1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1240 OF 2009 WITH CIVIL APPLICATION NO.1553 OF 2009 IN APPEAL FROM ORDER NO.1240 OF 2009 Preses Construction Solutions Pvt. Ltd. & Anr. .... Appellants Vs. Suresh s/o Kalyani Dhotre & Anr. .... Respondents AND APPEAL FROM ORDER NO.393 OF 2010 Mohamed Shamim Badgujar .... Appellant Vs. Suresh s/o Kalyani Dhotre & Ors. .... Respondents Shri R.V. Govilkar for the Appellants in AO-1240/09. S/Shri J. Reis, Senior Advocate with R.N. Kachare for the Appellant in AO-393/10. S/Shri A.A. Kumbhakoni, Senior Counsel with I.A. Bagaria i/b E.A. Sasi for the Respondents in both the Appeals. 2 CORAM: R.C. CHAVAN, J. DATED: JULY 06, 2010 P.C: 1. These appeals against an order passed by the learned Judge, City Civil Court, Borivali Division, Mumbai, on 3-10-2009 on Notice of Motion No.45 of 2009 in S.C. Suit No. 491 of 2009 are being disposed of by this common order since they were heard finally at the admission stage by the consent of the parties. 2. The learned Judge by the impugned order restrained the appellants from causing any sort of obstruction to the plaintiff s peaceful possession of the suit property as described in para 1 of the plaint i.e., Plot No.B, Survey No.48, Hissa No.4 of Village Oshiwara. 3. For the purpose of these appeals, it is either not disputed or cannot be disputed that the property originally belonged to one Chunilal Shah who entered into an agreement to sell it to defendant No.3 6-1-1977. On 5-2-1982 Setubai, wife of defendant No.3 Kalyani started 3 a stone crushing unit by name Sushil Traders, which was a proprietary concern, on this plot No.2. Chunilal Shah terminated the agreement in 1988. Thereafter the Suit bearing No.650 of 1989 was filed by Chunilal on the original side of this Court. This suit has been dismissed on 28-7-2009. On 1-6-1994 defendant No.3 Kalyani entered into an agreement with M/s. Prathamesh i.e., the predecessor of M/s. Process Construction Solution i.e., the predecessors of M/s. Process Construction Solution in respect of the property. Setubai died in 2001 and the plaintiff Suresh claimed to have become the proprietor of the concern Sushil Traders after her death. On 19-12-2005 Prathamesh entered into an agreement, which is styled as Memorandum of Understanding, with Mohammed Shamim Badguzar (appellant in Appeal From Order No.393 of 2010) for the development of the property. On 5-2-2008 a supplementary agreement was entered into by the developers with defendant No.3 Kalyani and on 22-2-2008 Kalyani executed a registered Power of Attorney in favour of Mohammed Shamim Badguzar. 4. Before that on 12-6-2007 an intimation of disapproval had been issued by the Bombay Municipal Corporation followed by a 4 commencement certificate on 22-1-2009. 5. It was the contention of the plaintiff that the property had been leased to the plaintiff for a period of 99 years. This lease was executed on 12-10-2000. He has been paying the electricity bills for the establishment on that property for the purpose of stone crushing. In my view, the learned trial Judge was right in concluding that whether the lease deed is duly stamped and registered or not was not a matter which could be gone into at the stage of grant of interim relief and that the possession of the plaintiff was apparent from whatever documents were placed on the record. But he overlooked one important document which had been annexed to the plaint itself i.e., a complaint made by the plaintiff to the Commissioner of Police on 19-2-2009, categorically stating that he had been dispossessed highhandedly. If he had been dispossessed, whether highhandedly or wrongly, the remedy for him was to file a suit for restoration of possession. It is only because when people are forcibly dispossessed, that they file suits for restoration of possession under Section 6 of the Specific Relief Act. The learned counsel for the respondent/plaintiff 5 submitted that the plaintiff s belongings were still on the property and therefore the plaintiff could not be said to have been fully dispossessed. The plaintiff may in his own mind continue to be in possession of the property but he cannot explain the fact as to why he mentioned in the letter to the Commissioner of Police that he had been forcibly dispossessed and ousted from the property. There is nothing on the record to show that the plaintiff ever claimed that he had re-entered the property after the date on which he was allegedly dispossessed. In its absence the learned Judge should have seen that the plaintiff was not in possession and therefore was not entitled to the relief which the learned Judge had granted. 6. There is another aspect to the matter. The plaintiff had filed an affidavit somewhere in April, 2009 whereby he had stated that since the defendants were likely to make use of criminal force, a Receiver should be appointed. Ordinarily, no person in possession of the property would want a Receiver to step in. This also fortifies the conclusion that the plaintiff was not in possession and therefore was seeking interference of the Receiver. The learned Judge should have seen this, as also 6 the fact that the plaintiff failed to explain the admission of dispossession contained in his letter dated 19-2-2009, and therefore should have refused the injunction which was granted by him. In view of this, the appeals are allowed and the impugned order is quashed and set aside. The notice of motion is therefore rejected. 7. In view of disposal of the appeals, Civil Application No.1553 of 2009 also stands disposed of. (R.C. CHAVAN, J.)