1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 57 OF 2010 WITH CIVIL APPLICATION NO. 2 OF 2010 Janardhan Bajirao Ranawade ........Appellant versus Sindh Co-op. Housing Society Ltd. & ors........Respondents. Mr. N.V. Walawalkar i/b T.D. Deshmukh adv. for the Appellant. Mr. Ajit Kulkarni adv. for the Respondents. CORAM: B. R. GAVAI,J. DATED : 14th September, 2010. P.C.: 1. Mr. Walawalkar the learned senior counsel appearing on behalf of the appellant, on instructions from the authorized representative of the appellant, who is personally present in the court, seeks liberty to withdraw the appeal. Liberty granted. Appeal is disposed of as withdrawn. 2. In view of the withdrawal of the appeal nothing survives in the civil application and the same is also disposed of. (B. R. GAVAI, J.) 2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 58 OF 2010 Janardhan Bajirao Ranawade ........Appellant versus Sindh Co-op. Housing Society Ltd. & ors........Respondents. Mr. N.V. Walawalkar i/b T.D. Deshmukh adv. for the Appellant. Mr. Ajit Kulkarni adv. for the Respondents. CORAM: B. R. GAVAI,J. DATED : 14th September, 2010. P.C.: 1. Admit on the following substantial questions of law. i) Whether the learned District Court is right in law by decreeing suit for injunction filed by respondent no.1 against appellant, wherein suit property has not been identified and/or appropriately described by mentioning boundaries thereof ? ii) Whether the learned District Court is right in law by decreeing suit for injunction filed by respondent no.1 against appellant in view of he fact admitted by respondent no.1 society that property owned by respondent no.1 society is bounded on western side by a streamlet and respondent no.1 society is not concerned with the property situated on the western side of said streamlet ? Iii) Whether the learned District Court is right in law by decreeing suit for injunction filed by respondent no.1 against 3 appellant, in view of the fact admitted by respondent no.1 that the construction put up by respondent no.1 society is situated only towards the eastern side of streamlet ? iv) Whether the learned lower Appellate Court was right in granting injunction in favour of respondents more particularly when the respondents have not complied with mandatory requirement of Order 7 Rule of the Code of Civil Procedure, as amended by Bombay High Court ? (B. R. GAVAI, J.) 4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1 OF 2010 IN SECOND APPEAL NO. 58 OF 2010 Janardhan Bajirao Ranawade ........Appellant versus Sindh Co-op. Housing Society Ltd. & ors........Respondents. Mr. N.V. Walawalkar i/b T.D. Deshmukh adv. for the Appellant. Mr. Ajit Kulkarni adv. for the Respondents. CORAM: B. R. GAVAI,J. DATED : 14th September, 2010. P.C.: 1. By way of present application, the applicant is seeking stay to the effect, implementation and operation of the judgment and decree passed by the learned Appellate Court dated 27-10-2009 in Civil Appeal no. 614/02. 2. Heard Shri Walawalkar, learned senior counsel appearing on behalf of the applicant and Mr. Kulkarni the learned counsel for the respondent. 3. A suit came to be filed by the present respondent contenting therein that the plaintiffs/respondents are in possession of the suit properties described in paragraph 1 of the plaint admeasuring 124 acres, 28 gunthas and 12 anna. It is the case of the plaintiff that though plot no. 548 is in the possession of the 5 plaintiffs, the society noticed the bard of defendant no.3 on the suit land on 31-1-1990. It is contended in the plaint that the defendant no.1 was claiming ownership rights over the suit property. The plaintiff therefore filed a suit on the premises that the defendants have unauthorizedly encroached upon the suit premises. The suit of the plaintiff was resisted by the defendants. 4. A counter claim was filed by all the defendants claiming to be the owners of the suit property. The learned trial court dismissed the suit as well as the counter claim. Being aggrieved thereby the plaintiff as well as defendants filed appeal. The appeal of the plaintiff was allowed thereby granting decree of injunction against the defendant from permanently interfering with the possession of the plaintiff in the suit premises. The appeal of the defendants came to be dismissed. 5. From the perusal of the judgment and decree passed by the learned trial court it would reveal that the learned trial court has given cogent and sound reason as to why the plaintiffs were not entitled to a decree of injunction. The learned trial court in paragraph 22 of its judgment has found that the witness of the plaintiff himself had admitted that to the western side of the stream there was an open land. The said witness has further admitted that the compound wall was constructed by the plaintiff and to the western side of the stream no construction of plaintiff existed. It was therefore found that the plaintiff is concerned only with the construction on the eastern side of the stream. The learned trial court therefore found that there was no construction 6 belonging to the plaintiff’s society on the western side of the stream. The learned trial court therefore found that the construction of the defendant was beyond the plot of the plaintiffs and as such the plaintiffs were not entitled to a decree of injunction. 6. This finding of fact has been reversed by the learned Appellate Court. The learned Appellate Court though has found that the plaintiffs have failed to prove that the defendant had encroached upon the suit property and that the plaintiffs have further failed to prove that the defendant has made any construction on the property of the plaintiff, has granted an order of injunction by cursorily observing that, in view of the finding of point no.1 the plaintiffs are entitled to a decree of injunction. Leave aside giving any cogent reasons, the learned Appellate Court has not even given any reason for the name sake, as to why the order of injunction was found necessary. In my view, and in view of the specific finding that the plaintiff had failed to prove that the defendant had encroached upon the suit premises and that he had made any construction on the suit premises, such a blanket order of injunction would not have been granted. 7. It is a settled law that the plaintiff has to stand on the basis of his own evidence, an order of injunction cannot be granted on the basis of evidence of the defendant. Mr. Walawalkar has rightly, by relying on the judgment of the Apex Court in the case of T.K.Mohammed Abuducker Vs. P.S.M. Ahamed Abdul Khader and ors. Reported in (2009) 14 S.C.C. 224 wherein the Apex court 7 observed thus: “The Letters Patent Bench overlooked the fact that the plaintiff in a suit for declaration of title and possession can succeed only by making out his title and entitlement to possession and not on any alleged weakness in the title or possession of the defendants”. 8. If the effect and operation of the decree is not stayed it will lead to various complications. In that view of the matter, I am inclined to partly allow the application on the following terms. 9. During the pendency of the present appeal the appellants shall not interfere with the possession of the plaintiffs over the property which has been found to be in their possession by the learned trial court i.e. beyond the eastern side of the stream on which a compound has been erected by the plaintiff. Civil Application is disposed of. (B. R. GAVAI, J.)