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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.G. BISHT, J.
Dhondu S/o Ganpat Solunke and Others – Appellants
Versus
Dashrath S/o Tukaram Saroshe – Respondent
Second Appeal No.356 of 2005
Decided on : 30-03-2022
Code of Civil Procedure, 1908 - Section 100 – Appeal - Suit for permanent injunction - Plaintiff alleged that defendant however, threatened plaintiff to dispossess from suit property and therefore, plaintiff apprehended danger of being dispossessed at hands of defendant - It is alleged that defendant threatened plaintiff of dire consequences and even threatened to remove crops from suit property - Plaintiff in above circumstances filed suit for perpetual injunction - Whether on facts, plaintiff ought to have filed a suit for declaration of title and injunction - Whether first appellate Court was justified in reversing findings recorded by trial Court and granting declaration of ownership of respondent/plaintiff over Gat when plaintiff had not sought for a declaration and had filed a suit simplicitor for permanent injunction and had also claimed to be owner of Gat.
Findings of court :
Court surprised to note that learned Adhoc Additional District Judge, ventured to go into questions which were not pleaded and which were not subject matter of any issue and unnecessarily went on declaring plaintiff as owner of field Gat and consequently injuncted defendant - There was absolutely no discussion as to appreciation and analysis made by learned trial Judge in respect of boundaries of suit property - Learned Adhoc Additional District Judge granted relief which was never pleaded and asked for - More over learned Adhoc Additional District Judge, was also oblivious of fact that there was inherent pitfalls in plaint averments in as much as plaintiff had not sought relief for declaration and on that ground alone he ought to have upheld dismissal of suit at hands of learned trial Judge.
Result - Appeal is allowed
JUDGMENT :
V.G. Bisht, J.
1. By this appeal filed under Section 100 of the Code of Civil Procedure, 1908, the appellant (original defendant) has assailed impugned judgment and order dated 08.10.2004 passed by learned Ad-hoc Additional District Judge, Washim allowing the Regular Civil Appeal No.56/2003 filed by respondent (plaintiff). The respondent (plaintiff) had impugned the judgment and decree dated 28.01.2003 passed by learned Joint Civil Judge (J.D.) Washim thereby dismissing the suit for permanent injunction.
2. The parties in this judgment are described as per their original status in the proceedings before the learned trial Judge. The appellant namely Dhondu Ganpat Solunke was the original defendant whereas the respondent namely Dashrath Tukaram Suroshe herein was the original plaintiff.
3. The relevant facts for the purpose of deciding the Second Appeal are as under:-
4. The plaintiff alleged that the defendant however, threatened the plaintiff to dispossess from the suit property and therefore, the plaintiff apprehended the danger of being dispossessed at the hands of defendant. It is alleged that the defendant threatened the plaintiff on 30.06.1998 of dire consequences and even threatened to remove the crops from the suit property. The plaintiff in the above circumstances filed the suit for perpetual injunction.
5. The defendant resisted the suit by filing his written statement (Exh.45) and denied the boundaries of the suit properties. He further denied of having sold the suit property to the plaintiff under registered sale deed dated 30.04.1991 and putting him in possession. He further denied of alleged threats of dispossession and removing of crops.
6. According to defendant, the plaintiff is engaged in money lending business without any valid licence. The transactions between him and the plaintiff was that of money transactions. As the defendant was in need of moneys for the marriage of his daughter, a nominal sale deed was executed in respect of suit property with an understanding on agreement that on the repayment of loan of Rs.10,000/- the plaintiff will reconvey the suit property in his favour.
7. According to defendant, the boundaries given of the suit property are totally incorrect and those boundaries are in fact in relation to Gat No.12 which is in his possession. The suit is only filed with a view to harass and trouble him and therefore, the same is liable to be dismissed with costs.
8. On the basis of pleadings of both the parties, learned trial judge framed as many as six issues and after appreciating the evidence adduced by the parties was pleased to dismiss the suit.
9. Being aggrieved by the judgment and decree dated 28. 01.2003 passed by learned Joint Civil Judge (J.D.) Washim, the plaintiff filed Regular Civil Appeal No.56/2003. The learned First Appellate Court also framed points for his determination and was pleased to allow the appeal. Learned First Appellate Court was pleased to declare the plaintiff as owner of field of Gat No.12 admeasuring 46 R situated at Village Nagthana District Washim. The defendant herein dissatisfied with the judgment and order of the First Appellate Court has filed the present Second Appeal.
10. By an order dated 17.09.2007 this Court admitted the Second Appeal on the following substantial question of law:-
SupremeToday
Point of Law : General principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential....
Suit filed for perpetual injunction by plaintiff, when there is cloud over title is not maintainable.
Injunction sustainable on proved possession without declaration if no title cloud or property identity with prior decree established.
Where once a suit is held not maintainable, no relief of injunction can be granted.
Revenue records do not confer title or prove possession against commissioner report and admissions showing physical division by road and fencing; injunction suit maintainable on possession without de....
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