The Court held that the suit for declaration of invalidity of a registered conveyance is barred by limitation. Consequently, the Appellants lacked a prima facie case for a temporary injunction. The appeal was dismissed, upholding the lower court's discharge of the Notice of Motion.
The appeal was dismissed. The impugned order was upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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APP-161-09
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.161 OF 2009 IN
NOTICE OF MOTION NO.3514 OF 2008 IN SUIT NO.2715 OF 2007
Vimal Builders ... Appellants [Orig. Plaintiffs] V/s. Nand Kumar Anant Vaity & Ors. ... Respondents [Orig. Defendants]
Mr. Simil Purohit with Mr. Samit Shukla, i/b. MDP Associates, for the Appellants.
Mr. G.W. Mattos, AGP, for the Respondent-State.
Mr. Ponvel Nadrajan, Authorized Representative, for Respondent No.41.
CORAM : D.K. DESHMUKH &
ANOOP V. MOHTA, JJ.
DATE : 1 ST DECEMBER, 2011.
P.C. :
3rd March, 2009, passed by a learned Single Judge of this Court in Notice of Motion No.3514 of 2008. The Plaintiffs have filed this Suit claiming a decree of declaration that Defendant Nos.1 to 39, hereinafter referred to as “Vaitys”, are
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owners of the suit property and Defendant No.41, hereinafter referred to as “Deonar” have no right, title or interest in the property. They have sought several consequential reliefs including permanent injunction. In the Civil Suit, Notice of Motion was taken out for appointment of Receiver on the suit property and for a temporary injunction restraining the Defendant No.41 from alienating, encumbering, transferring or creating third party right or disturbing the possession of the Plaintiffs. In short, the Suit is filed on the footing that it is the Plaintiffs who are in possession of the property. The learned Single Judge has recorded a finding that the Plaintiffs are not in possession of the property and she, therefore, disposed off the Notice of Motion. An objection was raised on behalf of the Appellants to Mr. Ponvel, who claims to be the Secretary of the Deonar Society, representing that Society in this Appeal. Therefore, we asked the learned AGP to have the Deputy Registrar of the Co-operative Societies make enquiry to find out whether Mr. Ponvel can be said to have authority to represent that Society. Mr. Jayant D. Patil, Deputy Registrar of Co-operative Societies, has filed affidavit dated 15th November, 2011. In that affidavit, he has narrated the facts about the Society. He has, however, stated that on 15th September, 2008, it appears from the record of the Society, that a Special General Body Meeting was held and five members to the Managing Committee were elected. From the affidavit, it appears that Mr. Ponvel is one of the elected members of the Managing Committee. In that affidavit, the Deputy Registrar also stated that the
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election of the Managing Committee of the Society appears to be illegal and that he proposes to appoint an Administrator. However, fact remains that, even according to the Deputy Registrar, the Society’s General Body has elected a Managing Committee of which Mr. N. Ponvel is a member. Therefore, in our opinion, he would be entitle to represent the Society.
“The Vendors confirm having delivered to the Purchasers actual vacant possession of the whole of the said property. Accordingly the Purchasers are not in possession of the whole of the said property as Purchasers and owners thereof and the Purchasers are entitled to carry out any construction and other works
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thereon and deal with the dispose of, alienate or encumber or part with the possession of the said property or any part thereof in any manner the Purchasers may deem fit.”
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possession of Vaitys of the suit land. It is a common ground that the Plaintiffs in that Suit have subsequently withdrawn that Suit. It is, thus, clear that there is admittedly a registered Conveyance of the property in favour of the Deonar Society. Vaitys were aware of that Conveyance since 1995. They never filed any Suit claiming a decree of declaration that Conveyance is invalid and should be cancelled. The Plaintiffs, admittedly, have purchased the rights of Defendant No. 40 M/s. Shree Anjaneya Estates, who were aware of the rights created in favour of the Society and the litigations then pending in 2002. The Plaintiffs, therefore, can be safely said to be aware of the interest claimed by the Society in the property atleast in 2002 through their predecessor in that. Article 59 of Schedule to the Limitation Act, 1963, would be relevant, which reads as under :-
Time from which period begins to run – When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.”
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such a instrument is a registered document, then copy of the order of the Court cancelling such document is to be sent to the Registrar. These provisions obviously have been made in public interest because if a document is registered instrument, people are likely to act on that instrument unless that document is cancelled or set aside by a Competent Court.
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prima-facie case to get a declaration that the Vaitys, through whom they are claiming, continue to be the owners of the property, or, that the Deonar Society has no title to the property. As the Plaintiffs do not have prima facie case, obviously, they are not entitled to any temporary injunction in their favour. Therefore, there is no question of making enquiry into any other aspect of the matter. What is further to be seen is that in the Agreement, which preceded the Conveyance, there is a clear recital that possession of the land has been handed over by the Vaitys to the Purchasers, who were Promoters of Deonar Society. There is also a recital in the registered Conveyance that the Deonar Society is in possession. As observed above, the Deed of Conveyance in favour of the Deonar Society appears to have become final between the parties. It is a registered document and, therefore, presumption of regularity of that document under the Evidence Act attaches to that document and, therefore, any Court atleast at the prima facie stage will have to go by the recitals in that document.
that in view of the recitals in the registered document, it is the Deonar Society, which is in possession of the property. The learned Single Judge has also declined to make any interim order in favour of the Plaintiffs and has disposed off the Notice of Motion, though for slightly different reasons. In our opinion, however, in view of the conclusion to which we have reached, we see no reason to disturb the
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order which is impugned in this Appeal. The Appeal, therefore, fails and is
dismissed.
[ANOOP V. MOHTA, J.] [D.K. DESHMUKH, J.]
3 issues framed by the court
Whether the suit for declaration that the registered conveyance in favor of the Society is invalid is barred by the law of limitation.
Whether the Appellants have made out a prima facie case for a temporary injunction.
Whether the暫injunction should be granted in favor of the Appellants.
3 provisions across 3 enactments
Vimal Builders
Nand Kumar Anant Vaity
Deonar Industrial Premises Co-operative Society
D.K. Deshmukh
Anoop V. Mohta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
