Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2403 OF 2018
(CNR NO.MHCC010077562018)
IN
OLD S.C. SUIT NO.1331 OF 2018
AND
NEW S.C. SUIT NO. 837 OF 2020
1. MRS. RITA ANAND CHAUHAN ]
Aged 64 years, Occupation: Business ]
1. MRS. MEENUM MOHAN SINGH ]
Aged 62 years, Occupation: Business ]
Both of Mumbai, Indian Inhabitants, ]
Residing at Plot No.96A, 15 th Road, ]
Bandra (West), Mumbai 400 050. ].. Plaintiff.
V/s.
1. BOMBAY THIRUVALLUVAR ]
MANDRAM A Trust incorporated ]
and registered under the Bombay ]
Public Trust Act and also registered ]
under the Society's Registration ]
Act, 1960 having its office at Village ]
Road, Bhandup (West), ]
Mumbai – 400 078. ]
2. C.V. RAMAN ]
Calico Mills, Anik, Chembur ]
Mumbai 400 074 (A.S.) ]
3. V. DEVADASS ]
Vijay Niwas, J.M. Road, Bhandup(W)]
Mumbai 400 078. ]
4. CHARLIC LIAN ]
13/B, Margret House, Antop Hill, ]
Wadala, Mumbai 400 037. ]
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5. N. BALKRISHNAN ]
Agarwal Niwas, Telang Road, ]
Matunga, Mumbai 400 019. ]
6. T. KRISHNA PILLAI, ]
C/3, Jeevan Prakash, Bhatti Pada ]
Cross Road, Bhandup (West), ]
Mumbai 400 078. ]
7. K. NATARAJAN ]
1A/3 G.K.W. Staff Quarters, ]
Bhandujp (West), Mumbai400078. ]..Defendants.
Advocate Mr. P.D. Gandhy for the plaintiffs.
Advocate Mr. Murudkar for Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 13th OCTOBER 2021
ORDER
The Notice of Motion is taken out by the plaintiffs for
restraining the defendants by the order of temporary injunction from
carrying out any excavation work on the suit property and from letting
out or giving out for marriage or any other commercial functions to
derive commercial benefit any part or portion of the suit property.
2. The case of plaintiff in short is as under: –
Plaintiff No. 1 is the owner of land bearing plot No. 1
admeasuring about 1050 m² and plaintiff No. 2 is the owner of land
bearing plot No. 2 admeasuring about 1035 m² and more specified as
Survey No. 46 (Part) and having CTS No. 410 (Part) in village
Bhandup, Taluka Kurla and plaintiffs are joint owners of the land
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bearing Plot No. 3 admeasuring about 912 m², Survey No. 46 (Part)
and having CTS No. 410 (Part) in village Bhandup, Taluka Kurla. All
these properties are hereinafter referred as suit properties for the sake
of convenience.
3. It is the case of plaintiffs that plaintiff No. 1 acquired the
suit property plot No. 1 by a registered conveyance under registration
No. BOM/S/3724/3/36/1974 and accordingly revenue record was
transferred in her name. Plaintiff No. 2 acquired suit property plot No.
2 in the year 1974 by way of a registered conveyance under registration
No. BOM/S/3723/1974 and accordingly her name is entered in the
revenue record of that property. Plot No. 3 was acquired by the mother
of plaintiffs by name Pushpa Rani in the year 1974 by way of a
registered conveyance under registration No. BOM/S/3726/1974 and
accordingly the revenue record was transferred in the name of Pushpa
Rani.
4. It is the case of plaintiffs that Pushpa Rani expired in the
year 1994 and father of plaintiffs expired in the year 2003. After the
demise of parents, plaintiffs have become owners of the suit properties.
The suit properties are agricultural land. The suit properties were taken
over under the Urban Land (Ceiling and Regulation) Act and the
proceedings were initiated in the year 1976 which continued till the
year 2006. The suit properties were denotified in the year 2006 and the
final notice was published in the year 2010. The suit properties are
owned by Bhandup Khot along with other properties. The agreement of
sale was executed between Bhandup Khot and father of plaintiffs on
31/01/1962. It was in respect of land admeasuring about 39,000 yd² of
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which the father of plaintiffs was tenant. The possession letters were
issued in favour of purchasers as stated above.
5. Plaintiffs have further stated that they applied for
measurements of the suit properties in the year 2014. Accordingly, the
survey was conducted. On receiving the copies thereof, plaintiffs came
to know that there was encroachment of school along with canteen and
WC. Immediately plaintiffs filed a Writ Petition bearing No. 2857 of
2016 against the Municipal Corporation and others for direction to the
Municipal Corporation for demolishing the construction over the suit
property. The writ petition came to be dismissed on 09/11/2017.
Plaintiffs preferred SLP No. 5640/2018 in the Hon'ble Supreme Court.
The said SLP was disposed of by the Hon'ble Supreme Court with
direction that Suit No.1023 of 2017 shall be disposed of expeditiously
and within a period of one year.
6. Plaintiffs have further stated that Suit No. 1023 of 2017
was instituted by defendants in the present matter against the
representatives of Bhandup Khot and plaintiff No. 2 for the reliefs that
the present defendants should not be dispossessed without following
due process of law. The present defendants had instituted one more suit
bearing Suit No. 4944 of 2006 against the Bhandup Khot. Plaintiffs
have filed a Chamber Summons in that matter for impleading the
present plaintiffs in that suit. The defendants herein instituted one
more suit bearing S. C. Suit No. 5068 of 2003 against the Bhandup
Khot and others for a declaration of their ownership over 7074 yd² land
from survey No.46 (PT.) C. T. S. No. 408 and 410 of village Bhandup.
Plaintiffs were not included in that suit by the present defendants with
malafide intention. That suit was dismissed by this court on
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08/08/2006. Plaintiffs have learnt from the reliable source that the
defendants are using part of the suit premises for letting out for
marriages and other functions and deriving illegal monetary benefits
from the same.
7. In the circumstances plaintiffs have instituted the present
suit for declaration that the defendants are trespassers in the suit
premises and for mandatory injunction for direction to demolish the
school, canteen and WC structure erected by them in the suit properties.
The plaintiffs also have prayed for perpetual injunction against the
defendants that they may be restrained from eliminating, encumbering,
parting with possession or creating any 3rd party rights in respect of the
suit properties. They have prayed for appointment of court receiver and
appoint of plaintiffs as the agents of the suit properties.
8. Defendants appeared in the matter and contested the suit.
They have stated that there is no cause of action to the present suit the
suit is instituted against the persons and hence it is not maintainable in
law. The suit is barred by limitation. Plaintiffs have suppressed material
facts from the court. They have stated that plaintiffs are having no
locus standi to institute the present suit. The original owners Pratap
Singh Mathuradas and others have contested the Notice of Motion
taken out in S. C. Suit No. 4944 of 2006 and have claimed to be owners
of the suit properties. Therefore, the case of plaintiffs that the suit
property is owned by them is yet to be established. Therefore, the
original owners that is Bhandup Khot are the necessary and proper
parties to the present suit.
9. Defendants have further stated that defendant No. 1
occupied the property in question in the year 1972 and the defendants
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are conducting their school and junior college since then in the said
property. The possession of defendants is within the knowledge of not
only the original owners but also the public at large. The school and
junior college of the defendants is a reputed educational Institute in the
Bhandup area and is well within the knowledge of present plaintiffs
throughout all these years.
10. Defendants have further stated that the aforesaid property
is declared as slum as per the government Gazette. The total area it
shown in the notification for CTS No. 409 is 2209.20 m² and total area
shown for CTS No. 410 is 7262.10 m². However, the total area as
claimed by plaintiffs of the 3 plots in the present suit is 2997 m² which
is possessed by the defendants. The Plaintiffs requested the City Survey
Officer to provide a map of CTS No. 410, but the said officer could not
provide the same and asked plaintiffs to get the said property
demarcated. It is the case of defendants that the structure on the suit
property is protected structure as per the policy of the State
Government and Municipal Corporation.
11. Defendants have further stated that if plaintiffs want to
claim their right, they must take permission of the competent authority
under section 22 of the Maharashtra Slum Clearance Act. Without such
permission the suit is not maintainable. The defendant No. 1 is a public
trust formed in the year 1972 with an aim to start educational
institutions for imparting education to the needy students particularly
coming from the lower middle class. The trustees of defendant No. 1
were in search of suitable land at Bhandup West and ultimately, they
found CTS No. 408, 409 and 410 (part). The secretary of the trust
contacted with the original owner that is Bhandup Khot in the year
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1970. Owners were having no objection for constructing a school
building on the land admeasuring about 7074 yd² equivalent to 5915
m² bearing survey No. 46 (part) that is CTS No. 408 (part) and CTS
No. 410 (part). Accordingly, defendant No. 1 constructed a school
building consisting of ground plus 2 floors comprising of various
classrooms, laboratory, teachers room and staffroom. The premises was
consisting of garden and playground apart from the school building.
Defendant No. 1 is in use, occupation and possession of the said
property since the construction of the school building. Defendant No. 1
has started junior college in the said premises on the 2nd floor. The
institute is known as Bright High School and Junior College and it is
imparting education to more than 2500 students and it has employed
about 100 teaching and nonteaching staff.
12. Defendants have further stated that the Tahsildar issued a
notice to defendant No. 1 in the year 1984 for recovery of
nonagricultural use tax from the defendant No. 1 regarding CTS No.
410. The secretary of defendant No. 1 trust contacted the original
owner Bhandup Khot and he did not raise any objection for defendant
No. 1 to pay the nonagricultural tax to the concerned authority in
respect of CTS No. 410. Thereafter, defendant No.1 has paid
nonagricultural tax from time to time. All the revenue record reflects
that defendant No. 1 has been in use, occupation and possession of the
suit property since the year 1970. The school building is assessed for
taxes and defendant No. 1 is paying those taxes. The total area under
assessment is 5304 m². There is a garden of the defendant No. 1 in CTS
No. 408 (c) which admeasures about 695 m² and defendant No. 1 is
paying tax thereof. Defendant No. 1 has further stated that the
remaining portion of the said land is occupied by the slum dwellers.
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13. Defendant No. 1 has further stated that it is in continued
and undisturbed possession of the suit property for more than 12 years
and therefore it has become owner of the suit properties by way of
adverse possession. Therefore, the defendant No. 1 has instituted a suit
bearing No. 4944 of 2006 against the Bhandup Khot for the declaration
to that effect. The suit was decreed ex parte. Thereafter some of the
trustees took out a motion No. 817 of 2008 for setting aside the ex
parte decree. However, in that motion also, the original owners did not
disclose that the suit properties were sold to plaintiffs herein. On
14/01/2009, the owners took out another Motion at Exhibit 8 in that
suit to set aside the said ex parte decree. That motion also came to be
allowed by the court. The defendant No. 1 herein had challenged both
the orders before the Hon'ble High Court and the said matter is still
pending.
14. For all the above reasons the defendants have prayed for
dismissal of the suit.
15. The Notice of Motion is taken out by the plaintiffs for the
order of interim injunction that the defendants may be restrained from
carrying out and excavation work on the suit properties and letting out
the suit properties for marriage or any other commercial functions to
derive commercial benefits. The Motion is contested by the defendants
on the various grounds set out in the written statement.
16. I have heard both learned Advocates at length. I have gone
through the record of this Notice of Motion and the Summary Suit
No.7795 of 2000.
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17. Considering the pleadings, documents on record and
submissions of both learned advocates, following points arise for my
determination and my findings to them are as stated below for the
following reasons.
Sr.
No
POINTS FINDINGS
1 Whether the plaintiffs have made out prima
facie case?
Partly in the
Affirmative
2 In whose favour does the balance of
convenience lie?
Partly In the
Affirmative
3 Whether plaintiffs prove that they will suffer
irreparable loss if the application is not
allowed?
Partly In the
Affirmative
4 What Order? As per final order
R E A S O N S
AS TO POINT NOS.1 TO 3:
18. Before going to the merits of the matter, it would be proper
to state the admitted facts to curtail the scope of discussion. It is
admitted that Bhandup Khot were the original owners of the suit
properties. It is admitted that at present there is a school building,
canteen, playground and WC constructed in the suit properties. It is
admitted that the defendants have instituted S. C. Suit No.3279 of 2019
against the present plaintiffs for the relief of declaration that they have
become the owners by way of adverse possession in respect of the suit
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properties. It is admitted position that, at present the suit premises is
being used by the defendant No. 1 for conducting the school business
and for imparting education to the students.
19. Before going to the merits, two objections regarding
maintainability of the suit raised by the defendants are to be
considered. The first objection is regarding bar to the suit under the
Urban Lands Ceiling Act. It is the case of plaintiffs that the suit property
was taken under the provisions of Urban Lands Ceiling Act but
subsequently they were released in the year 2006. At present there is
nothing on record to show that the suit properties are taken under the
provisions of that Act. Therefore, prima facie this objection is not
maintainable. The second objection raised by the defendants is that the
plaintiffs should have taken permission of the competent authority
under section 22 of the Maharashtra Slum Clearance Act. A copy of the
certificate issued by the Deputy Collector on 03/06/1996 is produced
on record by the defendants which shows that the property in CTS
No.410 are declared as slum area on 30/08/1977 as per the notification
No. SLM/IMP/CA–1/3. The certificate was issued for producing before
the education Department of the Municipal Corporation.
20. Section 22 of the Maharashtra Slum Areas (Improvement,
Clearance And Redevelopment) Act, 1971 states that,
22.(1) notwithstanding anything contained in any
other law for the time being in force, no person shall
except with the previous permission in writing of the
competent authority, –
(a) Institute, after commencement of the
Maharashtra Slum Areas (Improvement, Clearance
And Redevelopment) Act, 1971, any suit or
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proceeding or obtaining any decree or order for the
eviction of an occupier from any building or land in a
slum area or for recovery of any areas of paint or
compensation from any such occupier, or for both; or
(b) ***********************
(c) ***********************
21. The Ld. Advocate for the defendants has relied upon the
Judgment in the case of Taj Mohamed Yakub V/s. Abdul Gani
Bhikan reported in 1991 Mh.L.J. It is held that the decree for
possession can not be executed without securing the permission of the
competent authority against a trespasser in occupation of the slum area
in view of the Sec. 22 (1)(a) of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment)Act.
22. The Ld. Advocate for the defendants has further relied
upon the Judgment in the case of Hari Yadav V/s. Hiralal Prabhu
yadav reported in 2002(6) Bom.C.R.177. In this matter the
notification prima facie appears to be in effect as on the date of the
institution of the suit.
23. The Ld. Advocate for the defendants has further relied
upon the Judgment in the case of Laxmi Rama Pawar V/s. Sitabai
Balu Dhotre and others reported in 2011(1) Bom CR 4. In this
judgment the judgment in the case of Taj Mohamed Yakub V/s. Abdul
Gani Bhikan reported in 1991 Mh.L.J. is referred.
24. In the above background, plaintiff has claimed to declare
the defendants as trespassers in the present suit. They have also prayed
for possession of the suit property. Therefore, if the property is declared
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as slum and a suit instituted for eviction of an occupier, then the
permission under section 22 of the Maharashtra Slum Areas
(Improvement, Clearance And Redevelopment) Act, 1971 is necessary.
The Notice of Motion No.155 of 2020 in Suit No.3279 of 2019 is taken
out by the present defendants in this regard under Order7 Rule11 of
the Code of Civil Procedure is pending for hearing. The issue regarding
maintainability of the suit can be decided in that motion.
25. Learned advocate for plaintiffs submitted that the
defendants have occupied the entire area of the suit properties. The
map prepared by the City Survey Department is produced on record.
Learned advocate for defendants submitted that the suit is not
maintainable because the plaintiffs have not shown the exact area
which is in possession of the defendants. However, the aforesaid
submission of the plaintiffs makes it clear that the suit is for possession
of the entire suit property.
26. Learned advocate for plaintiffs submitted that the plaintiffs
have purchased all 3 properties from the Bhandup Khot by the
registered conveyance. However, they have not produced those
registered conveyance deeds on record of the court. Learned advocate
for plaintiffs submitted that the conveyance deeds are produced by the
defendants in their suit for declaration of their ownership by adverse
possession. He further submitted that the defendants now cannot
challenge the title of the plaintiffs as they have instituted a suit for
declaration that they have become the owner by way of adverse
possession of the suit properties against the present plaintiffs. He
further submitted that, unless the defendants consider plaintiffs as
lawful owners of the suit properties, they cannot institute such suit. The
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contentions in the plaint of that suit are the previous statements of the
plaintiffs which are binding upon them.
27. The Ld. Advocate for the defendants has further relied
upon the Judgment in the case of (1)Ram Das V/s. Salim Ahmed and
another reported in (1998)9 S.C.C.719 and (2) Union of India and
others V/s. Vasavi Co.op. Housing Society Ltd. and others reported
in AIR 2014 S.C. 937. It is held that plaintiff is not entitled to get
declaration of the title if such title could not be established by his
leading convincing evidence. Learned advocate submitted that the
plaintiff cannot take advantage of the witness in the case of defendant if
any. In the present matter at this stage of the proceeding, there cannot
be a question of leading convincing evidence regarding the title of
plaintiff because the same is admitted by the defendant in his own suit.
28. In reply learned advocate for defendants submitted that the
suit is instituted by the plaintiffs and they have to stand on their own
legs. Only because the defendants have instituted a suit for declaration
against the plaintiffs will not relieve the plaintiffs from their duty to
prove their ownership in the present suit. He further submitted that if
the plaintiffs really had purchased the suit properties in the year 1947
and the year 1974, they should have taken some action against the
defendants. They should have searched where the purchased properties
are. No such exercise was done by the plaintiffs at all at any point of
time. Now after 40 years of the occupation of defendants on the suit
properties, the plaintiffs are appearing before the court and claiming
possession of the suit properties. Therefore, their claim is time barred
and not sustainable.
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29. After going through the record submitted by plaintiffs along
with the plaint, it appears that names of plaintiff are recorded in the
revenue record. Extract of mutation entry No. 1146 shows that the
property mentioned therein was purchased by the plaintiffs. Similar
extract of mutation entry No. 1147 and 1148 also support the claim of
plaintiffs. At the same time, it is necessary to note that one more 7/12th
extract produced at page No.35 along with the plaint shows the name of
defendant No. 1 in other rights column.
30. After considering the submissions of learned advocate for
both the parties, it is clear that a suit instituted by present defendants
against the present plaintiffs for declaring them as owners by adverse
position is pending. The adverse possession is to be claimed against the
lawful owners. Therefore, in their own suit, the present defendants are
treating the present plaintiffs as the lawful owners of the suit
properties. The pleading in the said suit is the statement of the
defendants and estops them now from turning back and denying the
claim of ownership of the plaintiffs at this stage when we are
considering the merits of the matter for grant of interim relief. We have
to see the prima facie case and in my considered opinion the pleadings
in the suit instituted by present defendants against the present plaintiffs
are sufficient to prima facie hold that plaintiffs are lawful owners of the
suit properties. I have come to the conclusion that only because the
plaintiffs did not produce their title deeds on record, their claim as
prima facie owner of the suit properties cannot be denied.
31. Learned advocate for defendants have taken the court
through the record produced by plaintiffs and defendants. He
submitted that the communication between the plaintiffs and the
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government which is produced on page No. 55 to 88 shows that the
land which is alleged to be purchased by the present plaintiffs is much
lesser than the land occupied by the present defendants. He submitted
that the plaintiffs must specify the exact land which is in possession of
defendants and owned by them. It is important to note that the
plaintiffs have not purchased the entire CTS No. 410. They have
purchased part thereof. As per the letter issued by the land records
department to the plaintiffs, there is no further demarcation of CTS No.
410 and therefore there is no authenticated map prepared by the
government agency of the area owned by plaintiffs. In reply learned
advocate for plaintiffs submitted that the defendants have occupied the
entire area owned by plaintiffs illegally. In view of this submission, it is
clear that the claim of plaintiffs is in respect of the entire land allegedly
owned by them. A map prepared by the architect is produced by
plaintiffs on record. In the circumstances again the exact area which is
allegedly owned by plaintiffs and its demarcation becomes the matter of
evidence and which will be decided only after recording evidence of the
parties.
32. Learned advocate for defendants further submitted that the
plaintiffs had filed a Writ Petition before the Hon'ble High Court
bearing Writ Petition No. 2857 of 2016 against the Municipal
Corporation for demolition of buildings over the suit properties.
Present defendants were not parties to that matter. When they came to
know that such proceeding is filed by the plaintiffs before the Hon'ble
High Court, they appeared before the Hon'ble High Court with a prayer
to implead them in the proceeding. That prayer was allowed by the
Hon'ble High Court. Thereafter the Hon'ble High Court was pleased to
dismiss the writ petition. The order was challenged by the plaintiffs
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before the Hon'ble Supreme Court by way of Special Leave Petition. The
Said Special Leave Petition also came to be dismissed by the Hon'ble
Supreme Court. In the circumstances a relief of similar kind is already
sought by the present plaintiffs before the Hon'ble High Court and the
Hon'ble High Court has denied grant such a relief. The order is
confirmed by the Hon'ble Supreme Court. In the circumstances, learned
advocate for defendants submitted that the claim of plaintiffs for the
similar relief is not maintainable before this Court.
33. It is important to note that the defendants have not placed
any evidence on record in support of their submission that present
plaintiffs had claimed ownership over the suit properties in that matter
before Hon'ble High Court. The copy of order of Hon'ble High Court
shows that the writ petition was filed for directions to the municipal
authorities for demolishing the construction over the suit properties.
Therefore, the question of ownership of plaintiffs and their right to evict
the defendants has come up for consideration of the Court first time in
the suit. Therefore, it cannot be said that the present suit is barred as
the Hon'ble High Court has already rejected the writ petition of the
plaintiffs in the present matter and the order is confirmed by the
Hon'ble Supreme Court.
34. The Ld. Advocate for the plaintiffs has further relied upon
the Judgment in the case of T. Anjanappa and others V/s.
Somalingaooa and another reported in (2006)7 S.C.C.570. It is held
that the party claiming the adverse possession must know the actual
owner of the property. This ratio can be considered at the time of the
final hearing of the suit. When the defendants herein have instituted a
suit for declaration of the ownership on the basis of the adverse
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possession against the present plaintiffs, prima facie it has to be held
that the plaintiffs are the actual owners of the suit properties.
35. Learned advocate for defendants further pointed out that
on the date of institution of the suit, there was a writ petition pending
and still the plaintiffs made a statement in the present plaint that no
other proceeding is pending regarding the suit property. The Hon'ble
Supreme Court disposed of Special Leave Petition No. 5640 of 2018 on
12/03/2018. The present plaint is instituted on 12/06/2018.
Therefore, as on the date of institution of the suit the writ petition was
not pending. The mention in the plaint regarding other proceedings is
in respect of pending proceedings and therefore prime facie it appears
that the statement in the plaint is correct.
36. Learned advocate for defendants further submitted that the
original owners that is Bhandup Khot are the necessary parties to the
present proceeding. However, the issue regarding nonjoinder of
necessary parties is to be considered at the time of final hearing of the
suit and not at the stage when the court is considering prime facie case
and grant of interim relief to the plaintiffs.
37. Learned advocate for defendants further pointed out that
the plaintiffs have not shown any urgency in the matter to grant interim
relief in their favour. Learned advocate for plaintiffs submitted that the
defendants are trying to excavate in the suit property. They are letting
the suit property for marriage and other functions and getting financial
benefits from the same. Therefore, they need to be prevented from
using the suit property for earning the financial benefits. Plaintiffs have
produced on record certain photographs showing that the earthmoving
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machinery is brought in the suit property and some work is going on. At
this stage of the proceeding when we are considering prime facie case,
in my considered opinion the pleading in the notice of motion and the
supporting photographs are sufficient to show the urgency.
38. The Ld. Advocate for the defendants has relied upon the
Judgment in the case of Khatri Hotels Private Limited and Another
V/s. Union of India and Another reported in AIR 2011 S.C. 3590. I
have gone through the said judgement. Whether the present suit is
within limitation or not is a question to be decided at the stage of final
hearing of the suit when the evidence of both the parties will be
recorded. It is a mixed question of law and facts. Therefore, with all
respect to above ratio, I state that it is not applicable to the present
matter as the facts are different.
39. Learned advocate for plaintiffs further prayed for
appointment of Court receiver in the present matter and placing the
plaintiffs as agents of the suit property and in their possession.
Admittedly, the suit properties are being used for running a school and
junior college and there are allied facilities. Therefore, it is necessary to
have a proper setup for conducting those educational activities in the
suit properties. Except the allegation that the suit property is let by
defendants for getting financial benefits, there is nothing on record to
show that the defendants are causing waste or damaging the suit
properties. In view of the above I find no substance in the prayer of
plaintiffs for appointment of court receiver for the suit properties.
40. In view of all above discussion, I have come to the
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conclusion that plaintiffs have proved their prime of his ownership over
the suit properties. Hence, I answer point No. 1 in the affirmative.
AS TO POINT NOS. 2 AND 3:
41. Admittedly, the defendants are in possession of the suit
properties and they are conducting the business of school and junior
college therein. As per the case of defendants about 2500 students are
admitted in the said school and junior college. As per the case of
defendants the said school and junior colleges established in the year
1972. If the plaintiffs prove their ownership over the suit property and
if they prove that they are otherwise entitled to get the possession of the
suit property, then the defendants will have to hand over the
possession. However, the entitlement of plaintiffs can only be decided
after recording evidence of the parties and full fledged trial. If the
defendants change the nature of the suit property during pendency of
the trial, then it is certainly going to cause irreparable loss to the
plaintiffs. However, at the same time it is necessary to consider that the
defendants have their running school in the suit property and they need
to do all those acts which are necessary for the safety and wellbeing of
the students. Therefore, if they are outright prevented from doing any
act, it will affect the educational activities going on in the suit
properties.
42. The Ld. Advocate for the defendants has further relied
upon the Judgment in the case of Ghanshyam Das and others V/s.
Muralidhar and others reported in AIR 1979 Orissa 76. It is held
that,
It is well settled that the following propositions are to
be established in order to invoke the jurisdiction of
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the Court to get the interlocutory order of injunction
under Order 39, Rr. 1 and 2 of the CPC:
(1) Plaintiff has to establish a prima facie case;
(2) If balance of convenience is in favour of the
plaintiff; and
(3) Plaintiff will suffer irreparable injury if injunction
is refused.
It is further held that,
“In considering the question of irreparable injury, the
Court has to see that the plaintiff will sustain such
injury which cannot possibly and adequately he
remedied by way of damages and the damages would
be inadequate in ease of success of the plaintiff. In
considering the question of balance of convenience, the
Court has to consider the comparative mischief or
inconvenience of both parties.”
43. The Ld. Advocate for the defendants has relied upon the
Judgment in the case of Mandali Ranganna and others etc. V/s. T.
Ramachandra and others reported in AIR 2008 S.C. 2291. It is held
that,
While considering an application for grant of
injunction, the court will not only take into
consideration the basic elements in relation thereto viz.
existence of a prima facie case, balance of convenience
and irreparable injury, it must also take into
consideration the conduct of the parties.
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It is further held that,
Grant of injunction is an equitable relief. A person who
had kept quiet for a long time and allowed another to
deal with the properties exclusively, ordinarily would not
be entitled to an order of injunction. The court will not
interfere only because the property is a very valuable
one. We are not, however, oblivious of the fact that grant
or refusal of injunction has serious consequence
depending upon the nature thereof. The courts dealing
with such matters must make all endeavours to protect
the interest of the parties. For the said purpose,
application of mind on the part of the courts is
imperative. Contentions raised by the parties must be
determined objectively.
44. The Ld. Advocate for the defendants has further relied
upon the Judgment in the case of Krishi Utpadan Mandi Samiti,
Bareilly V/s. VIth Additional District Judge, Bareilly reported in AIR
1990 ALLAHABAD 136. In the matter before honourable Lordship,
injunction was granted in the absence of any prime facie case. Hence,
the said order was quashed and set aside.
45. The Ld. Advocate for the defendants has further relied
upon the Judgment in the case of Sukanta Chandra Sahoo V/s.
Jayakrushna Routray and another reported in AIR 199 Orissa 25.
46. I have gone through the said judgement. In the matter
before honourable Lordship, the application was filed by landlord for
restraining the thirdparty from interfering with peaceful possession of
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the tenant. There was nothing on record to show that if the
interference continues, the tenant would not pay the rent. Therefore, it
was held that the landlord has not proved any case of irreparable injury.
47. The Ld. Advocate for the defendants has further relied
upon the Judgment in the case of M/s. Akshaya Creations V/s. V.
Muthulakshmi reported in AIR 2013 Madras 125. In the particular
facts and circumstances of the case before honourable Lordships, it was
held that no personal injury was made out by the plaintiffs therein. In
the present matter the plaintiffs are apparently owners of the suit
properties. Therefore if any injuries caused, it will be caused to them
personally. Therefore with all respect to above ratio I state that it is not
applicable to the present matter.
48. The Ld. Advocate for the defendants has further relied
upon the Judgment in the case of Exhibitors Syndicate Pvt. Ltd. V/s.
Repose Properties Pvt. Ltd. and others reported in AIR 2006
Calcutta 323. I have gone through the said judgement. It is held that
while passing the order of status quo, the court has to decide who is in
actual possession of the property. In the present matter admittedly, the
defendants are in possession of the suit properties. Therefore, with all
respect to above ratio, I state that it is not applicable to the present
matter as the facts are different.
49. The Ld. Advocate for the defendants has further relied
upon the Judgment in the case of Ravindrer Kaur Grewal and others
V/s. Manjit Kaur and others reported in AIR 2019 S.C. 3827. I have
gone through the said judgement. It is held that a suit for declaration
of ownership on the basis of adverse possession is maintainable. The
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said ratio is applicable to the suit instituted by present defendants
against the present plaintiffs for declaration of their title on the basis of
adverse possession. The present suit is instituted by the plaintiffs herein
for the relief of injunction, declaration etc. Therefore, with all respect to
above ratio, I state that it is not applicable to the present matter.
50. The Ld. Advocate for the plaintiffs has further relied upon
the Judgment in the case of Prakash Gobindram Ahuja V/s. Ganesh
Pandharinath Dhonde and others reported in 2016(6) ABR745. It is
held that,
Though depending on the facts of the case, the Court
can consider imposition of conditions, like, seeking an
undertaking that no equities would be claimed on
account of sale or development of property; effecting
sale only after putting transferees to notice that their
rights would be subject to pending suit or requiring the
parties to inform the Court promptly of creation of such
interest, those conditions can be in addition to or
independent of the order of injunction, but cannot be in
place of or short of granting injunction.
51. The Ld. Advocate for the plaintiffs has relied upon the
Judgment in the case of Dev Prakash and Others V/s. Indra and
others reported in AIR 2017 SC 3608. In the matter the judgment in
the case of Maharwal Khewaji Trust (Regd.) v. Baldev Dass, (2004)
8 SCC 488 is relied upon. It is held that;
“Unless and until a case of irreparable loss or damage
is made out by a party to the suit, the court should
not permit the nature of the property being changed
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which also includes alienation or transfer of the
property which may lead to loss or damage being
caused to the party who may ultimately succeed and
may further lead to multiplicity of proceedings.
52. So far as letting of the property by the defendants for
marriage and other ceremonies and earning financial benefits therefrom
is concerned, plaintiffs have brought nothing on record except a bare
allegation. They could have adduced affidavits at least of the nearby
residents or any other person who took benefit of that property for such
ceremony. Therefore, in my considered opinion such a relief cannot be
granted to plaintiffs.
53. In view of all above discussion, I have come to the
conclusion that the balance of convenience partly lies in favour of
plaintiffs. They will suffer irreparable loss, if the defendants change the
nature of the suit property or create any third party interest therein.
Creating any third party interest in the suit property is going to create
complications in the suit. Considering the nature of occupation of the
defendants, they will not suffer any harm, if they are restrained from
creating 3rd party interest in the suit properties till the conclusion of the
trial of the suit. Therefore, I answer point No. 2 and 3 partly in the
affirmative and proceed to pass following order.
O R D E R
1. Notice of Motion No.2403 of 2018 is partly
allowed. Notice of Motion is partly allowed.
2. Defendants, their servants, agents or anyone on
their behalf are temporarily restrained from making
any excavation work in the suit property or making
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any permanent construction over the suit property
or change the nature of the suit property till final
disposal of the suit.
3. Defendants, their servants, agents or anyone on
their behalf are temporarily restrained from
creating any third party interest in the suit property
till final disposal of this suit.
4. For the sake of clarity, it is specified that the
defendants are at liberty to do all such acts which
are necessary for the safety and wellbeing of the
students admitted therein and which will not
change the nature of the suit property or amount to
permanent construction.
5. All other interim reliefs claimed by the
defendant are rejected.
6. Notice of Motion No.2403 of 2018 stands
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 13.10.2021 Gr.Mumbai.
Dictated on : 13.10.2021
Typed on : 20.10.2021
Signed on : 25.10.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25.10.2021 AT 5.55 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
13/10/2021
Judgment/Order signed by P.O. on 25/10/2021
Judgment/Order uploaded on 25/10/2021
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