R.C.S.No.389/2021

Satish Karunakar Shetty Vs Prabhakar Mahajan

ORDER BELOW EXH.05 UNDER ORDER 39, RULE-1 AND 2 OF THE CODE OF CIVIL PROCEDURE. ( Dated 12 / 12 /2024)

Through present application plaintiffs are praying for restraining the defendant from dispossessing the plaintiff from suit property and from restraining defendant from encroaching upon the suit property.

2. Brief facts of the plaintiff's case are as under:

As per the plaintiff Shop No:29, Gupta Estate, Kalpataru Industrial Estate, Dhokali, Thane (For the sake of brevity hereinafter referred as "suit property") has been handed over by it's owner Mr. Jayantilal Dhayalal Upadhyay for carrying the business of plaintiff and defendant was middle man person who introduced plaintiff with owner. It was decided between the plaintiff and original owner that property has been handed over to plaintiff as care taker and plaintiff will pay consideration amount for sale as and when called by owner. As per the plaintiff suit property is in possession of plaintiff for more than 12 year and plaintiff is having his right of adverse

possession which is to be claimed against the owner for fulfillment of sale deed. Till today the plaintiff has paid amount of around Rs.7,50,000 has been paid by plaintiff through defendant to owner through bank and remaining amount is accepted by the defendant by cash. As per the plaintiff, he is in possession of suit property and has incurred expenses of Rs.4,00,000/- for the repairing and renovation of suit property. Plaintiff further states that he is in continuous and uninterrupted possession of suit property since 2010 and carrying the business named China Town by taking required license from corporation.

3. Plaintiff further states that he requested the owner to perform his part as he has paid the total amount of Rs.7,50,000/- but defendant threatened him and lodged false, bogus complaint against him. Defendant is trying to evict the plaintiff. As per the plaintiff he is in possession of suit property, being a family man if he is ousted from suit property it will cause irreparable loss to him. No loss or prejudice would be caused to other side if injunction is granted balance of convenience lies in the favor of plaintiff. Hence, prayed to restrain defendant from dispossessing plaintiff from suit property and to restrain defendant from encroaching upon suit property.

4. Defendant filed his say at Exh.18 and denied all contentions of plaintiff.

As per the defendant, the owner of suit property Mr. Jayantilal Upadhyay unable to look after the property he is appointed as a care taker by owner. Suit property is used by owner Mr. Jayantilal Upadhyay for his business till February 2015 and after that said property was given to Mr. Vaibhav Ghugarde by Mr. Jayantilal Upadhyay on 26/02/2015 on leave and license for purpose of carrying on his business. After that on 16/01/2017 another leave and license entered between Mr. Jayantilal Upadhyay and Mr.Vaibhav Ghugarde to use and occupy the suit property for manufacture of engineering goods. Defendant further states that Mr. Jayantilal Upadhyay sold the suit property to him through sale deed dtd 23/06/2021. Mr. Jayantilal Upadhyay also sent letter to Kalpataru industrial society on 25/02/2021 that he has no objection that suit property is transferred in the name of defendant. As per the defendant plainitff has failed to show the adverse, uninterrupted, continuous possession. plainitff has failed to show his possession as he has not filed on record any document showing his possession. On the contrary defendant has shown that he is in possession of suit property. Hence, prayed for rejection of application.

5. Heard Ld. Advocates for defendant. In spite of repeated calling Ld.Adv for plaintiff remained absent for argument hence application is decided without hearing him. Considering submission and documents on record,

order.

following points arise for my determination and to which I have recorded my findings along with reasons as follows:

Sr.<br>No.	Points	Findings
1.	Does the plaintiff proves the prima facie<br>case in his favor ?	Not Proved
2.	Does balance of convenience lie in favor of<br>plaintiff ?	Not Proved
3.	Whether plaintiff will suffer irreparable loss<br>if temporary injunction is not granted in his<br>favour ?	Not Proved
4.	What order ?	As per final

R E A S O N S

6. Plaintiffs filed the list of documents at Exh.3 i.e. copy of Gumasta license issued by Maharashtra food and drugs administration , photographs shown before and after repair, copy of Adhar Card of plaintiff, copy of property tax receipt, copy of electricity bill of suit property.

7. Defendant has filed his list of documents at Exh.19 i.e copy of leave and license agreement dtd. 26/02/2015, copy of Leave and license agreement dtd 16/01/2017, Copy of sale deed between defendant and

Jayantilal Upadhay dtd.23/06/2021, letter written by Jayantilal Upadhay

As point no.1 to 3 are interconnected, hence in order to avoid repetition and for the sake of brevity point no.1 to 3 are discussed together.

As to point no. 1 to 3:-

8. To get the relief of injunction plaintiff must prima facie prove that he is having a possession of suit property and defendant tried to disposes him. Also, plaintiff must prove that he prima facie has a case in his favor, balance of convenience lies in his favour and irreparable loss will cause to him.

9. Perused the record and heard Ld. Advocate for defendant. In spite of repeated calling Ld.Adv for plaintiff remained absent for argument. Present suit is filed by plaintiff for permanent injunction of suit property. As per the plaintiff defendant was a middle man between Mr. Jayantilal Upadhyay original owner and plaintiff and it was decided that plaintiff will be a caretaker of suit property. As per the plaintiff it was also decided that owner will sale suit property to plaintiff and accordingly as and when called by owner, the plaintiff will pay consideration amount. As per the plaintiff he has paid total consideration amount of Rs.7,50,000/- as agreed. But defendant resisted for remaining legal procedures. Plaintiff further submitted that he is in possession of suit property and having a shop namely China Town. However, to prove this he has filed on record copy of shop license, tax receipt and light bill. However, tax receipts and light bill are issued in the name of original owner Mr. Jayantilal Upadhyay. Only the shop license bears the name of plaintiff as an owner. But same is not a proof that plaintiff is in possession of suit property.

10. As such, in my opinion plaintiff has not prima facie proved that he is in possession of suit property. As far as allegations of dispossession at the hands of defendant is concerned though alleged by the plaintiff that defendant tried to disposes him however, to substantiate his claim nothing is filed on record. Though plaintiff claims that original owner agreed to sale the suit property and accordingly he has paid the total consideration amount of Rs.7,50,000/- no documentary proof is filed on record prima facie prove this fact. Hence, the plaintiff has failed to prima facie prove that he is in possession of suit property and defendant tried to disposess him.

11. As far as the balance of convenience and irreparable loss is concerned, in the present matter plaintiff submitted that he is a family man and if injunction is not granted it will result into irreparable loss to him. However, in my opinion plaintiff has failed to prove that he is in possession of suit property. As such balance of convenience does not lie in favor of plaintiff. Also, as prima facie plaintiff has failed to prove his possession no irreparable loss would cause to him if injunction is not granted. on the contrary if injunction is granted it will cause irreparable loss to defendant. Therefore, in my considered opinion plaintiff has failed to prove that prima facie case, balance of convenience and irreparable loss lies in his favour. Hence, following order:

ORDER

• 1. Application is rejected.
• 2. No order as to cost.

Date: 12 /12 /2024 (S.S.Patil)

SWAPNALI SUJIT PATIL Digitally signed by SWAPNALI SUJIT PATIL Date: 2024.12.12 17:47:17 +0530

Place: Thane 11th Jt. C.J.J.D,Thane.