Sudesh Sharad Redij & Ors. v. Sunil Shankar Redij & Ors.

9) Mr. Suryawanshi, the learned counsel appearing for Appellants would submit that the suit fled by Plaintif was not maintainable and ought to have been dismissed on account of its faulty frame. That Plaintif fled suit seeking injunction simplicitor without seeking declaration of title. That Plaint specifcally contained an averment that Plaintif has become owner of the suit property. However, no declaration of ownership was sought in the suit. Relying on the judgment of the Apex Court in Anathula Sudhakar V/s. P. Buchi Reddy (Dead) By Lrs. & Ors.1, Mr. Suryawanshi would contend that the suit seeking injunction simplicitor in the light of contest over title was not maintainable. Alternatively, relying on the same judgment, Mr. Suryawanshi would contend that it was incumbent for the Plaintif to prove that he was in lawful possession of the suit property on the date of fling of the suit. That there is specifc admission in the evidence of the Plaintif that half portion of the suit shop was in possession of the Defendants. That when the Plaintif specifcally admitted that he was not in possession of half portion of the suit shop, he ought to have fled suit for recovery of possession from Defendant Nos. 1 and 2. Mr. Suryawanshi would submit that the Trial and the frst Appellate Court have completely glossed over this vital aspect and have proceeded to entertain and decree the suit fled by Plaintif for injunction simplicitor.

10) Mr. Suryawanshi would then submit that the fndings recorded by the Trial and the frst Appellate Court about possession of the entire suit property by Plaintif are perverse. He would submit that admission given by the Plaintif in his cross-examination that half portion of the suit shop was possessed by the Defendants is the best piece of evidence which could not have been ignored by both the Courts. That Plaintif failed to prove that he possessed the entire suit shop. That therefore there was no question of granting injunction in Plaintiffs favour.

11) Mr. Suryawanshi would take me through various documents fled alongwith Interim Application No. 2145 of 2023 to demonstrate that possession of half portion of the suit shop was actually recovered in execution from the tenants of Defendant Nos.[1] and 2 by breaking open the locks. That, thus the Plaintif has actually recovered possession of the suit shop under the guise of executing the order of injunction granted in his favour by the Trial Court. Mr. Suryawanshi would therefore pray for setting aside the Decrees of the Trial and the frst Appellate Court.

12) Per-contra, Mr. Rajeshirke the learned counsel appearing for Respondent No.1/Original Plaintif would submit that the concurrent fndings recorded by the Trial and the frst Appellate Court do not warrant any interference in exercise of jurisdiction by this Court under Section 100 of the Code of Civil Procedure. That possession of the entire suit shop by the Plaintif is a fnding of fact, which is concurrently recorded by both the Courts below by appreciating the evidence on record. That there is no perversity in the fndings recorded by the Trial and the frst Appellate Court. He would submit that possession of the entire suit shop by the Plaintif prior to the incident of fre in the year 1997 is not disputed by Defendant Nos.[1] and 2. That Plaintiffs case before the Trial Court was that Defendant Nos.[1] and 2 were taking disadvantage of repairs carried out by their father to the Municipal House and were attempting to put a wall between the Shop. That disturbance caused to the possession of the Plaintif in respect of the entire suit shop was the cause of action for the Plaintif to fle the suit. That as on the date of fling of the suit, Defendant Nos.[1] and 2/their father had not taken possession of any portion of the suit shop. As a matter of fact, as on the date of fling of the suit, both the portions of the suit shop were empty and vacant and none of the parties had actually started using the same. That during pendency of the suit, Defendant Nos.[1] and 2 never occupied the shop and the same remained locked. That in his cross-examination, Defendant No.2 admitted that two portions were created in the suit shop after the incident of fre and that one portion was in Plaintiffs possession and the second portion was vacant. That there is specifc admission by Defendant No.2 in the evidence that second portion of the shop was vacant. That therefore there was no necessity of Plaintif seeking relief of recovery of possession from Defendant Nos.[1] and 2. The suit for injunction simplicitor was perfectly maintainable and has rightly been decreed by the Trial Court.

13) So far as execution of the Decree is concerned, Mr. Rajeshirke would submit that Shri. Barde was shown to have been inducted as a tenant by Defendant Nos.[1] and 2 sometime in the year 2015 i.e. after the decree of the suit on 21 July 2012. That even Shri. Barde did not operate any shop from the portion which was claimed to have been possessed by Defendant Nos. 1 and 2 and that on the day of execution of the decree, half portion of the shop was found to be locked and the locks were required to be broken. That breaking open of the locks was done to remove obstruction to Plaintiffs possession as per the provisions of Order 21 Rule 32(5) of the Code. That merely because obstruction was removed while executing the Decree, it cannot be said that the obstructionist or Defendant Nos. 1 to 5 were in possession of half portion of the shop. He would pray for dismissal of the Appeal.

14) Rival contentions of the parties now fall for my consideration.

15) Plaintiffs suit seeking injunction simplicitor had to be premised on his claim of possession of the entire suit shop or the Municipal House No. 1981. Perusal of the plaint would indicate that there was some confusion in respect of the exact premises for which Plaintif sought injunction. Court Commissionerfs report culled out in para-25 of Trial Courtfs judgment would indicate that the Municipal House, in which Sadhana Stores was located, consists of ground foor, meeeanine foor and frst foor. Whether the suit was fled for the entire Municipal House consisting of ground foor, meeeanine foor and frst foor or whether it was restricted to Sadhana Stores located on the ground foor is something which is difcult to comprehend. The prayer in the plaint would indicate that Plaintif sought injunction in respect of possession of Municipal House No. 1981, as well as Sadhana Stores. Be that as it may. One aspect, which however, needs to be taken note of is about prayer clause (a) in the plaint. In prayer clause (a), Plaintif sought injunction only against Defendant No.1 though Defendant Nos. 2 to 6 were also impleaded in the suit. While injunction was sought only against Defendant No.1, the Trial Court has granted injunction against all the Defendants. The Trial Court appears to have glossed over the fact that injunction was sought by the Plaintifs only against Defendant No.1. Though injunction was sought only against Defendant No.1, pleadings in para-4 of the Plaint would indicate that both Defendant Nos.[1] and 2 had asserted rights in respect of the suit property. That though both the Defendants were asserting rights in respect of the suit property, why injunction is sought only against Defendant No.1 is something which is not explained and which has been totally ignored by both Trial as well as the frst Appellate Court. The suit framed by the Plaintif in this regard appears to be faulty.

16) Turning to the issue of correctness of order of injunction granted by the Trial Court in Plaintiffs favour, relief of injunction was premised on assertion by Plaintif that in his capacities as owner as well as possessor of the suit property. In para-3 of the plaint, Plaintif specifcally asserted that he has become owner in respect of the entire Municipal House in which Sadhana Stores is located. Though Plaintif asserted that he become owner in respect of the Municipal House, he did not seek any declaration about ownership. This assertion of the Plaintif was disputed by Defendant Nos.[1] and 2, who claimed that the relationship between Defendant Nos.[1] and 2 and the Plaintif was that of landlords and tenant. Thus since Plaintiffs claim for injunction was premised on ownership and possession, it was necessary for the Plaintif to seek declaration in respect of the ownership of the suit property. This is not a case where Plaintif admitted ownership of the suit property by Defendant Nos. 1 and 2 and claimed his own lawful possession for seeking injunction against Defendant Nos.[1] and 2. He claimed injunction by asserting that he was the owner in respect of the Municipal House. There was contest to his claim by Defendant Nos.[1] and 2 who claimed themselves to be the owners. In the light of this position, it was incumbent for the Plaintif to seek a declaration of ownership and he could not have fled suit for injunction simplicitor.

17) The next aspect is about possession. Plaintif did not make a specifc assertion in the plaint that he was in possession of the suit property as on the date of fling of the suit. His averments in para-4 of the Plaint are vague where he contended that father of Defendant Nos. 1 and 2 made application to the Municipal Council on 19 August 1997 for carrying out repairs of Municipal House and inserted his own name in municipal records alongwith Plaintif. Plaintif further pleaded that taking disadvantage of such permission, father of Defendant Nos.[1] and 2 constructed temporary wall in original shop admeasuring 50 ft x 30 ft and attempted to create two portions in the shop. That neighbour, Shri. Gangan was permitted to temporarily occupy the shop to keep his articles, who vacated the same after construction of his own shop. However, Defendant Nos. 1 and 2 asserted rights in the suit shop stating that they wanted to start the shop therein and this is how Plaintif fled suit for restraining Defendant No.1 from obstructing his possession in respect of Sadhana Stores. Para-4 of the Plaint reads thus:- ४ तारीख १८।०८।१९९७ रोजी साधना सटोअसर व इतर दुकानात आकासससकररतया आग लागली व वादीचे सुसारे र. ९]०३]००० /- (रपये नऊ लाख तीन हजार सात) नुकसान झाले आहे व तयावेळी दुरसतीसुळे वादी हा पूररपरे हताश होऊन सानससकदष्टा खचून गेला होता. तयावेळी इतर वयापारी व नातेवाईक यांनी सदतीचे उदेशाने पुढे येऊन सदत क े ली. तयावेळी वादीचे चुलते शरद गजानन रेडीज हे हयात होते. तयांनी वादीचे असहाययतेचा फायदा घेऊन वादीकररता नगरपररषदेकडे छपपर दुरसतीसाठी व डागडुजीसाठी परवानगी सागगतली व तयासाठी तारीख १९।०८।१९९७ रोजी अजरही क े ला. तयात वादी बरोबर आपलेही नांव घातले व वादीस गसळालेले परवानगीचा गैरफायदा घेऊन सुळ दुकान ५० x ३० फ ु टासधये एक भभत तातपुरते सवरपाची घातली व दुकानाचे दोन भाग करणयाचा पयतन क े ला व तयासधये वादीचे शेजारी शी. गांगर यांना तातपुरतया सवरपात तयांचे दुकानाचे बांधकास होईपयरत तो वापरणयास परवानगी गदली आहे. गांगर यांनी आपले बांधकास झालेवर सासानसुसार नेले असून वादीची जागा खाली करन गदली आहे. परंतु वादीचे चुलत भाऊ पततवादी नं. १ व २ यांनी वादीचे भोगवटास अडथळा होईल, तास होईल अशी भापा करन सदर जागा सला पाहीजे, गस दुकान टाकरार आहे अशी, भाईगगरी व दादागगरीची भाषा गदनांक १५।०२।२००४ रोजी वापरली व तयावेळी पततवादीचा कावेबाजपरा वादीचे लकात आला व वादीस पततवादी नं. १ याने सुळ इसला साधना सटोअसरना वादीचे सालकी व भोगवटास हरकत होईल असे कोरतेही क ृ तय सवतः अगर इतरांसाफ र त करवू नये, महरून तयास कायसची ताकीद होरेसाठी वादी हा दावा करीत आहे.

18) Thus, there is no specifc averment in the plaint that Plaintif lawfully possessed the entire suit shop as on the date of fling of the suit. On the contrary, Plaint suggests that a wall, separating the shop in two portions was already constructed therein at the time of fling of the Suit. The exact date of construction of wall is not disclosed by Plaintif. However, it appears that the application for seeking permission of the Municipal Council was made on 19 August 1997 whereas the suit was fled in February 2004. It therefore appears that the suit shop was already divided into two parts at the time of fling of the suit. In the light of this position, it was incumbent for Plaintif to specifcally aver in the plaint that he possessed both the portions of the suit shop lawfully at the time of fling of the Suit. However, there is no averment to that efect in the Plaint.

19) To make things worse for the Plaintif, he gave an admission in his cross-examination that the suit shop was divided into two parts and that one portion was in his possession and that the second portion was in the possession of the Defendants. In this regard, para-5 of the crossexamination of the Plaintif reads thus:

5. हे महररे खरे आहे की सधया Lknj इ e लयाचे दोन भाग झाले असून तयापेकी एक भाग साझे ताबयात आणर एक Hkk ग पततवादीचया ताबयात आहे- हे महररे खरे आहे की] साझे ताबयात असलेलया भागातील तळसजला] पगहला सजला आणर पोटसाळा साझे ताबयात आहे- हे महररे खरे आहे की] दुकानाला आग लागरेपूवरचा साझा वयवसाया आणर आताचा वयवसाय एकच आहे- 20) Thus, Plaintif specifcally admitted before the Trial Court that he was not possessing half portion of the shop. Absence of averment in the plaint about possession of both portions of the shop coupled with specifc admission in the cross-examination that the said half portion was in Defendantfs possession, clearly disentitled Plaintif from seeking injunction against Defendant Nos. 1 and 2 atleast qua half portion of the shop.

21) In this regard, reliance by Mr. Suryawanshi on the judgment of the Apex Court in Anathula Sudhakar (supra) is apposite. The Apex Court has held in para-15 of the judgment as under:

22) The Apex Court has summarised the position with regard to the suits for prohibitory injunction relating to immovable properties in para-21 of the judgment as under:

21. To summariee, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiffs lawful possession on threat of dispossession, it is sufcient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally be f title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the fnding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a fnding thereon, it will not be possible to decide the issue of possession.

(c) But a fnding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specifc, or implied as noticed in Annaimuthu Thevar (supra),. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a fnding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintif to a more comprehensive declaratory suit, depending upon the facts of the case.

23) Thus it was necessary for Plaintif to aver in his Plaint and prove before the Trial Court that he was in possession of both the portions of the suit shop as on the date of fling of the suit. Far from doing so, Plaintif actually admitted during the course of his crossexamination that half portion of the suit shop was in possession of Defendant Nos.[1] and 2. Once this position is admitted, what Plaintif ought to have fled is suit seeking recovery of possession of half portion of shop from Defendant Nos. 1 and 2.

24) There is yet another factor which shows that Plaintif did not possess both portions of the suit shop. When the decree was put in execution, Plaintif fled application before the executing court on 12 July 2017 contending that Defendant No.1 had installed a lock on shutter of half portion of the suit shop and that he was obstructing Plaintif from entering in the said half portion. Plaintif therefore prayed that the locks on the shutter be removed. The Executing Court passed Order dated 4 January 2018 directing the Special Bailif to break open the suit property, i.e. half portion of the Municipal House No.1981 which was locked by the judgment debtor and directed that vacant possession of the half portion be given to the decree holder. It appears that in pursuance of the Order dated 4 January 2018, the Special Bailif broke open the locks put on the shutter of half portions of the suit shop. The Bailif also discovered that Shri. Nitin Purshottam Barde had kept his articles in the said half portion of the suit shop. It is the contention of Defendant Nos. 1 and 2 that Shri. Nitin Purshottam Barde is their tenant. This aspect is recorded in the panchanama dated 9 January 2018, where Shri. Nitin Purshottam Barde is described by the Bailif to be tenant of Defendant Nos.[1] and 2. This is how possession of half portion of the suit shop was actually recovered from Defendant Nos. 1 and 2 by removal of their tenant by the Bailif appointed by the Court. It thus clearly appears that the Decree of injunction has been used by the Plaintif for the purpose of securing possession of half portion of the suit shop, which was admittedly not in possession.

25) The issue that arises for consideration is whether the Trial Court could have entertained and decreed Plaintiffs suit for injunction simplicitor once it was proved that he did not possess half portion of the suit shop. The answer, to my mind,appears to be in the negative. If Plaintif had lost possession of half portion of the suit shop, the correct remedy for him was to seek recovery of possession by seeking prayer to that efect. By seeking innocuous order of injunction, Plaintif cannot seek recovery of possession by a sidewind.

26) The Trial and the frst Appellate Court have erred in holding that merely because the Plaintif was in possession of the entire suit shop prior to the incident of fre, he was entitled to seek the relief of injunction, despite loss of half portion of the suit shop. The Trial and the frst Appellate Court ought to have noticed that possession of the Plaintif in respect of the entire shop was prior to the incident of fre which took place on 18 August 1997. As against this, the suit was fled by the Plaintif on 27 February 2004. It was erroneous on the part of the Trial and the frst Appellate Court to presume that position which existed on 18 August 1997 must have continued seven years later on 27 February 2004 as well.

27) Both, Trial and the frst Appellate Court have held that Defendant Nos.[1] and 2 did not lawfully obtain possession of half portion of the premises from the Plaintif. In my view, while deciding the suit for injunction simplicitor, the manner of obtaining possession by Defendants becomes irrelevant. Prohibitory injunction can be granted only if Plaintif pleads and proves that he possessed suit property on the date fling of the Suit. Therefore, it was incumbent for Plaintif to plead and prove that he continued to be in possession of both portions of the suit shop as on the date of fling of the suit. The moment he avers or admits that Defendants unlawfully obtained possession from him, the correct relief which was required to be sought by him was to seek decree for possession. Mere unlawful procurement of possession of half portion of the suit shop by Defendant Nos.[1] and 2 does not mean that possession lost by Plaintif can be restored indirectly by granting prohibitory injunction. The manner in which possession is obtained by Defendant Nos.[1] and 2 may be relevant for the purpose of deciding Plaintiffs entitlement to seek recovery of possession or entitlement of Defendant Nos.[1] and 2 to retain the possession. However, so far as injunction is concerned, the manner of securing possession by Defendant Nos.[1] and 2 becomes wholly irrelevant.

28) In my view, the Trial Court has committed a manifest error in entertaining and decreeing Plaintiffs suit for injunction simplicitor despite it being established that he had lost possession of half portion of suit shop. The faulty decree passed by the Trial Court is executed by the Special Bailif by actually recovering possession of half portion from Defendant Nos. 1 and 2. Reliance by Mr. Rajeshirke on provisions of Order XXI Rule 32(5) does not cut any ice. The provisions reads thus:

32. Decree for specifc performance for restitution of conjugal rights, or for an injunction.- (1) Where the party against whom a decree for the specifc performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it he decree may be enforced the case of decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specifc performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. (2) Where the party against whom a decree for specifc performance or for an injunction has been passed in a corporation the decree may be enforced by the attachment of the property of the corporation or with the leave of the court, by the detention in the civil prison of the directors or other principal ofcers thereof, or by both attachment and detention. (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force month,if the judgment debtor has not obeyed the decree and the decree holder has applied to have attached property sold, such property may be sold; and out of the proceeds the court may award to the decree holder such compensation as it thinks ft, and shall pay the balance (if any) to the judgment debtor on his application. (4) Where the judgment debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease. (5) Where a decree for the specifc performance of a contract or for an injunction has not been obeyed, the court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the court, at the cost of the judgment debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the court may direct and may be recovered as if they were included in the decree. Explanation.—For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunction. Since passing of decree for prohibitory injunction after loss of possession is itself erroneous, provisions of Order XXI Rule 32(5) cannot be used to recover possession by breaking open locks put by Defendant Nos. 1 and 2 and by ejecting their tenant.

29) The questions of law framed are accordingly answered as under:

(i) In the light of contest between the parties on the issue of ownership, it was incumbent for Plaintif to seek relief of declaration of ownership while seeking decree for prohibitory injunction. Alternatively Plaintif could have admitted that Defendant Nos. 1 and 2 are landlords and that he was in lawful possession of both portions in the suit shop and then claim relief of prohibitory injunction. In the light of absence of relief for declaration of ownership as well as absence of pleading about lawful possession of both portions of suit shop, suit for prohibitory injunction simplicitor was not maintainable.

(ii) Plaintif was not entitled to seek the relief of injunction once he admitted that half portion of the suit property was in possession of Defendant Nos.[1] and 2.

(iii) Suit seeking injunction simplicitor could not be entertained by the Trial Court after it was established that some portion of the suit property is in possession of the Defendants.

30) After having answered the questions of law as above, I fnd the decree of the Trial and the frst Appellate Court to be indefensible. The Appeal accordingly succeeds. The decree dated 21 July 2012 passed by the Civil Judge Senior Division, Ratnagiri in Regular Civil Suit NO. 55/2004 and decree dated 2 May 2017 passed by the Ad-hoc District Judge-1, Ratnagiri in Civil Appeal No.155 of 2012 are set aside. Possession of half portion of the suit shop obtained by Plaintif from Defendants No. 1 and 2 towards execution of the decree shall stand restored to them. Plaintif shall however be at liberty to adopt necessary remedies for recovery of possession of half portion of the suit shop from Defendant Nos. 1 and 2, which proceedings shall be decided on its own merits without being infuenced by observations in the present judgment.

31) With the above directions, the Appeal is allowed. There shall be no order as to costs. In view of disposal of the Second Appeal, nothing survives in the Interim Application and the same of also stands disposed of.

SANDEEP V. MARNE, J.