Bombay High Court
The N.I.T. Thr. Chairman , Nagpur & Anor vs Smt. Kamlabai Wd/O Ramaswami Kodati, ... on 4 July, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.376 OF 2008
APPELLANTS: 1. The Nagpur Improvement Trust through
its Chairman, Civil Lines, Nagpur.
2.
The Divisional Officer, Nagpur
Improvement Trust, Bajaj Nagar,
Nagpur.
-VERSUS-
RESPONDENTS: 1. Smt. Kamlabai wd/o Ramaswami Kodati
through Lrs:
1(1) Ku. Sushila Ramaswami Kodati, aged
about 60 years,
1(2) Sou. Pushpa Govindrao Falke, aged
about 57 years,
1(3) Shri Vasanta Ramaswami Kodati, aged
about 54 years,
All R/o plot nos.14 and 15, near Bank of
Maharashtra, South Ambazari Road,
Laxminagar, Nagpur.
1(4) Sou. Rekha Satish Parpelliwar, aged
about 50 years R/o Khalasi Line, Mohan
Nagar, Nagpur.
1(5) Shri Prakash Ramaswami Kodati, aged
about 48 years, R/o Kamgar Colony,
Subhash Nagar, Nagpur.
2. Madhusudan S/o Gopalrao Joshi, aged
major, Occu. Not known, R/o Gopal
Nagar, Nagpur.
2-1 Smt. Mousami wd/o Madhusudan
Khare, aged about 61 years, Occu:
Business, R/o 601, Raviram Residency,
Chitale Marg, Dhantoli, Nagpur-440
012, Tah. and Dist.
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2-2 Mrs. Ahana W/o Abhinav Somalwar,
Aged about 32 years, Occu: Architect,
R/o Vicky Apartments, TATA Press Lane,
Prabhadevi, Mumbai - 400 025.
2-3 Ku. Ashmi d/o Amitabh Bordia, aged
about 24 years, Occu: Architect, R/o
Vicky Apartments, TATA Press Lane,
Prabhadevi, Mumbai-400 025.
2-4 Mrs. Sushma W/o Deepak Deshpande,
aged 63 years, Occu: Business, R/o 703,
Keshav Kala Apartments, Rahate Colony,
Nagpur 440 012, Tah. And Dist. Nagpur
through Power of Attorney Holder Shri
Shantanu M. Khare
Shri R. Chhabra, Advocate for the appellants.
Shri Y. R. Sonkusare, Advocate for legal heirs of the original
plaintiff respondent Nos.1(1) to 1(4).
Shri D. N. Kukday, Advocate for legal representatives of
respondent No.2-1 to 2-4.
CORAM: A.S. CHANDURKAR, J.
DATED: 4th
JULY, 2018.
ORAL JUDGMENT :
1. This appeal filed under Section 100 of the Code of Civil Procedure, 1908 has been admitted on the following substantial question of law:
Whether the first appellate Court fell in error in granting an injunction in favour of respondent No.1 although it held that respondent No.1 had failed to prove her title over the ::: Uploaded on - 06/07/2018 ::: Downloaded on - 08/07/2018 01:39:45 ::: sa376.08.odt 3/6 suit property?
2. The facts in brief are that the predecessor of the respondent No.1(1) to 1(5) was the original plaintiff who had filed suit for a declaration that she was the owner of the suit land bearing Survey No.254/2 of mouza Lendra. This declaration was sought on the ground that her title was perfected by way of adverse possession. Further relief of permanent injunction was sought so as to restrain the defendants from interfering with the possession of the original plaintiff. In the written statement filed by the defendant Nos.1 and 2, it was pleaded that the plaintiff had not acquired any title whatsoever. The suit as filed was not maintainable in absence of a statutory notice. The defendant No.3 was proceeded exparte.
3. The trial Court after considering the evidence on record dismissed the suit holding that the plaintiff had failed to prove that her possession was adverse to that of the erstwhile owner. Being aggrieved the original plaintiff filed an appeal. The appellate Court confirmed the finding recorded by the trial Court that the plaintiff had not perfected her title on the plea of adverse possession. It however held that the plaintiff was entitled for the relief of permanent injunction restraining the defendants from disturbing the possession of the plaintiff. The suit was therefore ::: Uploaded on - 06/07/2018 ::: Downloaded on - 08/07/2018 01:39:45 ::: sa376.08.odt 4/6 partly decreed and the defendant Nos.1 and 2 were restrained from removing the construction of the plaintiff and from disturbing her possession. Being aggrieved, the original defendant Nos.1 and 2 had filed this appeal.
4. Shri R. Chhabra, learned Counsel for the appellants submitted that both the Courts having held that the plaintiff had no title to the suit property, no relief of perpetual injunction could have been granted in favour of the plaintiff. He submitted that as per the decree passed by the appellate Court, the appellants have been prevented from taking any action against the original plaintiff in perpetuity. This was not permissible and in any event, the appellants being the Planning Authority were entitled to take necessary action if warranted in accordance with law.
5. Shri Y. R. Sonkusre, learned Counsel for the legal heirs of the original plaintiff supported the impugned judgment. According to him, the appellants had been rightly restrained from removing the plaintiff's construction and disturbing her possession in view of fact that the plaintiff was in possession of the suit property.
6. Shri D. N. Kukday, learned Counsel for the respondent No.2 submitted that both the Courts proceeded exparte against the defendant No.3 in an improper manner. According to him, ::: Uploaded on - 06/07/2018 ::: Downloaded on - 08/07/2018 01:39:45 ::: sa376.08.odt 5/6 without taking proper steps to serve the defendant No.3 on the last known address, the matter proceeded further thus causing prejudice.
7. After hearing the learned Counsel for the parties and after perusing the impugned judgment, it is to be noted that the decree passed by the appellate Court has been accepted by the original plaintiff. That part of the relief refusing declaration of the title being perfected by way of adverse possession is not under challenge. The only challenge is to the decree for permanent injunction. The appellate Court while granting that relief has not permitted the defendant Nos.1 and 2 to take any action even after following due process of law. The defendant Nos.1 and 2 in their capacity as Planning Authority are entitled to take such steps as are permissible in law after following due process of law. There could not have been a decree for perpetual injunction that would operate in perpetuity and also restrain said defendants from taking any action whatsoever. To that extent, the decree passed by the appellate Court is required to be modified.
8. The substantial question of law as framed is answered by holding that the appellate Court erred in granting injunction in the manner by which the defendant Nos.1 and 2 have been restrained permanently from taking any action whatsoever. ::: Uploaded on - 06/07/2018 ::: Downloaded on - 08/07/2018 01:39:45 ::: sa376.08.odt 6/6 Instead the defendant Nos.1 and 2 ought to have been are restrained from removing the construction of the plaintiff over the suit land or from disturbing her possession except by following the due process of law. Accordingly, the decree passed in Regular Civil Appeal No. 409/2002 dated 30-4-2008 is partly modified. The defendant Nos.1 and 2 are restrained from removing construction of plaintiff over the suit land or any way disturbing her possession thereon without following the due process of law. The second appeal is allowed in aforesaid terms and disposed of. No costs.
Needless to state that the parties are at liberty to take such steps as are permissible in law for redressal of their grievances.
JUDGE //MULEY// ::: Uploaded on - 06/07/2018 ::: Downloaded on - 08/07/2018 01:39:45 :::