1 AO 1271-08 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1271 OF 2008 WITH CIVIL APPLICATION NO.1284 OF 2009 WITH CIVIL APPLICATION NO.1563 OF 2008 The Society of the St. Peters ..Appellants High School Panchgani & ors V/s. The Bombay Diocesan Trust ..Respondents Association Pvt. Ltd. & ors Mr.S.M.Gorwadkar a/w. Ms Sheetal Kumar i/b.M/s.Milan Bhise, Advocate, for the Appellants Mr.Udayan Jain, Advocate, for Respondent No.1 Mr.S.S.Kulkarni, Advocate, for Respondent No.3 Mr.Yadunath Chaudhari, Advocate, for Respondent No.4 CORAM : R.C.CHAVAN, J. DATE : 16TH AUGUST, 2010 P.C. . This Appeal is directed against order passed by the Civil Judge, Senior Division, Satara, whereby he rejected Applicant s Application Exhibit 6 in Special Civil Suit No.141 of 2002 for an injunction to restrain the Respondent Nos.1 to 3 from disturbing 2 AO 1271-08 Plaintiff s possession over the property and starting any construction or demolition of any structure on the property. The injunction was sought in respect of Plot Gat Nos.502, 519 & 520. On 21st August, 2002, an ad-interim relief was granted till the Respondents filed a reply. This reply was filed on 21st August, 2002. There is nothing to show that this injunction was continued after 21st August, 2002. When on 8th September, 2008 the learned Judge passed the impugned order, he observed that all interim reliefs granted in favour of the Applicants stood vacated forthwith. On 15th December, 2008 when the matter came up before this Court, this Court directed that till further orders possession of the Appellants should not be disturbed. The learned Counsel for the Appellants, therefore, contends that right since 21st August, 2002 possession of the Appellants has been protected. He points out that suit is ripe for trial and the Plaintiffs have submitted 3 AO 1271-08 their evidence in the form of an Affidavit and the matter is fixed for 21st August, 2010. Therefore, according to him, parties may to continue the same position till the trial is over and for which outer limit of 31st December, 2010 may be fixed. The learned Counsel for the Respondents has strong objection for such arrangement. 2. I have heard the learned Counsel for the parties. 3. The learned Trial Judge cannot be faulted for refusing an injunction since according to the Plaintiffs own memorandum of association, the properties were to vest in Defendant No.1. The Plaintiffs had absolutely no juridical personality when the properties were purchased in the name of Defendant No.1. Payment by the Plaintiffs for purchase of these properties is a ground on which the Plaintiffs seek to be owner and which has to 4 AO 1271-08 be decided at the trial. The learned Counsel for the Appellants submitted that Clause 27 of the Memorandum of Association, whereby the properties were said to be vesting in the Defendant No.1 has been amended. As rightly pointed out by the learned Counsel for the Respondents this amendment has been carried out after the disputes began, in May, 2003 that is, in fact, after the suit was filed. Clause 27A which has been inserted shows that immovable properties of St. Peter's School, Panchgani, bearing plot Nos.502 and 520 shall vest in the Society of St. Peter's School, Panchgani, as owners and in their name. Significantly, Clause 27 remains with reference to property bearing No.519 as it is. The question as to whether unilaterally the Appellant  Society could divest Defendant No. 1 of ownership of the property will have to be decided at trial. As the matter stood, when the suit was filed the properties vested in the Respondent No.1 - The Bombay Diocesan 5 AO 1271-08 Trust and, under the Memorandum of Association of Plaintiff, the Plaintiff was given the property only for Management and for running the School. Thus, Plaintiff could not claim to be in possession on its own. 4. The learned Counsel for the Appellants placed reliance on two Judgments. The question in Judgment in KEKI PESTONJI JAMADAR v. RODABAI KHODADAD MERWAN IRANI reported in LXXIV BLR 198 was about maintainability of suit and it was observed that the question of ownership would have to be decided in suit. There is no dispute about this proposition. On the question of settled possession the learned Counsel placed reliance on the Judgment of Supreme Court in the matter of MOHINDER KUMAR Versus STATE OF HARYANA, reported in (2004) 1 Supreme Court Cases 778. There cannot be no dispute about the proposition that a person in settled possession can not be ousted otherwise than in 6 AO 1271-08 accordance with due process of law. But when the claim of being in settled possession is in doubt, this Judgment may not be of use. In this case, the learned Counsel for Respondent No.1 points out from ground 41 in the Memorandum of Appeal itself that the Plaintiff had lost possession and therefore, filed an Application for restoration alleging illegal acts carried out by the Respondent Nos.1 & 3. The learned Counsel for the Appellants states that this was only a grievance about disturbing the possession and not about loss of possession & that contempt proceedings are pending. If some construction and alteration is being carried out on the property by Respondent, it would be difficult to sustain Appellants' claim for possession. In any case, in the face of what has been recited in the Memorandum of Association, it is doubtful if the Appellants could set up possession independently in itself and this question too would have to be decided at trial on 7 AO 1271-08 examination of question of ownership & relationship between the Plaintiff and Defendant No.1. Therefore, since the Appellants had not made out an unimpeachable case of being disturbed by a stranger to the property, the learned Judge was right in refusing an injunction which had been claimed. Since the properties are subject matters of dispute, whatever action the Respondents take during the pendency of this suit, would be subject to decision of the suit. 5. In view of this, the impugned order does not call for any interference and the Appeal will have to be dismissed. 6. Appeal from Order is dismissed. 7. The learned Counsel for the Appellants states that this Court had on 15th December, 2008 ordered that the possession of the Appellant shall not be disturbed. Since this 8 AO 1271-08 order was passed by this Court, this arrangement may continue for a period of four weeks. 8. In view of dismissal of Appeal from Order, Civil Application Nos.1284 of 2009 & 1563 of 2008 do not survive and the same are disposed of. (R.C.CHAVAN, J.)