Case Note & Summary
The appeal arose from an order dated 10.02.2021 of the City Civil Court at Dindoshi dismissing the Notice of Motion No. 438 of 2021 in L.C.Suit No. 149 of 2021. The Appellants, original Plaintiffs, owned structures bearing Census Nos. RXC-85-1/1, RXC-84-1/1, and RXC-18-1/1A in Ganpat Patil Nagar, Dahisar, Mumbai. They claimed that an open space admeasuring 15000 sq.ft. in front of these structures belonged to them and that they were in possession of it. The Municipal Corporation of Greater Mumbai (MCGM) had initiated action under Section 351 of the Mumbai Municipal Corporation Act, 1888 against the Plaintiffs' structures, but the Plaintiffs succeeded in setting aside that action. Subsequently, the Corporation began constructing a toilet block in the open space, prompting the Plaintiffs to file a suit for permanent injunction under Section 38 of the Specific Relief Act, 1963, and a Notice of Motion for interim injunction. The trial court dismissed the Notice of Motion, leading to the present appeal. The High Court, after hearing submissions, found that the Plaintiffs had not produced any documentary evidence to establish their title or possession over the open space. The suit premises were not part of the censused structures, and the Plaintiffs' claim of possession was unsupported. The Court held that without proof of possession or title, an injunction under Section 38 of the Specific Relief Act could not be granted. Accordingly, the appeal was dismissed, and the interim application seeking injunction was also dismissed.
Headnote
A) Property Law - Injunction - Possession and Title - Section 38, Specific Relief Act, 1963 - Plaintiffs sought injunction against Municipal Corporation for construction of toilet block on open space claimed by them - Court held that Plaintiffs failed to establish possession or title over the suit premises, as the open space was not part of their censused structures and no documentary evidence of ownership was produced - Held that injunction cannot be granted without proof of possession or title (Paras 3-5).
Issue of Consideration
Whether the Plaintiffs are entitled to a permanent injunction under Section 38 of the Specific Relief Act, 1963, restraining the Municipal Corporation from constructing a toilet block on the open space in front of their structures, based on their claim of possession and ownership.
Final Decision
Appeal dismissed. Interim Application (ST) No.4533 of 2021 also dismissed. No order as to costs.
Law Points
- Injunction
- Possession
- Title
- Municipal Corporation
- Open Space
- Specific Relief Act
- 1963
- Section 38
- Mumbai Municipal Corporation Act
- 1888
- Section 351
Case Details
2021 LawText (BOM) (05) 12
Appeal from Order (ST) No.4532 of 2021 with Interim Application (ST) No.4533 of 2021
Mr. Pradeep Thorat i/by Mr. Janardan S. Yadav for the Appellants, Mr. Dharmesh Vyas a/w. Ms. Madhuri More for MCGM
Ramesh R. Pandey and Ors.
Municipal Corporation of Greater Mumbai
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil appeal against order dismissing notice of motion for interim injunction in a suit for permanent injunction.
Remedy Sought
Appellants sought injunction restraining the Municipal Corporation from constructing a toilet block in the open space in front of their structures.
Filing Reason
Appellants claimed ownership and possession of the open space and alleged that the Corporation was illegally constructing a toilet block.
Previous Decisions
The City Civil Court at Dindoshi dismissed the Notice of Motion No. 438 of 2021 in L.C.Suit No. 149 of 2021 on 10.02.2021.
Issues
Whether the Plaintiffs are entitled to a permanent injunction under Section 38 of the Specific Relief Act, 1963, restraining the Municipal Corporation from constructing a toilet block on the open space in front of their structures, based on their claim of possession and ownership.
Submissions/Arguments
Appellants argued that they are owners and in possession of the open space and that the Corporation's construction is illegal.
Respondent argued that the Plaintiffs failed to prove title or possession over the open space.
Ratio Decidendi
For an injunction under Section 38 of the Specific Relief Act, 1963, the plaintiff must establish possession or title over the suit property. Mere claim without documentary evidence is insufficient.
Judgment Excerpts
By the present Appeal against Order the Appellants (original Plaintiff Nos. 1,2 and 3) have challenged the order dated 10.02.2021 passed by the City Civil Court at Dindoshi dismissing the Notice of Motion No. 438 of 2021 in L.C.Suit No. 149 of 2021 filed by the Appellants.
Plaintiffs are owners of structures bearing Census No. RXC-85-1/1, RXC-84-1/1 and RXC-18-1/1A standing in survey No. 221, CTS No. 532 (pt), Ganpat Patil Nagar, Kandar Pada, near I.C. Colony, Dahisar (West), Mumbai - 400068.
Procedural History
Plaintiffs filed L.C.Suit No. 149 of 2021 in City Civil Court at Dindoshi for permanent injunction under Section 38 of the Specific Relief Act, 1963, along with Notice of Motion No. 438 of 2021 for interim injunction. The trial court dismissed the Notice of Motion on 10.02.2021. Plaintiffs appealed to the High Court by way of Appeal from Order (ST) No.4532 of 2021, along with Interim Application (ST) No.4533 of 2021 for injunction pending appeal. The High Court heard the matter and dismissed both the appeal and the interim application on 18.05.2021.
Acts & Sections
- Specific Relief Act, 1963: Section 38
- Mumbai Municipal Corporation Act, 1888: Section 351
