2024:BHC-AS:17447 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 400 OF 2023 WITH INTERIM APPLICATION NO. 2145 OF 2023

1. Sudesh Sharad Redij

2. Kamlesh Sharad Redij, since deceased through legal heirs.

2A. Smt. Krutika Kamlesh Redij

2B. Prathamesh Kamlesh Redij

2C. Siyani Kamlesh Redij } Appellants V/s.

1. Sunil Shankar Redij

2. Sanatan Shankar Redij 3. Santosh Shankar Redij

4. Manisha Sunil Khedekar

5. Sadhana Arvind Shetye } Respondents Mr. Raju Suryawanshi, for the Appellant.

Mr. Satyajeet Rajeshirke, for the Respondent.

CORAM : SANDEEP V. MARNE, J.

Reserved on : 8 April 2024.

Pronounced on : 16 April 2024.

JUDGMENT :

1) 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 frst Appellate Court has dismissed the Appeal fled by Appellants and has confrmed 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) Briefy 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 foor therein named ‘Sadhana Storesf is the subject matter of the suit. Plaintif/Respondent No.1 contended in his suit that Shop ‘Sadhana Storesf was being run initially by his father - Shankar Gajanan Redij and thereafter Plaintif 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 Plaintif 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 Plaintif-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 Plaintif became full owner in respect of Sadhana Stores.

3) Plaintif further pleaded that on 18 August 1997, an incident of fre took place in Sadhana Stores and other Shops, in which Plaintif sufered loss of Rs.9,03,000/-. That Plaintif was demoralieed 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 alongwith Plaintif 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. Plaintif 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, Plaintif 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. Plaintif claimed injunction against Defendant No. 1 from interfering with Plaintiffs possession of the Municipa