1 36 FA.1635.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1635 OF 2011 Smt. Kalavati Choudhary and others. ... Appellants Versus Narayan Gaikar and others. ... Respondents ----- Mr. Anil Singh i/b Mr. R.G.Megh for the Appellants. ----- CORAM : A.S.OKA, J. DATE : 07 th September, 2011. P.C. 1 Heard the learned counsel appearing for the Appellants. 2 The Appellants are the original Plaintiffs. The suit filed by the Appellants for injunction has been dismissed by the trial Court. 3 I have heard the learned counsel appearing for the Appellants. True copies of the pleadings and notes of evidence have been annexed to the appeal compilation. The trial Court has dismissed the suit mainly on the ground that the Appellants – Plaintiffs have failed to prove their ownership over the suit property. 2 36 FA.1635.11 4 The learned counsel appearing for the Appellants submitted that the Appellants had produced 7/12 extract in respect of the suit property. He submitted that the Municipal Corporation granted sanction for construction of the building and accordingly a building was constructed. He submitted that the only relief, which was claimed in the suit was for preventing the Respondent from obstructing work of construction of compound wall. He submitted that during the pendency of the suit, the Appellants were granted interim relief. He submitted that as the Plaintiffs have proved possession and the fact that they have constructed the building after obtaining permission from the Municipal Corporation, injunction ought to have been granted. He pointed out that the construction of building consisting of eight floors has been already completed and therefore, there was no reason to deny the relief of injunction. 5 I have carefully considered the submissions. The plaint proceeds on the footing that the Appellants are the owners of the suit 3 36 FA.1635.11 plot bearing CTS Nos.3271 and 3273/C corresponding to Survey No. 351, Hissa Nos.44 and 47 at village Kole Kalyan, Taluka Andheri, Yeshwant Nagar, Santacruz (East), Mumbai – 400055. It is true that necessary pleadings have been incorporated regarding grant of IOD by the Municipal Corporation and the construction of the building consisting of eight floors. An averment has been made that in March 1998, the Appellants started construction of compound wall, but the Respondent Nos.1 to 3 obstructed the work of carrying out construction of the compound wall. Therefore, the present suit for injunction was filed for restraining the Respondent from preventing the Appellants from constructing the compound wall. The suit was contested by the Respondent by filing a written statement. As there was a dispute raised as regards the title, the first issue was framed by the trial Court which reads thus: “ISSUES FINDINGS 1. Do the Plaintiffs prove that they are the owners of the suit property as described in paragraph 1 of the plaint ? NOT PROVED” 4 36 FA.1635.11 6 Admittedly, the Appellants did not produce any document of title. Only a 7/12 extract was produced, which is not a document of title. The Plaintiffs – Appellants examined their Constituted Attorney as a witness. In paragraph No.2 of the affidavit in lieu of examination- in-chief, it is stated that the Plaintiffs were the joint owners of the suit land. In the cross-examination, the witness admitted that he had filed all the documents in possession to show that the suit land belongs to the Appellants. He stated that he was not in possession of any other document. He claimed that the land CTS No.3271 was purchased from Kamalabai Shetty by virtue of a sale agreement and subsequent conveyance. A suggestion was given in the cross-examination that the vendor Kamalabai Shetty had no right, title or interest for selling the suit land. Though the witness denied the correctness of the suggestion, no effort was made to produce the sale-deed on record. A contention was sought to be raised that the documents were lost in floods. If there was really a sale-deed executed in favour of the Appellants, they could have always produced a certified copy of the 5 36 FA.1635.11 sale-deed and could have adduced secondary evidence of the sale- deed in the form of a certified copy. 7 Thus, this is a case where there was absolutely no evidence of title and ownership of the Appellants. The relief of perpetual injunction is always discretionary and equitable. The Appellants approached the Court on the footing that they are the absolute owners of the suit land. After having failed to prove the title, the trial Court was justified in declining to grant discretionary and equitable relief of perpetual injunction. Merely because there is a sanctioned plan obtained by the Appellants, that is not sufficient to prove the title of the Plaintiffs – Appellants. 8 Hence, no case is made out for interference. The appeal is summarily dismissed with no order as to costs. 9 Civil Application No.3561 of 2011 does not survive and the same is disposed of. [ A.S.OKA, J ]