Bombay High Court: S.C. Gupte, J., while allowing a second appeal filed by the plaintiff against the order of the first Appellate court, held that the suit filed for protecting the possession of immovable property based on settled exclusive possession cannot be dismissed on the ground that the plaintiff has failed to prove title to the suit property.
The plaintiff claimed that the suit property was gifted orally to him by one Hamid. He claimed that the defendants were interfering in his peaceful possession of the suit property. Therefore, he filed a suit for perpetual injunction against the defendants, which was allowed by the trial court. It was an admitted fact the plaintiff was, all throughout, in exclusive possession of the suit property. However, on appeal, the First Appellate Court reversed the order passed by the trial court. Hence, the present the second appeal by the plaintiff.
The substantial question of law to be decided in this appeal, as reframed by the High Court was: Can a suit filed for protecting the possession of immovable property based on settled exclusive possession be dismissed on the ground that the Plaintiff has failed to prove title to the suit property?
After hearing Pramod N. Joshi, Advocate for the plaintiff, and Sharad T. Bhosale, Advocate for the respondent-defendants, the High Court perused the record and reached the conclusion that the substantial question as framed above had to be answered in the negative. Explaining the fundamental fallacy in the impugned order, the Court explained: “The District Court has dismissed the plaintiff’s suit for protecting his possession without in any way having questioned the plaintiff’s exclusive possession of the suit property. If his exclusive possession was not debated/questioned, assuming without admitting that his exclusive ownership through the purported oral gift by Hamid Husein was not proved unless the defendants actually showed either their pre-existing physical possession or their entitlement to the suit property by a succession, testamentary or intestate, the plaintiff was entitled to the perpetual injunction sought by him.”
It was further observed that the defendant’s’ claim to be in physical possession of the suit property was neither accepted by the trial court nor by the First Appellate Court, and the only case of entitlement pleaded by the defendants having also been found against them by both courts below, they had no case to resist the plaintiff’s claim for protecting his admitted possession of the suit property.
Accordingly, the second appeal filed by the plaintiff was allowed; the impugned judgment of the First Appellate Court was set aside, and the order passed by the trial court was restored. [Kadar Raju Shaikh v. Abbas Pirmohamad Shaikh, 2019 SCC OnLine Bom 4688, decided on 07-11-2019]