APTE AMALGAMATIONS LIMITED Vs. HAMIDALI NASIRALI OF BOMBAY

JUDGEMENT

(1.) THIS is defendant 2s appeal taking exception to an interim injunction restraining the said defendant and defendant 1 from interfering with plaintiffs alleged possession and enjoyment of land and structure said to measure 1372 sq. yards forming part of C. T. S. 366 near Shiv Mandir, Swastik Park Compound, behind C. S. T. Road, Chembur, Bombay-71.

(2.) THE 1st respondent, hereinafter to be referred to as the plaintiff, filed a suit against the appellant and the 2nd respondent contending that at all material times, he was in exclusive use, occupation and possession of the suit land together with two sheds of different dimensions standing thereon. Plaintiff was in possession of the land along with these sheds since the year 1962 onwards. He traces his possession through Jawahar Mandir Mandal of which he claims to have been a member since prior to the year 1962. In 1983 it became necessary to effect repairs to one of the sheds and for this purpose plaintiff moved the Bombay Municipal Corporation. The said Corporation accorded permission vide its letter dated 17 March, 1983. The shed was also assessed to rates by the B. M. C. which had listed the same as bearing Municipal No. M-1381 (11-F ). The open land forming part of the said property had been fenced by barbed wire. For about 5 years plaintiff was residing in this shed and thereafter started doing business therein his business was that of repairing motor vehicles. Not being in a position to carry on the business by himself, he had taken in a partner, by name K. Mani. The business thereafter was done in the name and style of Mani Auto Garage. The shed was used for carrying on repair work while the open space was used for parking of vehicles which came to the garage for repairs. He had been using these structures in the suit land as also the vacant land for the business of garage right since the year 1976. His possession was open, peaceful and uninterrupted. As this possession had lasted for more than 12 years, he had become the owner of the suit property. Defendant 1 was a housing society federation and had constructed certain buildings around the suit land. Because of a spurt in the prices of real estate, defendant 1 had started harassing the plaintiff. Their representative had given threats to the plaintiff and his workers making it clear that unless they vacated the property, they would be thrown out. Complaints of this had been given to the Police, the last one being as recent as that lodged on 4 April, 1984. The police declined to act pleading that a dispute in regard to a civil right had arisen and they could do nothing in the matter. Being in possession and having acquired title by adverse possession, the plaintiff was entitled to permanent injunction restraining the defendants from dispossessing him or entering in or upon the suit property and interfering with his quiet and peaceful possession and enjoyment except by following the due process of law. Along-side the institution of the suit, plaintiff took out a motion seeking interim relief. The motion was opposed by the defendants. Their affidavits-in-reply are on record and certain portions therefrom require reproduction. In the affidavit filed on behalf of the 1st defendant appears the following recitals:

(3.) MR. Naphade for the 2nd defendant contends that his client and defendant 1 were the owners of the property. The plaint itself contains an admission that the plaintiffs a occupation did not have a lawful origin. The plaint made no reference to what right the Jawahar Mandir Mandal had towards the suit property. What was the plaintiffs status vis-a-vis the said Mandal was not clarified. What was clear was the admission that plaintiff was a rank trespasser claiming to have acquired a prescriptive title by adverse possession. In this background, the plaintiff was not entitled to the relief of an injunction, perpetual or temporary. In support of this contention learned Counsel has referred me to section 37 of the Specific Relief Act, 1963. Mr. Naphade submits that a perpetual injunction can be granted only upon the merits of the suit being established at a full dress trial. Here is the case of the plaintiff who on his own admission is a trespasser. No person in that position can claim the discretionary order of interim injunction to protect what was illegal at its very inception. It is not necessary to labour over this point for as was held in A. O. No. 129 of 1958 considered along with C. A. No. 2849 of 1956 decided on 2 May, 1959, even if the defendant proves a better title to the property, the plaintiff in peaceful possession is in a proper case entitled to a limited injunction that he shall not be dispossessed by the defendant without due process of law. More important is the authority of the Supreme Court in (Puran Singh v. State of Punjab) A. I. R 1975 S. C. 1674. In that case Fazal Ali. J. , speaking for the Bench opined:---