A suit for injunction simplicitor is not maintainable without a declaration of ownership, especially when the plaintiff admits that part of the property is in the possession of the defendants.

JUDGMENT :

Sandeep V. Marne, J.

By this Appeal, Appellants have challenged the Judgment and Decree dated 2 May 2017 passed by the Ad-Hoc District Judge-I, Ratnagiri in Civil Appeal No. 155/2012. The first Appellate Court has dismissed the Appeal filed by Appellants and has confirmed the Decree dated 21 July 2012 passed by the Civil Judge Senior Division, Ratnagiri in Regular Civil Suit No.55/2004. The Trial Court while decreeing the suit, has injuncted the Appellants/Defendants from obstructing Plaintiffs possession in respect of the suit property without following due process of law.

2. Briefly stated, facts of the case are that Municipal House No. 1981 at City Survey No. 2432 within the limits of Ratnagiri Municipal Council and bearing Survey No.479, Hissa No.8 admeasuring 1.5 Ares at Village-Zadgoan together with Shop situated on ground floor therein named 'Sadhana Stores is the subject matter of the suit. Plaintiff/Respondent No.1 contended in his suit that Shop 'Sadhana Stores was being run initially by his father - Shankar Gajanan Redij and thereafter Plaintiff started operating the Shop. He further pleaded in the plaint that, Shankar Gajanan Redij, Sharad Gajanan Redij and Ramesh Gajanan Redij were brothers who had partitioned the properties amongst themselves. As per that partition, the Municipal House came to the share of Sharad Gajanan Redij. Since Shankar Gajanan Redij was operating Sadhana Stores, he started paying rent of Rs. 300/- to Sharad Gajanan Redij. It was also pleaded that entire land belongs to Shankar Gajanan Redij and after the death of Shankar, the land is owned by the Plaintiff and his brother. It was further pleaded that after the death of grandfather, Gajanan on 8 November 1976, the property was mutated in the name of the Plaintiff-Sunil Redij. That Shankar Gajanan Redij gave one shop to Sharad in lieu of payment of rent where Sharad started operating Grocery Shop. From 1978, rent of Rs. 300/- payable in respect of Sadhana Stores was discontinued and this is how Plaintiff became full owner in respect of Sadhana Stores.

3. Plaintiff further pleaded that on 18 August 1997, an incident of fire took place in Sadhana Stores and other Shops, in which Plaintiff suffered loss of Rs. 9,03,000/-. That Plaintiff was demoralised on account of loss caused to him. At that time, his uncle Sharad Gajanan Redij was alive and he took disadvantage of Plaintiffs position and made an application to the Municipal Council on 19 August 1997 for carrying out repairs to roof and other parts of the suit property on Plaintiffs behalf. That he inserted his own name along with Plaintiff in the municipal records. That by taking disadvantage of the permission issued, he constructed a wall within the shop and attempted to create two portions therein. Plaintiff had permitted neighbour, Shri. Gangan to use shop temporarily, who vacated the same after repair of his own shop. However, Defendant Nos.1 and 2 started claiming rights in the suit shop. On this cause of action, Plaintiff instituted Regular Civil Suit No. 55 of 2004 against his cousin brothers, Sudesh Sharad Redij and Kamlesh Sharad Redij (Appellants herein). He also impleaded his brothers - Sanatan and Shankar as well as his sisters, as Defendant Nos.3 to 6 in the suit. Plaintiff claimed injunction against Defendant No. 1 from interfering with Plaintiffs possession of the Municipal House No. 1981/Sadhana Stores.

4. Defendant Nos. 1 and 2 appeared in the suit and filed Written Statement contesting the averments in the claim. Based on pleadings, the Trial Court framed following issues:

(i) Whether Plaintiff proves that he is in possession of the suit property?

(ii) Whether Plaintiff proves that Defendants are disturbing his possession of the suit property?

(iii) Whether Plaintiff is entitled to permanent injunction as prayed for?

(iv) What Order and Decree?

5. Plaintiff examined himself as witness. Defendant Nos. 1 and 2 also filed their individual Affidavits of Evidence. It appears th