1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAE JURISDICTION CIVIL APPLICATION NO.4252 OF 2009 IN FIRST APPEAL NO.247 OF 2006 1(A) Annapoornadevi widow of Harikrishna B Tiwari & ors. : Petitioners. Versus Shri V M Shirke & ors. : Respondents. Mr. V T Lulia for the Applicants. Mr. D D Madon with Mr. D Y Chitnis i/by M/s. Deepak Chitnis Chiparkar & Co. for Respondent No.4(c), 4(d), 6 and 7. CORAM : C.L.PANGARKAR, J. DATE : 28th JANUARY 2010 ORAL ORDER 1. The First Appeal is preferred by the appellant/original defendants against the decree passed in favour of the respondents/plaintiffs. However, this civil application has been moved by the respondents/plaintiffs for an injunction. A few facts may be stated thus :- 2. There is a trust known as “Shree Ramkrishna Shikshan Mandal”. The Government of Maharashtra had allotted land out of survey No.164 to the said trust. The said trust runs a school for visually 2 handicapped children. The total extent of the land is said to be more than 18 acres. It is alleged that the said trust was unable to take care of the said land which was initially an agricultural land. Then in order to take care of the said land it is alleged that one Harikrishna the original plaintiff was appointed as a manager. He had executed a document in favour of the said trust wherein he agreed to pay a sum of Rs.8000/- to the said trust and he was to appropriate the usufruct of the property. Since that time Harikrishna had been in possession of the said property and after his death his heirs have been in possession of the suit property. It is alleged that the defendants have been disturbing the possession of the Plaintiffs inasmuch as M/s.Dattani Construction and others who are the developers and promoters have been disturbing the possession of the plaintiffs. Hence injunction was sought for. 3. The said suit was resisted by the present appellants/defendants. According to them, the original plaintiff was merely a manager and no lease was in fact granted to him. He had not become the owner of the suit property under the Agricultural Lands Act. The Defendants have been in possession of the suit property exclusively and the plaintiff had no right to move the application for injunction. The learned judge of the trial Court had in fact granted the 3 injunction in respect of part of the property by a decree and hence the defendants have preferred this appeal. 4. The respondents/plaintiffs have now moved this application for injunction on the ground that the defendants are trying to disturb the possession of the plaintiffs by dumping earth in the suit property and this is being done by the developers. It is also alleged that the defendants have created third party interest in the suit property and, therefore, injunction should follow against the defendants. 5. It is the contention of the defendants that they have not created any third party interest in the suit property. They admit that they have been dumping earth in the suit property. According to them, they have been running a school in that area and in the rainy season, water stagnates in the same area being low line area. It is, according to them, unsafe for the children who are taking education in the school run by the defendants. They, therefore, pray that the injunction application should be rejected. 4 6. The appellant/defendants had filed an application for stay to the decree passed by the trial court and this court had passed a detailed order upon hearing the parties on the said stay application. This takes me to consider as to whether the respondents/plaintiffs are entitled to injunction as prayed for during pendency of this appeal. There is no doubt that the trial Court has granted decree against the appellants/defendants. The appeal of the defendants has been admitted by this Court. It is after the appeal was admitted that this injunction application has been moved. It is the contention of the plaintiffs that they are in possession of the suit property right from 1957 as tenant. On the other hand the defendants have contended that the last agreement of 1979-80 has come to an end and the plaintiffs are not in possession of the suti property. 7. From the contents of the application it is clear that occasion to file the application arose because some trucks load of earth have been unloaded at the suit site and the suit site is being filled with the earth. The plaintiffs/respondents apprehend that this is being done by the developers and the trustees have created third party interest in the suit property. It is also alleged that the trust has no financial capacity to undertake such work at the suit site. 5 8. The appellants/defendants had applied for grant of stay to the decree passed by the trial court. This court has granted stay to the judgment and the decree. The observations as made by this court while granting stay become very material. This court has virtually stayed the decree of injunction and this application is for injunction itself and, that is the reason why the contents of that order have become very material. The respondents/plaintiffs had in fact challenged that order of stay passed by this court before the Supreme Court but the applicants i.e. the respondents sought to withdraw that Special Leave Petition before the Supreme Court. Hence the order passed by this Court granting stay to the decree of injunction has thus attained finality. This Court while passing the said order has made following observations :- “That document prima facie brings about the intention of the parties and reflects upon the nature of the document and transaction. If the man is placed in possession of the property as a manager then he cannot have a superior rights to claim injunction as against the owner of the property. The trial Court at number of places has observed that there is no documentary evidence in respect of the possession produced by the respondent. In order to get a decree of perpetual injunction, the plaintiff-respondent is under an obligation to prove that he is in possession of the 6 property and the said possession is referable to the lawful title. Prima facie, on analysis of the material placed before this Court, the plaintiff-respondent has not proved possession of the property, much more that the document is referable to the lawful possession.” This court further observed that order thus :- “The matter does not rest here. It is to be mentioned here that immediately after filing of the suit, notice of motion was taken out by the respondent bearing No.4190 of 1990. However, ad-interim injunction was refused initially and after hearing both sides the notice of motion was disposed of by the City Civil Court. Thus, it shows that during the pendency of the suit there was no injunction order in favour of the present respondent-plaintiff. Therefore, it is only when the decree has been passed, which is the subject matter of the present appeal, the order of perpetual injunction has come into force for the first time. However, in view of the above referred circumstances and looking to the fact that the property belongs to the public trust and person who claims to be a manager of the property is trying to snatch and swallow the property of the public trust, this Court is persuaded to grant stay to the impugned judgment and orer. Therefore, Civil Application is allowed in terms of prayer clause (a). However, it requires to me mentioned that the appellant shall not create any third party interests 7 in respect of the suit property. Application is accordingly disposed of.” There is thus clear observation of this court while deciding the stay application that prima facie the respondent-plaintiff has no right and he has not been in possession of the suit property. This Court further observed that even during pendency of the suit, the plaintiff’s injunction application was rejected and his appeal was also dismissed. It is therefore obvious that the plaintiff was not in possession of the suit property. The plaintiff’s attempts to challenge the stay order passed by this Court on the said application before Supreme Court also failed. In fact, therefore, all the above observations as made by this Court while passing stay order bind the parties during pendency of this Appeal. The defendants do not dispute having filled in the suit site with earth. Their contention is that they are running a school for visually handicapped children on the said site and in the rainy season water stagnates in that area and that becomes hazardous to the children. It is therefore submitted that this filling is being done free of costs to prevent water stagnating at the suit site and thus that will prevent any danger to the life and limb of the children. If that is the reason for filling the ground, then there is no reason to grant injunction. Safety of children has to be taken care of. The land is no more agricultural land. Therefore, even if 8 it is so filled, that would not diminish the value of the land. It seems to me that this application is filed by the respondents/plaintiffs only because this court passed an order granting stay and the Supreme Court has refused to interfere with. This is, therefore, an attempt to over come that order passed by this Court. I find that the observations made in the stay order passed by this Court bind the parties and also bind me. In the circumstances I find that the plaintiffs/respondents have no prima facie case. They have not proved their possession prima facie and therefore they are not entitled to injunction. In the circumstances, this application for injunction stands rejected. [C.L.PANGARKAR, J]