1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3934 OF 2005 IN SUIT NO.3364 OF 2005 Dr.Ramesh A. Vyas. ...Plaintiff. Vs. Kusum Shivram Shinde and ors. ...Defendants. Mr.A.Y.Sakhare, Sr. Advocate with R.M.Vasudeo for the plaintiff. Mr. Shailesh Shah with A. Sawant i/by Wadia Ghandy & Co. for the Defendant No.3. Mr.M.S. Doctor with Shane Sapeco i/by M/s. Hariani & Co. for the Defendant No.7. Mr.H.S.S. Murthy with Mr. V.K.Narkar for the Defendant No.9. CORAM : R.S. MOHITE, J. DATED : 10TH JULY, 2009 PC : 1. The plaintiff Dr. Ramesh Vyas has filed the present suit No.3364 of 2005 for specific performance of an 2 registered agreement dated 13/12/1988 executed by the present defendants 1 and 2. 2. The brief facts of the case are as under. a) That a large piece of land bearing Survey No.161 situated in Village Pahadi, Taluka Borivali was originally owned by one Behramjee Jeejeebhoy who is arrayed as defendant No.4 in this suit. By different registered sale deeds said to have been executed between 10.10.1966 and 22.5.1974, a company by name M/s. Laxmi Asbeestos Products Ltd. who is arrayed as defendant No.7 in this suit claims to have purchased different parcels of land from Survey No.161 Part from the original owners Behramjee Jeejeebhoy. b) One Shivram Shinde claimed that he was in possession of the said property as an encroacher since 1957-58. It appears that on an application made by Shivram, initially a mutation entry being Mutation Entry No.1660 was made on 21.9.1968 wherein his name was entered as an occupant on a part of survey No.161. The record further indicates that after enquiry by the Circle Inspector, the said mutation entry came to be cancelled on 8.9.1970. 3 c) Thereafter, by an agreement dated 5.8.1981, Shivram agreed to sell the suit property to one Camco Builders Pvt. Ltd. who are arrayed as defendant No.3 in the present suit, for a consideration of Rs.1.00 lac. d) On 23.9.1983, Shivram expired leaving behind the present defendant Nb.1 as his widow and defendant No.2 as his son. These defendants are his only legal heirs. e) On 20.7.1984, the present defendant No.3 Camco Builders Pvt. Ltd. filed a suit against Behramjee Jeejeebhoy Pvt.Ltd. i.e. the owners and sought certain interim reliefs which came to be refused by the City Civil Court on 25.3.1985. It may be stated at this stage, that the defendant No.3 filed an appeal from order and the said appeal from order also came to be dismissed by this court on 30.4.1985. I am informed by the counsel appearing for the parties that this suit was subsequently withdrawn by the defendant No.3 Camco Builders Pvt. Ltd. f) On 23.9.1985, a suit came to be filed by defendants 1 and 2 against Behramjee Jeejeebhoy Pvt. Ltd. -defendant No.4, 4 Camco Builders Pvt. Ltd. -defendant No.3 and defendant No.5. No relief was pressed at the interim stage and it is common ground that the suit is still pending. g) The pleadings indicate that in October, 1985 the defendants 1 and 2 entered into an agreement of sale with one Mr.Ghosh who is arrayed as defendant No.7 in this suit. h) Sometime in 1988 the present defendant No.7 Laxmi Asebstos Products Ltd. filed yet another suit against several persons including defendant No.3 and defendant No.4-Behramjee Jeejeebhoy Pvt.Ltd. in this suit. The defendant No.7 M/s. Laxmi Asbestos Products Ltd. sought interim relief of injunction and other reliefs but the same were refused by the City Civil Court vide its order dated 25.1.1988 and this refusal was confirmed in appeal by this court while dismissing an appeal from order filed by the defendant No.7 vide order dated 22.3.1988. i) It is in this background that the defendant Nos. 1 and 2 again purported to sell the suit land to the plaintiffs for the amount of Rs.5.00 lacs. It may be stated that this agreement is a registered document but there is no plan annexed to this agreement. 5 j) In view of the agreement dated 13.12.1988 executed in their favour ( hereinafter referred to suit agreement ) the plaintiff filed the present suit on 7.12.2005. The record of this court indicates that, on 12.1.2006, this court while not granted any interim relief, recorded the statement of the counsel on behalf of the defendant No.3 to the effect that the construction work to come up will be at their risk, that no equity will be claimed and purchasers will be given notice about the pendency of the suit. Such a statement was also made on behalf of the defendant No.9 who was a joint venturist along with the defendant No.3. This order was modified in appeal and a statement was recorded in the appeal on behalf of the defendant Nos. 3 and 9 that no construction will be put up during the pendency of the suit. The defendant Nos. 3 and 9 were however, permitted to complete the paperwork with the Bombay Municipal Corporation after making it clear that the mere completion of such procedures will not create any third party right. 3. I have heard all the parties and perused the record. Though there is chequered history to this litigation and several parties are claiming rights over the property, in my view, relief sought in this motion can only be granted if the 6 plaintiff can make out prima facie case indicating his title. It cannot be disputed that the plaintiff is claiming title through defendant Nos.1 and 2. The defendants 1 and 2 are claiming title against the original owners by virtue of adverse possession. Their predecessor in title was one Shivram who expired on 23.9.1982. The record indicates that prior to his death, in 1983, Shivram Shinde had applied for entering his name in the revenue record. This was initially done by Mutation Entry No. 1660 but was admittedly cancelled after an enquiry by the Circle officer on 8.9.1970. Mr. Sakhare, learned counsel appearing on behalf of the plaintiff pointed out to me that in an order dated 7.11.1981, the Additional District Dy. Collector, Andheri had recorded that Shivram Shinde had constructed a structure in 1980 and after referring to him as encroacher, the Collector had directed that the N.A. Assessment should be collected from him. This document which is prior to the death of Shivram Shinde does not help the plaintiff in so far as it is within a period of 12 years from the date of the plaintiff s agreement. It appears that after Shivram expired, his wife Kusum addressed a letter dated 29.4.1983 to the Tahsildar and requested that her name should be entered as an occupant. It appears that the statement of Kusum was recorded on 13.6.1983 and ultimately by mutation entry No.1900 the name of Kusum was entered into the 7 land record as an occupant and this was later confirmed by the Circle Inspector on 13.9.1983. This document also does not help the plaintiff in his case as it is within the period of 12 years from the date of agreement in his favour. It may be stated here that, the defendant No.3- Camco Builders Pvt. Ltd. who claimed through Shivram had sought to agitate their rights but could not obtain any interim relief. The City Civil Court vide its order dated 29.3.1985 passed in Suit No.4434/1984 filed by M/s. Camco Builders Pvt. Ltd., after dealing with Mutation Entry No.1660 and Mutation Entry No.1900 held that the plaintiffs have not established that Shinde was an encroacher. The City Civil Court further held that Shinde had no right, title or interest which could be disposed off to defendant No. 3. This finding was confirmed by this court when the appeal filed by the defendant No.3 was dismissed. It is true that the present plaintiff was not party to those proceedings and therefore, Mr. Sakhare contended that he could independently show that his predecessor in title i.e. Defendant Nos. 1 and 2 and their predecessor in title Shivram had valid title. It is in this context, I have discussed various documents which have been pointed out by Mr. Sakhare. I however, find that the documents shown to me, prima facie do not indicate a clear marketable title of defendant Nos. 1 and 2. The suit of the 8 defendant Nos. 1 and 2 to establish their title is still pending and hence, in the absence of evidence, I do not wish to give any final finding in this regard. It may be stated here that, it is not necessary to go into the title and rights of the defendants inter-se. Suffice to say that this motion can be disposed off by holding that the plaintiff has not made out prima facie case. The other defendants will be at liberty to establish their rights in accordance with law. 4. Before parting with this motion, I may also state that the suit agreement in this case did not enclose a plan. The property is described by area and by mentioning the boundaries. In the absence of the plan with the agreement it was difficult to identify the suit property from the area which comprises survey No.161. In the plaint also property is insufficiently described and though a plan is annexed to the plaint and it is averred that the plan indicates the suit property, there is no demarcation made out in the plan as annexed to the plaint. On reading the suit agreement along with the averments in the plaint, Schedule of the property and the plan annexed, I find that prima facie, it will be difficult to exactly identify the suit property. This is another reason why the relief cannot be granted in this notice of motion. In view of the aforesaid 9 findings, Notice of Motion is dismissed. All parties are relieved from the statements made by them. 5. At this stage the Counsel appearing for the plaintiff states that they would like to consider whether the matter is required to be agitated in a higher court. He states that the order granted by the Appellate Court has been in operation since 20.3.2006. He states that said order may be continued for further period of six weeks from today. This prayer is opposed by the counsel appearing for the respondent No.3. However, since the order is running for long time, said order to continue for a period of four weeks from today. ( R.S. MOHITE, J.)