In a suit for permanent injunction, the plaintiff must establish possession; failure to contest evidence leads to confirmation of ownership and injunction.

Judgement :

[FIRDOSH P. POONIWALLA, J.]

1. This First Appeal is filed by the Original Defendant No.1 challenging the Judgement dated 1^st October 2012, passed by the Bombay City Civil Court at Dindoshi, decreeing Suit No.1341 of 2010.

2. In the present Judgement, the parties are described in the same manner as they were described in the Suit.

3. Suit No.1341 of 2010 was filed seeking the following relief:

“a) That this Hon'ble Court be pleased to restrain the defendant No.1 his servants, agents, contractor/s or any person or persons claiming through under or by him permanently by an order and injunction of this Hon'ble Court from entering into, remaining upon, dispossessing the Plaintiffs and/or disturbing the peaceful possession of the plaintiffs on the suit property and/or constructing unauthorised sheds/structures/chawl's and/or from carrying out any unauthorised construction activities of whatsoever nature of otherwise from encroaching upon the suit property i.e. the land admeasuring m24 Gunthas equivalent to 2458.5sq. meters or thereabouts bearing survey No.178, Hissa No.1, Corresponding C.R.S.NO.171, 171/1 to 6 of Village Malad (East) Taluka Borivli, District Mumbai suburban together with three structures assessed for the property taxes under Ward Nos. PN6438-299A, PN 6438-2- 299 AB, P-6438(3) 299-AC standing thereon known as Patkar Wadi, Manchhubhai R Road, Malad (East) Mumbai 400097 and as more Particularly delineated by red colour on the plan annexed and marked Exhibit -A to the Plaint or any part or portion thereof.

4. The Plaintiffs’ case in the Plaint is as under:

a. The Plaintiffs and Defendant Nos.2 to 7 are the co-owners of the property admeasuring 24 Gunthas, equivalent to 2458.5 sq.meters or thereabouts, bearing survey No.178, Hissa No.1, corresponding to C.T.S.No.171, 171/1 to 6 of Village Malad (East) Taluka Borivli, District Mumbai Suburban, together with three structures, assessed for property taxes, standing thereon known as Patkar Wadi, Manchhubhai Road, Malad (East), Mumbai 400 097 (“the suit property”).

b. By a Deed of Conveyance dated 18^th October 1897, one Purshottam Atmaram Patkar, the grand father of the Plaintiffs and Defendant Nos.2 to 7, purchased the suit property from Haridas Narayandas for the consideration and on the terms and conditions mentioned therein. The said Purshottam Atmaram Patkar died in the year 1920 leaving behind him three sons namely (i) Raghunath Purshottam Patkar (ii) Krishnarao Purshottam Patkar and (iii) Pandharinath Purshottam Patkar. The said Pandharinath Purshottam Patkar died intestate as a bachelor on 28^th October 1940. The said Raghunath Purshottam Patkar died on 6^th March 1968 leaving behind him his widow Sumati Raghunath Patkar, his three sons, namely the Plaintiffs, and his six married daughters, namely Defendant Nos.2 to 7, as his only heirs and legal representatives. The mother of the Plaintiffs, Sumati Raghunath Patkar, died on 23^rd December 1982. Further, the said Krishnarao Purshottam Patkar died intestate as a bachelor on 9^th October 1973. Accordingly, the Plaintiffs and Defendant Nos.2 to 7 became the co-owners of the suit property by virtue of operation of law.

c. The name of Krishnarao Purshottam Patkar is shown as Kabjedar in Village Form Nos.7, 7A and 12 in respect of the suit property. The names of the Plaintiffs, their mother and sisters (Defendant Nos.2 to 7) are shown as holders in the extract of Property Register Cards in respect of the suit property. The Government of Maharashtra has issued Sanads and map in respect of the suit property under the provisions of the Maharashtra Land Revenue Code, 1966, in the joint names of the said Raghunath Purshottam Patkar and Krishnarao Purshottam Patkar, the father and uncle respectively of the Plaintiffs.

d. The suit property is assessed for non-agricultural taxes. The Assistant District Deputy Collector, Mumbai Suburban District, Andheri, vide his Order dated 28^th June 1968 has regularised the unauthorised N.A. use of