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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.553 OF 2014

with

CIVIL APPLICATION NO.9359/2014

Rekha w/o Gururaj Kattimani

= APPELLANT

(orig.Defendant)

VERSUS

Nagamma @ Nageshwari wd/o Gangaram

Hulgunde

= RESPONDENT

(orig.plaintiff)

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Mr.Milind Patil,Advocate for Appellant;

Mr.RP Adgaonkar, Advocate for Respondent.

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CORAM : SMT.VIBHA KANKANWADI,J.

RESERVED ON : 17/08/2021

PRONOUNCED ON : 28/09

/2021

PER COURT :-

1.

Present appeal has been filed by original

defendant, challenging concurrent judgment and

decree. Present respondent is original plaintiff,

who had filed Regular Civil Suit No.504/2010 before

2^nd Joint Civil Judge, JD,, Latur for perpetual

injunction. It came to be decreed on 30.8.2012.

Present appellant-original defendant challenged the

said judgment and decree in Regular Civil Appeal

No.330/2012. The said appeal was heard by learned

Adhoc District Judge-1, Latur and was dismissed on

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17.10.2013. Hence, this Second Appeal.

2.

Heard learned Advocates appearing for the

respective parties.

3.

It has been vehemently submitted on

behalf of the appellant that, certain admissions

given by the plaintiff’s witness have not been

considered at all by both the Courts below. Both

the Courts below failed to consider the pleadings.

The plaintiff had tried to contend that the cause

of action arose on 28.11.2010 and in Para 5, it has

been stated by the plaintiff that the defendant has

ejected the plaintiff from the strip of house

property adjacent to the house of the defendant by

hooting off the plaintiff. Even he had refused the

request of the plaintiff for enjoyment of her

property by stating that some part of the suit

property belongs to her house property and,

therefore, the plaintiff is compelled to file the

suit on the cause of action dated 28.11.2010.

Thus, in the plaint itself when it has been stated

that the plaintiff has been dispossessed from the

strip of land then the suit, simplicitor for

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injunction, is not maintainable. Further, in this

case, the defendant was claiming ownership over

part of the suit property and, therefore, in view

of decision in the case of Anathula Sudhakar Vs.

P.Buchi Reddy – 2008 (4) SCC 594, wherein it has

been specifically held that, where a cloud is

raised over plaintiff’s title and he does not have

possession, a suit for declaration and possession,

with or without a consequential injunction, is the

remedy. In other words, when the cloud is raised

on the plaintiff’s title then, the simplicitor suit

for injunction, is not maintainable. Similar ratio

has been laid down in Meher Chand Das Vs. Lal Babu

Siddique – 2007 AIR (SC) 1499; and Vinay Krishna

Vs. Keshav Chandra – AIR 1993 SC 957. He further

submitted that both the Courts below have failed to

consider that the plaintiff has not entered into

the witness box. She has examined only her Power

of Attorney and, therefore, in view of Janki

Vashdeo Bhojwani Vs. Indusind Bank Ltd. And Ors.

– AIR 2004 (3) SCC 584, the case will have to be

treated as without evidence on behalf of the

plaintiff and, therefore, it ought to have been

dismissed at the threshold.

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4.

The plaintiff has examined her vendor. At

the same time, the defendant has come with a case

that from the same person, the property in her

possession was taken under an agreement to sell

and, therefore, the injunction ought not to have

been clamped against the defendant by ignoring the

rights and possession secured by the defendant from

the vendors of the plaintiff under the agreement to

sell, the said agreement was enforceable against

the subsequent purchaser, as provided under Section

19 of the Specific Reliefs Act.

5.

Another fact to be noted is that, PW 2 –

Manohar Gomare, who was vendor of the plaintiff,

has flatly now denied execution of the agreement to

sell in favour of the defendant. Therefore, element

of fraud on the part of the defendant, ought to

have been discussed by the