Mr. Mandhiram Navaneetha Krishnan, Also Known as M. N. Krishnan vs Mrs. M. Muthulakshmi Muthu Kumar

This appeal challenges an order dated 28 February 2018, whereby the City Civil Court has allowed Notice of Motion taken out by the plaintiff, whereby the defendant was restrained from obstructing and disturbing the possession of the plaintiff with regard to suit property.

The learned Judge, in the impugned order, has stated that since the plaintiff is in possession of the suit shop and there is an apprehension that she will be dispossessed without due process of law, the motion is made absolute in terms of prayer clauses (a) and (b). The learned Judge has also observed that there are criminal proceedings filed by the parties against each other, which are pending. In the complaint filed before the Magistrate, the defendant has stated that forceful possession was taken by the plaintiff on 8 January 2018. This fact weighed in the mind of the learned Judge while granting the interim relief and for coming to the conclusion that the plaintiff is in possession of the suit property.

I have heard the learned counsel for the appellant-defendant and the respondent-plaintiff.

The suit property was purchased by the defendant from a developer vide an agreement dated 5 December 1984. There is no dispute regarding the execution of this particular document by any of the parties. Thereafter, the defendant has entered into various leave and license agreements for grant of the suit property on rental basis from time to time till 2018. This is also not disputed by the plaintiff. The rent is received in the bank account of the defendant. The electricity bill is also in the name of the defendant. The defendant has also made a deposit with the society in which the suit property is located. All these documents show that the suit property is owned by the defendant and he is in possession till 8 January 2018 when it is alleged that he was forcefully dispossessed.

As against the above, the learned counsel for the plaintiff has brought to my attention an agreement dated 25 February 1986 whereby the rights, title and interest in the suit property has been given up by the defendant. Admittedly, this document though relating to immovable property has neither been stamped nor registered. In the said document it is not mentioned that the plaintiff is in possession of the suit property. Although this document is of the year 1986, the defendant has executed various leave and license agreements till 2018 and the rent has been received in his bank account. The society maintenance bill of 2017 and the electricity bill of 2017 stands in the name of the defendant. Various documents post 1986 clearly shows that the possession is with the defendant. The plaintiff in her suit has stated that defendant was only acting as power of attorney holder and the same was revoked by a letter dated July 2017 addressed to the society. There is no document produced by the plaintiff which shows that the possession of the suit property is with the plaintiff. As against the same the defendant has produced various documents which clearly proves the possession is with the defendant.

The learned Judge, in the impugned order has relied solely upon the statement of the defendant before the Magistrate for coming to the conclusion that the possession is with the plaintiff. The learned Judge has not considered any other documents. In my view, the learned Judge ought to have appreciated that the complaint made by the defendant was with respect to his forceful dispossession from the suit property by the plaintiff and therefore, from the day he was forcefully dispossessed he has stated in the complaint that the possession is with the plaintiff. In my view, this would not mean that the plaintiff has proved the legal possession. Approving the reasoning of the impugned order would give premium to a person who has taken law into his/her hand.

I am informed that the plaintiff is presently staying in a village in South India and that the suit property is lying vacant.

Based on the above analysis made by me, it cannot be said that the plaintiff has proved prima facie case for her possession and for a restraint order against the defendant from disturbing the possession. As against the same, the defendant has produced various documents which are referred to above, which prima facie show that the possession upto the date of forceful dispossession continued with the defendant.

Since there are serious disputed facts with regard to title to the property and possession, I am of the view that a Court Receiver be appointed to take possession of the property until the suit is disposed of.

There is also an allegation made by the defendant that the property is hit by the Prohibition of Benami Transactions Act, 1988. Furthermore, the documents relied upon by the parties are not adequately stamped or registered. The suit property presently is lying vacant. The main matter is still pending in the City Civil Court, Mumbai. Therefore to balance the equity, I propose to pass the following order:

In view of above, the impugned order dated 28 February 2018 is quashed and set aside and the appeal is allowed in above terms. Consequently, Civil /Interim Application if any does not survive.