Bombay High Court High Court

Variegate Realestate Private … vs Tehmul R. Irani on 19 October, 2010

Bombay High Court
Variegate Realestate Private … vs Tehmul R. Irani on 19 October, 2010
Bench: Dr. D.Y. Chandrachud
    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 residence

which 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
1465 of 1986 (Vol 6 pg 911).

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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 settled

possession, 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. The

rightful 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 temporary

order 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 thereof

without 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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