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2022 SCC OnLine Bom 951 : (2022) 4 Mah LJ 332 : (2022) 6 Bom
CR 218

In the High Court of Bombay

(Bombay)
INJUNCTION : GRANT OF
(BEFORE BHARATI H. DANGRE, J.)

Jaywant Industrial Premises Co-Operative Society

Ltd. … Appellant.
Versus
Sangeeta Kewalramani and Others … Respondents.
Appeal from Order No. 270 of 2022 with Interim Appln. No. 1943
of 2022
Decided on April 21, 2022

Civil Procedure Code, O. 39, RR. 1 and 2 — Suit for injunction — Suit
premises a terrace is in exclusive use and possession of plaintiff ever since
building was constructed i.e. since 1985 — Whether suit premises would fall
within common area is question to be determined on evidence being brought
before concerned Court — While recording a prima facie case and balance of
convenience in favour of plaintiff by passing order of granting injunction
against defendants trial Court has not committed any illegality — Appeal
against said order dismissed.

Page: 333

Recording a prima facie case, on account of continuous possession of the

plaintiff over the suit terrace, coupled with the fact that the society never objected
to such possession and rather expressed it's implied consent for it's exclusive use
of the plaintiff, by accepting the maintenance charges from the year 1985 till the
year 2018, the impugned order passed by the learned Judge cannot be said to be
suffering from legal infirmity, while recording a prima facie case and balance of
convenience in favour of the plaintiff.
(Paras 17 and 18)
Advocates who appeared in this case :
Virag Tulzapurkar, Senior Advocate with Kashish Manihar and Ms.
Jyoti Pardeshi instructed by Wadia Ghandy and Co. for the Appellant;
Amogh Singh For respondent No. 1.
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List of cases referred:

1. Nahalchand Lallochand Pvt. Ltd. v. Panchali Co- (Para 7)

op. Housing Society Ltd., 2010 MhLJ Online (SC)
67 : (2010) 9 SCC 536

2. Ramagauri Keshvlal Virani v. Walkeshwar Triveni (Para 7)

Co-operative Housing Society Ltd., (1999) 3 Mah
LJ 145

3. Anathula Sudhakar v. P. Buchi Reddy (Dead) by (Paras 8, 16, 17)

LRs, 2008 MhLJ Online (SC) 62 : (2008) 4 SCC
594

4. Ashok Punjabi v. High Class Developers, 2012 (Para 15)

MhLJ Online 134 : (2012) 4 Bom CR 450

5. T.V. Ramakrishna Reddy v. M. Mallappa, 2021 (Para 17)

MhLJ Online (SC) 48 = C.A.I No. 5577/2021 dt. 7-
9-2021

JUDGMENT
1. The Appellant is a Co-operative Housing Society Ltd., captioned as
‘Jaywant Industrial Premises Co-operative Society Ltd.’ and is a
defendant in L.C. Suit No. 825 of 2019. The Appeal is instituted by the
Appellant, being aggrieved by order dated 16-12-2020 passed by the
City Civil Court, on an application taken out by the plaintiff in the suit,
under Order 39, Rule 1 and 2 of the CPC, which came to be allowed and
an injunction order has been stormed against the defendants.
2. Heard learned Senior Advocate Mr. Virag Tulzapurkar for the
Appellant and the learned Advocate Mr. Amogh Singh for respondent
No. 1 (original plaintiff).
3. In order to appreciate the arguments of the learned Senior
Advocate, I must refer to the proceedings between the parties.
The plaintiff, Sangeeta Kewalramani, owner of the various premises
in the building known as ‘Jaywant Industrial Premises Co-operative
Society Ltd.’ amongst other Unit Nos. 309, 310 and 311(T), situated at
63, Tardeo Road, Opp. SOBO Central Mall, Mumbai 34, instituted a suit
under sections 34, 37 and 38 of the Specific Relief Act. The cause of
action for instituting the suit was apparently, a notice issued by the
Corporation under section 351 of the M.M.C. Act dated 11-12-2018 and
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the speaking order dated 9-3-2019 in respect of the suit premises,

being Unit No. 311(T). The society was impleaded as defendant No. 3,
whereas the Corporation and it's Officer were impleaded as defendant
Nos. 1 and 2.

Page: 334

4. The plaintiff pleaded her case that Rajan Kewalramani, her

deceased husband, became owner of the suit premises vide agreement
dated 24-9-1985 along with one Behram Darabshah Bhasania, the
Chief Promoter of the proposed society, who executed a letter dated 16-
2-1993 declaring that Rajan Kewalramani was the bona fide purchaser
in respect of the premises, including the suit premises, which is an
open terrace on the third floor of the defendant society. The specific
case pleaded by the plaintiff is to the effect that she herself along with
her family members, known as Kewalramani Group owned various
galas/units in the defendant No. 3-society and the premises came to
their ownership, through various agreements and upon the death of her
husband, she along with her daughter and son, inherited the right to
the suit premises. All other legal heirs executed a release deed in her
favour, relinquishing their right, title and interest in favour of the
plaintiff and that is how, she became the sole and absolute owner of
the suit premises.
It is pleaded that the plaintiff enjoyed the peaceful use, occupation
and possession of the suit premises, without any inference or
obstruction since 1985. It is her specific case that defendant No. 3-
society was formed in the year 2001 and from 1985 to 2001, the Chief
Promoter executed agreement of ownership in favour of her predecessor
and no objection was ever raised about it's right, title, use, occupation
and possession and even after the formation of defendant No. 3-
society, rather her right over the private terrace was recognized for the
private use of the family, including gardening. The said premises are
pleaded to be adjacent to the other galas belonging to Kewalramani
being Nos. 309, 310 and 311 and always received a status as a private
terrace. Apart, it is pleaded that the society has separate and distinct
terrace above the third floor, which has been used as a common terrace
and meetings of the society are held on the said common terrace.
The specific case of the plaintiff in the plaint is to the effect that the
suit premises was always a private terrace in exclusive use and
possession of the plaintiff ever since the building was constructed i.e.
since 1985.
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5. The plaintiff has made her case good by placing on record several
documents, which included the payment of share application money,
charge for maintenance of the suit premises since the formation of the
society and the maintenance bills for Unit No. 311(T), indicating the
intention of the society to treat and accept the suit premises as
separate and to the exclusive ownership of the plaintiff/her
predecessor. Prior to the formation of the society in the year 2001, it is
pleaded that the then Chief Promoter had been charging various
amounts towards maintenance and the bills to that effect are place on
record. Upon a notice issued by the Corporation, at the instance of the
society, where the society created record of minutes and represented
that the suit premises is a common terrace, the plaintiff was sought to
be dispossessed alleging unauthorised construction by a brick masonry
wall,. opposite the lift and unauthorised covering of terrace, by erecting
2 M.S. collapsible gates admeasuring 2 meters X 1.15 meters each on
the third floor, which was indicated

Page: 335

in the notice exhibited as Exhibit M. Despite a response being

submitted by the plaintiff, a speaking order has been passed by the
Corporation on 9-3-2019.

6. Responding to the said notice alleging erection of the wall and 2

collapsible gates, the plaintiff agreed to remove the brick wall and,
accordingly, issued a letter to the MCGM showing her willingness to
remove the same but insisted upon retaining the collapsible gates,
which according to her, were perfectly legal.
Pending the aforesaid development, defendant No. 3 passed a
Resolution to initiate action against the plaintiff for encroachment of
common terrace on 27-2-2019, which constrained the plaintiff to
institute a suit, challenging the notice under section 351 of the M.M.C.
Act as well as seeking a declaration against defendant No. 3-Society,
it's members, servants, agents, representatives or any person from
trespassing upon or entering upon the suit premises i.e. Unit No. 311
(T) of the Co-operative Housing Society Ltd.
Pending the main relief, a temporary order of injunction was also
sought against defendant Nos. 1 and 2 from taking any action pursuant
to the notice issued under section 351 and the speaking order passed
in respect of the suit premises as well as a restraint order against
defendant No. 3 from trespassing upon or entering upon the suit
premises.
In the said suit, Notice of Motion No. 1372 of 2019 was taken out,
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seeking the aforesaid injunction and was supported by an affidavit,

making out a case for grant of temporary injunction against the
defendants. Defendant No. 3-society opposed the Notice of Motion by
filing an affidavit-in-reply, raising an issue about the maintainability of
the suit, simplicitor for injunction without prayer for declaration, being
owner of the suit premises. The suit was also sought to be dismissed
for misjoinder of causes of action and also on the ground, that granting
the relief at interim stage would amount to final relief and allowing the
suit itself.
On consideration of the rival contentions, including the
maintainability of the suit, though the plaintiff was held not having a
prima facie case or balance of convenience against the MCGM, but
recording that the plaintiff has a prima facie case and balance of
convenience against the defendant-Society, the Notice of Motion came
to be partly allowed, by making a reference to the agreement executed
between the plaintiff and the Chief Promoter of the society in respect of
the suit premises, though an unregistered one and even the letter of
the Chief Promoter dated 16-2-1993 brought on record, persuaded the
learned Judge, to hold a prima facie case in favour of the plaintiff, since
the Chief Promoter had given his no-objection for obtaining telephone,
water, electricity connections on open terrace on the third floor :
Issuance of the maintenance receipts by the society, since a
considerably long period of time was held sufficient to derive an
inference that the plaintiff is in possession of the said terrace, but the
erection of the wall which blocked the fire escape passage was held to
be unauthorised one though the collapsible gates were held entitled to
stand.

Page: 336

It was recorded that the building got occupation certificate in the

year 1992-93 and, therefore, the construction of the wall was held to be
not authorised, as not being erected prior to datum line and, therefore,
the relief prayed by the plaintiff against defendant Nos. 1 and 2 was
rejected and till disposal of the main suit, defendant No. 3-society and
it's members were restrained from disturbing, the long standing
possession of the plaintiff over the said terrace, particularly demarcated
by the two collapsible gates. On removal of the brick masonry wall, by
the MCGM, defendant No. 3-society and it's members were granted
liberty to use the said fire escape passage at the time of fire
emergency, if any, till the disposal of the suit. It is this order which is
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the cause for institution of the present Appeal.

7. The learned senior counsel would submit that the claim of the
plaintiff is completely baseless as it is found that the agreement is not
registered and since the plaintiff's case rest upon this very agreement,
by which it is pleaded that the terrace is sold to her predecessor, Mr.
Tulzapurkar would submit that no rights can flow to her or to her
predecessor on such an unregistered document. He would submit that
the terrace is a common area under the Maharashtra Ownership of Flats
(Regulation of the Promotion, Construction, Sale, Management and
Transfer) Act, 1963 (for short, “the MOFA”) and such common areas
cannot be sold and in support he would rely upon the decision of the
Hon'ble Supreme Court in the case of Nahalchand Lallochand Private
Limited v. Panchali Co-operative Housing Society Limited, 2010 MhLJ
Online (SC) 67 : (2010) 9 SCC 536 as well as a decision of the learned
Single Judge of this Court in the case of Ramagauri Keshvlal Virani v.
Walkeshwar Triveni Co operative Housing Society Ltd., (1999) 3 Mah LJ
145.
The learned senior counsel would submit that assuming for a
moment that the plaintiff enjoyed long possession over the suit
premises and the society did not dispute the same, but if the
possession is illegal, since the terrace is a common area which cannot
be exclusively put to use by the plaintiff, then she cannot take benefit
of the long possession and since it is a common area, all the members
of the society shall be permitted to put it to use, unlike the present
situation where they are restrained from using the common area, which
is located on the third floor. The cause of action pleaded, is the action
when the gates were locked by the plaintiff and they approached the
Corporation because the access to the third floor is only through the
common area. Submitting that the mere possession of the plaintiff and
paying maintenance do not create any right in her favour and if the
terrace is put to common use, the maintenance need not be paid by the
plaintiff, as the plaintiff was exclusively putting it to use, she was
bearing the expenses. It is argued that mere payment of taxes or
maintenance charges do not confer any authorization on a party.
8. Apart, the learned senior counsel would also rely upon the
decision of the Hon'ble Supreme Court in the case of Anathula
Sudhakar v. P. Buchi Reddy (Dead) by LRs, 2008 MhLJ Online (SC) 62 :
(2008) 4 SCC 594 to

Page: 337

submit that the suit claiming prohibitory injunction simplicitor, relating

to immovable property is not maintainable, where the plaintiff's title is
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under a cloud and it is imperative to obtain a declaration with

consequential injunction.

The learned senior counsel would submit that all these aspects have
been completely ignored by the learned Judge while granting injunction
in favour of the plaintiff.
Per contra, the learned counsel Mr. Singh for the original plaintiff
would submit that the suit premises, which is a terrace appended to
Unit No. 311, is a part of the larger property owned by Kewalramani
family and he would submit that the family own 10 galas on the third
floor and considering the location of distinct industrial galas on the
third floor, the predecessor of the plaintiff had purchased the terrace,
being exclusive to the suit galas and Mr. Singh would submit that the
society is under a misconception that this is a common terrace, since a
terrace which is common to the building is on the 4th floor. He would
further submit that the society is formed in the year 2001, but the
exclusive possession of the predecessor of the plaintiff on the suit
premises was prior to the formation of the society and this was made
over to the predecessor of the plaintiff, in lieu of his tenancy, by the
Chief Promoter of the society. Based on this right, which remained
uninterrupted, the plaintiff has paid the maintenance charges till 2018,
which is a whopping sum.
About the maintainability of the suit for injunction simplicitor, he
would submit that merely saying that there is a cloud, would not create
cloud upon the title, as the society has never questioned the ownership
and possession of the plaintiff or her predecessor over the years, even
though the society was formed in the year 2011. Out of the oblique
motive, the steps are now being taken by the society to oust the
plaintiff and, ultimately, Mr. Singh would submit that the entitlement of
the society, would be determined at the end of the proceedings in the
suit, where the plaintiff is seeking the relief of a permanent injunction.
9. In the wake of the aforesaid arguments, when the documents in
support of the claim of the plaintiff are looked into and, particularly, the
agreement dated 24-9-1985 entered into between the Chief Promoter
of the ‘Jaywant Co-operative Housing Society Ltd. (Proposed)’ and the
tenants residing and doing their business in the property of Dadarkar
Compound, 63, Tardeo Road, which is placed on record, would disclose
certain necessary features. The said agreement is executed, as stated
above, between the Chief Promoter of the proposed Cooperative
Housing Society on one part and one Rajan Kewalramani, a registered
partnership for sole/proprietor firm referred to as the “Tenants”. It was
agreed between the Chief Promoter and the other tenants, including
Rajan Kewalramani to demolish the existing structure standing on the
piece and parcel of land at Tardeo, bearing C.S. No. 1/104 and to
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redevelop the said property by constructing new building on the

property, to provide alternate accommodation for the existing tenants.
The agreement contain the following recitals:—

Page: 338

“(4) The said Behram Darabshaw Bhesania the Chief Promoter,

entered into an Agreement dated 8th October, 1981, with M/s.
Jayawant Development Corporation and granted the Development
rights in respect of the said properties described in the Schedule
below to Jayawant Development Corporation upon the terms and
conditions contained in the said Agreement.
(5) ………..
(6) In the scheme of the Development of the said properties as
set out in the said Agreement dated 8th October, 1981 and in the
scheme of M/s. Jayawant Developers Corporation have offered to the
Tenants a premises newly constructure by RCC PUCCA Structure on
the said portion of land, popularly known as Ownership basis for the
consideration thereinafter provided.”
The further enumeration in the deed, reads as under:—
“NOW THE INDENTURE WITNESSETH
1. The Chief Promoter agrees to provide and the Tenant agrees to
accept accommodation in the New Building containing
Industrial premises No. TERRACE (3rd floor) admeasuring
about 3,000 Sq.Ft. to be constructed by the said M/s. Jayawant
Development Corporation.
2. The Tenants confirms that the area of the premises agreed to
be given to the Tenant as hereinabove provided in the New
Building is in accordance with the Agreement arrived at by him
with the Chief Promoter and neither the Tenant nor the Chief
Promoter or Builders shall be entitled to dispute the same,
thereafter.
3. Upon delivery of such possession the tenants shall be entitled
to the use and occupation of the said premises without
hindrance but without any further claim at any time as to the
work in the said premises or possession against the Chief
Promoter.”
It is by this agreement, the terrace (third floor) admeasuring 3000
sq.ft. came in possession of Rajan Kewalramani and subject to other
stipulation, the tenant agreed to pay from the date of occupation
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certificate in respect of the new building proportionate share as

determined by the Chief Prompter concerning all the outgoings in
respect of property, including taxes, common light, sanitation,
additions and alterations, repairs etc. The tenants also agreed to pay a
sum of Rs. 1,751/- to the Chief Promoter before taking possession of
the said premises, which was to be appropriated towards various heads
by the Chief Promoter.
On 16-2-1993, the Chief Promoter certified as under:—
“TO WHOMSOEVER IT MAY CONCERN
This is to certify that Mr. Rajan L. Kewalramani is a bona fide
owner of about 3000 sq.ft. builtup area open terrace on 3rd floor at
Jaywant Industrial Estate of which I am Chief Promoter and have no
objection in their obtaining Telephone, Water and Electrical
connection in his name.”

Page: 339

10. Two distinct agreements, in respect of premises Nos. 309 and

310 entered into by the Chief Promoter with Smt. Sangeeta R.
Kewalramani (plaintiff) dated 18-8-1985 as well as subsequent
agreement dated 16-6-1985 entered with Vinod L. Kewalramani in
respect of the newly created premises, No. 311 (third foor) are also
placed on record.
11. The society proposed a redevelopment of the building and
convened a special meeting on 20-4-2018 to proceed with the proposal
of redevelopment of the society as Service Apartment property,
residential property or commercial-cum residential property and
proposed to discuss the topic of proposed redevelopment of the
building and at this time, for the very first time, the society felt
intimidated by exclusive possession of the plaintiff, over the terrace on
the third floor.
12. The plaintiff has placed on record the receipts issued in the
name of her predecessor, in the form of maintenance arrears to the
tune of Rs. 14,125/- for the period commencing from 1-7-2002 to 30-9
-2022, where the society has acknowledged the receipt of the said
amount. Another receipt dated 14-10-2013 also acknowledge sum of
Rs. 12,250/-, as well as the sum of Rs. 25,000/- on 31-12-2013. The
society has accepted monies towards monthly acceptance and expenses
as well as the payment towards municipal taxes, building repair,
contribution expenses for the third floor terrace and the share
certificate charges from the Kewalramani Group in reference to Gala
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Nos. 301A(318), 302A(319), 301, 302, 303, 304, 309, 310, 311 and
third floor Terrace (Total 10 units) and acknowledge the receipt of Rs.
2,49,027/- on 18-9-2001.
13. In the wake of the aforesaid background, the plaintiff specifically
pleaded that from the agreements being entered with the Kewalramani
Group from the year 1985, till the date on which the proposal for
redevelopment was processed, the possession of the plaintiff over the
suit premises was never quizzed and instead, the society continued to
accept charges towards the suit premises along with other premises
which are owned and possessed by the plaintiff, being 10 galas.
Apparently, only when the building was going for redevelopment, the
society awakened to the use of the terrace on the third floor, by the
plaintiff exclusively and the objection came to be raised.
14. The learned senior counsel has placed on record a sketch map of
the structure and on it's perusal, it can be seen that gala Nos. 303,
304, which open into a common passage abutting Gala No. 311 leads to
an open terrace, which has a entry through a collapsible gate and since
it can be seen that the 10 galas on the third floor belong to the
Kewalramani Group and this position is clearly reflected in the
agreement entered into with the said Group by the Chief Promoter. In
my considered opinion, unless and until the evidence to the contrary is
brought on record showing that the plaintiff was never put in exclusive
possession of the suit premises, a prima facie case exists in favour of
the plaintiff. Merely because the agreement is not registered can be no
ground to throw the plaintiff out, at this stage since the said
agreements can always be read for collateral purpose. The

Page: 340

plaintiff, apparently, is paying amount of maintenance and all other

amounts due and payable for use, occupation and possession of the suit
premises, which is a terrace and this continue since the year 1985 i.e.
prior to the formation of the society. It will ultimately depend upon the
outcome of the trial to establish this long drawn possession, but prima
facie, it can be recorded that the plaintiff continue to be in exclusive
possession of the terrace abutting gala No. 311.

There cannot be any doubt about the proposition advanced by the

learned senior counsel to the effect that common areas and facilities,
according to MOFA, would cover stilt parking space and open parking
space used as open areas and they are meant for all the flat
purchasers. It is ultimately a matter of trial to determine whether the
terrace appended to the third floor is a common area, since there is also
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a terrace on the 4th floor of the building and, therefore, whether the
suit premises would fall within the common area is a question to be
determined on the evidence being brought before the concerned Court.
15. The learned counsel Mr. Singh has rightly placed reliance upon
the decision of the learned Single Judge of this Court in case of Ashok
Punjabi v. High Class Developers, 2012 MhLJ Online 134 : (2012) 4
Bom CR 450 in submitting that the factual aspect that the society was
accepting the amount of maintenance and other charges from the
occupiers shall be construed as expressed consent. The factum of
possession, being not disputed for a considerable length of time, Mr.
Singh is justified in submitting that such a possession would be
presumed to be permissible in nature and the plaintiff shall be given an
opportunity to prove her permissible possession by establishing the
assertion in the plaint, by supporting the claim by evidence being
brought on record during the course of the trial. Since, this is a matter
of trial, I concur with the learned Judge who has recorded a prima facie
case in favour of the plaintiff for the purposes of grant of injunction.
16. Coming to the issue about the maintainability of the suit and the
reliance placed by the learned senior counsel on the decision of the
Hon'ble Supreme Court in the case of Anathula Sudhakar (supra), the
Hon'ble Supreme Court has summarised the position in regards to the
prohibitory injunction relating to a immovable property and held that,
where a cloud is raised over the plaintiff's title and he does not have
possession, a suit for declaration and possession with or without
consequential injunction is a remedy, but where the plaintiff's title is
not in dispute or in a cloud, but he is out of possession, he has to sue
for possession with consequential injunction and when there is mere
interference with plaintiff's lawful possession or threat of dispossession,
it is sufficient to sue for injunction simplicitor. The position is clarified
as under:—
“(b) As a suit for injunction simplicitor is concerned only with
possession, normally the issue of title will not be directly and
substantially in issue. The prayer for injunction will be decided with
reference to the finding on possession. But in cases where de jure
possession has to be established on the basis of title to the property,
as in

Page: 341

the case of vacant sites, the issue of title may directly and substantially
arise for consideration, as without a finding thereon, it will not be
possible to decide the issue of possession.”
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The crux of the matter is, therefore, whether it can be said that the
title of the party is in dispute or under cloud and the said position is
clarified in the following words by their Lordships of the Hon'ble
Supreme Court:—
“14. We may, however, clarify that a prayer for declaration will be
necessary only if the denial of title by the defendant or challenge to
the plaintiff's title raises a cloud on the title of plaintiff to the
property. A cloud is said to raise over a person's title, when some
apparent defect in his title to a property, or when some prima facie
right of a third party over it, is made out or shown. An action for
declaration, is the remedy to remove the cloud on the title to the
property. On the other hand, where the plaintiff has clear title
supported by documents, if a trespasser without any claim to title or
an interloper without any apparent title, merely denies the plaintiff's
title, it does not amount to raising a cloud over the title of the
plaintiff and it will not be necessary for the plaintiff to sue for
declaration and a suit for injunction may be sufficient. Where the
plaintiff, believing that defendant is only a trespasser or a wrongful
claimant without title, files a mere suit for injunction, and in such a
suit, the defendant discloses in his defence the details of the right or
title claimed by him, which raises a serious dispute or cloud over
plaintiff's title, then there is a need for the plaintiff, to amend the
plaint and convert the suit into one for declaration. Alternatively, he
may withdraw the suit for bare injunction, with permission of the
Court to file a comprehensive suit for declaration and injunction. He
may file the suit for declaration with consequential relief, even after
the suit for injunction is dismissed, where the suit raised only the
issue of possession and not any issue of title.
15. In a suit for permanent injunction to restrain the defendant
from interfering with plaintiff's possession, the plaintiff will have to
establish that as on the date of the suit he was in lawful possession
of the suit property and the defendant tried to interfere or disturb
such lawful possession. Where the property is a building or building
with appurtenant land, there may not be much difficulty in
establishing possession. The plaintiff may prove physical or lawful
possession, either of himself or by him through his family members
or agents or lessees/licensees. Even in respect of a land without
structures, as for example an agricultural land, possession may be
established with reference to the actual use and cultivation. The
question of title is not in issue in such a suit, though it may arise
incidentally or collaterally.”
17. In a subsequent decision of the Hon'ble Supreme Court in the
case of T.V. Ramakrishna Reddy v. M. Mallappa, 2021 MhLJ Online (SC)
48
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Page: 342

(Civil Appeal No. 5577 of 2021 decided on 7-9-2021), the observations

in Anathula Sudhakar (supra) are reproduced, with a further word of
caution in the following words:—

“10. In could thus be seen that this Court in unequivocal terms

has held that where the plaintiff's title is not in dispute or under a
cloud, a suit for injunction could be decided with reference to the
finding on possession. It has been clearly held that if the matter
involves complicated questions of fact and law relating to title, the
Court will relegate the parties to the remedy by way of
comprehensive suit for declaration of title, instead of deciding the
issue in a suit for mere injunction.
11. No doubt, this Court has held that where there are necessary
pleadings regarding title and appropriate issue relating to title on
which parties lead evidence, if the matter involved in simple and
straightforward, the Court may decide upon the issue regarding title,
even in a suit for injunction. However, it has been held that such
cases are the exception to the normal rule that question of title will
not be decided in suits for injunction.
12………
13………
14…….
15. It could thus clearly be seen that this is not a case where the
plaintiff-appellant can be said to have a clear title over the suit
property or that there is no cloud on plaintiff appellant's title over
the suit property. The question involved is one which requires
adjudication after the evidence is led and questions of act and law
are decided.”
In the wake of the above position emerging from the authoritative
pronouncements, ultimately it cannot be said that the title of the
plaintiff over the suit premises is free from cloud, but this issue can be
decided only after a full-fledged trial, on the basis of the evidence lead
by the parties in support of their rival claims, but it is well settled
position of law that in each and every case where the defendant
disputes the title of the plaintiff, it is not necessary that in all those
cases, the plaintiff has to seek relief of declaration. The suit for mere
injunction does not lie, only when the defendant raises a genuine
dispute with respect to the title and when he raises a cloud over the
title of the plaintiff, then the plaintiff cannot maintain a suit for bare
injunction.
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Recording a prima facie case, on account of continuous possession of

the plaintiff over the suit terrace, coupled with the fact that the society
never objected to such possession and rather expressed it's implied
consent for it's exclusive use of the plaintiff, by accepting the
maintenance charges from the year 1985 till the year 2018, the
impugned order passed by the learned Judge cannot be said to be
suffering from legal infirmity, while recording a prima facie case and
balance of convenience in favour of the plaintiff.
Upholding the impugned order, the Appeal is dismissed.

Page: 343

18. In view of the dismissal of the Appeal, interim application does

not survive and stands disposed off.
Appeal dismissed.
———
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