1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Appeal Against Order No. 117 of 2008 (Shri Ravishkumar s/o Chandrakumar Chouriya Vs. Sau. Meena w/o Ramesh Chawala & ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. N.B. Bargat, Adv. For the appellant. Mr. M.G. Bhangde, Senior Counsel, along with Mr. V.V. Bhangde, Adv. For the R- 1 to 5. CORAM : Smt. Vasanti A. Naik, J. DATE : 6 th January, 2009 Heard the learned counsel for the parties. The appellant is the original plaintiff. The appellant had filed a suit against the respondents for a declaration that the agreement of sale dated 27/6/2001 had been executed for collateral purpose i.e. in view of the loan transaction, as a security. The plaintiff further sought a declaration that he was the legal owner of the second floor of the suit premises and had every right to restrain the defendants, through agents and persons claiming through them, from illegally constructing, demolishing, modifying or altering the suit premises. It was pleaded by 2 the plaintiff that the defendants had made illegal construction/demolition of roof/ceiling on the first floor and the ground floor, leading to the second floor. The plaintiff claimed to be in possession of the suit property i.e. the second floor of the four storeyed building and sought a permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiff over the suit property. The plaintiff also filed an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, seeking temporary injunction to restrain the defendants from interfering with the peaceful possession of the plaintiff over the suit property. The plaintiff further sought an injunction restraining the defendants from making any illegal construction or destruction which was contrary to the provisions of law and which was prejudicial to the interest of the plaintiff, till final disposal of the suit. The defendant nos. 1 to 4 filed their written statement-cum-reply and denied the case of the plaintiff. It was denied by the defendant nos. 1 to 4 that the agreement of sale dated 27/6/2001 was not a genuine 3 transaction and reflected a loan transaction. It was pleaded by the defendant nos. 1 to 4 that the defendants were ever ready and willing to perform their part of the contract by paying the balance amount of Rs. 50,000/-, but the plaintiff failed to obtain the No Objection Certificate from the Nagpur Improvement Trust before execution of the sale deed. It was denied that the plaintiff was in possession of the suit property. It was pleaded that the possession was handed over to the defendants on 27/6/2001 at the time of execution of the registered agreement of sale. According to the defendants, the construction of the staircase was effected by the defendants in accordance with the terms of the agreement of sale dated 27/6/2001. It was pleaded by the defendants that the plaintiff had himself asked the defendant nos. 1 to 4 to construct a staircase from the shop block, for going to the upper floor as the defendant nos. 1 to 4 were not permitted by the plaintiff to use the staircase from outside. According to the defendants, they had a right to construct the staircase to reach to the second floor in terms of the agreement of sale dated 27/6/2001. It was 4 pleaded that in order to reach the second floor, the defendant nos. 1 to 4 had constructed a staircase from the first floor which reaches the second floor. It was also pleaded in the written statement-cum-reply that the construction of the staircase was already complete. The defendants sought for the dismissal of the application. The trial Court heard the learned counsel for the parties, and after considering the material on record, by the impugned order dated 16th September, 2008, rejected the application for grant of temporary injunction. The order dated 16/9/2008 is challenged in the instant appeal. Shri Bargat, the learned counsel for the appellant, submitted that the plaintiff was, undoubtedly, the owner of the property and since no sale deed was executed in favour of the defendant nos. 1 to 4, they had no right to make the construction in the suit property which would cause prejudice to the plaintiff. The learned counsel for the appellant submitted that the defendant nos. 1 to 4 had caused damage to the ceiling of the first floor by removing the ceiling to the extent of 5 10'X10'. It is then submitted on behalf of the appellant that the facts of the case clearly reveal that the agreement dated 27/6/2001 was executed for collateral purpose and clearly reflected a loan transaction. The learned counsel for the appellant submitted that the trial Court ought to have granted temporary injunction in favour of the plaintiff as the plaintiff was in possession of the suit property and though the agreement dated 27/6/2001 recited that the possession was handed over to the defendant nos. 1 to 4, it was not handed over, as such. Shri M.G. Bhangde, the learned Senior Counsel for the respondents, supported the order passed by the trial Court and took this Court through the registered agreement of sale dated 27/6/2001. It was pointed out by the learned Senior Counsel that the agreement of sale dated 27/6/2001 recited that the respondent nos. 1 to 4 were not permitted to use the staircase from outside the building and they were permitted to build a staircase from the shop block for reaching the upper floor. The permission to construct the staircase, according to the learned Senior Counsel, was 6 found in the document dated 27/6/2001 itself and, therefore, in terms of the agreement dated 27/6/2001, the defendant nos. 1 to 4 constructed a staircase from the first floor which reaches the second floor. It was also brought to the notice of this Court by referring to the written statement-cum-reply that the construction of the staircase from the first floor to the second floor was already completed. The learned Senior Counsel also referred to the reply filed by the respondents in this Court to point out that the construction of the staircase was completed as it was undertaken in the month of September, 2007. It is further brought to the notice of this Court that the respondents have stated in the affidavit-in- reply that the respondents do not intend to make any construction vis-a-vis the suit property and also do not intend to change the nature of the suit property in any manner whatsoever. The learned Senior Counsel, by placing reliance on the registered agreement of sale, pointed out that the defendant nos. 1 to 4 were put in possession of the suit property and were also permitted to make the construction of the staircase. According to the learned 7 Senior Counsel, the application for grant of injunction was rightly dismissed by the trial Court. I have considered the submissions made on behalf of the parties and have also perused the plaint, the written statement, the application for grant of temporary injunction and the impugned order dated 16/9/2008. On a perusal of the pleadings and the impugned order, it is clear that the trial Court committed no error in rejecting the application for grant of temporary injunction. The plaintiff had claimed to be in possession of the suit property, but it was prima facie clear from the registered agreement dated 27/6/2001, that the defendants parted with a major part of the consideration and were put in possession of the suit property on the date of the agreement. In this background, the trial Court rejected the first prayer by which the plaintiff sought the injunction restraining the defendants from disturbing the peaceful possession of the plaintiff over the suit property, and rightly so. By the second part of the prayer, the plaintiff had sought a temporary injunction restraining the defendants from making any illegal 8 construction or destruction which was prejudicial to the interest of the plaintiff. The submission made on behalf of the plaintiff that the defendant nos. 1 to 4 were not entitled to construct the staircase, by causing damage to the ceiling, is liable to be rejected for the reason that the plaintiff himself had granted permission to the defendants to make the construction of the staircase for reaching the second floor of the suit property, by the agreement dated 27/6/2001. The agreement dated 27/6/2001 further recited that the defendant nos. 1 to 4 were not permitted to use the regular staircase which was constructed outside the four storeyed building, for reaching the second floor. In the face of the permission to construct a staircase, reaching the upper floors and prevention to use the staircase going to the upper floors from outside the building, the defendant nos. 1 to 4 constructed a staircase from the first floor which reaches the second floor in order to reach the second floor of the building. The trial Court rightly considered that the ground floor and the first floor of the building were owned and possessed by the defendants and construction of staircase 9 from the first floor to the second floor of the building was not prejudicial to the interest of the plaintiff. Even otherwise, the respondents have stated in affidavit-in-reply before this Court that the respondents do not intend to make any construction vis-a-vis the suit property and also do not intend to change the nature of the suit property in any manner whatsoever. The trial Court rightly held that the plaintiff does not have a prima facie case and the balance of convenience also do not lie in favour of the plaintiff. The impugned order dated 16/9/2008 is just and proper and calls for no interference in this appeal. For the reasons aforesaid, the appeal is dismissed with no order as to costs. JUDGE RMP