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2024 Supreme(Online)(Bom) 5459
BOMBAY HIGH COURT
Sharmila U. Deshmukh, J
SHRI.SUDHIR JOTIRAM ABHANGE AND OTHERS – Appellant
Versus
SHRI.PRAKASH BAPU MAYANE – Respondent
SA 467 / 2018
Adv. Umesh R. Mankapure for the Appellant/Applicants. Adv. S. P. Thorat for the Respondent.
A counterclaim for injunction is not maintainable without seeking a declaration of rights when ownership is contested.
Headnote:(A) Specific Relief Act - Section 38 - Second Appeal - Ownership dispute regarding property - Plaintiff sought declaration of ownership and injunction against Defendant No. 1, who counterclaimed for injunction based on alleged easementary rights - Trial Court ruled in favor of Plaintiff, but Appellate Court reversed this, granting counterclaim - Court found that the Plaintiff's ownership was clouded by Defendant No. 1's easementary claim, necessitating a declaration for resolution. (Paras 11, 19, 21)
(B) Easementary Rights - The court emphasized that a counterclaim for injunction is not maintainable without seeking a declaration of rights, especially when ownership rights are contested. (Paras 19, 21)
Facts of the case:
The Plaintiff claimed ownership of a portion of land sold by Defendant No. 2, while Defendant No. 1 asserted easementary rights based on a prior sale deed. The Trial Court found in favor of the Plaintiff, but the Appellate Court reversed this decision, citing the need for a declaration regarding the rights of the parties.
Findings of Court:
The Appellate Court ruled that the counterclaim for injunction was not maintainable without a declaration of rights, dismissing the counterclaim of Defendant No. 1.
Issues: The main issue was whether the Appellate Court was correct in decreeing the counterclaim without challenging the Plaintiff's sale deed.
Ratio Decidendi: The court held that a counterclaim for injunction cannot stand alone when ownership rights are disputed, necessitating a declaration of rights.
Result: Counterclaim dismissed.
JUDGMENT :
1. The Second Appeal is at the instance of the Plaintiff who was unsuccessful before the Appellate Court in Regular Civil Appeal No. 165 of 2011 preferred by the original Defendant No. 1 against the judgment and decree dated 15th April, 2011 passed by the Trial Court in Regular Civil Suit No. 240 of 2008 declaring the Plaintiff to be the owner of the property and restraining the Defendant No. 1 from causing any obstruction to the Plaintiff’s possession of the suit property and dismissing the counter claim filed by the Defendants. By the impugned judgment, the Appellant Court reserved the findings of the Trial Court and dismissed the suit and decreed the counterclaim.
FACTUAL MATRIX :
Plaint:
2. Regular Civil Suit No. 292 of 2000 was filed by the Plaintiff seeking declaration of ownership in respect of suit property described as undivided portion admeasuring 2R out of land bearing Gat No. 42 admeasuring 72R and for injunction restraining Defendant No. 1 from interfering with the Plaintiff’s peaceful possession. Gat No. 42 is the ancestral property of Defendant No. 2. In the year 1996, Defendant No. 2 sold portion of land situated on eastern side of Gat No. 42 to Defendant No.1 who thereafter erected certain structures with consent of Defendant No. 2. By registered sale deed dated 9th October, 2000 executed for consideration of Rs. 20,000/-, the Defendant No. 2 sold to the Plaintiff 2R land east-west 33ft. and north-south 66ft. out of Gat No. 42 bounded on the eastern side by the property purchased by Defendant No. 1, on the southern side by house of Defendant No. 2, on the western side by Kadepur Puse-savali road and on the northern side by east-west access road and beyond the access road the property of Defendant No 2.
3. For the purpose of fencing his property, the Plaintiff made certain arrangement on 15th October, 2000 when the Defendant No. 2 caused obstruction to the work being carried out restraining the Plaintiff from carrying out the work of fencing. As such, the suit came to be filed.
WRITTEN STATEMENT OF DEFENDANT NO. 1 :
4. The Defendant No. 1 contended that by way of registered sale deed on 7th May, 1996, 2R land was sold by the Defendant No. 2 to the Defendant No. 1 for sale consideration of Rs. 37,000/-. The purchased property is situated at a distance of about 80ft. from centre of the Kadepur Puse-savali road as per the development regulations. After being put in possession, in the year 1997, the Defendant No. 1 has constructed five shops facing western side Kadepur Puse-savali road with the knowledge and consent of Defendant No. 2 and there is no other access road to approach the shops except from the western side from Kadepur Puse-savali road. The Defendant No. 2 in collusion with the Plaintiff has sold the space left open in the Defendant No. 1’s sale deed as road widening area to the Plaintiff by way of an illegal sale deed dated 9th October, 2000. It was contended that the Defendant No.1 in the year 1996 has relinquished his ownership right to use the 80ft. road widening area from centre of the road and thus the Defendant No. 2 had no right to execute the sale deed in favour of the Plaintiff in respect of the said property.
WRITTEN STATEMENT OF DEFENDANT NO. 2 :
5. The Defendant No. 2 contended that the Defendant No. 1 was allowed to use the way from remaining western side portion to approach the building constructed by Defendant No. 1. He admitted the sale deed dated 9th October, 2000 and that possession has been handed over to the Plaintiff. The Defendant No. 1 has no right in the 80ft. open space and there is no fencing by the Defendant No. 1 of his own property. The Defendant No. 2 has sold portion of his land to the Plaintiff after leaving distance of 47ft. from centre of the road.
COUNTERCLAIM :
6. By way of counterclaim, the Defendant No. 1 prayed for injunction restraining the Plaintiff from disturbing the peaceful possession of the Defendant No. 1 in the suit property being 80ft. road widening area
