1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.3 OF 2009 1) Gangabai w/o Parshuram Arya, 2) Sheela w/o Anteshwar Karle, Both R/o- Old Cloth Lane, Latur, Tq. & Dist-Latur. ...APPELLANTS. VERSUS Suresh s/o Parshuram Arya, R/i- B & C Quarter, Nanded, Dist-Nanded. ...RESPONDENT. ... Mr.P.R. Tandale Advocate for Appellants. M.S. Choudhary Advocate for Respondent. ... CORAM: K.K. TATED, J. DATE : 16TH JULY, 2009. PER COURT : 1. Heard learned counsel for the Appellants and learned counsel for Respondent. Present Second Appeal is 2 preferred by the original plaintiffs against the Judgment and decree dated 5th August, 2008 passed by Ad- hoc District Judge, Latur in Regular Civil Appeal No.77 of 2007 arising out of the Judgment and decree dated 15th March, 2007 passed by 3rd Civil Judge, Junior Division, Latur in Regular Civil Suit No.370 of 2004. The Respondent No.1 is original defendant. For the sake of convenience, hereinafter the parties will be referred to as they appear in the suit proceedings. 2. The plaintiff No.1 is a real mother of plaintiff No.2 and defendant. The husband of plaintiff No.1 and father of plaintiff No.2 and defendant died on 21st April, 2004 at Latur. It is the case of the plaintiffs that deceased Parshuram Arya, the husband of the plaintiff No.1 was the owner and actual possessor of the house bearing municipal house No.R-6-383 corresponding to City Survey No.9450 admeasuring 50 feet south-north and 35 feet east-west situated at old cloth lane, Latur. It is the case of the plaintiffs that both of them are residing in the suit property and this is the only residential premises for them. The defendant is in service and he is residing at Nanded. During the life 3 time of deceased Parshuram Arya, the Plaintiff Nos. 1 and 2 looked after him. After the death of Parshuram Arya, both the plaintiffs are in possession and use of the suit property. After the death of Parshuram Arya, the defendant visited at Latur and threatened the plaintiffs and called upon them to vacate the suit property and handover the vacant and peaceful possession of the same to him. On 6th May, 2004 the defendant had been to the suit property and called upon the plaintiffs to handover vacant and peaceful possession of the same. On that day the plaintiff No.1 had filed the Complaint with Gandhi Chowk Police Station, Latur. Thereafter again on 3rd June, 2004 the defendant had been to the house of the plaintiffs. He accompanied by 15 labourers arrived at the suit house to pull down the same stating that notice was issued by Municipality for demolition of the said house as it was in a dilapidated condition. On that day also the plaintiff No.1 filed police complaint against the defendant with Gandhi Chowk Police Station, Latur. Because of the constant threats from the defendant, the plaintiffs filed Regular Civil Suit No. 370 of 2004 in the Court of Civil Judge, Junior Division, Latur for decree of perpetual injunction 4 against the defendant restraining him from causing interference in peaceful possession of the plaintiffs over the suit house. 3. In the said Suit the defendant filed his affidavit cum counter claim dated 25th October, 2004 and denied the plaintiffs' case. It is the case of the defendant that his father was owning the suit house and also another house at Siddheshwar Nagar, Latur bearing House No.133 and house gala No.485 of Mhada at Latur. His father acquired all these properties from his own earning and with some monetary help of the defendant. His father during his life time, gave the suit property situated at old cloth lane, exclusively to the defendant and thereafter had executed will of the suit property in favour of the defendant dated 18th August, 1993. Thereafter again on 1st January, 2000 by oral partition, his father divided his three properties between the plaintiffs and defendant. It is the case of the defendant that Parshuram Arya confirmed the partition in the decree passed in Regular Civil Suit No.181 of 2003. In the said decree there is a reference to allotment of house of Siddheshwar Nagar, Latur to the plaintiff No.2 5 and the property situated at Mhada, Latur allotted to the plaintiff No.1. It is the case of the defendant that since the date of partition i.e. 1st January, 2000, he is in possession of the suit property and enjoying the same. Father of the defendant during his life time, stayed in the suit property and because of that the plaintiffs also remained in the suit property. It is the case of the defendant that suit property is old constructed in stone and mud and after the earth quake, it became in dilapidated condition and as the defendant is residing at Nanded and serving at Hingoli, there should not be any damage to the property, the defendant filed an application to the Municipal Council, Latur and after due verification and Panchnama, the Municipal Council has granted permission to demolish the old house on 15th May, 2004. Thereafter the defendant requested the plaintiffs to handover vacant and peaceful possession of the suit property to the defendant but the plaintiffs refused to do so. Thereafter the defendant issued notice calling upon the plaintiffs to vacate the part of the suit premises which was in their possession. The defendant being owner of the suit property, filed counter claim for perpetual injunction restraining the 6 plaintiffs from obstructing his peaceful possession, ownership and enjoyment over the suit property and also for demolition and reconstruction over it by the plaintiffs in any manner whatsoever. 4. On the basis of pleadings of the parties, the trial Court has framed following Issues in the Suit: ISSUES 1) Do the plaintiffs prove their title and possession over the suit house? 2) Do they further prove that defendant is obstructing them? 3) Whether the plaintiffs are entitled for a relief as claimed? 4) What order? 5. In the Counter claim the trial Court framed following Issues: ISSUES 1) Does the defendant prove that he is owner, possessor of house property, House SH No.156/10 (old) and New House No. R-5-383 corresponding to City Survey No.9450 of Latur? 2) Does the defendant prove that plaintiffs are causing 7 obstruction in his peaceful possession of the above mentioned suit house? 3) Whether the defendant entitled for relief of declaration and injunction? 6. The trial Court held that the plaintiffs failed to prove their exclusive possession over the suit property. At the same time the trial Court held that defendant is owner of the suit property. The trial Court dismissed the suit preferred by the plaintiffs and partly allowed the counter claim preferred by the defendant. The trial Court granted injunction in favour of defendant restraining the plaintiffs from obstructing defendant to demolish and reconstruct suit property. 7. The plaintiffs preferred Regular Civil Appeal No.77 of 2007 in the Court of District Judge, Latur. In the said Appeal, the first appellate Court framed following points for consideration: POINTS 1) Do plaintiffs prove their title and possession over the suit property? 2) Do plaintiffs prove that the defendant is 8 unauthorizedly obstructing to their possession over the suit property? 3) Does the defendant prove his title possession over the suit property? 4) Does the defendant prove that the plaintiffs are causing obstruction to his possession over the suit property? 5) Are plaintiffs entitled for the reliefs sought? 6) Is defendant entitled for the counter claim? 7) Is impugned judgment and decree under appeal proper and correct? 8) What order? 8. The first appellate Court also categorically held that the plaintiffs failed to prove title and possession over the suit property. On the contrary, the first appellate Court held that the defendant proved his title and possession over the suit property. 9. With the assistance of the counsel for the parties, I have gone through the Record and Proceedings of the present case. It is admitted fact that the husband of plaintiff No.1 was holding three properties and he distributed all those three properties between 9 the plaintiff No.1, plaintiff No.2 and the defendant. The Plaintiff No.1 got property at Mhada, plaintiff No.2 got property at Siddheshwar Nagar and suit property was allotted to the defendant. Though the defendant allowed the plaintiff No.1 to reside in the suit property, she cannot claim ownership and/or injunction against the defendant on the basis of her possession. It is well settled that injunction cannot be granted against the true owner. In the present case the plaintiff No.2 herself admitted in her evidence that she was not residing along with her mother in the suit property. The first appellate Court in Para 13 of the Judgment categorically recorded these facts, which read as under: "13. From the evidence on record it transpires that there was a dispute between P.W.1 Sheela and her husband Anteshwar. The copy of the Judgment in R.C.C. NO.412/1999 (Exh.62) and copy of the plaint in R.C. NO.244/2001 (Exh.17) shows that P.W.1 Sheela was having strained relations with her husband Anteshwar. Moreover, P.W.1 Sheela in her cross-examination also admitted the factum of civil suit filed by her against her husband. This fact shows 10 that P.W.1 Sheela was not residing along with her mother in the suit property. P.W.1 Sheela also admitted that she is paying the tax of the house at Siddharth-Nagar, Latur." 10. As the suit property was allotted to the defendant in partition, the plaintiffs have no right, title and interest to seek any injunction order against him. Though the counter claim was allowed by the trial Court partly restraining the plaintiffs from interfering re-development of the suit property, the same was not challenged by the plaintiffs preferring any Appeal. Present Regular Civil Appeal No.77 of 2007 is preferred by the plaintiffs against the Judgment and decree of 3rd Joint Civil Judge, Junior Division, Latur in Regular Civil Suit No.370 of 2004. Therefore even today the injunction order passed by the trial Court in a counter claim preferred by the defendant is running against the plaintiffs. 11. In the present Second Appeal the defendant filed his affidavit dated 11th February, 2009 wherein it is specifically stated that with the permission of Municipal Council dated 15th May, 2004, he demolished 11 the suit property. He also stated that prior to the demolition of the suit house, proper notices were also served on the plaintiffs. After demolition of the suit house the defendant was about to start reconstruction but the plaintiffs with dishonest intention, started making complaints to the police authorities against the defendant. It is the case of the defendant that the plaintiffs unauthorizedly constructed present structure on the said open plot of land. In support of this contention the defendant annexed photographs showing the new construction coming up on the vacant plot of land. This itself shows that the plaintiffs without any authority, reconstructed some structure on the open plot of land. 12. Learned counsel appearing on behalf of the plaintiffs submitted that in the suit for injunction, Court should not consider the title of the plaintiff if the plaintiff proves his possession. In support of his contention, learned counsel for the plaintiffs relied on the authority in the matter of Anathula Sudhakar vs. P. Buchi Reddy (Dead) By L.Rs. & others, reported in 2008 (5) ALL M.R. Page 451. He specifically relied on Para 12 (b) of Head Note A of the Judgment, which reads as under: "(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property as in the case of vacant sites,s the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession." 13. It is true that if a person shows his well settled possession over the property and if he files the suit for injunction on the basis of his possession, in that case it is not necessary to look into and or 13 consider the title of the plaintiff. In the same authority, the Apex Court also held that where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. In the present case in hand, the Court has considered partition between the family members and held that the plaintiffs failed to prove their title in respect of the suit property. 14. In the above mentioned facts and circumstances, I do not find any merit in the present Second Appeal. In any case in the present matter both the Courts below concurrently held that the plaintiffs failed to prove their case for injunction. At the time of hearing, learned counsel for the defendant categorically made a statement that the plaintiff No.1 being his mother, defendant is always ready to take care of her. He also made a statement that in reconstructed building, he is ready to accommodate his mother. But the said proposal was rejected by the learned counsel for the plaintiffs, after receiving instructions from his clients. 14 15. In the above mentioned facts and circumstances, I do not find any substance in the present Second Appeal and the same is dismissed with no order as to the costs. [K.K. TATED, J.] asb/JULY09/sa3.09