High Court
Legal Reasoning
{1} AO 14.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPEAL FROM ORDER NO. 14 OF 2024RAMESH S/O. MOHAN AADEVERSUSSMT. INDUTAI W/O. HIRASINGH JADHAV AND ANOTHER.…Mr. S.S. Thombre, Advocate for appellant.Mr. Amit Vaidya, Advocate for respondentMr. S.R. Nikam, Advocate for respondent No.2. CORAM : S.G. CHAPALGAONKAR, J. RESERVED ON : 20TH JANUARY , 2025. PRONOUNCED ON : 19th MARCH, 2025. O R D E R :-1.The appellant/original plaintiff impugns the order dated22.2.2024 passed by learned Civil Judge (S.D.), Aurangabad below Exh.5in Special Civil Suit No. 493 of 2023.2.Plaintiff contends that suit property i.e. Plot Nos. 26, 27 and30 totally admeasuring 424 square meters alongwith RCC constructionadmeasuring 1237.33 square meters, is owned and possessed by him. Hedeveloped and constructed property by obtaining loan from financialinstitution. Suit Property includes 6 shops and 12 flats. Plaintiff runs aGirls Hostel with assistance of his wife Smt. Vimal in the suit property.Their business is duly registered. According to plaintiff, Shop Nos. 2 to 6have been sold by him. Rest of the property is used in the business. {2} AO 14.24.odtRespondent/Defendant No.1 is his real sister and defendant No.2 is hisson. Her husband retired from Police Department. While plaintiff hadcordial relations with defendants, plaintiff signed certain bond papers onsay of defendant No.1. Plaintiff has sold Shop No.2 to Ajay and sold FlatNo.1 to Abhijit Jadhav (defendant No.2). Defendant NO.2 failed to payagreed consideration against purchase of flat, hence he was not put intopossession. According to plaintiff, during COVID pandemic, his businesswas completely collapsed. He was not in position to clear municipaltaxes. Hence, he made application to the Commissioner for concession.At that time Plaintiff came to know that defendants are claiming right inrespect of property on the basis of fabricated Partition and Gift Deed. Hereceived those documents under the right to information Act from theconcerned Department. He never signed such documents or had noreason to execute such documents. However, defendants, in collusionwith each other, created bogus and sham documents, using ante-datedbond papers and misused the signatures obtained for bank purposes.Defendants are trying to take possession of property with help ofunknown persons. As such, cause of action arose on 11.6.2023. Plaintiff,therefor,e instituted suit seeking relief of declaration and cancellation ofpartition Deed No. 1225 of 2017 dated 20.6.2017 and Gift Deed Sr. No.19969 dated 25.10.2019 alleged to have been executed by plaintiff infavour of defendant No.1.3.Plaintiff filed application below Exh.5 seeking relief oftemporary injunction against defendants thereby restraining them fromobstructing, interfering into peaceful possession of plaintiff over suitproperty as described in the plaint.4. Defendants filed reply to the application contending that suit {3} AO 14.24.odtproperty was jointly developed by plaintiff and defendant No.1. Plaintiffis younger brother of defendant No.1. After marriage of defendant No.1he resided with her since his childhood. Therefore, property waspurchased in the name of plaintiff by husband of defendant No.1. Then,it was developed into a three storied building with 6 shops and 4 flats.Plaintiff is neither owner, nor possessor of property except undergroundbasement given to his share. It is their contention that by way of familyarrangement and understanding between the parties, Partition Deed wasexecuted. Plaintiff cannot claim beyond what was agreed upon.5.Learned trial court, after considering rival submissions,concluded that plaintiff failed to make out prima facie case and held thatbalance of convenience lies in favour of defendants. As such, refused togrant temporary injunction.6.Mr. S.S. Thombre, learned advocate for theappellant/plaintiff vehemently submits that trial court fell in patent errorwhile rejecting plaintiff’s application for grant of temporary injunction.He submits that evidence on record clearly depicts that Plot Nos. 26, 27and 30 were purchased by plaintiff from respective owners underregistered sale deeds during period from 1988 to 1996. Plaintiffdeveloped suit property consisting of 6 shops and 12 flats and with thehelp of his wife Vimal, he runs Girls Hostel, namely, Bharti Girls Hosteland Mess. Defendants are claiming right on the basis of forged Partitionand Gift Deed and they are trying to dispossess plaintiff. Hence, suit wasinstituted. However, trial court, without considering aforesaid aspects,refused to grant relief of temporary injunction.7.In support of his contention, he relies upon judgment of the {4} AO 14.24.odtSupreme Court of India in the case of Ramegauda vs. Verdappa Naidu(2011)1 SCC 769.8.Per contra, Mr. Vaidya, learned advocate for respondent No.1submits that plaintiff is claiming injunction in respect of entire suitproperty which consists of three-storied building. The plaintiff acceptsthat he had already sold 4 shops and one flat. However, claimsinjunction in respect of entire suit property. He submits that familyarrangement between plaintiff and defendant No.1 is clearly discerniblefrom the partition deed and gift deed. The documents are duly notarizedbearing signatures and photographs of respective parties. Allegationsmade in the plaint will have to be established during the course of trial.At this stage, possession of respective parties is only relevant and decisivefactor. In support of his contentions, he relies upon the judgment of theSupreme Court in the matter of Wander Limited vs. Antox India (P)Ltd.1990 (Supp)SCC 727 and Baban Anantrao Naik vs. PramilaUttamrao Yenare (2011) 6 All M.R. 54.9.During the pendency of this appeal, learned advocate Mr.Thombre, filed additional affidavit alongwith documents to bring onrecord subsequent events, particularly, copy of W.P. No. 6069 of 2024,filed by plaintiff seeking writ of Mandamus to cancel GunthewariRegularization Certificate No. 606 dated 7.2.2024 issued in the name ofDeputy Director of Town Planning, Gunthewari Cell and variouscomplaints made in this regard.10.Having considered submissions advanced, and after goingthrough record as pressed into service before this Court, it can beobserved that applicant/plaintiff instituted suit to cancel partition deed {5} AO 14.24.odtdated 1225 of 2017 and Gift deed Sr. No. 19969 dated 25.10.2019executed by plaintiff in favour of defendant No.1. Apparently, theexistence of such documents has been admitted by plaintiff. Thepleadings suggest that plaintiff wants to convey that such documents arefalse and fabricated and made out on the basis of old pre-signed stamppapers. The learned advocate for appellant made an endeavour tosuggest that falsity of documents can be observed from bare look at thedocuments.11.Pertinently, plaintiff admits that he sold out certain plots.Additional documents tendered on record suggest that he has executedsale deed of one flat in favour of Abhijit Jadhav in pursuance to thestatement made before this Court in Anticipatory Bail Application NO.1805 of 2021 and also handed over possession thereof. The aforesaidcircumstances clearly depict that plaintiff is not in possession of entiresuit property as described in plaint.12.Learned advocate for plaintiff endeavours to contend thatnow the pursis was tendered that except plots and flat already sold out,the claim of plaintiff for grant of injunction in respect of rest of theproperty can be considered. Evidently, such amendment is not carriedout in the plaint and application for injunction. The description of plaintas made in plaint is sought to be altered on the basis of pursis. Suchprocedure is not contemplated in law. There appears serious disputeamongst plaintiff and defendant No.1 who are brother and sister inter se,as regards to possession and ownership of property.13.As observed by this court in e case of Baban Naik vs. PremilaYenare (supra) at the time of determination of application for temporary {6} AO 14.24.odtinjunction the factum of possession would only be relevant factor.Whether possession was lawful or not, would not be subject matter ofinquiry and it is not possible to render the finding as to truthfulness orfalsity of documents at the premature stage.14.The trial court, while passing impugned order has observedthat although plaintiff and his wife obtained loan of Rs. 32 lakhs bymortgaging plot NO. 26 in favour of financial institution, the partitiondeed and gift deed challenged in suit which are sought to be cancelledare arrangements much prior to obtaining of loan. Possession of propertyor title thereof based on family arrangement is approved in law. Whethersuch right is created in favour of defendants or whether impugnedpartition deed or gift deed are forged documents as alleged by plaintiff,requires evidence and trial. Fact remains that plaintiff is not in exclusivepossession and ownership of entire property shown in plaint. Grant oftemporary injunction is an equitable relief which needs to be granted toprotect the status of property, as on the date of institution of suit.Further, it is trite that plaintiff has to establish prima facie case, balanceof convenience and irreparable loss to him, in case of non-grant of suchrelief pending suit. In present case, trial court observed that plaintiff hasnot approached with clean hands while he claims injunction in respect ofentire property, now admits that part of property is in possession ofdefendants. Plaintiff could not demonstrate irreparable loss to him incase of refusal to grant temporary injunction. However, if such injunctionis granted, defendants in possession of part of property, may suffer anirreparable loss. On such prima facie finding, trial court refused toexercise discretion in favour of plaintiff. The Honourable Supreme Courtin the case of Ramegouda (supra) approved concept of possessory titleand held that person in possession of land in assumed character of owner {7} AO 14.24.odtand exercising peaceably ordinary rights of ownership has perfected goodtitle against all world but rightful owner. When facts disclose no title ineither party, possession alone decides. The law presumes ownership togo with title unless rebutted.15.The gamut of aforesaid observations is that for grant of reliefunder Sections 37 and 38 of the Specific Relief Act, settled possession isto be established which can be protected even against true ownerwithout following due course of law. Aforesaid proposition wouldequally apply to plaintiff and defendants in present case and both wouldbe entitled to protect possession unless better title is established.16.It is trite that appellate court can not substitute its ownopinion or discretion in appeal preferred against a discretionary order .Even appellate court will not re-assess material and seek to reach aconclusion different from one reached by court below, which based onreasonable appreciation of the material on record. Interference ofappellate court is justified only when arbitrariness in decision making bytrial court is seen. However, once it is observed that discretion isreasonably exercised and in a judicious manner, no interference with trialcourt’s discretion would be possible and permissible.17.In view of the aforesaid exposition of law by Supreme Courtin case of Wander Limited (supra) there appears hardly any scope tointerfere in the impugned order. However, in case plaintiff amends hissuit appropriately and claims relief describing exact property in hispossession and then seeks protection, such claim may be independentlyconsidered by trial court.
Decision
{8} AO 14.24.odt18.In the result, appeal from order stands dismissed with noorders as to costs.[S.G. CHAPALGAONKAR, J] grt/-