:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE APPEAL FROM ORDER NO.60 OF 2008 APPEAL FROM ORDER NO.60 OF 2008 APPEAL FROM ORDER NO.60 OF 2008 M/s. Swami Krupa Developers ...Appellant. v. Ravindra Pilankar ...Respondents. Mrs.Anjali Helekar, adv. for the Appellant. Mr.A.S.Desai, adv. for the Respondents. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 22nd January, 2008. DATE: 22nd January, 2008. DATE: 22nd January, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the Parties. 2. This appeal is filed by the original plaintiff, who had filed S.C.Suit No.203 of 2007 before the City Civil Court for perpetual injunction against the defendant/respondent Ravindra Pilankar. It is the case of the plaintiff that he had purchased suit property being Survey No.113, Hissa No.8 admeasuring about 20 gunthas equivalent to 2154.8 sq.mtrs. situated at Village Dahisar, Taluka Borivali. It bears City Survey No.2863. According to the plaintiff, it had purchased the suit property for a consideration of Rs.60 lakh from the original owners namely, Pascal Martin Mendes and others under registered deed of conveyance dated 18th April, 2007 and it was also put in possession of the said property. According to the plaintiff, the :2: defendant/respondent is trying to encroach upon the said property without any right, title or interest thereon. Therefore, the plaintiff by the said suit sought perpetual injunction restraining the defendant from causing any interference in possession of the plaintiff over the suit land. Plaintiff also took out notice of motion seeking temporary injunction of the same nature against the defendant. 3. The defendant contested the notice of motion contending that Dahisar Navjeevan Co-operative Housing Society Ltd. had entered into an agreement for purchase of the suit property with the original owners and the possession of the suit land was given to the society by the original owner. One Ramsurat Maurya, chief promoter of the society filed the suit for specific performance of contract against the original owners in the year 1990. The society was registered thereafter in the year 1991. Meanwhile, one M/s.S.R.Developers had tried to create false record showing that it was appointed as a developer. However, that record was found to be false. The society entered into an agreement with the defendant and entrusted right of development to it. That agreement was executed on 25-2-2004 and it was also registered. According to the defendant, development plan prepared by him has been sanctioned by the B.M.C. on 28-11-2006. He had also got the land converted in non-agricultural land by an order passed by the :3: Collector on 28-06-2007. As such, in the capacity of the developer on behalf of the said society, the defendant is in possession of the property. On 9-10-2007 the plaintiff tried to take forcible possession of the property and about that a complaint was lodged with the police. Thus, according to the defendant, he is in continuous possession since 2004 and before that society itself was in possession. According to him, as the plaintiff is not in possession, it can not claim temporary injunction in the suit for perpetual injunction simplicitor. 4. After hearing the parties, the learned trial Court considered certain statements made before the police and station diary entries and came to conclusion that prima-facie, the defendant is in possession and, therefore, application for injunction came to be dismissed. Ad-interim injunction came to be refused. Notice of motion is still pending. Against the refusal of ad-interim injunction, the plaintiff had preferred the present appeal. 5. After perusal of the record, one thing becomes clear that the defendant claims to be in possession of the suit property as a developer appointed by Dahisar Navjeevan Co-operative Housing Society in the year 2004 and according to him, development plan prepared by him was sanctioned on 28-11-2006 and N.A. permission was :4: granted by the Collector on 28-6-2007. Admittedly, Dahisar Navjeevan Co-operative Housing Society claims that original owners of the suit land had entered into an agreement for sale of the suit property to the society in the year 1982. On that basis, the society had filed the suit no.2233 of 1990 before the High Court for specific performance of the contract. That suit came to be dismissed on 29-6-2006 and according to the learned counsel for the respondent, a notice of motion has been taken out for restoration of that suit but that notice of motion is still pending. Neither the suit has been restored to the file nor any interim relief is granted to the society pending the notice of motion. Thus, prima-facie it appears that the society itself does not have any right, title or interest in the suit property at present nor it had any when the plaintiff filed the suit before the City Civil Court. The defendant claims to have got the development plan sanctioned on 28-11-2006 and N.A. permission on 28-6-2007. Both these orders were passed long after the suit of the society was dismissed in default. The defendant does not claim ownership or any title over the suit property. He only claims right of development through the society, which itself does not have right at present. 6. On the other hand, it appears that the plaintiff has purchased the suit land from the original owners :5: under registered deed of conveyance dated 18th April, 2007 for a consideration of Rs.60 lakhs. Several documents were placed on record to support the claim of the plaintiff that it had purchased the suit land. As per the sale deed, he was put in possession of the property. Affidavit of one Chandrabhan Singh, who was member of the society was filed before the trial Court. It shows that there was structure of said Chandrabhan Singh on the said suit land and according to him, since April, 2007, the plaintiff is in possession of the suit property and had displayed its board. He also deposed that he had actually handed over the possession of the structure to the plaintiff and had received an amount of Rs.3 lakh from the plaintiff. According to him, the defendant and his hirelings tried to demolish the said structure and he had reported the matter to the police through his advocate. Prima-facie the plaintiff is lawful owner of the suit property at present and the affidavit of Chandrabhan Singh, who was a member of the said society provides corroboration to the claim of the plaintiff that it is in possession. On the other hand, defendant has not filed any affidavit of any responsible member or promoter of the said society to show that possession of the property was given to the defendant. He has entered into an agreement with the society only for development. In view of the fact that defendant has no any legal right over the property and the plaintiff appears to have the title of ownership over the :6: property, taking into consideration the affidavit filed by the plaintiff and particularly of Chandrabhan Singh, I find that it would be necessary to grant ad-interim injunction in favour of the plaintiff against the defendant atleast pending notice of motion. 7. Therefore, ad-interim injunction is granted in favour of the plaintiff restraining the defendant from causing any interference in possession of the plaintiff over the suit property till the disposal of the notice of motion. 8. The trial Court shall expedite the hearing of the notice of motion and dispose off the same as far as possible within six weeks. The trial Court shall not be influenced by any observations made in the order. 9. As the appeal itself has been disposed off, civil application does not survive and stands disposed off accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)