1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.2597 of 2007 In Suit No.1823 of 2007 Veena B. Bhargava & anr. .. .. Plaintiffs v/s. Anuj A. Bhargava & anr. .. .. Defendants Mr.K.R. Parekh for Plaintiffs. Mr.D.C. Shah for Deft.Nos.1 & 2. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 6th October, 2008 P.C. : 1.The Plaintiffs and the Defendants are family members. The father of the Plaintiffs and the father of the Defendants were brothers. The parties are cousins. The Plaintiffs claim title as well as possession in respect of Gala No.77, Block No.246, Sidhpura Industrial Estate, Kurla, Bombay-70. It is the case of the Plaintiffs that the property was purchased by the Plaintiff's father/husband albeit in the name of the father of Defendants 1 and 2. The reason for such a purchase in the name of the brother-in-law/uncle of the Plaintiffs is not explained. The document of title relied upon by the Plaintiffs is unregistered Agreement dated 1.6.1974 on a Stamp Paper dated 28.5.1974. It shows the Agreement to purchase it 2 from Samarth Investment Corporation by the father of Defendants 1 and 2. It is the case of the Plaintiffs that aside from the initial earnest consideration paid under the said Agreement, the other amounts have been paid by the 1st Plaintiff's husband/father. There is absolutely no evidence of payment. The Bank Accounts statement evidencing payment is not produced. The Receipts are not produced. They are stated to be destroyed in a fire. So much for the Plaintiffs' title. 2.The Plaintiffs claim to be in exclusive possession, use and occupation of the suit premises consequent upon their title. 3.It is the case of the Defendants that the grand-father of the parties himself made arrangements for his respective sons for their business. The Defendants have produced another Agreement on a Stamp Paper dated 28th April 1974, also dated 1.6.1974, the date of the purchase itself signed and executed by the father of Defendants 1 and 2 showing the use of the premises in his individual capacity though otherwise shown to be that of his HUF. It is the case of the Defendants that their father has made payment of the consideration amount. Of course, even the Defendants have not shown their Bank Account statement to evidence such 3 payment. The Defendants, however, have produced a letter of the vendor dated 31st October 1975 stating that they have received all the Society's charges from 1.6.1974 to 30.6.1975. The Defendants have also produced the receipts of the Society in the name of their father as proprietor of one M/s.Shilpa, showing the transfer charges stated to have been paid on 24.1.1976, after which the premises came to be transferred to the name of the father of Defendants 1 and 2. 4.The Defendants have admitted the use and occupation of the Plaintiffs. They, however, contend that the Plaintiffs have been in joint use and occupation of the premises. The Affidavit-in-reply to the Notice of Motion shows in paragraph 9 that their father was in continuous use, occupation and possession of the suit premises. Plaintiff No.2 continued to be in possession of the premises also for the purpose of his business. In paragraph 12 thereof, it is stated that this possession has been allowed consequent upon the wish of the Defendants' father and their possession is permissible. 5.Paragraph 14 of the Affidavit-in-reply states about the Defendants' use, occupation, possession and enjoyment of the suit premises and the Plaintiffs' permissible use of a portion of the suit premises. 4 6.What has to be seen is the actual as against the juridical possession of the parties. Upon the Plaintiffs' claim that the Plaintiffs themselves purchased the suit premises, their possession would follow title. That would be juridical possession. It would then be exclusive possession to the exclusion of Defendants 1 and 2. If that is not shown and the Plaintiffs' possession is shown, the title of the father of the Defendants having been prima facie seen, the Plaintiffs' possession cannot be taken to be juridical possession of the suit premises. Hence the Defendants' case of permissive user has to be prima facie accepted. 7.It is the Defendants' case that the husband/father of the 1st Plaintiff entered into a Deed of Release on 6.12.2004, releasing a flat at Churchgate, which was then in his possession for a lump sum of Rs.35 Lacs. The document has been executed, inter alia, by the Plaintiff' s husband/father. The document is initalled on each of the pages. A Deed of Release makes no mention of the suit premises which is a Gala in Mulund. It is the case of the Plaintiffs that this flat was to be released upon payment of consideration as also upon the contemporaneous release of the Gala of the Defendants. This case shows two aspects, 5 firstly, that part of the Agreement must form a part of the Deed of Release which is not so. If that is so, it would show that prior to the said Gala being given to the Plaintiffs in consideration of the release of the flat at Churchgate, it was held and possessed by the father of the Defendants. If that is not done, the possession continues. Secondly, the Plaintiffs claim that that is unlawful possession. That claim would have to be substantiated at the stage of trial. 8.At present, no case of exclusive possession is shown. Hence, the reliefs prayed for by the Plaintiffs cannot be granted. However, since the Defendants claim that the Plaintiffs are in permissive use and occupation of the premises jointly with the Defendants, that position cannot be altered pending the Suit. Hence, the following order:- ORDER The Defendants shall not dispossess the Plaintiffs from the possession that the Plaintiffs enjoy until they follow due legal process. Pending such due legal process, the Defendants shall not create any third party rights or otherwise transfer the suit premises to any other person. The Notice of 6 Motion is disposed of accordingly. The compilation of documents of the Defendants tendered in Court is kept on record. [SMT.ROSHAN DALVI, J.]