A suit for permanent injunction is maintainable when there is interference with lawful possession, even if ownership is disputed, provided the plaintiff establishes possession.

JUDGMENT :

(URMILA JOSHI-PHALKE, J.)

1. By this appeal, judgments and decrees dated 20.12.2003 passed by learned 3rd Ad Hoc Additional District Judge, Wardha in RCA No.109/1997 and 4.10.1997 passed by learned 2nd Joint Civil Judge Junior Division, Wardha in RCS No.164/1997 are under challenge.

2. The parties hereinafter are referred as per their original nomenclature.

3. The respondent herein is the original plaintiff who filed a suit for permanent and mandatory injunction restraining the defendants from demolishing the northern wall of house and from alienating the suit house. The plaintiff is the owner of nazul plot No.215 and in nazul sheet No.14 of mouza Wardha admeasuring 417.01 square meters. The house of the defendants is on the western side of the plot along with one block on the southern side of the said plot wherein the son of the plaintiff is running shop. The original owner of the suit property was husband of the plaintiff who died on 6.2.1981. After death of her husband, she along with her sons inherited the suit property. It is specific contention of the plaintiff that her husband during his life time has never executed any Will in favour of his son Salim and, therefore, Salim has no right to dispose of the said property by registered sale deed dated 16.5.1988. By virtue of decree passed in RCS No.92/75, her husband was declared to be owner of nazul plot no.215. She first time came to know about the execution of the sale deed dated 16.5.1988 on 16.6.1997. She claimed that she is the owner and sale deed is not binding on her and, therefore, the defendants be restrained from taking possession of any area and from alienating any portion of the suit property. The suit property is still in the name of the deceased. The defendants are neighbours and started demolishing some portion of the compound wall on 24.5.1997 on northern side and, therefore, she constrained to file the suit.

4. The suit is contested by the defendants by filing written statement and denied the contentions of the plaintiff. As per the defendants, the defendant No.1 had purchased the plot situated in ward No.19, old nazul block No.14 east-west on northern side 25 feet, east-southern side 24 feet, north-west side 40.6 feet and eastern side 24 feet with a corner having length 2.9 feet. Total area 1017 square feet having boundaries as under:

Towards East :- house of Dulichand,

Towards West :- house of Shri Ajani,

Towards North :- house of vendor.

5. The plot was purchased by the defendant No.1 by sale deed dated 16.5.1998 for consideration amount of Rs.19,000/- vide registered sale deed dated 16.5.1988 from Salim Alibhai Ajani. Salim acquired the title on the basis of the Will executed by his father. His father bequeathed the entire property to his legal heirs and they have purchased the same from Salim. Thus, they became the owner of the suit property and ownership of the plaintiff was denied and prayed for dismissal of the suit.

6. Learned Civil Judge Junior Division, Wardha recorded the evidence and observed that the fact of execution of the Will in favour of Salim itself is not proved and, therefore, the sale deed executed by Salim is not valid. Thus, the defendants failed to prove the ownership over the suit property. The evidence on record sufficiently shows the suit property is in possession of the plaintiff and granted injunction in favour of the plaintiff by decreeing the suit.

7. The decree passed in the RCS was challenged by the defendants by preferring Civil Appeal No.109/1997 which was dismissed by the first appellate court by observing that there is nothing put by the side of the defendants to show that they are owner of the suit property. In fact, execution of the Will itself is not proved and, therefore, the sale deed executed by Salim claiming his ownership on the basis of the Will is not established and, therefore, the said sale deed is not valid and not binding on the plaintiff and confirmed the judgment and decree passed by learned Civil Judge