Whether wife is entitled to get temporary injunction to restrain her husband from making construction over their joint property?

 The learned Trial Court considered the well settled cardinal principles of grant of temporary injunction and upon consideration of the material on record, held that the Sale Deed executed by defendant No. 1 in favour of defendant No. 2 reveals that the plaintiff was not a party to the same. It found that there was no document placed on record by defendant No. 1 to show that there was any separation of assets of the property of the plaintiff and defendant No. 1 in order to entitle defendant No. 1 to sell the same without the plaintiff as party to the same or without her consent. No case was made out by defendant No. 1 to establish that he was only a proxy of the suit property and that the same was purchased by his father, though in his name. The Trial Court held that the plaintiff had made out a prima facie case in her favour. The Trial Court also found that the balance of convenience tilted in favour of the plaintiff and that allowing defendant No. 4 to create third party interest in the suit property would cause irreparable loss to the plaintiff. Thus, with a view to preserve status-quo in respect of the suit property until the disposal of the suit on merits, the application for temporary injunction was granted, but only partly by restraining the defendants from creating any third party interest in the suit property, until the disposal of the suit on merits.

IN THE HIGH COURT OF BOMBAY (PANAJI BENCH)

Appeal From Order No. 29 of 2013

Decided On: 21.02.2014

Appellants: Alka Toraskar
Vs.
Respondent: Ashok Toraskar

Hon'ble Judges/Coram:U.V. Bakre, J.

Citation; 2014(6) ALLMR 71

1. Heard Ms. Dessai, learned Counsel appearing on behalf of the appellants and Mr. Lotlikar, learned Senior Counsel appearing on behalf of respondent No. 4. Admit.

2. Mr. P.S. Lotlikar waives service of notice on behalf of respondent No. 4. By consent, heard forthwith.

3. This appeal is directed against the order dated 20/02/2013 passed by the learned Ad hoc Civil Judge, Senior Division, Bicholim (Trial Court) in the application for temporary injunction filed by the appellants in Special Civil Suit No. 3/2012/A.

4. The appellant is the plaintiff and the respondents are the defendants in the said suit. The parties shall, hereinafter, be referred to as per their status in the said suit.

5. The plaintiff was married to defendant No. 1 and their marriage was registered in the office of the Civil Registrar at Mapusa on 13/11/1979. The said marriage was subsequently dissolved by judgment, order and decree dated 06/09/2003 passed in Matrimonial Petition No. 65/1999/C filed by the plaintiff.

6. The plaintiff filed the said suit for permanent injunction and in that suit, she filed an application for temporary injunction praying therein that pending the final disposal of the suit, the defendants, their agents, servants and/or any person acting on their behalf be restrained by way of temporary injunction from doing any construction or encroaching upon or interfering with the suit property or any part thereof and from selling, transferring, alienating and/or creating any third party right, title and/or interest in the suit property, without consent and agreement of the plaintiff. The plaintiff alleged that there was no petition or inventory for separation of the property of the plaintiff and defendant No. 1 and that they had purchased a part of the property bearing Survey No. 4/5 and 6 known as "Bazaar Peth" situated at Thivim, Bardez, Goa admeasuring 1190 square metres by Sale Deed dated 26/12/1981. The said property is presently surveyed under Survey No. 4/5-A and 4/6-A respectively admeasuring 450 square metres and 740 square metres. The plaintiff contended that on 09/12/2012, she noticed some laterite stones dumped in the suit property and on enquiry, learnt that Mr. Bhaskar, a Construction Contractor had dumped the same and found that vide Sale Deed dated 19/05/2008, the defendant No. 1 falsely claiming to be absolute owner of the suit property, sold it to defendant No. 2 by Sale Deed dated 26/05/2008, who in turn, sold the same to defendant No. 3 by Sale Deed dated 26/05/2008 and who further sold the same to defendant No. 4 by Sale Deed dated 06/01/2011. Apprehending that the defendants may start construction in or interfere with or encroach upon the suit property or create further third party rights, the plaintiff filed the suit and application for temporary injunction.

7. Defendant No. 1 took a stand that the grant of divorce always results in separation of the properties between the spouses as per the family laws. He further claimed that he is neither owner has any right, title or interest to the suit property and that he is only a proxy. Defendant No. 4 claimed that he has purchased the property from defendant No. 3, who is the daughter of defendant No. 1, who had earlier acquired right and title in the suit property by purchasing the same from defendant No. 2. Defendant No. 4 claimed to be a bona fide purchaser for valuable consideration. According to him, a public notice dated 16/10/2010 was published intimating general public about his intention to purchase the suit property and inviting objections, if any. Defendant No. 4, therefore, claimed that he being the absolute owner of the suit property, no injunction can be granted to the plaintiff.

8. The learned Trial Court considered the well settled cardinal principles of grant of temporary injunction and upon consideration of the material on record, held that the Sale Deed executed by defendant No. 1 in favour of defendant No. 2 reveals that the plaintiff was not a party to the same. It found that there was no document placed on record by defendant No. 1 to show that there was any separation of assets of the property of the plaintiff and defendant No. 1 in order to entitle defendant No. 1 to sell the same without the plaintiff as party to the same or without her consent. No case was made out by defendant No. 1 to establish that he was only a proxy of the suit property and that the same was purchased by his father, though in his name. The Trial Court held that the plaintiff had made out a prima facie case in her favour. The Trial Court also found that the balance of convenience tilted in favour of the plaintiff and that allowing defendant No. 4 to create third party interest in the suit property would cause irreparable loss to the plaintiff. Thus, with a view to preserve status-quo in respect of the suit property until the disposal of the suit on merits, the application for temporary injunction was granted, but only partly by restraining the defendants from creating any third party interest in the suit property, until the disposal of the suit on merits.

9. Upon consideration the submissions made by the learned Counsel appearing on behalf of the plaintiff and respondent No. 4, I find that there is no dispute that the plaintiff and defendant No. 1 were husband and wife and their marriage has been dissolved in September, 2003. However, the suit property was purchased by defendant No. 1 by Sale Deed dated 26/12/1981. The suit property was thus purchased during the subsistence of marriage between the plaintiff and defendant No. 1. As has been rightly held by the trial Court, there is no prima facie evidence at all to establish that defendant No. 1 is only a proxy and that his father had purchased the suit property in his name. Admittedly, the plaintiff is not a party to the Sale Deed by which defendant No. 1 sold the suit property to defendant No. 2. Merely because in Form No. 1 and XIV of the suit property, only the name of defendant No. 1 figures, that does not mean that the plaintiff has no title to the suit property. It is well settled that Survey Records do not confer title. The plaintiff had prima facie established by cogent evidence that she and defendant No. 1 are the owners of the suit property. Therefore, the Trial Court rightly held that the plaintiff had made out a prima facie case.

10. The plaintiff had specifically pleaded in the application for temporary injunction that taking advantage of the Sale Deeds, the defendants may start construction in the suit property or may interfere with or encroach upon the same or may create further third party right. The plaintiff in the present appeal has produced photographs showing the work that is going on in the suit property. There are laterite stones dumped and trench dug in the suit property for the purpose of construction. Though the Trial Court found that the status-quo had to be preserved in respect of the suit property, it did not give any reasons as to why the temporary injunction, not to do any construction in the suit property, has not been granted. In respect of the second part of the prayer i.e. to restrain the defendants from carrying out any construction in the suit property, the balance of convenience certainly tilts in favour of the plaintiff and she would suffer irreparable loss if the relief as prayed for is not granted. It is pertinent to note that in the present appeal, defendants No. 1 to 3 have chosen to remain absent.

11. In my considered view, the plaintiff has made out a prima facie case even for restraining the defendants from doing any construction in the suit property until the final disposal of the suit and that balance of convenience tilts in her favour with regard to the said relief and further if such a relief is not granted, she is likely to suffer irreparable loss and injury. Hence, the impugned order needs modification by way of addition of relief of restraint on the defendants from carrying out any construction in the suit property till the disposal of the suit.

12. Hence, the appeal is allowed. In addition to the relief already granted by the trial Court on application for temporary injunction filed by the plaintiff, further relief is granted as prayed for and the defendants, their agents, servants or any person acting on their behalf, are restrained from doing any construction in the suit property until the final disposal of the suit. Appeal stands disposed of accordingly.