1 16.ao.121.09=caa 140.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION skt APPEAL FROM ORDER NO. 121 OF 2009 WITH CIVIL APPLICATION NO. 140 OF 2009 Shri Dattatraya Balu Mhatre & Ors. ... Appellants Vs. Shri Pimpaleshwar Mahadev Bhakt Mandal & Ors. ... Respondents ...... Mr.M.S.Lagu for the appellants. Mr.D.S.Mhaispurkar for respondent nos. 1 to 1-6, 1-8 to 1-9 & 1-11 to 1-13 ...... CORAM : J.H. BHATIA, J. DATE : 30th AUGUST, 2010. P.C. 1 Heard the learned counsel for the parties. 2 The plaintiffs/appellants claim that the suit land bearing City Survey No.51, Tika No.24, admeasuring 2295.8 sq.mtrs. situated within the limits of Sagaon, Sonarpada, Taluka Kalyan, District Thane was allotted to plaintiff no.2 and a sanad was issued. The plaintiffs/appellants are in possession of the same. They had also constructed a house and were living in the said house and in the open land growing paddy and vegetables. The property is also recorded in the name of the plaintiffs/appellants in the Municipal and Revenue record. To the western 2 16.ao.121.09=caa 140.09.sxw side, adjoining this land is Kalyan Shil road, which is a public road and beyond that road, there is a Mahadeo Temple, which is managed by defendant nos.1 to 13 as trustees of that temple. According to the plaintiffs, in December 2007, the defendants dug some soil from the suit land for the purpose of construction of the temple. Some of earth was sold away by them. They assured to compensate the plaintiffs. In view of that assurance, no action was taken by the plaintiffs. As the plaintiffs kept silence, on 20-07-2008 again the defendants entered into the suit land and demolished the residential house of the plaintiffs/appellants and took away some of the material from the suit land. In view of these circumstances, the plaintiffs filed Special Civil Suit No.336 of 2008 seeking declaration of the title of ownership over the suit land and claimed compensation of Rs.11 lakh. They also sought perpetual injunction restraining the defendants causing any obstruction in their possession. In alternative, it was prayed that in case, their possession is not proved, they be put in possession of land also. By application Exh.5 the plaintiffs sought temporary injunction restraining defendants from causing any interference in their possession over the suit property. 3 The defendants filed written statement and reply Exh.14 and denied the claim of the plaintiffs/appellants. According to them, the boundaries of the suit property shown in the map and the boundaries 3 16.ao.121.09=caa 140.09.sxw shown in the alleged sanad differed from each other. According to them, the sanad is a false document and the plaintiffs have no right over the suit property. According to them, they are in possession of the suit property. 4 The Trial Court accepted the contention of the defendants and holding that even if soil is taken away from the land, it can be compensated in money and therefore the application Exh.5 came to be rejected. That order is challenged in the present Appeal. 5 According to the plaintiffs/appellants, a sanad was granted by the Government and under that sanad the suit property is in possession of the plaintiffs. Though, according to the defendants, the sanad is not genuine document, that needs to be examined at the time of the trial of the suit. Even though, the defendants claim to be in possession of the suit property, admittedly, the suit property is not shown as property of the defendants in the register of the property maintained by the Charity Commissioner. The defendants, being trustees, do not claim any individual right over the suit property and claim the right on the property as trustees of defendant no. 1-Trust, which is registered as a Public Trust under the provisions of the Bombay Public Trust Act, 1950. As per the Bombay Public Trust Act each and every immovable property of a Public Trust is required to be entered into a register of the property maintained by the Charity Commissioner. Firstly, no such entry is there in favour of the plaintiffs and secondly they 4 16.ao.121.09=caa 140.09.sxw do not have any document to support their title or possession over that property. Therefore, prima facie, the defendants do not appear to have any right over the suit property. Next objection of the defendants to the claim of the plaintiffs is that, the boundaries of the suit property shown in the map are different from the boundaries in the sanad. That can also be examined at the time of trial. Admitted fact is that, between the suit property and the temple, which is a property of defendant no.1-Trust, there is a public road, known as Kalyan-Shil road and thus, that road is admittedly the divdiing line between the properties of the two parties. The defendants cannot jump over that road and claim that to the eastern side of that road, some part of the suit property is in their possession or belongs to them. Taking into consideration, these circumstances, I find that the plaintiffs/appellants have made out a prima facie case of their possession over the suit property. If the defendants are not restrained from causing interference in possession of the plaintiffs over the suit property, they may either forcibly dispossess them or continue to dig out the land and take away soil and thereby damage the property itself. I am unable to understand the logic given by the Trial Court that such damage can be compensated by money. 5 16.ao.121.09=caa 140.09.sxw 6 It is settled position of law that relief of temporary injunction is discretionary in nature and ordinarily the Appellate Court will not interfere in the discretion used by the Trial Court. However, it is also settled position that if use of the discretion or its refusal is perse wrong or perverse, the Appellate Court can certainly interfere. In view of the facts and circumstances of the case, I find that the Trial Court committed a serious error in rejecting the application Exh.5 for temporary injunction and therefore in the interest of justice it is necessary for this Court to interfere the impugned order. 7 For the aforesaid reasons, the Appeal is allowed. The impugned order is hereby set aside. The application Exh.5 filed by the plaintiffs is allowed and the defendants are restrained from causing any interference in possession of the plaintiffs/appellants over the suit property, pending final disposal of the suit. 8 As the Appeal is disposed of, the Civil Application No. 140 of 2009 does not survive and stands disposed of accordingly. [ J.H. BHATIA, J.]