as a purchaser so, it prima facie shows
Deed of Conveyance dated 05.06.2007 is illegally executed and it will
cause injury to plaintiffs right, so, the plaintiffs have filed present suit
for challenging Deed of Conveyance dated 05.06.2007. It is seen from
the Deed of Cancellation not mentioned about return of possession.
However, only that cannot give the right to defendants to claim
possession as defendants have not produced any single document to
show their possession from the date of agreement of 1985 till date of
cancellation. Plaintiffs have produced document to show that the suit
property is not having access and it is in No Development Zone so,
possibility cannot be ruled out, even though to agreement to sale was
executed and it mentioned that possession was handed over to
defendants but infact possession was not handed over to defendants so,
it is difficult for defendants to produce document to show their
possession.
13. That, plaintiff's Power of Attorney Ranchod Pandya purchased
suit property from plaintiff during pendency of suit on 26.10.2009.
Thereafter, he applied electricity connection in suit property and had
taken electricity connection. He used suit property alongwith his other
property for marriage purpose. He had put G.I.Sheet as a compound as
a suit property. He also produced photographs to show that he engaged
security guards to protect his property. He also put CCTV cameras. The
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plaintiff has produced CCTV footage vide Exh.C and Exh.D to show that
the defendants entering in the suit property and trespassing and that
time plaintiff no.6 resisted entry of defendants and removed them from
suit property. It also shows that the defendants broken CCTV cameras,
plaintiffs produced CCTV footage to show that plaintiffs are in
possession. In 2017 Ranchod Pandya making complaint to police
station that the defendants sending goons and obstructing his
possession and claiming their rights so, it clearly shows on the date of
claiming their rights so, it clearly shows on the date of filing this notice
of motion plaintiff's Power of Attorney Ranchod Pandya who is
subsequently joined as plaintiff no.6 who is in possession of suit
property therefore, prima facie it shows that plaintiffs are in possession
of suit property and defendants are obstructing their possession by
making criminal trespass so, if the defendants disturbing the possession
it will cause irreparable loss to the plaintiffs so, balance of convenience
lies in favour of plaintiff therefore, I find that plaintiffs are entitled to
get temporary injunction as prayed for. I find that plaintiffs have taken
Chamber summons for adding Ranchod Pandya as a defendant prior to
dismissal of suit which was rejected. Thereafter, Ranchod Pandya
himself has taken chamber summons to add him as a plaintiff as
plaintiffs have assigned their rights in favour of him and said chamber
summons was allowed and he be brought on record as a plaintiff so, he
has right to protect his possession for himself as well as for other
plaintiffs.
14. Adinterim injunction was granted on 14.02.2018 which is still in
existence today. I have seen CCTV footage produced by the plaintiffs
and it shows that defendants forcibly entering into property and
destroying CCTV cameras so, it clearly shows that defendants are
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disturbing the possession of plaintiff. Therefore, I find that plaintiff
proved prima facie case, balance of convenience lies in his favour.
Plaintiff would cause irreparable loss. Accordingly, I proceed to pass the
following order :
O R D E R
1. Notice of Motion No.398 of 2018 is allowed.
2. Defendant nos.1, 3 and 4 are hereby restraining the defendants,
their agents, servants or any other person acting on their behalf from
illegally entering and disturbing the possession of the applicants
/plaintiffs by illegally trespassing in the suit property.
3. Parties to bear their own cost.
4. Notice of Motion No.398 of 2018 stands disposed of accordingly.
( KALPANA S. HORE )
Judge,
Dated : 01/12/2018 City Civil Court, Gr. MUMBAI
Dictated on : 01/12/2018
Transcribed on : 03/12/2018
Signed on : 03/12/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
05.12.2018 3.01 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
01.12.2018
JUDGEMENT /ORDER signed by
P.O. on
03.12.2018
JUDGEMENT /ORDER uploaded
on
05.12.2018
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