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2023 Supreme(Online)(Bom) 2733
HIGH COURT OF BOMBAY
Sandeep V. Marne, J
Geeta S Rijhwani Nee Shobha C. Khanchandani – Appellant
Versus
Narendra C. Khanchandani And Anr. – Respondent
Civil Appeal from Order No. 639 of 2023
For the Appellants/Petitioners: Mr. Vishal Kanade, Mr. Aseem Naphade, Ms. Megha Chandra, Mr. S. J. Khera
For the Respondents: Mr. Pankaj Thatte, Mr. Amit Sharma, Mr. Harsh Parte, Mr. Ranjit Agashe, Ms. Vinsha Acharya, Mr. Nikhil Sonar
An order of injunction can be granted where a prima facie case for ownership exists alongside significant possession; the balance of convenience plays a critical role in property disputes.
Headnote:(A) Maharashtra Co-Operative Societies Act, 1960 - Order of injunction - City Civil Court’s order of injunction restraining the Defendant from disturbing Plaintiffs’ possession over suit flat was upheld - Defendant purchased flat but Plaintiffs claimed ownership based on oral agreement and payments made. (Paras 2, 8, 10)
(B) Injunction Relief - Applicants must establish a prima facie case for injunction - Court found existence of possible arrangement without clear ownership being established - Balance of convenience favored the plaintiffs as they were in possession for 17 years. (Paras 10, 11)
Facts of the case:
Plaintiffs claimed that the suit flat was to be theirs based on an oral arrangement with the Defendant who is the sibling. They made substantial payments towards its purchase but faced delays in ownership transfer.
Findings of Court:
The City Civil Court exercised discretion in favor of Plaintiffs, supporting their ongoing possession and denying Defendant’s eviction until further proceedings clarify ownership.
Issues: The key issue was the establishment of a prima facie case regarding ownership and the validity of an oral agreement for sale of property.
Ratio Decidendi: The court found no patent error in the City Civil Court's findings and upheld that mere possession for a long duration cannot be disregarded without due examination of the ownership claims.
Result: The Appeal is dismissed without any order as to costs.
| Table of Content |
|---|
| 1. claim of oral agreement for property ownership. (Para 2 , 3) |
| 2. arguments on behalf of both parties regarding ownership and rights. (Para 4 , 5 , 6) |
| 3. court's observations on possession and rights. (Para 7 , 8 , 9 , 10) |
| 4. decision dismissing the appeal based on prima facie findings. (Para 11 , 12) |
By this Appeal, Appellant challenges Order dated 03 March
2023 passed by the City Civil Court allowing Notice of Motion No. 2085 of 2021 filed by the Plaintiffs / Respondent Nos. 1 and 2 in terms of prayer clause (b) which reads thus :-
b) Pending the hearing and final disposal of the present Suit, this Hon’ble Court be pleased to grant an order of injunction thereby restraining the Defendant, acting either by herself or through her agents, servants, and/or any person claiming through or under her or on her behalf from disturbing the peaceful occupation, possession and use of the Applicants/Plaintiffs over, in and of the said Suit Property, being Flat No. 202, E Wing, Crystal Palace Co-operative Housing Society Ltd., formed under the provisions of Maharashtra Co-Operative Societies Act , 1960, bearing registration number MUM/WP/HSG/TC/10216/98-99, dated 15/02/2019, situated on Linking Road, Opposite corner of Ramchandra Lane Extension, Malad (West), Mumbai - 400064, admeasuring about 466 Sq Fts carpet area, situated under land bearing CTS No. 307 of Village Valani, Taluka-Borivali, District - Mumbai Suburban, along with Five fully paid up shares of Rs. 50/- each bearing distinctive Nos. 0311 to 0315 (both inclusive), comprised under Share Certificate No. 18 issued by the Crystal Palace Co-operative Housing Society Ltd, in any manner whatsoever;
2. Plaintiff No.1 and Defendant are siblings. Plaintiff No. 2 is the daughter of Plaintiff No. 1. Plaintiff’s case, as captured from pleadings in the plaint, is that Plaintiff No. 1 was engaged in a business which resulted in losses. That all the assets of Plaintiff of No. 1 were attached by the bank, on account of which his residential flat was also auctioned by the bank. Since the family of the Plaintiff did not have any place of residence, they were forced to reside in a rented premises in a building named Crystal Palace Co-operative Society, Malad. It is contended that Plaintiff No. 1 desired to purchase a residential flat in the same building Crystal Palace. His elder sister (Defendant) showed willingness to provide financial assistance to Plaintiff No. 1, who was not in a position to secure any loan from financial institutions. Under such arrangement, the flat bearing No. 202, E-Wing, Crystal Palace Co-operative Society, Linking Road, Malad (West) Mumbai 400 064 came to be purchased in the name of the Defendant. Plaintiffs aver that the purchase transaction in Defendant’s name was with an oral understanding that the Plaintiff No.1 and his family would permanently reside in that flat and that the Plaintiff of No. 1 would repay the entire amount of consideration of Rs. 15 lakhs borne by the Defendant, after which the flat would be transferred in the name of Plaintiff No. 1. It appears that the Defendant paid amount of Rs. 3,50,000/- from her own account and availed loan of Rs. 11,50,000/- for purchase of the flat. This is how the flat came to be purchased in the name of the Defendant, but Plaintiff and his family members started residing in the same.
3. Plaintiff claims that in terms of the oral agreement, Plaintiff No. 1 transferred the amount of Rs. 10 lakhs from his company account in the Defendant’s account on 06 August 2011 towards part payment of consideration amount for purchase of the suit flat. That Plaintiff No. 1 further paid amounts of Rs.6,00,000/- on 05 March 2013, Rs.5,00,000/- on 14 March 2013 and Rs. 3,50,000/- on 30 October 2013 from the accounts of Plaintiff No. 2 in favor of Mr. Suresh Rijhwani (Defendant’s husband). Plaintiffs accordingly claim that by now a sum of Rs.24,50,000/- has been paid by Plaintiffs to the Defendant/her husband as against
