Smt. Aruna @ Arpita W/O Vallabhram Trivedi Thr. P.O.A. Holder Ajay Trivedi v. Shri. Ramkrishna Co-Operative Housing Society Ltd., Nagpur Thr. Secretary And Others

2025:BHC-NAG:11025 1/18 Judg.AO.5.2025.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR APPEAL FROM ORDER NO. 05 OF 2025 Smt. Aruna Alias Arpita w/o Vallabhram Trivedi, Aged about 71 Years, R/o K-14/3, Jantanbar Varanasi, Uttar Pradesh, Through POA holder Ajay Trivedi, Aged about 64 Years, Nikalas Mandir Road, Itwari, Nagpur-02.

... APPELLANT V E R S U S 1.

Ramkrishna Co-operative Housing Society Ltd. Having its office at Rahatekar Wadi, Tulsibagh Road, Mahal, Nagpur-440032, through its Secretary.

2.

Anilkumar Shambhulal Shrivastav Aged about : 63 Years, Occu : Business; R/o Plot No. 67, Rahatetkar Wadi, Tulsibagh Road, Mahal, Nagpur-440032.

3.

Kamalkumar Satyanarayan Agrawal Aged about : 44 Years, Occu : Business; R/o C-1901, Godrej Anandam, Ganeshpeth, Nagpur-440018.

4.

M/s Purushottam Construction and Land Developers, through its partners Shri Roshan Purushottam Hore, Aged about : 49 Years, Occu : Business, R/o Flat No. 401, Plot No. 52, Sai Angan Apartment, Atrey Layout, Near Raj Rajeshwari Mandir, Rana Pratap Nagar, Nagpur-440022.

5.

Manpreet Singh Anand Aged about : 43 Years, Occu : Business, R/o

2/18 Judg.AO.5.2025.odt Behind Sherakothi, Plot No. 9/10, Devi Nagar, Ambedkar Marg, Nagpur-440017.

6.

Pankaj Khemraj Mane Aged about : 39 Years, Occu : Private; R/o Quarter No.6/54, Raghuji Nagar, Near Kamgar Kalian Bhavan, Nagpur-440009.

7.

Adv. Anil Bhargavrao Raje Aged about : 64 Years, Occu : Advocate; R/o 107/108, Sai Prasad Apartment, Near Mahatma Fule Sabhagruh, Reshimbagh, Nagpur-440009.

8.

Ajay Vasantrai Trivedi [Defendant No.8 deleted as per Court's order dated 21.09.2024] 9.

Ashok Vasantrai Trivedi Aged about : 67 Years, Occu : Business;

10.

Naresh Vasantrai Trivedi Aged about : 67 Years, Occu : Business;

11.

Manjula Harshai Rai Ojha Aged about 74 Years, Occu : Housewife;

Respondent Nos. 8 to 11 R/o Nikalas Mandir Road, Itwari, Nagpur.

... RESPONDENTS Mr. Anand Parchure, Advocate a/w Mr. A. V. Khare, Advocate for Appellant. Mr. Gautam Jha, Advocate h/f Mr. P. M. Sinha, Advocate for Respondent No.1. Mr. P. P. Kothari, Advocate for Respondent No.3. Mr. Nikhil S. Valesha, Advocate for Respondent Nos.8 to 10.

CORAM

: PRAVIN S. PATIL, J.

ARGUMENTS HEARD ON : SEPTEMBER 30, 2025.

PRONOUNCED ON : OCTOBER 14, 2025.

3/18 Judg.AO.5.2025.odt

JUDGMENT

.

By the present Appeal, the Appellant has assailed the order dated 8/4/2025 passed below Exhibit-5 in Special Civil Suit No. 1353/2023, whereby the application for temporary injunction is rejected. 2.

The Appellant hereinafter be referred as 'Plaintiff' and the Respondents as 'Defendants' for the sake of convenience and brevity. 3.

To understand the controversy involved in the matter, the facts in the present Appeal needs consideration.

4.

In the present Appeal, the dispute is in regard to the piece of land admeasuring 19,000 sq.ft. situated in Kh. No. 62/7 and stationed between the piece of land transferred by way of Agreement of Development by the Plaintiff to M/s Concrete Builders and Developers and the open land/reserved for public utility left by the Defendant No.1/Society. The four boundaries of the suit plot are as under :

Towards North :

Khasra No. 60, sanctioned layout of Vijayanand Cooperative Housing Society; Towards South :

9.0 meters wide road thereafter MHADA Flat Scheme.

4/18 Judg.AO.5.2025.odt Towards East :

Khasra Nos.62/5, 62/6, 62/8, 62/9 Layout of PMG Staff Co-operative Housing Society.

Towards West :

9.0 mts wide road, thereafter NIT Garden (as per sanctioned Layout plan of Defendant Society) and thereafter suit property.

5.

It is the case of Plaintiff that her father late Shri Vasantrai Trivedi was the owner of 20 Acres of land in Kh. No.62/1, 62/7 and 62/10 situated at Mouza Somalwada Ward No.15, Narendra Nagar, Nagpur. The father of the Plaintiff has executed two registered Gift Deeds i.e. 5 Acres each in favour of the Plaintiff and Defendant No.11/Manjula Harshai Rai Ojha. It is also pointed out that mother of the Plaintiff was also having a share of 7 acres, out of which, she has gifted 2.5 acres land each to the Plaintiff and her sister Defendant No.11/Manjula.

6.

It is undisputed fact that Defendant No.1/Society is a registered Co-operative Housing Society as per the provisions of Maharashtra Cooperative Societies Act, 1960. The object of the Society is to purchase the land, prepare layout and allot the plots to its Members. In pursuance to the object of the Society, the Defendant No.1 purchased 5 acres of land from the Defendant No.11/Manjula i.e. sister of the Plaintiff by various sale deeds. So also the

5/18 Judg.AO.5.2025.odt Defendant No.1 purchased total 3 acres of land from the Plaintiff out of 5 acres owned by her vide Sale deed dated 24/4/1974 (one acre) 7/12/1974 (one acre) and 16/4/1975 (one acre). As such, according to the Plaintiff, Defendant No.1/Society in all purchased 8 acres of land out of Kh. No. 62/1, 62/7 and 62/10.

7.

It is also pertinent to note that the Defendant No.1/Society, in the year 1998, filed Civil Suit No. 631/1998, which was renumbered as Regular Civil Suit No.2926/2001. In the said suit it was the contention of the Defendant No.1 that on 11/4/1974 there was an agreement between the Plaintiff and Defendant No.1/Society, whereby the Plaintiff was agreed to sell entire 5 acres of land to the Defendant No.1. As per the term No.5 of the said Agreement, the Plaintiff was agreed to sell property in piecemeal to the Defendant No.1. Accordingly, 3 acres of land has been purchased by the Defendant No.1, however, for remaining 2 acres of land, the Plaintiff is avoiding to execute the sale deed. Hence, the suit for specific performance of contract was filed against the Plaintiff.

8.

The suit filed by the Defendant No.1 bearing RCS No. 2926/2001 was partly decreed by the 3rd Joint Civil Judge Junior Division, Nagpur by its Judgment dated 10/3/2006, whereby the Plaintiff was directed to pay

6/18 Judg.AO.5.2025.odt Rs.5000/- to the Defendant No.1 along with interest at the rate of 12% per annum and rest of the claim of Defendant No.1 was dismissed. 9.

Against the said Judgment and decree dated 10/3/2006, Defendant No.1 preferred Regular Civil Appeal No. 219/2006. The same was dismissed on 29/7/2009, so also Second Appeal No. 76/2010, which was preferred by the Defendant No.1, was also dismissed by this Court and thereby upheld the order passed by the trial court. In view of this proceeding the submission of the Plaintiff is that 2 acres of land was remained with her which was gifted by her parents in her favour.

10.

It is pertinent to note that after the Judgment was passed in Second Appeal No. 76/2010 on 18/3/2010, the Plaintiff has moved application to the Superintendent of Land Records for measurement of two acres (0.81 HR) land. However, at that time the Defendant No.1 instituted a suit bearing Regular Civil Suit No. 68/2011 seeking declaration that application made by the Plaintiff dated 30/10/2010 to the Superintendent of Land Records, Nagpur for measurement of land is not tenable, and accordingly, same be rejected. Along with this prayer, the other amended prayer in the suit was that Defendant No.1 be declared as owner of the land admeasuring 22000 sq. ft. situated at Kh. No. 62/7, 62/1, 62/10.

7/18 Judg.AO.5.2025.odt 11.

In the said proceeding, the Superintendent of Land Records and City Survey Officer filed written statement. In their written statement, they have specifically stated that in view of measurement of the land in question effected on 13/1/2011, the land admeasuring 19133 sq.ft adjacent to 2 acres of land of the Plaintiff and the land situated at its Western Side is a part and parcel of the land of Plaintiff, and therefore, area of 19133 sq.ft., which is a part of City Survey No. 504 falls in possession and ownership of the Plaintiff. It is also made clear that Defendant No.1 has absolutely no right, title or interest over the same.

12.

It is pertinent to note that during the pendency of the said Civil Suit filed by the Defendant No.1, the Defendant No.1 has executed the sale deed of 19000 sq. ft. situated at Mouza Somalwada as a part and parcel of Kh.Nos.62/1, 62/7 and 62/10 from the layout of Defendant No.1/Society in favour of the Defendant No.3. The said sale deed was executed on 25/4/2022. The Defendant No.1, without bringing this fact to the notice of the learned trial court, where the Special Civil Suit No. 68/2011 was pending, filed a pursis stating that Defendant No.1 (Plaintiff in Special Civil Suit No.68/2011) due to ill-health do not want to proceed with the suit and the same may be permitted to be withdrawn. Accordingly, the learned Civil Judge

8/18 Judg.AO.5.2025.odt Senior Division, Nagpur, by order dated 19/7/2022, permitted to withdraw the suit from the file of Civil Court.

13.

After withdrawal of the suit, it was came to the knowledge of the Plaintiff that Defendant No.1 has executed the sale deed in favour of Defendant No.3. The Defendant No.3 has also started construction over the suit property. Therefore, the suit came to be filed, seeking declaration that sale deed dated 25/4/2022 inter se between the Defendant No.1 and Defendant Nos.2 to 7 be declared as null and void and further sought declaration that Plaintiff alone is the owner of the suit property. 14.

The plaintiff also filed the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure for grant of temporary injunction restraining the Defendant Nos.1 to 7 from creating third party interest over the suit property during the pendency of suit and further restraining them from construction over the suit property by altering status of the suit property during the pendency of the suit.

15.

It is seen from the record that after issuing notices to the Defendants, the Defendant No.3 has contested the application for temporary injunction. The Defendant No.1, though served, did not contest the application

9/18 Judg.AO.5.2025.odt for temporary injunction. The submission of the Defendant No.3 while opposing temporary injunction, Plaintiff has to first prove that she is having a clear title of the suit property and unless the said title is clear, she is not entitled to seek any relief in the matter. He further pointed out that after execution of the sale deed by Defendant No.1/Society, possession of the suit property was handed over to him. According to him, the said land was converted into the non-agricultural land by following due procedure of law. The Nagpur Improvement Trust (for short, 'the NIT') had granted tentative sanction to the proposed layout for residential plot on the land bearing Kh. No. 62/7. The Development Agreement was also executed between the Defendant No.3 and NIT on 16/10/2023, and accordingly, he is paying tax to the Nagpur Municipal Corporation. In view of these subsequent events, the Plaintiff is not entitled to any relief in the fact and circumstances of the matter. 16.

The main submission of the Defendant No.3 is that Plaintiff has failed to establish that she is the owner of the suit property and except pleading in the plaint, there is nothing on record to show her title over the suit property. He has pointed out from the pleading of the Plaintiff as to how there is a variation in the submissions made by the Plaintiff and attempt has been made to demonstrate that Plaintiff herself is not in a position to prove her

10/18 Judg.AO.5.2025.odt entitlement over the land, and consequently, she is not entitled to any relief in the matter.

17.

In the background of abovesaid factual position, the learned trial court, by the impugned order dated 8/4/2025, by recording the finding that in absence of any pleading, as to what kind of apprehension is in the mind of the Plaintiff regarding any injury or loss to the suit property, the temporary injunction is denied. It is held that the Plaintiff failed to prove prima facie case and balance of convenience in her favour. As far as irreparable loss is concerned, it is observed that it can be compensated adequately, if she succeeded finally in the suit. Hence, on this reasoning trial court has rejected the application for temporary injunction.

18.

In the background of abovesaid factual position, the Appellant approached before this Court, challenging the order of learned trial court passed below Exhibit-5 and seeks indulgence of this Court in the matter. 19.

In the present Appeal, at the outset, it is stated that the learned trial court failed to appreciate the factual as well as legal position in the matter. By cryptic order the application has been rejected. The trial court has not taken into consideration the controversy and issues raised by the Plaintiff

11/18 Judg.AO.5.2025.odt in the matter and mainly by relying the registered sale deed which was under challenge held that same being registered document, carries high probative value and held that in such case, no prejudice will cause to Appellant and she can be compensated in terms of money.

20.

In the present matter, after issuance of notices by this Court, initially the Defendant No.1 did not appear, however, when this Court was proceeding to decide the present Appeal on its own merit, through Advocate Mr. Sinha, on 12/9/2025 the Defendant No.1 appeared in the matter and stated that before passing any order in the matter he should be given an opportunity of hearing. Accordingly, this Court, by order dated 12/9/2025, granted opportunity of hearing to the Defendant No.1. 21.

On 19/9/2025 the Defendant No.1 had filed the affidavit in reply in the matter. According to the Defendant No.1, the Society has purchased the entire land from the Plaintiff and her sister and carved out the layout plots on the entire land and sold the plots to the prospective buyers i.e. Society Members. It is denied that there is any land or adjacent property admeasuring about 19000 sq.ft., which is belonging to the Plaintiff and situated next to the open land/reserved for public utility towards the Eastern side.

12/18 Judg.AO.5.2025.odt 22.

From this reply of the Defendant No.1, one thing is clear that Defendant No.1 has purchased only 8 acres of land from the Plaintiff and her sister and the layout has been carved out on the entire land, meaning thereby that, the Society was not in possession of any excess land. Therefore, the question arose that if the layout is sanctioned on 8 acres land, which is belonging to the Defendant No.1/Society, then how the Defendant No.1/Society executed the sale deed of 19000 sq. ft. land in favour of the Defendant No.3. But, no explanation has been given in the reply by the Defendant No.1 in regard to this issue.

23.

Perusal of the pleading of the suit justified the fact that Plaintiff, time and again, had made a reference of the fact that 8 acres of land which was sold to the Defendant No.1/Society bears small plots and maximum area of the Plot is admeasuring 3000 sq. ft. The total area of the layout, as per the plan sanctioned by the Nagpur Improvement Trust is 8 acres and there is no plot demonstrated or shown in the sanctioned map on the Eastern side of the open place in favour of the Defendant No.1 i.e. suit plot admeasuring 19000 sq.ft.

24.

In the present Appeal, though the sanctioned map was not filed before the trial court in terms of their pleadings before the trial court, copy of

13/18 Judg.AO.5.2025.odt the sanctioned layout map of Defendant No.1/Society is placed on record. The said map is duly sanctioned by the Nagpur Improvement Trust and the statement of area specifically shows that 8 acres of land is occupied for residential plots, open space, road and area under adjustment. As such, this map clarifies the fact that no land admeasuring 19000 sq.ft. is available with the Defendant No.1/Society, as alleged in the matter. In view of the specific pleadings in the suit regarding sanctioned layout of 8 acres land, I am of the opinion that there is no impediment to rely upon the sanctioned map, which is placed on record by the Appellant.

25.

In addition to above, one more important aspect which needs consideration is that the Defendant No.1/Society itself has filed a suit for specific performance of contract for 2 acres of land against the Plaintiff, which according to them, was not executed in favour of the Defendant No.1. The said proceedings were terminated upto this Court and it was held that Defendant No.1 is not entitled for specific performance of contract. Therefore, in any case, the area of Defendant No.1 was not increased by any other means. So also it is not the case of any of the Defendant that Defendant No.1/Society was having the area of more than 8 acres in their possession. 26.

It is further pertinent to note that the Defendant No.1 had filed

14/18 Judg.AO.5.2025.odt Regular Civil Suit No. 68/2011 for seeking declaration that they are the owner of the land admeasuring 22000 sq.ft situated at Kh. Nos. 62/1, 62/7 and 62/10. In the said proceeding, the Superintendent of Land Records and City Survey Officer, specifically stated that area of 19133 sq.ft. shown in the measurement map dated 13/1/2011 is a part and parcel of City Survey No. 504, which is in possession and ownership of the Plaintiff. 27.

All these facts and circumstances clearly demonstrates the fact that Defendant No.1 was not in possession of the suit property. However, during the pendency of Regular Civil Suit No. 68/2011, Defendant No.11 executed the sale deed in favour of Defendant No.3 and then without disclosing the said fact, on the health ground sought permission to withdraw the suit. This conduct of the Defendant No.1 creates doubt in the facts and circumstances of the matter. The submission of the Respondent No.3 to the extent that he is bona fide purchaser of the suit property, is a matter of record. In the present matter, he has to demonstrate that Defendant No.1/Society was in legal possession of the suit property, and therefore, the execution of sale deed between the Defendant Nos.1 and 3 is legal. In my opinion, ownership of land cannot be decided while deciding application for temporary injunction as Court is not expected to hold mini trial and examine various aspects at this

15/18 Judg.AO.5.2025.odt stage of matter as held by the Hon'ble Supreme Court in the case of Anand Prasad Agrawalla V/s Takeshwar, (2001) 5 SCC 568. 28.

The parties have brought to my notice the fact that Defendant No.3, after execution of the sale deed, has proceeded to convert the land into non-agricultural land, and after obtaining permission from the Authorities, started construction of residential flats over the suit property. Considering the nature of proceeding and the fact that in case this Court does not interfere in the matter, the prospective purchasers of the residential flats who may not be aware of the pendency of the present Civil Suit and will execute the sale deeds of the said plots. In that contingency, multiple litigations will arise in the matter. Therefore, considering this factual position, I am of the opinion that interference of this Court is necessary in the matter. 29.

In regard to the possession of Plaintiff over the suit land, prima facie I am of the opinion that the Defendant No.1/Society has filed the proceeding against the Plaintiff to get executed the land of two acres, which is owned and possessed by the Plaintiff. The record established the fact that the Defendant No.1 filed suit for specific performance of contract against the Plaintiff, but could not succeed in the same till the decision of this Court in

16/18 Judg.AO.5.2025.odt Second Appeal. Therefore, there is no reason to disbelieve the fact that Plaintiff was in possession of two acres of land. 30.

Per contra, the Defendant No.1 failed to produce any documentary evidence on record to show as to how the Defendant No.1/Society got additional land than eight acres, which was purchased from the Plaintiff and her sister.

31.

Hence, the submission of the Defendant No.1 that, Plaintiff failed to establish her title, cannot be gone into while deciding the application for temporary injunction. As I have already held that while deciding the application for temporary injunction, Court cannot conduct the mini trial and same will be decided independently by conducting full trial in the matter, according to me, at this stage, only prima facie consideration is necessary in the matter.

32.

The Plaintiff has prima facie established that she was in possession of suit property, but behind her back, Defendant No.1 executed sale deed in favour of Defendant No.3, in such circumstances, certainly the Plaintiff, if proved her right over the property, would cause great prejudice. So also the prospective purchasers of the Flats, which were undertaken for

17/18 Judg.AO.5.2025.odt construction of residential Flats by the Defendant No.3, will unnecessarily be caused great prejudice in the matter. Therefore, indulgence of this Court is necessary.

33.

In the facts and circumstances of the case, I am of the opinion that during the pendency of the present suit, to avoid further controversy and multiplicity of proceedings, it will be appropriate to direct the learned trial court to decide the civil suit, as expeditiously as possible, and during this period no third party interest should be created in this matter. I am also of the opinion that Defendant No.3 may continue his construction, which according to them, cannot be stopped at this stage because same was started by obtaining due permission from various Authorities which he had pointed out in the matter, but all these constructions shall be subject to final Judgment of Trial Court. Hence, I proceed to pass following order.

ORDER

1. The Appeal is allowed.

2. The order dated 8/4/2025 passed below Exhibit-5 in Special Civil Suit No. 1353/2023 is hereby quashed and set aside.

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3. By way of temporary injunction it is directed that the Defendants shall not create third party interest over the suit property till final decision of the Special Civil Suit No. 1353/2023, which is pending on the file of Civil Judge Senior Division, Nagpur.

4. It is made clear that Defendant No. 3 shall continue the construction work over the suit property on his own risk, subject to final outcome of the Special Civil Suit No. 1353/2023.

5. The learned Civil Judge Senior Division, Nagpur is hereby directed to decide the suit as expeditiously as possible, and in any case, till the end of May-2026.

6. Both the parties are directed to co-operate the learned Trial Court to decide the proceeding as expeditiously as possible without seeking unnecessary adjournments.

7. No order as to costs.

[PRAVIN S. PATIL, J.] vijaya Signed by: Mrs. V.G. Yadav Designation: PS To Honourable Judge Date: 16/10/2025 15:37:15