M/S Swami Krupa Developers vs Ravindra Pilankar on 24 October, 2024

[Cites 4, Cited by 0]

Bombay High Court

M/S Swami Krupa Developers vs Ravindra Pilankar on 24 October, 2024

Bench: Sharmila U. Deshmukh

2024:BHC-AS:42572

FA 571-12.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 571 OF 2012

M/s. Swami Krupa Developers, ]
A firm duly registered under the ]
Partnership Act, having its office at 19-D, ]
Dhiraj Mahal, Chatrapati Shivaji Road, ]
Near Gateway of India, Mumbai 400039. ] ...Appellant.
Versus
Ravindra Pilankar, Adult of Mumbai, ]
Indian Inhabitant, residing at RBI Quarters, ]
Building No. B-3, First Floor, ]
Laxman Mhatre Road, Kandarpada, ]
Dahisar (West), Mumbai 400068. ] ...Respondent.

------------
Mr. R. Sawant i/b Mr. Atul Singh for the Appellant.
Mr. Vindu P. Pandey, Mr. Vivek Tripathi and Ms. Shivalaxmi Sharma for the Respondent.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : August 22, 2024.
Pronounced on : October 24, 2024.

Judgment :

1. The present appeal is at the instance of Plaintiff being aggrieved

by the judgment of City Civil Court, Mumbai, dated 22 nd February 2012

dismissing S.C. Suit No. 203 of 2007. For sake of convenience, parties

are referred to by their status before the trial Court.

2. S.C. Suit No. 203 of 2007 was instituted for order of permanent

injunction against the Defendant from entering or dispossessing the

Plaintiff from the suit property being land bearing Survey No.113,

Patil-SR (ch) 1 of 24
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Hissa No. 8, CTS No 2863 admeasuring about 20 gunthas of Village

Dahisar, Taluka Borivali, Mumbai. The case of Plaintiff is that Deed of

Conveyance was executed on 18th April, 2007 and registered on 10th

May, 2007, between the Plaintiff and Pascal Martin Davis Mendes.

Pursuant to the execution of conveyance, mutation entry bearing M.E.

No.7035 was certified in favour of the Plaintiff and since 18 th April

2007, the Plaintiff is in actual physical possession of the suit property.

Upon survey of the suit property the Plaintiff noticed portions of two

structures falling within the boundary of suit property which was in

occupation of one Shivpujan Baban Singh and Chandrabhan Sadan

Singh. Pursuant to negotiations, both of them agreed to surrender

their structures to the Plaintiff for monetary consideration.

Accordingly payment was made and possession of the said rooms was

obtained by the Plaintiff. Subsequently, the Plaintiff commenced the

work of fencing the property by barbed wire fencing.

3. On 13th October 2007, the Defendant came to the suit property

when the said Chandrabhan had come there to collect his belongings

and tried to pull down the structures and destroyed the work of

fencing. A complaint was lodged by Chandrabhan Singh with the police

lodged a complaint with police. On 19 th October 2007, the Defendant

tried to enter upon the property which was resisted by the Plaintiff. As

there was continuous obstruction to the Plaintiff's possession,

Patil-SR (ch) 2 of 24
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complaint was filed with police authorities. Apprehending obstruction

to its possession, the suit came to be filed seeking permanent

injunction.

4. The suit came to be resisted by the Defendant contending that

the said Pascal Martin Mendes along six others were co-owners of plot

of land, bearing Survey No.113 admeasuring 1,500 sq. mtrs referred to

as 1st plot of land and Survey No 113 (pt) being land admeasuring 654

sq. mtrs, referred to as 2nd plot of land, both plots of land

corresponding to CTS No 2863. The original owners had entered into

an agreement of sale on 1st February, 1980 in respect of the first plot

of land i.e. admeasuring 1,500 square meters with one Kashiprasad

Gangadhar Ringsia and possession was handed over. Said Kashiprasad

Gangadhar Ringsia in the year 1982 with original owners as confirming

party entered into an agreement of sale with the promoters of Dahisar

Navjeevan Proposed Society and the promoters were put in possession

of the said plot of land. Original owners as well as said Kashiprasad

executed irrevocable power of attorney in favour of the proposed

Society. The original owners by agreement dated 30 th June 1982

agreed to sell the second plot of land also to the promoters of

proposed Society and promoters were put in possession of the said

plot and an irrevocable power of attorney was executed. Both plots

were purchased by the Promoters for purpose of constructing building

Patil-SR (ch) 3 of 24
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for their 26 members and an agreement for development was

executed with one M/s. S.R. Developers. Subsequently, there was a

dispute between the said S. R. Developers which led to several

litigation and notice of termination was sent to S.R. Developers on 12 th

September, 1998. On 9th June 2002 tenders were invited in which the

tender of Defendant was accepted and by resolution dated 6 th April

2003, the Defendant was appointed as developer and agreement was

executed between the Promoters and Defendant which was registered

on 25th February, 2004. On 28 th November 2006, plans submitted by

Defendant were sanctioned by the planning authority and IOD was

issued. Subsequently, there was some litigation between the members

of the Society and the Society. On 28th June 2007, the Collector passed

an order converting the agricultural land into NA land.

5. On 9th October 2007, the Plaintiff attempted to remove the

signboard of proposed Society and tried to take possession of the suit

property pursuant to which police complaint was lodged by the

Defendant and the labourers of Plaintiff were brought to the police

station. On 13th October, 2007 Chandrabhan Singh, who was occupying

one structure of the suit property gave possession of the structure to

the Defendant, which was demolished by the Defendant. However,

Chandrabhan Singh filed a police complaint which was not pursued by

the police as Mr. Chandrabhan Singh admitted that he gave possession

Patil-SR (ch) 4 of 24
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of the said structure to the Defendant. It was contended that the

proposed Society is in possession of the suit plot of land since 1982

and paying the assessment charges, etc to the Corporation. The

Defendant has been appointed as developer by the proposed Society

and is in possession of the land since 2004.

6. The parties went to trial. The partner of Plaintiff examined

himself and deposed as the contents of plaint. The Defendant

examined himself and also examined Chairman of the proposed Society

who supported the case of Defendant.

7. Trial Court by the impugned judgment framed five issues for

consideration. The issue of ownership as well as possession of suit

property of the Plaintiff was negated. The trial Court held that the

Defendant has partly proved his possession over the suit property by

virtue of the development agreement. The issue of dispossession of

the Plaintiff by the Defendant was negated.

8. Perusal of impugned judgment would indicate that the trial

Court had framed five issues, however, the findings are rendered on six

issues.

9. On the aspect of ownership of suit property, the trial Court held

that as dispute about earlier transaction between the owners and the

proposed Society is pending in the High Court, it cannot be said that

Plaintiff is exclusive owner of the property.

Patil-SR (ch) 5 of 24
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10. On the aspect of possession, the trial Court noted the admission

of the Plaintiff's witness that on 13 th October, 2007 Defendant had

demolished the structure of Chandrabhan Singh. The Trial Court held

that there was part payment of consideration by the Plaintiff and there

is no possession receipt in favour of Plaintiff. The Trial Court

considered the Development Agreement, letter of possession, IOD,

N.A permission, demolition of Chandrabhan's structure by Defendant

in favour of Defendant. It further held that in January, 2011, the

Plaintiff tried to take forcible possession and police panchnama was

prepared showing Defendant's possession.

11. The Trial Court held that there is no sufficient evidence to prove

that in view of the Conveyance dated 18 th April, 2007, the Plaintiff is in

actual possession of the property. The Trial Court held that since 2004

in view of the Development agreement, the Defendant is in possession

of the property, however, there is no continuous possession of the

property since 2004 and therefore the Issue no.3 was held as partially

proved. The trial Court further held that there is no material to prove

the continuous possession of Plaintiff and therefore the case of

dispossession cannot be accepted.

12. Even though the trial Court has settled only 5 issues, the findings

were given as to Issue Nos.5 and 6 going into the aspect of non

registration of partnership deed of Plaintiff and the authorization of

Patil-SR (ch) 6 of 24
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persons signing the plaint and therefore Issue No.5 came to be

answered against the Plaintiff, declining the decree of permanent

injunction as prayed.

SUBMISSIONS :

13. Mr. Sawant, learned counsel appearing for the Appellant would

submit that the Appellant claims title on the basis of a registered deed

of conveyance dated 18th April 2007 and the only ground on which the

ownership of Plaintiff has been rejected is the pendency of suit before

High Court which was suit for specific performance filed by the

proposed Society. He submits that the finding on intermittent

possession of Defendant is on the basis of development agreement

dated 25th February 2004 and not on the basis of any oral or

documentary evidence. He submits that in the absence of any decree

in favour of the Society, the development agreement could not have

been accepted by the trial Court. He submits that in respect of the

actual and physical possession of property there is oral evidence of

Plaintiff which has not been demolished in the cross-examination. He

submits that the suit property is a vacant plot of land on which two

structures which were standing were handed over to the Plaintiff by

the occupants of structures for which monetary consideration was

paid. He submits that the handing over of possession of the structures

to the Defendant cannot be accepted as there is no evidence of

Patil-SR (ch) 7 of 24
FA 571-12.doc

voluntary handing over possession in the year 2001. He submits that

the Defendant has given contradictory evidence that in July 2007, the

Society had permitted Chandrabhan Singh to construct a structure to

keep a watch and Shivpujan Singh was permitted to remain on site,

which is contrary to the deposition that Chandrabhan Singh was in

possession in the year 2001.

14. He points out the registered deed of conveyance dated 18 th April

2007 and the mutation entry mutating the property in the name of

Plaintiff. He would further submit that the affidavit of evidence of

Plaintiff refers to the declarations executed by Shivpujan on 12 th

October 2007 and Chandrabhan in the year 2007, which show that the

possession of said structures was handed over by two occupants to the

Plaintiff. He would submit that for the purpose of proving ownership,

the Plaintiff has produced the registered conveyance deed whereas

the Defendant claims right under the development agreement

executed with one Dahisar Navjeevan proposed Society and in respect

of which there is a suit for specific performance pending. He would

further submit that the property in question is open plot of land and

possession would follow title. He further submits that in the cross-

examination, the Defendant has admitted that the first agreement

with the Defendant was entered in the year 2004 in which it is

mentioned that the possession will be with the Society. He, therefore,

Patil-SR (ch) 8 of 24
FA 571-12.doc

submits that the Defendant has failed to prove that he was in

possession of the suit property.

15. He would further submit that the trial Court without framing an

issue as regards the maintainability of suit at the instance of

unregistered partnership firm has rendered a finding on the said issue

against the Plaintiff by holding that there is no evidence brought on

record to show the registration of partnership firm and that there is no

document produced to show the authority to file present suit. He

submits that the trial Court has misapplied the provisions of Section

69(2) of the Partnership Act, which according to him, applies only

where the contractual right is sought to be enforced by the partnership

firm. He would further submit that there was no requirement of

seeking any declaration of ownership as there is no rival claim of title

by the Defendant. He submits that even though the Defendant is

claiming right through the proposed Society, the Society itself does not

have any right in the suit property and the suit for specific performance

is pending which may or may not be decreed. In support of his case, he

relies upon following decisions :

[a] Anathula Sudhakar v. P. Buchi Reddy1
[b] Gurunath Manohar Pavaskar v. Nagesh Navalgund 2 and
[c] Haldiram Bhujiawala v. Anand Kumar Deepak Kumar 3

1 (2008) 4 SCC 594.
2 (2007) 13 SCC 565.
3 (2000) 3 SCC 250.

Patil-SR (ch) 9 of 24
FA 571-12.doc

16. Per contra, Mr. Pandey, learned counsel appearing for the

Respondent would submit that the subject property is land

admeasuring about 20 gunthas and unregistered deeds of conveyance

were entered in the individual names of members, who thereafter

formed the Society. He submits that the deeds were executed in the

year 1982 and 1984. He submits that the subject land was sold in two

lots, i.e., about 1,500 sq. mtrs. was sold as a first lot in the year 1980 to

third party from whom 26 people being the members of proposed

Society purchased the same and the second lot of 654 sq. mtrs was

purchased directly by the individual members from original owners. He

submits that as the owners failed to execute registered deed of

conveyance, suit for specific performance was filed by the proposed

Society in the year 1990 and the same is pending. He submits that in

the year 1982 and 1984, the possession was handed over by the

proposed Society to the developer with whom there was a dispute and

thereafter a fresh development agreement came to be executed on

25th February 2004 with present Defendant. He points out that

possession of suit property continued with the proposed Society and

was thereafter handed over to the present Defendant. He submits

that in the year 2006, specific performance suit came to be dismissed

for default which was subsequently restored to file and in the

Patil-SR (ch) 10 of 24
FA 571-12.doc

meantime, the property came to be conveyed by the owners to the

Plaintiff pursuant to which the Plaintiff attempted to take forcible

possession for which police complaint was filed. He submits that

sufficient documents were produced on record to show Defendant's

possession as NA permission was obtained in the name of Defendant

and also the IOD was obtained in the name of Defendant. He submits

that as the possession was not with the Plaintiff, the Plaintiff ought to

have filed a suit for recovery of possession. He submits that the

Plaintiff in the cross-examination has admitted that they had not taken

any search in the office of Sub Registrar of Assurances at Borivali

before entering into agreement with the owners. He submits that the

Trial Court has held against the Plaintiff on the aspect of registration

of partnership firm and authorisation in the absence of any evidence

bought on record. He submits that the Defendant is not a trespasser

and that in the case of Anathula (supra) the Apex Court has held that

where the person is out of possession, he cannot seek the relief of

injunction simplicitor without claiming the relief of possession. He

submits that Defendant is in possession of suit property as an agent of

Society and the Plaintiff has failed to prove his possession.

17. The following points arise for determination :

[i] Whether by virtue of registered Deed of Conveyance dated 18 th

April, 2007, the Plaintiff has acquired ownership rights over the suit

Patil-SR (ch) 11 of 24
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property?

[ii] Whether the Plaintiff is in possession of suit property since the

year 2007 and therefore entitled to protect his possession by seeking

restraining orders against the Defendant ?

[iii] Whether the Defendant has obstructed the peaceful possession

of the Plaintiff over the suit property?

[iv] Whether the Trial Court could have rendered findings on the

maintainability of the suit without framing the appropriate issue?

As to Point No.(i)

18. The Plaintiff's witness has deposed as to the contents of the

plaint in regard to the execution and registration of Deed of

Conveyance dated 18th April, 2007, the mutation entry, the monetary

transaction with Shiv Pujan Singh and Chandrabhan Singh and the

incidents of obstruction by the Defendant.

19. In the cross-examination, PW-1 has admitted that no document

was filed to show authorisation of Sunil Chavande to file the suit. He

has further admitted that no search was taken in Sub Registrar's office.

He has deposed that the suit property was plain land. He has admitted

that on 13th October, 2007, the Defendant has demolished structure of

Chandrabhan Singh. He has admitted that Suit No 2233/1990 is

pending before the High Court filed by promoters of proposed Society.

He has further admitted that there is no document produced to show

Patil-SR (ch) 12 of 24
FA 571-12.doc

the payment of consideration to the original landlords and there is no

possession receipt in his favour.

20. From the cross-examination, nothing has been brought on record

to dispute the execution and registration of the conveyance deed by

the original owners in favour of the present Plaintiffs.

21. The Defendant has deposed that on 25 th February 2004, the

Defendant entered into development agreement with Dahisar

Navjeevan Society, pursuant to which on the same day the Defendant

was put in actual physical possession of the suit property and letter of

possession was also given by Dahisar Navjeevan Society. He has

further deposed that pursuant thereto, the Defendant obtained IOD

and NA permission and thereafter commenced construction of the

compound wall. He has further deposed that he had appointed

security services for protecting the property and in the month of July

2007, the Society had permitted one of its members Chandrabhan

Singh to construct the structure for a temporary period on site as also

Shivpujan Singh was permitted to remain on site. He has deposed that

on 9th October 2007 the security persons of Plaintiff visited the site and

tried to demolish the compound wall, a police complaint came to be

filed in which the statements were recorded that the suit plot is in

possession of Society and that the land is being developed by the

Defendant. He has further deposed that the development permission

Patil-SR (ch) 13 of 24
FA 571-12.doc

granted in his favour by the MCGM has been re-validated upto

December 2007.In support of his case, the Defendant has produced

development agreement dated 25th February, 2004 executed between

Dahisar Navjeevan Society and the Defendant, on the basis of which

the Defendant claims to be in possession of suit property.

22. The development agreement dated 25th February 2004 has been

produced in evidence. Clause 8 of the development agreement reads

thus :

"On the execution of this Agreement, the owners shall grant to the
Developers license to enter upon the said property as mere licensees
only for enabling them to develop the said property. It is hereby
expressly agreed by and between the parties hereto that the
possession of the said property is not being given or intended to be
given to the Developers in part performance as contemplated under
Section 53-A of the Transfer of Property Act. The owners and the
Developers hereby confirmed that by virtue of the Developers
entering upon the said property as licensees the same does not
amount to taking up possession of the said property. In case of this
Agreement is revoked in the circumstances aforesaid the owners
shall be entitled to terminate and/or revoke the license hereby
granted and on such termination and or revocation the owners shall
be entitled to (i) restrain the Developers from entering upon the said
property and carry out construction activities thereon and (ii) deal
with and dispose off the said property including and incomplete
construction work thereon to any third party of their choice and the
Developers shall not be entitled to claim any compensation from the
owners in respect thereof and the Developers shall not be entitled to
raise any objection to the same."

23. The reading of above Clause would indicate that what was

granted to the Defendant was only a license to enter upon the said

property as licensee for development of property. There is express

agreement by and between the parties that possession of the property

Patil-SR (ch) 14 of 24
FA 571-12.doc

is not given or intended to be given to the developers in part

performance under Section 53-A of the Transfer of Property Act, 1882.

24. There is a registered conveyance deed entered into between the

original owners and the Plaintiff which has not been challenged before

any forum. By virtue of a validly registered conveyance deed, there has

been a transfer of right, title and interest in the said property in favour

of the Plaintiff under Section 54 of Transfer of Property Act, 1882. The

suit which is pending between the society and the original owners is

admittedly for specific performance of unregistered agreements

executed between the members of the Society and the original

owners. There is no ownership right vested in the Society under the

unregistered agreement or in the Defendant by virtue of license

granted under the development agreement. The evidence on recod

establishes that the Plaintiff is the owner of suit property. Reliance

placed by learned counsel appearing for the Respondent on the

decision in the case of Anathula (supra) to contend that the Plaintiff

was required to seek declaration of title is misplaced as there is no

cloud over the title of Plaintiff.

25. The Trial Court considered the pendency of specific performance

suit filed by the Society and held against the Plaintiff on the issue of

ownership without noticing that the suit was for specific performance

which is an equitable relief and may not be granted. The Trial Court has

Patil-SR (ch) 15 of 24
FA 571-12.doc

fallen in error in failing to notice that the suit filed by the Society was

based on unregistered agreements whereas the Plaintiff's ownership

rights in the suit property were created by validly registered

Conveyance Deed.

26. Accordingly, I answer point No.(i) in favour of the Plaintiff.

As to Point No.(ii)

27. The Plaintiff has deposed that after the execution of conveyance

in the year 2007, the owners have put the Plaintiff in actual physical

vacant possession of the suit property and there were two structures

occupied by one Shivpujan and Chandrabhan and pursuant to monetary

consideration, the structures were surrendered by them to the

Plaintiff. In the cross-examination it is admitted that after conveyance

of suit property, the Plaintiff noticed that the structures have been

erected by Chandrabhan and Shivpujan and that on 13 th October 2007,

the Defendant had demolished the structure of Chandrabhan. The

Plaintiff has produced the registered conveyance deed, revenue

records, mutation entry, police complaints and orders of High Court.

28. The Defendant has deposed that on 25th February, 2004 upon

execution of Development Agreement, the Defendant was put in

actual physical possession of the suit property by members of

proposed Society and was issued letter of possession on 25 th February

2004. He has further deposed that he obtained sanctioned plans for

Patil-SR (ch) 16 of 24
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development and IOD from MCGM and N.A Order in respect of the suit

plot and commenced construction of compound wall and appointed

security personnel. He has further deposed that the Society had

permitted Chandrabhan Singh and Shiv Pujan Singh to construct

temporary structure on suit plot which structure was thereafter

demolished by the Defendant with consent of Chandrabhan Singh. He

has further deposed that the development permission was revalidated

in December, 2007 and the Defendant had handed over portion of land

affected by road widening. The Defendant has deposed that the

Society was in possession of the suit land since the year 1982 and in the

year 1990, the Society filed a suit for specific performance against the

owners.

29. In the cross-examination, the Defendant has admitted that the

construction wall was constructed during 2004 to 2007. He has

admitted that no objection was taken to the mutation in favour of

Plaintiff. He has further admitted that in Writ Petition No 998 of 2007

filed by the Society against the Defendant, by order dated 17 th July,

2007 the Development Agreement dated 25th February 2004 was

cancelled.

30. The documentary evidence produced by the Defendant would

show that the IOD has been obtained on 28 th November, 2006 by the

Defendant as the constituted attorney of the owner. Similarly the

Patil-SR (ch) 17 of 24
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application for regularisation of N.A. permission was filed by the

Defendant on 7th March, 2007 and was granted on 28 th June, 2007 to

the Defendant as constituted attorney of the owner i.e. Pascal Martin

David Mendes and others. The registered conveyance was executed on

18th April, 2007 in favour of the Plaintiff and these documents were

either obtained or applied prior to 18th April, 2007 and as constituted

attorney of the owners. Pertinently, the suit filed by the Society in the

High Court seeking specific performance was dismissed for non

prosecution on 29th June, 2006 and despite thereof, the permissions

were obtained by the Defendant. The appointment letters of security

guards, voucher payments to security personnel are unilateral

documents which will not corroborate the aspect of Defendant's

possession. The police diary and panchnama cannot establish

possession of the Defendant without any evidence being led to

substantiate the same. The measurement permission and the

revalidation of the development permission cannot constitute proof of

actual possession. The undertaking given by the Defendant to hand

over the set-back area is in capacity as constituted attorney of the

owner pursuant to issuance of IOD. As far as letter of possession issued

on 25th February, 2004 is concerned, considering that the suit land is

open plot of land, there cannot be any handing over or taking of

possession as in case of constructed structure.

Patil-SR (ch) 18 of 24
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31. None of the documentary evidence produced by the parties

proves de-facto possession of suit land. The nature of the suit land

being admittedly vacant open land assumes significance. The evidence

establishes the undisputed fact that at the time of execution of the

conveyance deed dated 18th April, 2007 in favour of the Plaintiff, the

subject plot of land was an open plot of land. A vacant site cannot be

said to be physically possessed by any person as in the case of

constructed structure or even where there is agricultural land, the

possession can be established with reference to the actual usage and

cultivation. In the case of a vacant site, there cannot be any actual

physical possession demonstrated and in such cases as held by the

Apex Court in the case of Anathula (supra) the principle is that the

possession follows title. The Apex Court has specifically held in

paragraph 16 as under:

"But what if the property is a vacant site, which is not physically
possessed, used or enjoyed? In such cases the principle is that
possession follows title. If two persons claim to be in possession
of a vacant site, one who is able to establish title thereto will be
considered to be in possession as against the person who is not
able to establish title. This means that even though a suit relating
to a vacant site is for mere injunction and the issue is one of
possession, it will be necessary to examine and determine the
title as a prelude for deciding the de jure possession. In such a
situation, where the title is clear and simple, the Court may
venture for decision on the issue of title so as to decide the
question of de jure possession even though the suit is for mere
injunction. But where the issue of title involves complicated or
complex questions of fact or law, or where Court feels that
parties had not proceeded on the basis that title was at issue, the
Court should not decide the issue of title in a suit for injunction.
The proper course is to relegate the plaintiff to the remedy of a
full fledged suit for declaration and consequential reliefs ".

Patil-SR (ch) 19 of 24
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32. Applying the enunciation of law laid down by the Apex Court to

the facts of present case, on one hand, there is registered deed of

conveyance executed in favour of the Plaintiff to which there is no

challenge resulting in Plaintiff's ownership rights being crystallised in

the suit property. The prior transaction between the owners and

Dahisar Navjeevan Society is by way of unregistered documents, which

would not create any rights in the suit property either of the Society or

of the Defendant claiming through the Society. The Society has filed

suit for specific performance which is pending adjudication.

33. The Trial Court has erroneously held that there is no sufficient

evidence to prove the Plaintiff's possession without noticing the well

settled position in law as regards possession of vacant sites. At the

same time, the Trial Court has held that the Defendant has not proved

that he is in continuous possession since the year 2004. The finding has

not been challenged by the Defendant by filing cross objection and

thus the same has attained finality. If the Defendant's possession has

been held to be intermittent, necessarily being the owner of the suit

property, the issue of possession is to be held in favour of the Plaintiff.

34. The Plaintiff has established its title by the undisputed fact of

execution of registered deed of conveyance as against the Defendant

who claims to be put in possession by the Society which itself does not

any title to the suit property. The Defendant has failed to produce

Patil-SR (ch) 20 of 24
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evidence to show his de facto possession and as the suit plot is

admittedly a vacant site, possession will follow title and in the present

case it is the Plaintiff who is having title to the suit property and not

the Defendant. It is, thus, not necessary for the Plaintiff to seek relief

of recovery of possession.

35. Accordingly, I answer the Point No.(ii) in favour of the Plaintiff.

As to Point No.(iii).

36. The Plaintiff has pleaded that on 13 th October 2007, the

Defendant tried to pull down the structure of Chandrabhan Singh

pursuant to which complaint was lodged with police and on 19 th

October 2007, the Defendant tried to enter upon the property and

obstruct the work of fencing the property for which complaint was

lodged with the police.

37. In the cross-examination, as far as the incident of 13 th October

2007 is concerned, the Plaintiff's evidence has not been shaken. As

regards the incident of 19th October 2007, the Plaintiff has admitted

that he has not filed on record copy of NC complaint lodged by him

with the police against the Defendant on 19th October 2007.

38. The Defendant in his affidavit of evidence has deposed that on

9th October 2007 and 13 th October, 2007 attempts were made by the

Plaintiff to take forcible possession of suit plot. It is, therefore, clear

that there has been invasion of the Plaintiff's right to possession of the

Patil-SR (ch) 21 of 24
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suit plot. The fact that Defendant claims to be in possession of suit

property and that he had placed the security guard at the suit property

who on 9th October 2007 prevented the security personnel of Plaintiff

from demolishing the compound wall, will indicate that there is

interference in the possession of Plaintiff.

39. As it is already held that possession follows title in case of vacant

sites and the Plaintiff has established his title, the filing of the police

complaints and altercation between the agents of both the parties on

9th October, 2007 and 13th October, 2007 would indicate that there was

obstruction to the Plaintiff's possession of the suit property.

Accordingly, Point No.(iii) is answered.

As to Point No. (iv).

40. The City Civil Court has declined to grant the decree of

permanent injunction on a finding that there is no specific document

on record regarding the registration of partnership firm and that there

is no authority produced to file the suit on behalf of partnership firm.

The Trial Court did not frame a specific issue of maintainability of the

suit and without any issue being framed, has, while delivering the

impugned judgment answered the issue of maintainability against the

Plaintiff. Admittedly there was no pleading on maintainability raised by

the Defendant on the ground of Plaintiff firm being an unregistered

firm. Without framing an issue of maintainability and without giving

Patil-SR (ch) 22 of 24
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any opportunity to the Plaintiff, the trial Court could not have rendered

any finding on maintainability of the suit. That apart, Section 69(2) of

the Partnership Act reads thus :

"69. Effect of non-registration.--(1) ...........
(2) No suit to enforce a tight arising from a contract shall be
instituted in any Court by or on behalf of a firm against any third
party unless the firm is registered and the persons suing are or
have been shown in the Register of Firms as partners in the firm.
(3).....
(4)....."

41. In the case of Bade Miya v. Mubin Ahmed Zhurislam 4 learned

Single Judge of this Court has held that bar under Section 69(2) of the

Partnership Act, 1932 will not apply if the statutory right or common

law right is being enforced. It was held that if the relief of permanent

injunction is claimed, in that case in the context of registered

trademark, then the same does not amount to enforcing any right

arising from the contract.

42. In the present case, the Plaintiff is not seeking enforcement of

any contractual right arising out of any transaction entered into by the

partnership firm with the Defendant and therefore it cannot be said

that bar under Section 69(2) of Partnership Act, 1932 will apply. The

relief of injunction sought in the present case is not arising out a

contract executed with the Defendant but arises out the interference

with Plaintiff - firm's possession over the suit property which cannot

4 2011(3) Mh.L.J. 813.

Patil-SR (ch) 23 of 24
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be barred for non registration of Plaintiff firm.

43. The Trial Court could not have rendered any finding on the issue

of maintainability of the suit on ground of non registration of the firm

and non production of authorisation to file the suit without framing

any issue in that respect. Point No (iv) is answered accordingly.

44. In the light of discussion above, the following order is passed.

: ORDER :

(a) First Appeal is allowed.

(b) The impugned judgment and decree dated 22nd February, 2012 passed in S.C Suit No 203 of 2007 is hereby quashed and set aside.

[Sharmila U. Deshmukh, J.] Patil-SR (ch) 24 of 24 Signed by: Sachin R. Patil Designation: PS To Honourable Judge Date: 24/10/2024 20:32:20

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