Shri Prakash Shantaram Ambike v. Tilottama Vasant Phatak And ORS

- - - ao.817201413doc - - IN THE HIGH COURT-OF JUDICATURE AT BOMBAY CIVILAPPELLATE JURISDICTION - APPEAl. FROM ORDER NO.8 17 OF 2014 with CAA/983/2014 Prakash Shantaram Ambike Appellant/applicant Vs.

Tilottama Vasant Phatak & ors.

Respondents Mr.R.S. Datar for the Appellant/Applicant Mr.A.S. Khandeparkar i/b Khandeparkar &Asso. for Respondent No.7 Mr.Sushant Karandikar for original Defendants 1 to 5 CORAM: MRS.MRJDULA BHATKAR, J.

DATE: 31Yt AUGUST, 2015 PC.:

1.

Admit. By consent of the parties, appeal called out and heard finally at the stage of admission itself.

2.

In this appeal, order dated 4.8.2014 passed by the learned Joint Civil Judge, Senior Division, Kalyan rejecting the application of the injunction below exhibit 5 is challenged. The appellant, who is the original plaintiff; has filed suit for declaration and injunction against the respondents. Respondent Nos.1 to 6 ate the owners of the property; Respondent No.7 is. the Developer; Respondent No.8 is a Bank and Respondent No.9 is a person who is an occupant of flat No.102 of the building. The plaintiff i.e., the 1 /4 - t-. .a"

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- - -- ao.817.201413.doc - - appellant, claims his ownership Bndpossessiofl in the Suit -flat i.e., -fiat - No.102 admeasuring 550-sq.ft: in the building by name -Sundarnarayan Ganesh @ IndiralNiwas. He claims that he has purchased the suit flat by an agreement dated 28.1.2010 from respondent No.3 Sunil Phatak. It is the case of the plaintiff that Respondent Nos.1 to 6, who have inherited the property, had entered into an agreement for - development of the land alongwith respondent No.7, who is a builder/developer and respondent No.7 has carried out the development process and there is-a Threat to the plaintiff that he would be evicted from flat No.102 of the said building and hence, the suit is filed. The learned Counsel for the appellant has submitted that the trial Judge has committed error in rejecting the application for stay.

The appellant is the owner and in occupation of flat No.102. - He submitted that in the plaintiffs suit i.e., 261 of 2013, Respondent Nos.1 to 5 have Med an application below exhibit 174 seeking mandatory injunction against the appellant i.e., the plaintiff, that he should not obstruct in taking possession of the said suit property which the plaintiff has taken the possession of forcibly from Respondent No.3 earlier. The learned Counsel has submitted that the suit property and the said suit flat in exhibit 174 is one and the same and yet, the learned thai Judge has rejected both the applications of stay which were filed against each other by the original plaintiff and defendant Nos. 1 to S.

ao.817,2014_13.doc pp!icati6n for injunction *äs rejected by thet rial Court then, the other - application of Repondent 90s.1 to 5 ought to have been allowed or converse- He has submitted that while rejecting the application exhibit 174 filed by the defendants i.e., respondent Nos.1 to 5, the Court . has given finding that the plaintiff , is in possession of the suit premises i.e., flat No.102 of Indira Niwas. Therefore, the learned CoUnsel submitted that if it is so, once the possession is admitted by the Court, then he should have been protected by injunction.

3.

The learned Counsel for the respondents opposes the appeal and submitted that Sundarnarayan Ganesh and Indira Niwas are two different buildings and the plaintiff claims his possession in respect of flat No.102 in Sundarnarayan, which is false. The learned Counsel for the respondents supported the order passed by the Ilearned trial Judge. It is also pointed out that the Court Commissioner was appointed in the said matter who gave report and the said report was considered by the learned trial Judge. 4.

Perused the orders passed by the learned Judge under exhibit S and also under exhibit 174. Also perused the report of the Court Commissioner dated 26.9.2013. A confusion is cre.ted by the plaintiff by representing the flat No.02 in Sundarnarayan Ganet building and the premises which are 3/4 - - --

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- - ThnPl7lnlA CILtLo.uuc occupied by the plaintiff in Indija Niwas as one and the same. However, - - after going through the report of the Court Commissioner, it is clear that these two premises in Stmdarnai-ayan Ganeèh and Indira Niwas are not the same. They are two different premises. The learned trial Judge has rightly placed reliance on the report 0. the Court Commissioner disclosing that these two buildings are different. The suit premises 102 in Sundamarayan Ganesh is different and as rightly held to be occupied by respondent No.9. Thus, the learned trial Judge has rightly held that when the plaintiff is not Th possession of the suit prEmises 102 in Sundarnarayan Ganesh building, no injunction can be granted to bàn as he is not in possession of the said suit premises.

5.

In this view of the matter, the appeal fails and is hereby dismissed. 6.

Civil Application also stands disposed of.

(MRJDuIA BHATKAR, J.) 4/4 --