1996 Supreme(Bom) 393

IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Harishchandra Narayan Maurya.... Appellant.
Versus
Rajendraprasad Dargahi Varma.... Respondent.
Appeal from Order No. 1341 of 1993, decided on 19-7-1996.
Advocates appeared :
P.N. Joshi with V.R. Joshi, for the appellant.
R.V. Govilkar, for the respondent.

Headnote:Order XXXIX, Rule 1, Sections 151 and 94-Grant of temporary Injunctions on misrepresentation of facts-Use of Interim order to disposes defendant-Restoration of possession assessing Inherent power-Non-attraction of provision of Order XXXIX, Rules 1(b) and 2©.-Present case is not a case where the defendant was seeking a temporary injunction against the plaintiff under clauses (b) and © of Rule 1. Order XXXIX and Nanasahebs case (supra). Has no application wherein the plaintiff on misstatement of facts or misrepresentation of facts obtain a order of temporary injunctions from the Court against the defendant and in the guise and grab of that injunction order seeks to disposes the defendant and in fact dispossess the defendant In such situation, and once it is found that in the grab of Courts order; the plaintiff has taken law in his own hand and by the use of his muscle and power dispossessed the defendant. The Court in exercise of its inherent power could always pass an order of restoration of possession to the defendant to meet the ends of justice. Such power of the Court could be traced in Section 94 as well as Section 151 of the Code of Civil Procedure.

       Order XXXIX, Rules 1 and 2-Evidence Act. 1872, Sections 3 and 59-Proof of ownership-What is? Held.-Admittedly there is no registered conveyance-deed evidencing transfer and plaintiff bases his right on the affidavit and the receipt. The affidavit is of 10.2.1992 and so is the receipt of the even date. In the affidavit the deponent-defendant has shown to have stated that he had handed over the exclusive possession of the suit room to the plaintiff. The defendant has denied execution of affidavit and receipt and according to him both documents are fabricated and forged. In this background of the rival case setout by the parties, it is to be seen whether plaintiff has been able to show prima facie about the transaction and that whether he came in exclusive possession of the suit property on 10.2.1992. According to plaintiff consideration of transaction Rs. 2 lakhs. There is no convincing evidence on record to show that on 10.2.1992 plaintiff was in possession of Rs. 2 lacs. Rather it appears from the perusal of the impugned order that the trial Court wanted to know from the plaintiff as to how he came in possession of 2 lakhs and paid the same in cash to the defendant and in answer to the Courts query plaintiff relied on two certificates dated 23.7.1992 and 28.7.1992. The said two certificates which have been considered at length by the trial Court and in High Courts view rightly that these documents do not at all show that plaintiff was possessed of Rs. 2 lakhs on 10.2.1992. Pertinently the certificate dated 23.7.1992 only shows that a cheque of Rs. 1,50,000/- was encashed by the plaintiff on 24.4.1992. If the cheque was encashed on 24.4.1992 how could be shown that by that encashment, the plaintiff came in possession that amount on 10.2.1992. The second certificate does not relate to any e1cashment of amount by the plaintiff but only shows that an amount of Rs. 50,000/- was sanctioned by the Bank in favour of the plaintiff. These 2 documents could not show that plaintiff was in possession and in position to pay Rs. 2 lakhs to the defendant on 10.2.1992. This creates lot of suspicion and doubt about the plaintiffs case that he purchased the property for consideration of Rs. 2 lakhs from the defendant and though there was no registered document, the transaction was evidenced by the affidavit and the receipt. Moreover, according to plaintiff he came in possession of the suit property on 10.2.1992 and it was only in the last week of May and first week of June that the defendant sought to demand more money towards transaction, and threatened the plaintiff to dispossess, but, there is no material whatsoever to show that for the period from 10.2. 1992 till the dispute arose between the parties that the plaintiff was in possession of the suit room. The Counsel for the plaintiff admitted before me that the said room had electric connection. If the plaintiff was in exclusive possession of the room since 10.2.1992 obviously he must have received electricity bills and paid the same but no such document has been produced by the plaintiff. There is absolutely not an iota of material to show that on and after 10.2.1992, the plaintiff was in possession. It is admitted case of the plaintiff that prior to 10.2.1992 the defendant was in possession and he handed-over possession to him. Since there is no evidence to show that defendant handed-over possession to him on 10.2.1992 or plaintiff ever came in possession, apparently and obviously the defendant continued to be in possession. It may also be seen that on 8.7.1992 itself immediately on his dispossession the defendant lodged the complaint before the Senior Inspector of Police, Matunga Police Station, Kings Circle, Bombay and set out the details of his forcible dispossession. Thereafter there is a communication by his lawyer to the Inspector of Police on 11.7.1992. Then on 13.7.1992 the defendants counsel also moved the Rationing Officer for obtaining duplicate copy of ration-card. Preponderance of probability therefore, clearly leads to the conclusion at this stage on the basis of rival case of the parties and material placed that the plaintiff never came into possession on 10.2.1992 as alleged by him and that defendant who was in possession admittedly prior to 10.2.1992 continued to be in possession and appears to have been forcibly dispossessed on 8.7.1992. It is thus clear that the plaintiff obtained ad interim injunction against the defendant on 24.6.1992 when he was not in possession of the disputed property and after the injunction order was obtained he forcibly dispossessed the defendant on 8.7.1992.

       Sections 3 and 59-See Civil Procedure Code, 1908, Sections 94 and 151 and Order XXXIX, Rules 1 and 2.