Bombay High Court
Gaurav Rajeshbhai Desai And Others vs Yagyanarayan Prabhunath Mishra And … on 17 February, 2026
2026:BHC-AS:8190
Priyanka 4-asao-986-23-F(1).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.986 OF 2023
WITH
INTERIM APPLICATION NO.17755 OF 2023
1. Gaurav Rajeshbhai Desai, ]
Age: 39 years, Adult, Occ.: Business, ]
Indian Inhabitant and presently ]
residing at A-1, Carnation Building, ]
Godrej Hill, Khadakpada Barave, ]
Kalyan West, Dist. Thane - 421301. ]
2. Chirag Rajeshbhai Desai, ]
Age: 37 years, Occ: Business, ]
Indian Inhabitant and presently ]
residing at A-1, Carnation Building, ]
Godrej Hill, Khadakpada Barave, ]
Kalyan West, Dist. Thane - 421301. ]
3. Mitul Ramanbhai Desai, ]
Age: 48 years, Occ.: Professional, ]
Indian Inhabitant and presently ]
residing at 805, Chandralok Building, ]
Vapi Silvasa Road, Charod, Vapi, ]
Gujrat and also having address at: ]
Income and Sales Tax Practitioner, ]
Dwarkadas Vithaldas Building, 2nd ]
Floor, Opp. Post Office, Station Road, ]
Kalyan West, Dist. Thane - 421301. ] ... Appellants/
Org. Plaintiffs
V/s.
1. Yagyanarayan Prabhunath Mishra, ]
Age: 83 years, Occ.: Retired, Indian ]
Inhabitant and present having address ]
at Adarsh Hindi High School, ]
Rambaug - 4, Santoshi Mata Mandir ]
Road, Kalyan West, Dist. Thane - 421301. ]
2. Shikshan Prasaran Samiti, ]
a charitable trust having its address ]
at Aadarsh Hindi High School, Rambaug ]
- 4, Santoshi Mata Mandir Rd., ]
Kalyan West, Dist. Thane - 421301. ]
Digitally
signed by
SUMEDH
SUMEDH NAMDEO
NAMDEO SONAWANE
SONAWANE Date:
2026.02.17
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3. The Education Welfare Society, ]
Kalyan, ]
a charitable trust having its address at ]
Aadarsh Hindi High School, Rambaug - 4, ]
Santoshi Mata Mandir Rd., ]
Kalyan West, District Thane- 421301 ] ... Respondents/
Org. Defendants
___________________________________________
Mr. Girish Godbole, Senior Advocate a/w. Adv. Shailendra Kanetkar
i/by Adv. Shivraj Patne & Adv. Bharat Thorat for the Appellants.
Mr. Rakesh Kumar a/w. Adv. Pranay Singh i/by Legal Vision for
the Respondents.
___________________________________________
CORAM : KAMAL KHATA, J.
RESERVED ON : 10th February 2026.
PRONOUNCED ON : 17th February 2026.
JUDGMENT :
1. By this Appeal from Order under Section 104, read with
Order 43 Rule 1 (r) of the Code of Civil Procedure, 1908, the
Appellant/Original Plaintiff challenges the impugned Order dated
3rd May 2023 passed by the learned Civil Judge (Senior Division),
Kalyan, Dist. Thane, whereby the Appellants’ application for
temporary injunction, popularly known as Exhibit-5 Application,
against the Respondent/Original Defendants came to be rejected.
Brief facts :
2. The Appellants as joint owners are entitled to agricultural
land bearing Survey No. 89, Hissa No. 01A + 1 B/2A admeasuring
5060.00 sq.mtrs. situate at Village Chikanghar Taluka Kalyan,
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Kalyan West, District Thane 421 301 (referred to as the ‘ larger
property’).
3. Under a registered Indenture of Lease dated 24th April 1968
(first Lease Deed), one Mr. Madharao Narayan Mahesh, the owner of
the larger property, granted rights to the Respondent No.1 to lease
land admeasuring 4060 sq.yds bearing survey No. 89, Hissa No. 1
for 50 years on monthly rent of ₹ 200/- per month (hereinafter
referred to as the “suit property”).
4. Under another registered Indenture of Lease Madhavrao
Narayan Mahesh dated 16th July 1971 (second Lease Deed),
granted rights to Respondent No.1 to lease an area admeasuring
2115.5 sq.yds bearing survey no. 88 Hissa No.1 for 75 years.
5. The Appellants acquired the larger property by a Deed of
Conveyance dated 28th August 2014 from the original owners and
accordingly, was entitled to recover the land from the Respondent
No.1 as the 50 year lease period expired on 23rd April 2018 and the
second lease was terminated by notice.
6. The Respondent No.1 instituted a Civil Suit bearing Special
Civil Suit No. 194 of 2017 before learned Civil Judge (Senior
Division), Kalyan, Dist. Thane for specific performance and
declaration that the Sale Deed dated 28th August 2014 executed in
favour of the Appellant is null and void. The Court was pleased to
allow the Exhibit 5 application for interim injunction in favor of the
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Respondents and against the Appellants, thereby, restraining them
from dispossessing the Respondent without due process of law and
from creating any obstruction in running the school pending the
final adjudication.
7. The Appellants accordingly instituted a Special Civil Suit
bearing No. 18 of 2023 before learned Civil Judge (Senior Division),
Kalyan, Dist. Thane seeking recovery of possession of the Suit
property and permanent injunction from creating third party
interest against the Respondents. By the impugned Order, the Ld.
Trial Court declined to grant interim injunction restraining the
Respondent from creating third party rights in the suit property.
Consequently, compelling the Appellants to file the present the
Appeal.
Submissions by the Appellants
8. Mr. Godbole, learned Senior Counsel for the Appellants,
submits that by an Order dated 2nd August 2022 passed in Exhibit 5
Application in Special Civil Suit No. 194 of 2017, the Ld. Trial Court
has restrained the Appellants from creating any third-party rights
in this Suit property. However, the same Trial Court denied a similar
relief to the Appellants against the Respondents, in effect, permitted
the Respondents to create third party rights pending final
adjudication. According to him, such an approach is contrary to law,
equity and good conscience.
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9. It is submitted that permitting the Respondents to create the
third-party interest would result in multiplicity of proceedings,
compelling the Appellants to initiate further litigation against
subsequent transferees, thereby causing irreparable injury. It is
contended that the Ld. Trial Court failed to appreciate that the
Respondents’ case rests upon misleading and fabricated facts, and
that there was no justification for refusing interim protection.
10. Learned Senior Counsel further submits that the Appellant
acquired right, title and interest in the Suit property under a
registered Deed of Conveyance dated 28th August 2014, which
remains valid and subsisting. These rights, he submits, deserve
protection pending final adjudication.
11. Respondent No.1 was a lessee under a Lease Deed dated 24th
April 1968 for a period of 50 years, which expired on 23rd April
2018. Upon expiry, Respondent No. 1 continued in possession merely
as a tenant holding over and was legally bound to hand over vacant
possession in terms of the Lease. Continued occupation, it is
submitted, amounts to breach of the lease conditions, rendering the
Respondent an unauthorized occupant.
12. Mr. Godbole further contends that payment of municipal
taxes does not regularize or legalize unauthorized constructions.
The Respondents have not placed on record any material to
substantiate the claim that institutions are being run by them or
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that 1200 students are studying therein.
13. The alleged agreement dated 7th March 1994, relied upon by
the Respondents, is unregistered and, according to the Appellants,
fabricated. It is submitted that such unregistered agreement cannot
negate the rights acquired under a registered conveyance. The
Respondents have also allegedly undertaken constructions without
requisite permissions.
14. The Appellants being bonafide purchasers without notice of
the alleged 1994 Agreement, followed due process of Law. The
pendency of Special Civil Suit bearing No. 194 of 2017 filed by the
Respondents is stated to be independent and distinct from the
present suit.
15. It is further submitted that the Respondent No.1 has failed to
pay rent under the Lease Deed dated 24th April 1968 as well as the
Lease Deed dated 16th July 1971 since 1994, and that the Lease
Deed dated 10th August 1971 stands duly terminated by legal
notice. The Ld. Trial Court, however, erroneously proceeded on the
basis that the Appellants had suppressed the 1994 Agreement and
held that the lease continued to subsist. The apprehension regarding
the alleged impact on 1200 students, according to the learned Senior
Counsel, is speculative and misplaced.
16. On these grounds, it is urged that the ld. Trial Court erred in
refusing interim relief restraining the Respondents from creating
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any third-party rights.
Submissions by the Respondents
17. Mr. Rakesh Kumar, learned Advocate for the Respondents,
opposed the Appeal, contending that the Appellants suppressed
material facts. According to him, the Appellants were well aware of
the Agreement dated 7th March 1994 executed by Smt. Vatsalabai
Saraf in favour of Respondent No.1. He relies upon the reply dated
28th June 2017 to the Appellants’ notice wherein the said
Agreement was annexed.
18. It is further submitted that Respondent No. 1 had earlier
instituted Special Civil Suit bearing No. 194 of 2017 for specific
performance of the 1994 Agreement, prior in time to the present
Suit No.18 of 2023. Despite knowledge of such proceedings, the
Appellant failed to disclose the same in their plaint, thereby acting
mala fide. Reliance is placed upon paragraphs 31, 32, 35, 36 and 37
of the impugned Order.
19. Learned Advocate contends that the 1994 Agreement has
neither been challenged nor declared invalid in any proceedings. It
is also submitted that there is no material to demonstrate that the
Respondents intend to create third-party rights. Reference is made
to observations in Appeal from Order No. 240 of 2023 dated 6th
September 2023, wherein the Court noted that the Appellants
appeared to have knowledge of the pre-emption Agreement.
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20. It is urged that a party guilty of suppression is not entitled to
discretionary relief. He relies upon the following Judgments in
support of his contention:
i. Ramjas Foundation and Ors. vs. Union of India (UOI) & Ors.1
ii. S.P. Chengalvaraya Naidu (Dead) by L.Rs. vs. Jagannath
(Dead) by L.Rs. & Ors.2
iii. Mahadev Lingarkar vs. Shamrao Kesarkar3
iv. Faki Ibrahim vs. Faki Mohiddin4
v. Sastha Kumarswamy vs. Joseph Alasius & Ors.5
Analysis and Findings:
21. Having considered the rival submissions and perused the
record, including the impugned Order dated 3rd May 2023, the
following conclusions emerge:
22. The Ld. Trial Court restrained the Appellants from creating
third party rights in the Suit Property in Special Civil Suit No.18 of
2023, yet declined to grant similar relief against the Respondents.
When both parties assert competing rights over the same property
and their respective Suits are pending adjudication, equity demands
that neither side be permitted to alter the status quo by creating
third-party interests pending trial.
1 (2010) 14 SCC 38.
2 AIR 1994 SC 853.
3 AIR 1972 Bombay 100.
4 AIR 1921 Bombay 459.
5 AIR (37) 1950 Travancore Cochin 61.
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23. It is well settled that the grant of temporary injunction is
governed by the three cardinal principles, namely, the existence of a
prima facie case, balance of convenience, and likelihood of
irreparable injury, see Dalpat Kumar v. Prahlad Singh 6. In the
present case, the competing claims of title are yet to be adjudicated.
If, pending such adjudication, either party is permitted to create
third-party interests in the suit property, the same would not only
alter the status quo but would also give rise to multiplicity of
proceedings and complications which may render the final decree
infructuous.
24. The Supreme Court in Maharwal Khewaji Trust (Regd.) v.
Baldev Dass7, has held that in disputes relating to immovable
property, Courts should ordinarily maintain status quo so as to
preserve the subject matter of the litigation. The object of interim
protection is to safeguard the property in dispute so that the rights
of the parties are not irreversibly prejudiced before final
adjudication. Permitting alienation at this stage would virtually
result in grant of final relief to one side.
25. Failure to restrain one party while restraining the other
creates an imbalance and confers an unwarranted advantage which
may render the final adjudication infructuous. On this ground alone,
the impugned Order warrants interference.
6 (1992) 1 SCC 719.
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26. Though an Appellate Court would ordinarily be slow to
interfere with a discretionary order, interference is justified where
discretion has been exercised on erroneous principes or relevant
considerations have been ignored, see Wander Ltd. v. Antox India
(P) Ltd.8. In the present case, the Ld. Trial Court failed to consider
the consequences of denying parity of interim protection.
27. The contention of suppression based on non-reference to the
1994 Agreement does not merit acceptance at this stage. The plaint
refers to Special Civil Suit No.194 of 2017. Merely, because the
1994 Agreement itself if not specifically mentioned or reproduced in
detail, it cannot, in the facts of the present case, be construed as a
deliberate suppression so as to disentitle the Appellants from
interim relief.
28. The said Agreement dated 7th March 1994 is admittedly
unregistered. Knowledge of an unregistered agreement cannot
automatically be imputed to a subsequent purchaser. The Appellants
were aware of the Respondents’ possession as lessees under lease
deeds. Such awareness cannot be equated with notice of a superior
or independent contractual right.
29. The law is clear that rights in immovable property can be
transferred only by a registered instrument, and an unregistered
document cannot confer proprietary rights capable of enforcement
8 1990 Supp SCC 727
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in law, see Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana 9;
K.B. Saha & Sons Pvt. Ltd. v. Development Consultant Ltd. 10. The
enforceability and effect of the 1994 Agreement are matters to be
adjudicated in the pending Suit.
30. Pending such adjudication, the Respondents cannot claim an
unrestricted right to deal with the property in a manner that may
prejudice the Appellants claimed title. To permit creation of third-
party interests at this stage would, in effect, amount to granting
substantive relief without trial.
31. In these circumstances, the Ld. Trial Court failed to properly
appreciate the legal consequences of refusing interim protection.
32. Accordingly, the impugned order dated 3rd May 2023 is set
aside. The Respondents are restrained from creating any third-party
rights, title or interest in the suit property pending the final disposal
of the suit.
33. All other issues are left open for determination at the stage of
final hearing.
34. The Trial Court is directed to dispose of the Suit
expeditiously.
35. In view of the disposal of the Appeal, Interim Application also
stands disposed of. a
(KAMAL KHATA, J.)
9 (2012) 1 SCC 656
10 (2008) 8 SCC 564
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List of citations relied upon:
Ramjas Foundation & Ors. vs. Union of India (UOI) & Ors. [(2010)
14 SCC 38]
S.P. Chengalvaraya Naidu (Dead) by L.Rs. vs. Jagannath (Dead) by
L.Rs. & Ors. [AIR 1994 SC 853]
Mahadev Lingarkar vs. Shamrao Kesarkar [AIR 1972 Bombay
100]
Faki Ibrahim vs. Faki Mohiddin [AIR 1921 Bombay 459]
Sastha Kumarswamy vs. Joseph Alasius & Ors. [AIR (37) 1950
Travancore Cochin 61]
Dalpat Kumar vs. Prahlad Singh [(1992) 1 SCC 719]
Maharwal Khewaji Trust (Regd.) vs. Baldev Dass [(2004) 8 SCC
488]
Wander Ltd. vs. Antox India (P) Ltd. [1990 Supp SCC 727]
Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana [(2012) 1
SCC 656]
K.B. Saha & Sons Pvt. Ltd. vs. Development Consultant Ltd.
[(2008) 8 SCC 564]
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