1 15-cas-1598-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1598 OF 2010 IN SECOND APPEAL NO.622 OF 2010 Shri Raghunath B. Gaikwad(Patil) .. Applicant. V/s. Shri Baburao K. Gorad & Another .. Respondents. Mr. S. M. Shettigar with Mr. Chandrakant Yadav, for Applicant. Mr. B. A. Walimbe, for Respondents. CORAM : G.S.GODBOLE, J. DATE : 22nd AUGUST, 2011. P.C.: 1 By this Civil Application, the Original Defendant No.1 in Regular Civil Suit No. 334 of 2000, is seeking the following substantive reliefs:­ “(b) Pending the hearing and final disposal of the present Second Appeal the effect, implementation and execution of the impugned Judgment and Order dated 31st August, 2010 passed by the Court of Ad­Hoc District Judge­I, Karad at Karad allowing the said Regular Civil Appeal No.89 of 2005 filed by the Respondent No.1, be stayed; 2 15-cas-1598-2010.sxw (c) Pending the hearing and final disposal of the Second Appeal, the Respondents through their servants, and/or agents be restrained by an order and injunction of this Hon'ble Court from interfering and/or obstructing the peaceful possession, occupation and enjoyment of the Applicant in respect of the suit property.” 2 Heard the learned Advocate for the Applicant and learned Advocate appearing for original Plaintiff/ Respondent No.1 who is the only contesting Respondent in this Civil Application. 3 Regular Civil Suit No.334 of 2000 which was filed by Respondent No.1 for declaration and injunction, was dismissed by the learned Jt. Civil Judge, Junior Division, Karad on 29th September, 2005. Regular Civil Appeal No. 89 of 2005 filed by the Plaintiff/ Respondent No.1 was allowed by the learned Jt. District Judge, Karad, by the impugned Judgment and Order dated 31st August, 2010. The operative part of the said Judgment reads thus:­ “(a) Appeal is allowed with cost. (b) Judgment and Order dt. 29th September, 2005 in RCS No. 334/2000 passed by Joint Civil Judge, J.D. Karad is set aside. (c) Suit is decreed with costs. (d) It is hereby declared that plaintiff is absolute owner of the suit land as mentioned in para No.1­B of the plaint. (e) Defendant No.1 or his agent, servants are perpetually restrained from interfering plaintiffs possession over the suit land. 3 15-cas-1598-2010.sxw (f) Decree be drawn up accordingly.” 4 By an order dated 18th February, 2011, Second Appeal was admitted and while issuing Rule on this Civil Application, ad­interim relief is granted in terms of prayer clause (b) of this Civil Application. Thereafter, by an order dated 8th July, 2011, parties were directed to maintain status­ quo in respect of possession of suit premises. 5 The learned Advocate for Respondents states that Respondent No.1 is presently in possession of the property described in paragraph 1­B of the Plaint and relies on photographs, stated to be of the southern ½ portion of land bearing survey No.1228 of Village Kasar, Taluka Karad, District Satara. The said property described in paragraph 1­B is the only property involved in the suit. The said Photographs filed Respondent No.1 are taken on recored. 6 The learned Advocate for the Applicant disputes the aforesaid claim of Respondent No.1 of being in possession. 7 I have considered the submissions. The Trial Court has dismissed the suit and though the Appellate Court has allowed the Appeal filed by Respondent No.1, there is a clear finding recorded in paragraph 11 that the Applicant/ Respondent No.1 in District Court is in possession of the 4 15-cas-1598-2010.sxw suit property with a further finding that the possession of the Applicant is illegal. The learned Judge of District Court has observed thus:­ “ Now, so far as the injunction is concerned, the defendant No.1 is in possession on the basis of alleged agreement to sale executed by deceased Rama dt. 3/2/1984. But he did not file any suit for specific performance to get completed the transaction during the life time of deceased Rama. Since defendant No.2 relinquished her share in favour of Plaintiff, only plaintiff is became owner of suit property. Though suit lands is in possession of the defendant No.1, after the death of Rama Plaintiff got absolute title of the suit land. On the contrary possession of the defendant No.1 over suit land is illegal. Therefore, title follows the possession. Therefore, possession of the defendant cannot be protected as he slept over his right for longer period. On the contrary plaintiff has lawful title of the suit property. Therefore, denial of relief of injunction in favour of plaintiff would only lead to another suit. Multiplicity of the proceeding should normally be avoided as same tends to delay justice.” 8 Since a finding has been recorded that Respondent No.1 in District Court is in physical possession and in the absence of possession, injunction not to interfere with the so called possession of the Plaintiff which was in fact not with the Plaintiff, is granted by the District Court; at least, prima facie, such an injunction could not have been granted merely on the ground that the Plaintiff who had not filed the suit for possession would be required to file another suit which will lead to multiplicity of judicial proceedings. 9 Hence, a strong case is made out for granting relief in terms of prayer clauses (b) and stay the injunction granted by the learned Judge of 5 15-cas-1598-2010.sxw District Court. Hence, relief in terms of prayer clause (b) is granted. 10 Since, even while allowing Appeal filed by Respondent No.1, the learned Judge of the District Court has clearly recorded a finding that the Applicant is in possession of the suit land (southern part of survey No. 1228 of Village Kasar, Taluka Karad, District Satara); though relief in terms of prayer clause (c) cannot be granted to the Applicant, parties are directed to maintain status quo by clarifying that the Applicant is in possession of the suit land. 11 Civil Application is disposed off in the above terms, with no order as to costs. (G.S.GODBOLE, J.)