VBC 1 app917-10-19.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
APPEAL NO.917 OF 2010
IN
NOTICE OF MOTION NO.2233 OF 2008
IN
SUIT NO.1870 OF 2008
WITH
NOTICE OF MOTION 2233 OF 2008
Variegate Realestate Private Limited, a
Private Limited Company incorporated
under the provisions of the
Companies Act, 1956, having its
registered office at Solitaire Building,
3rd Floor, Block No.3, 80, S.V.Road,
Santacruz (West), Mumbai-400 054. ...Appellant.
Vs.
1. Tehmul R. Irani, of Mumbai Indian
Inhabitant, residing in Gardha Villa,
First Floor, 48, Hill Road, Behind
Elco Market, Bandra (West),
Mumbai-400 050.
2. Mehervan R.Irani,
of Mumbai, Indian Inhabitant,
residing in Gardha Villa, First
Floor, 48, Hill Road, Behind Elco
Market, Bandra (West),
Mumbai-400 050. ...Respondents.
....
Mr.Aspi Chinoy, Senior advocate with Mr.S.V.Doijode and
Mr.K.G.Mhatre i/b. M/s.Doijode Associates for for the Appellant.
Mr.Shailesh Shah with Mr.Y.R.Shah for Respondent Nos.1 and 2.
Mr.M.R.Irani, Respondent No.3 in person.
.....
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CORAM : SHRI MOHIT S.SHAH, C.J. AND
DR.D.Y.CHANDRACHUD, J.
October 19, 2010.
JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.):
1. Admit. With the consent of all the Learned Counsel and
of the Original Third Defendant who appears in person, the Appeal
has been taken up for hearing and final disposal.
2. This appeal arises out of a judgment of a Learned Single
Judge on a motion for interim relief. By the order of the Learned
Single Judge: (i) The First Defendant has been restrained by an
interim injunction from creating any third party interests in the suit
property and from inducting any third party, save and except the
Second and Third Defendants into the suit premises; (ii) The First
Defendant has been restrained from creating any further interests
in favour of the Second and Third Defendants; and (iii) The
Defendants have been restrained from interfering with the
possession of the Plaintiff over the rest of the suit property, save
and except for the First Floor of the building. The original Plaintiff
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is in appeal. The carving out of the exception for the Second and
Third Defendants gives rise to the appeal.
3. The suit was instituted by the Plaintiff for an injunction
restraining the First Defendant from inducting the Second and
Third Defendants or any other person into the suit property and
from dealing with, disposing of, encumbering or creating any third
party rights by inducting any third party into the property. A
permanent injunction has been sought restraining the Second and
Third Defendants from entering upon or remaining on the suit
property. The property in question is land admeasuring 1406
square meters on which there is a bungalow, situated at Turner
Road, Bandra. The First Defendant who was about eighty two
years old, when the suit was instituted on 10 June 2008, died
during the pendency of the suit on 16 August 2010. The Second
and Third Defendants are nephews of the First Defendant. The
Third Defendant, who has appeared in person, is an Advocate. The
First Defendant was single and was a daughter of Sheriar Rustom
Ahrestani. Sheriar had acquired an interest in the property as co-
owner under a registered Deed of Conveyance dated 29 August
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1944. Sheriar died on 12 March 1979. By a will executed by him
on 17 April 1969, Sheriar bequeathed his one fourth undivided
share in the property to his three sons in equal proportion. By the
will, the wife of the testator and the First Defendant were allowed
a right of residence in the property. The executors and the trustees
under the will were directed to maintain both of them as long as
they desired to live in the property at Bandra. Sheriar’s will has
been probated. The Plaintiff acquired title to the property by a
registered Deed of Conveyance dated 24 February 2005. The Deed
of Conveyance records in clause 4 that a portion of the property on
the First Floor admeasuring about 225 sq.ft. was in the occupation
of Daulat (the First Defendant), the daughter of Sheriar. Prior to
the execution of the Conveyance, a public notice was issued on
behalf of the Plaintiff on 28 May 2004 of the proposed sale to
which the First Defendant had raised an objection on 7 June 2004.
4. The case of the Plaintiff is that save and except for an
area admeasuring 225 sq.ft. on the First Floor, which was in the
occupation of the First Defendant, the Plaintiff was in occupation of
the rest of the property. According to the Plaintiff, the Second
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Defendant would usually visit the First Defendant twice a day,
once in the morning and once in the evening, to bring food for her
from his residence at Gharda Villa. According to the Plaintiff, the
Third Defendant, who is a lawyer, would visit the First Defendant
once or twice a week. According to the Plaintiff, the Second and
Third Defendants were attempting to create “a semblance of
possession” on the property and were threatening the security
guards deployed by the Plaintiff. The case of the Plaintiff is that as
a lawful owner, the Plaintiff is in settled possession of the property
and it is only the First Defendant, who had a right of residence.
Apprehending that the Second and Third Defendants were
attempting to interfere with the possession of the Plaintiff, the suit
for injunction was instituted.
5. A motion for interim relief was moved by the Plaintiff,
seeking an injunction restraining the First Defendant from
inducting the Second and Third Defendants or any other person in
the property and from dealing with or disposing of, or parting with
possession of the property and from inducting any third party or
entering into an agreement with any person including the Second
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and Third Defendants. An injunction was also sought against the
Second and Third Defendants from entering upon or remaining on
the property.
6. The case of the Second Defendant is that the First
Defendant had created a tenancy in his favour in 2005 of the
premises on the First Floor and his case was that he was residing
together with the First Defendant. The Third Defendant claimed
possession of one room on the First Floor of the bungalow which
according to him, was allowed to him by the First Defendant since
2007 out of natural love and affection. During the pendency of the
motion, an ad-interim order was passed by a Learned Single Judge
on 22 October 2008, restraining the First Defendant from creating
third party interests in the suit property and from inducting any
third party, save and except for the Second and Third Defendants.
The First Defendant was restrained from creating further interests
in favour of the Second and Third Defendants. The Defendants
were restrained from interfering with the possession of the Plaintiff
over the suit property, save and except for the First Floor. When
the ad-interim order was carried in appeal, a Division Bench by an
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order dated 10 November 2009, directed the Learned Single Judge
to dispose of the motion. Accordingly, the motion was heard and
the impugned order has been passed.
7. On behalf of the Plaintiff, it has been urged by Counsel
that the Plaintiff acquired the property under a registered Deed of
Conveyance, dated 24 February 2005. Under the will executed by
the father of the First Defendant, Sheriar, the First Defendant had
only a right of residence in the suit property. The acquisition of the
property by the Plaintiff was subject to the right of residence of the
First Defendant. The First Defendant was in occupation of one
room on the First Floor of the bungalow. The Second and Third
Defendants have absolutely no right or interest in the property.
The Second Defendant would visit the First Defendant twice a day
to bring food to her, while the Third Defendant, who is a lawyer,
would visit her once or twice a week. It was urged by the Plaintiff
that it had absolutely no objection to the Second and Third
Defendants visiting the Plaintiff, but the suit was instituted because
an effort was being made by the Second and Third Defendants to
create evidence that they were in possession of the property
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together with the First Defendant. The Plaintiff sought to rely upon
the records maintained by the security guards at the bungalow and
from 25 March 2009, the Plaintiff commenced a round the clock
Video recording. A transcript of the Video recording and CDs were
filed together with affidavits in support of the case of the Plaintiff
that the Second and Third Defendants were only visiting the First
Defendant and were never in settled possession of the suit
property. According to the Plaintiff, the affidavit filed by the First
Defendant to the Motion establishes that the Second Defendant
was only visiting the Plaintiff to bring food. A complaint filed by
the Third Defendant on 9 May 2007 also records that the Second
Defendant was visiting the premises daily to bring food to the First
Defendant. The submission which has been urged on behalf of the
Plaintiff is that such intermittent acts on the part of the Second
and Third Defendants do not amount to settled possession and the
attempt made by the Second and Third Defendants to create a
record of paper possession cannot support a case of settled
possession. An affidavit filed by the Third Defendant on 4 October
2007 in a suit before this Court on the Original Side (Suit
1465/86) also stated that both the Second and Third Defendants
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were residing at Gharda Villa. This according to the Plaintiff,
would belie the case now sought to be put up by the Second and
Third Defendants of being in possession of the suit property
together with the First Defendant. The contention which has been
urged on behalf of the Plaintiff is that the Supreme Court held in
Rame Gowda vs. M.Varadappa Naidu,1 that settled possession
must be effective, undisturbed and to the knowledge of the owner or
without any attempt at concealment by the trespasser. It was urged
that the Supreme Court has emphasized that possession which a
trespasser is entitled to defend against the rightful owner must be
settled possession, extending over a sufficiently long period of time
and acquiesced to by the true owner. Though the test laid down
by the Supreme Court has been adverted to by the Learned Single
Judge, it was urged that the order of the Learned Single Judge does
not apply the test to the facts of the case. The Learned Single
Judge, it is urged, failed to appreciate that the Second and Third
Defendants were never in settled possession. An undisguised
attempt has been made by the Second and Third Defendants to
build up a paper record which is belied by the affidavits filed by the
1 (2004) 1 SCC 769
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First Defendant, the Third Defendant and by the other material on
the record. All this material negates a case of settled possession.
8. On the other hand, it has been urged on behalf of the
Second Defendant that the executors of the will of Sheriar, who
were brothers of the First Defendant, had not maintained her and
it was the Second and Third Defendants who had tended to her
needs. The First Defendant in her affidavit had explained that she
was neglected by her brothers and that it was the mother of the
Second and Third Defendants who had provided the First
Defendant with food, clothes and medicine. The First Defendant
stated that since she had no source of income and her brothers
were threatening to dispossess her, she had inducted the Second
Defendant as her tenant on the first floor of the bungalow and had
issued rent receipts to him. On 24 February 2005 an incident took
place when the Plaintiffs brought six security guards to the
premises on the first floor. The First Defendant thereupon lodged a
complaint with the local police station. The First Defendant
complained that she was being harassed by the Plaintiffs. Counsel
for the Second Defendant relied upon certain documentary
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material to buttress the contention that prior to the institution of
the suit in June 2008, the Second Defendant was residing with the
First Defendant. The documents on which reliance has been placed
by counsel, at the hearing are : (i) A letter by the First Defendant
to the Assistant Engineer, Municipal Corporation of Greater
Mumbai on 25 October 20052; (ii) Letters by the First Defendant to
the Deputy Commissioner of Police and to the Municipal
Corporation on 17 February 20073; (iii) Rent receipts from 1
November 20054; (iv) A ration card in which the name of the
Second Defendant is added on 30 July 20055; (v) A copy of the
Second Defendant’s pan card dated 4 October 20066. On the basis
of these documents it was urged that the Second Defendant was in
settled possession.
9. The case of the Third Defendant is that the First
Defendant had permitted him to utilize a room on the first floor as
his office space. The document on which the Third Defendant
placed reliance at the hearing of the appeal are : (i) An application
2 Vol. 2 page 202.
3 Vol. 2 pages 203, 209.
4 Vol. 2 page 215.
5 Vol. 6 page 864.
6 Vol. 6 page 866.
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for inclusion in the electoral roll submitted on 16 March 20077; (ii)
An application made to a mobile service provider on 24 November
20078; (iii) Postcards dated 25 March 2008 and 12 April 2008 9;
(iv) A docket in S.C. Suit 716 of 2008 dated 17 June 200510 and
(v) A Vakalatnama in S. C. Suit No.352 of 2005 dated 17 December
2007. The Third Defendant submitted that the Plaintiffs should
have prayed for possession in the suit and neither he nor the Third
Defendant can be dispossessed at the interim stage.
10. These submissions would fall for consideration.
11. The First Defendant had under the will executed by
Sheriar a right of residence during her lifetime. The will has been
probated. The Plaintiffs acquired title to the property under a
registered deed of conveyance dated 24 February 2005; Clause (4)
recognizes the First Defendant’s right of residence in a portion of
the property situated on the first floor. The Plaintiffs moved the
Court on the basis that the Second and Third Defendants were
7 Vol. 6 page 886.
8 Vol. 6 page 889.
9 Vol. 2 page 278.
10 Vol. 2 page 288.
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“dishonestly attempting to create a semblance of possession of the
said property” . The Plaintiffs contended that they were informed
by the security guards that the Second Defendant visited the
premises twice a day, while the Third Defendant visited the
premises where the First Defendant resided twice a week. The case
of the Plaintiffs was that the Second and Third Defendants did not
reside with the First Defendant in the premises. The Plaintiffs
relied upon the records maintained by the security guards.
12. Now a prima facie evaluation of the material on the
record brings out the following circumstances :
(i) On 9 May 2007 a police complaint was lodged by the
Third Defendant at the Bandra Police Station11. The Third
Defendant states in the complaint that his aunt who was aged 82
years resided on the first floor of the bungalow. The Third
Defendant stated that his brother, the Second Defendant would
visit the premises daily to give lunch, tea etc. to the First
Defendant. The complaint was that he was obstructed at the gate;
(ii) The First Defendant in an affidavit filed to oppose the
11 N.C. Case 1721/2007 lodged at 11.45 hrs. on 9 May 2007 – (Vol.2 page 277A)
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Notice of Motion specifically mentioned as follows :
“I say that every day the Defendant No.2 brings food, tea,
fruits and other eatables from his father’s residencewhich is convenient for both of us. I say that the
Defendant No.3 attends his office at the Dawn Bungalow
as per his requirements.” (emphasis supplied)The First Defendant further stated that “Defendant Nos.2 and 3
have a right to visit me and remain with me on the first floor of the
‘Dawn’ bungalow as they are nephews”. The First Defendant then
attempted to set up a case that the Second Defendant was residing
with her as a tenant and that the Third Defendant had an office on
the first floor;
(iii) An affidavit was filed by the Third Defendant on 4
October 2007 in a suit instituted by his father on the Original Side
of this Court12. In the said affidavit, the Third Defendant has
averred as follows :
“I say that the said Plaintiff’s residential premises is
situated on Plot No.83, Hill Road. I say that the said
property known as Gharda Compound has not been
legally sub-divided hence there is no adjoining Plot. I
deny that the Plaintiff is residing in the residential
premises only with his son Mr. Mehervan Irani (a
practicing lawyer and a Constituted Attorney of the
12 Rustom Boman Irani v. Municipal Corpn. of Gr. Mumbai – NM 2360/2007 in Suit
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Plaintiff). I say that the Plaintiff’s other son Mr. Tehmul
R. Irani is also residing with him.” (emphasis supplied)Clearly therefore the averment of the Third Defendant was that
both he and his brother, the Second Defendant, were residing in
residential premises known as Gharda Compound. This material,
prima facie, is consistent with the case of the Plaintiff that neither
the Second nor the Third Defendant resided in the suit property
and that as a matter of fact both of them resided in premises
situated at Gharda Compound. Despite this, in the affidavits that
were filed in the Notice of Motion a false case was sought to be put
up to the effect that the Second Defendant was residing as a tenant
of the First Defendant on the first floor of the suit premises for
which the First Defendant had issued rent receipts13. In a further
affidavit14 the Second Defendant set up a palpably false denial of
the fact that he was residing with his family at Gharda Villa and
that the Third Defendant was operating from his residence at the
same place. These affidavits are palpably false and show a scant
regard for the truth.
13 The affidavit of the First Defendant is at Vol. 1 page 66 (at para 4 page 67)
14 Vol. 1 page 142 (at page 148).
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13. The Plaintiff has relied upon video recordings which
commenced from March 2009 following up on the reports of the
security guards at the premises. According to the Plaintiff
transcripts together with the CDs have been filed together with an
affidavit deposing to the authenticity of the record which has been
maintained on a round-the-clock basis. Learned Senior Counsel
submitted that it was after these transcripts and recordings were
placed before the Court that the Second and Third Defendants
sought to alter the existing pattern but even that would not
constitute settled possession on the date of the suit. At this stage,
the evidentiary value of the video recording and of the reports of
the security guards is yet to be established. This must await the
trial of the suit. We have hence evaluated the material on the
record independent of the video recordings and transcripts.
Independent of the video recordings and transcripts, the material
which has been adverted to above is sufficient to indicate that both
the Second and the Third Defendants used to visit the suit property
and were not in settled possession. The Second Defendant visited
the suit property twice a day to bring food to the First Defendant
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who was his aged aunt while the Third Defendant visited her
occasionally. Both the Second and the Third Defendants resided
separately in Gharda Villa. What the Second and Third
Defendants, however, attempted to do is to create a paper record to
buttress their plea of being in possession of the premises during the
lifetime of the Plaintiff.
14.
Before evaluating the other documentary material it is
necessary to advert to the position in law. In Rame Gowda’s case
a Bench of three Learned Judges of the Supreme Court held that
the law will come to the aid of a person in peaceful and settled
possession by injuncting even a rightful owner from using force or
taking the law in his own hands and also by restoring him in
possession even from the rightful owner, if the latter has
dispossessed the prior possessor by use of force. The owner of a
property may prevent even by using reasonable force, a trespasser
from an attempted trespass, when it is in the process of being
committed, or is of a flimsy character, or recurring, intermittent,
stray or casual in nature. The Supreme Court has held that “it is
the settled possession or effective possession of a person without
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title which would entitle him to protect his possession even as
against the true owner”. What constitutes settled possession is
elucidated in the following observations of the Supreme Court :
“The possession which a trespasser is entitled to
defend against the rightful owner must be settledpossession, extending over a sufficiently long period
of time and acquiesced to by the true owner. A casual
act of possession would not have the effect of
interrupting the possession of the rightful owner. Therightful owner may reenter and reinstate himself
provided he does not use more force than is necessary.
Such entry will be viewed only as resistance to an
intrusion upon his possession which has never been lost.
A stray act of trespass, or a possession which has not
matured into settled possession, can be obstructed or
removed by the true owner even by using necessary
force. In Puran Singh case15 the Court clarified that it is
difficult to lay down any hard-and-fast rule as to when
the possession of a trespasser can mature into settled
possession. The “settled possession” must be (i)
effective, (ii) undisturbed, and (iii) to the knowledge
of the owner or without any attempt at concealment
by the trespasser.” (emphasis supplied)
The test that must be applied before it can be held that a person is
in settled possession is that the possession must be effective,
undisturbed and to the knowledge of the owner or without any
attempt at concealment by the trespasser.
15 (1975) 4 SCC 518.
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15. The Learned Single Judge proceeded to rely on the
documentary material, to which a reference has been made earlier
and in the impugned judgment, to arrive at a prima facie finding
that the Second and Third Defendants were in possession. The
judgment of the Learned Single Judge, with respect, misses the
issue of settled possession in the application of the law to the facts
of this case. The Learned Single Judge cited the decision in Rame
Gowda. The documentary material, however, has not been
evaluated on the anvil of the test laid down by the Supreme Court
in Rame Gowda. Whether there was an act of acquiescence on the
part of owner and whether the Second and Third Defendants were
in effective and undisturbed possession with the knowledge of the
owner and without any attempt at concealment by the Second and
Third Defendants has not been considered. Hence, we find merit in
the contention of the counsel for the Appellant that the Learned
Single Judge has not correctly appreciated the test that has been
enunciated by the Supreme Court in Rame Gowda’s case. To
constitute settled possession, there has to be possession to the
knowledge of the owner, which must extend over a sufficiently
long period of time and must be acquiesced in by the true owner.
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In the present case, it is evident that a paper record was sought to
be created by the Second and the Third Defendants to buttress a
plea of possession. This is, however, belied by the
contemporaneous material to which a reference has already been
made which shows that neither of them was in settled possession.
16. There has been an undisguised attempt on the part of
the Second and Third Defendants to create a documentary record
to further their case of possession. This despite the existence of
sufficient material including the statements of the First and the
Third Defendants on affidavit that (i) The Second Defendant used
to visit the suit premises twice a day to bring food to the First
Defendant; (ii) Both the Second and Third Defendants did not
reside in the suit premises and on the contrary resided at Gharda
Villa. There is merit in the contention of the Plaintiff that it was
after the Plaintiff obtained title to the suit property on 24 February
2005 that the Second and Third Defendants attempted to create
some sort of documentary record. For instance on 26 March 2008,
a little prior to the institution of the suit in June 2008 the Third
Defendant addressed a letter to the Prothonotary and Senior
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Master of this Court seeking to bring on record of the Original Side
registry his new office address at the suit premises. The rent
receipts upon which reliance has been placed by the Second
Defendant are dated 1 November 2005 (evidencing the payment of
a sum of Rs.1,000/-); 2 August 2006 (evidencing the payment of
an amount of Rs.1,200/-), 1 April 2007 (evidencing the payment of
Rs.3,600/-) and 21 January 2008 (evidencing the payment of Rs.
7,200/-). All these payments purport to have been made in cash.
The name of the Second Defendant was inserted in the ration card
of the First Defendant on or about 30 September 2005. These are
all documents unilaterally obtained by the Second and Third
Defendants. If the Second and Third Defendants were in juridical
possession of the suit premises, such documentary material could
possibly have lent support to the contention of being in possession
of the suit premises. A person who has otherwise no right, title or
interest to or in immovable property must, however, establish a
case of settled possession before he can set up a valid defence to a
claim to injunction of the lawful owner. That is why the Supreme
Court has postulated that settled possession as a basis for
defending a claim of the rightful owner must extend over a
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sufficiently long period of time and must be acquiesced in by the
true owner. Casual, intermittent or stray acts do not amount to
settled possession. Settled possession has to be to the knowledge
of the owner or without any attempt at concealment by the
trespasser. There is absolutely no material in the present case to
lead to the conclusion that the Second and Third Defendants were
in settled possession of the suit premises. There is nothing to
indicate that they were in possession of such nature or for such
period of time or in such circumstance should lead even prima facie
to the inference that it was acquiesced in by the true owner. There
is a conspicuous lack of any material whatsoever that would lead to
a prima facie inference of facts that would impute knowledge to
the owner. The totality of the material on the record is indicative
of the circumstance that it was the First Defendant who had a right
of residence in the suit premises. The Second and Third
Defendants visited the suit premises where their aged aunt, the
First Defendant resided. The Second Defendant brought her food
twice a day and the Third Defendant visited her on occasion. Both
of them resided at Gharda Villa and not in the suit premises. In
these circumstances, a case was made out by the Plaintiffs for the
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grant of an interlocutory injunction pending the disposal of the
suit. The basis on which the injunction was sought was the
apprehension of the Plaintiffs that the Second and Third
Defendants were creating a record to show a semblance of
possession over the suit property. The Second and Third
Defendants have no right, title or interest in the suit property. In
the absence of their being in settled possession, a prima facie case
was made out by the Plaintiff for the grant of interlocutory
injunction. The balance of convenience must necessarily follow in
favour of the rightful owner in whom the title to the property rests.
The error, with respect, in the approach of the Learned Single
Judge is that though the impugned judgment refers to the tests
laid down by the Supreme Court in Rame Gowda, the judgment
does not apply those tests to the factual material on the record. A
paper record which was sought to be created by the Second and
Third Defendants must remain what it is, namely on paper alone;
particularly where the facts on the record belie the defence that the
Second and Third Defendants were in settled possession.
17. For all these reasons, we are of the view that the Appeal
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must be allowed and the order of the Learned Single Judge must be
set aside. There shall accordingly be an order in these terms. The
Motion instituted by the Plaintiff (Notice of Motion 2233 of 2008)
shall accordingly stand absolute in terms of prayer clause (b) which
reads as follows :
“(b) that pending the hearing and final disposal of the
suit, Defendant Nos.2 and 3 be restrained by temporaryorder and injunction of this Hon’ble Court from entering
upon or remaining on the said property described in the
Schedule at Exhibit ‘A’ to the Plaint or any part thereofwithout the permission of the Plaintiff.”
In the circumstances of the case, there shall be no order
as to costs.
CHIEF JUSTICE
DR.D.Y.CHANDRACHUD, J.
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