1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1082 OF 2008 WITH CIVIL APPLICATION NO.1336 OF 2008 Rampratapsingh s/o. Rajdeosingh Harbans Singh ..Appellant V/s Sunil Ramji Singh & ors ..Respondents Mrs.V.V.Thorat, Advocate, for the appellant Mr.Shailesh More, AGP, for the respondent No.2 Smt.K.K.Sooran, Advocate, for the respondent Nos.3 & 4/BMC Mr.Naveen Parekh i/b.M/s.Thakore Jariwala & Associates, Advocate, for the respondent No.5 CORAM : R.M.SAVANT, J. DATE : 29TH JANUARY, 2009 P.C. . The above Appeal from Order challenges the Order dated 18th July, 2008, passed by the Judge of the City Civil Court by which order the Notice of Motion No.1425 of 2008 filed by the appellant/plaintiff came to be rejected. 2 2. It would be relevant to reproduce the prayers sought in the above Notice of Motion. The same are as under :- (a) That pending the hearing and final disposal of the suit, the Court Receiver, High Court, Mumbai, be appointed as Receiver under Order 40 Rule 1 of Civil Procedure Code, 1908 in respect of the suit property being open plot of land admeasuring 7500 sq. yards in Survey No.380, Hissa No.1, C.T.S.No.4/2, Vakola Bridge, Dhobi Ghat, Santacruz (East), Mumbai – 400 055, with directions to take possession of same and to maintain status-quo as on date. (b) That pending the hearing and final disposal of the suit, this Hon'ble Court may be pleased to appoint an Officer of this Court as a Commissioner to visit the suit land and to give his report regarding status of the said land. (c) That pending the hearing and final disposal of the suit, the defendants, their servants, agents, representative or person or persons claiming through or under them be restrained by an order and injunction of this Hon'ble Court from continuing with any further work of construction on the suit site, being a plot of land admeasuring 7500 sq.yards in Survey No.380, Hissa No.1, C.T.S.No.4/2, Vakola Bridge, Dhobi Ghat, Santacruz (East), Mumbai – 400 055, and to maintain status quo as per the photographs annexed as Exhibit “G” colly. to the affidavit in support of this Notice of Motion. (d) For interim and ad-interim reliefs in terms of prayer clause (a) to (c) above. (e) For cost of this Notice of Motion. (f) For such further and other reliefs. Though the said prayers were sought at the hearing of the Motion, 3 the learned counsel for the appellant/plaintiff only prayed for an order of status-quo to be passed in respect of the development of the suit property. 3. The dispute in the suit filed by the plaintiff is as regards a plot of land admeasuring 7500 sq.yards in Survey No.380, Hissa No.1, C.T.S.No.4/2, Vakola Bridge, Dhobi Ghat, Santacruz (East), Mumbai – 400 055 In the said suit, the plaintiff has claimed various reliefs but the sum and substance of the reliefs is that the plaintiff should not be ousted from the suit property. In so far as the applications for interim reliefs are concerned, the same have a chequerred history. The plaintiff had initially in the year 1994 filed Notice of Motion No.2105 of 1994 for injunction for restraining the defendant No.1 from using the FSI of the suit property and restraining the defendant Nos.3 & 4/BMC from obstructing his possession. The ad-interim reliefs in the said Motion were rejected on 15th April, 1994. It was observed by the learned Judge of the City Civil Court that the said Survey No.380 stood in the name of Surendra Chaganlal Zaveri & others and the names of the plaintiff does not appear in the revenue 4 record. The plaintiff challenged the said order dated 15th April, 1994, by filing an Appeal from Order in this Court wherein by Order dated 19th April, 1994, the said order dated 15th April, 1994, passed by the City Civil Court was set aside and the plaintiff was again granted liberty to apply for ad-interim reliefs afresh. The said Notice of Motion No.2105 of 1994 thereafter, came to be rejected by the City Civil Court on 23rd October, 1996. Whilst rejecting the said Motion, a finding has been recorded by the learned Judge of the City Civil Court that the plaintiff was not in possession of the property in question. The said finding was passed on the basis of the report of the Surveyor appointed from the office of DILR. Against the said order dated on 23rd October, 1996, passed in Notice of Motion No.2105 of 1994, the plaintiff filed Appeal from Order No.1064 of 1997 in this Court challenging the said order. The said Appeal from Order was dismissed on 29th September, 1997, by directing expeditious hearing of the suit. 4. The plaintiff thereafter, filed Chamber Summons No.900 of 2002 to array present defendant No.5 as a defendant in the said suit. 5 The said Chamber Summons was made absolute in terms of prayer clauses (1, (2), (3) & (4) on 23rd June, 2003. Whilst making the Chamber Summons absolute, it has been observed by the learned Judge, who heard the same that the Written Statement of the defendant No.1 in paragraph 9 dated 21st July, 2001, discloses that the defendant No.5 i.e.M/s.Sagar Shopping Developers have been put in possession and they have got the plan sanctioned and development work is in progress. 5. The prayer clause (4) of the Chamber Summons directs the maintenance of status-quo in so far as the suit property is concerned. 6. The plaintiff thereafter, filed Contempt Notice of Motion No.4671 of 2005 alleging breach of the status-quo order dated 23rd June, 2003, passed in the Chamber Summons. The said Contempt Notice of Motion was dismissed by the learned Judge of the City Civil Court by Order dated 21st December, 2005. The learned Judge, who tried the Contempt Notice of Motion recorded that the defendant No.5 has been put in possession by the defendantNo.1 pursuant to the 6 Sale-cum-Development Agreement dated 9th April, 1993, executed by the defendant No.1 as also the irrevocable Power of Attorney in favour of the defendant No.5. The learned Judge has further observed in the said order that development activities have been carried, on the said suit property. The learned Judge thereafter recorded a finding that the defendant No.5 has constructed building and the construction was on going. Against the said order dismissing the Notice of Motion for contempt dated 21st December, 2005, the plaintiff filed Writ Petition No.524 of 2006 in this Court which is admitted on 24th June, 2006. However, in so far as the interim relief sought by the plaintiff in the said Writ Petition was concerned, this Court observed that nothing prevented the plaintiff from approaching the Trial Court for appropriate interlocutory reliefs in the pending suit without prejudice to the rights and contentions in the said Writ Petition. Pursuant to the said liberty granted, the plaintiff filed Notice of Motion No.1082 of 2006, inter alia claiming the same reliefs as in the present Notice of Motion No.1425 of 2008. 7. The said Notice of Motion No.1082 of 2006 was rejected by 7 the learned Judge of the City Civil Court on 5th April, 2006. Whilst rejecting the said Motion the learned Judge observed that the suit property is a part of Survey No.380, Hissa No.1, CTS No.4/2 and that the Court Commissioner's Report does not help the plaintiff. He further recorded a finding that the suit property is a open plot of land with construction standing thereon and that the possession of the defendant No.5 is recognized since the year 1994 and in the said circumstances, the learned Judge rejected the Motion. Significantly, the said Order dated 5th April, 2006, rejecting Notice of Motion No.1082 of 2006 has not been challenged by the plaintiff and therefore, the same has become final and binding. 8. The plaintiff thereafter, filed the instant Motion being Notice of Motion No.1425 of 2008 inter alia claiming the reliefs which have been reproduced in the earlier part of this order. As mentioned herein above, the said reliefs are identical to the reliefs sought in the earlier Notice of Motion No.1082 of 2006. The learned Judge of the City Civil Court, who heard the instant Motion rejected the same taking into consideration the conspectus of the facts as narrated herein above. 8 The above conspectus of facts disclose that the case of the plaintiff that he is in possession of the suit property is disbelieved atleast four times. On all the occasions it has been specifically recorded that the plaintiff has not been able to prove his possession whereas a finding has been recorded that the defendant No.1 is in possession and is carrying development activities pursuant to the sanction obtained by him from the Municipal Corporation. 9. In so far as the order passed on the Chamber Summons No.900 of 2002 is concerned, there is controversy as regards whether the respondent i.e. the defendant No.5 to the suit was served or not. However, the learned Judge of the City Civil Court has expressed a doubt as to whether the relief in terms of prayer clause (4) could have been granted in the teeth of the observations made in the order that the defendant No.5 i.e.M/s.Sagar Shopping Developers have been put in possession and they have got the plan sanctioned and development work is in progress. 9 10. The same has also been reiterated by another Judge of the City Civil Court who heard the Notice of Motion alleging contempt. 11. Be that as it may, in my view, it is not necessary to enter into the said controversy as the fact remains that the case of the plaintiff claiming interlocutory reliefs on the ground that he is in possession has been prior to the present Notice of Motion No.1425 of 2008 rejected on earlier four occassions. 12. Having perused the impugned order passed by the Trial Court, the finding of the Trial Court that the plaintiff has failed to make out a prima facie case regarding his possession and therefore, no reliefs can be granted to the plaintiffs in my view, cannot be faulted with. It has already come on record that the construction activity is going on since the last few years and the buildings have already been put up on the property in question. The learned counsel appearing for the defendant No.5 Mr.Naveen Parekh submitted that the suit plot has been amalgamated with another plot, and the construction is being carried on the amalgamated plot with the permission of the Municipal 10 Corporation of Greater Mumbai. 13. In that view of the matter, no case for interference is made out with the impugned order. The appeal is accordingly dismissed. 14. However, since the suit has already been expedited way back in the year 1997 and since it is at the stage of recording evidence, it is directed that the learned Judge of the City Civil Court, who is trying LC Suit No.2692 of 1994 to endeavour to dispose of the same latest by 30th June, 2009. (R.M.SAVANT, J.)