1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1871 OF 2007 IN SUIT NO.2122 OF 2005. Dashrath M Yadav : Plaintiff. Versus Sailesh Austin Gonsalves and ors. : Defendants. Mr.Rakesh M Pandey for the Plaintiff. Mr.A.R.Verma i/by Tejpal & Co. for Defendant Nos.1, 2 and 3. Mr.Madhusoodanam Nair for Defendant No.4. CORAM : R.M.SAVANT, J DATED : DECEMBER 18, 2008 P.C. 1. By the above Chamber Summons, the Applicant, who is the original Plaintiff, seeks amendment of the Plaint in terms of the Schedule to the Chamber Summons. 2. The sum and substance of the amendment sought is the 2 subject matter of the above suit i.e. CTS No.35 to be substituted by CTS No.36 of village Eksar Pahadi, Taluka Borivali, Mumbai Suburban District. The Plaintiff mainly relies upon the Consent Terms passed in the S.C.Suit No.3271 of 2004 filed by the Defendant No.4. After the said suit was decreed in terms of the Consent Terms, the Defendant No.4 had filed an application for correction of CTS No.35 to CTS No.36. The Plaintiff claims that since the vendor of the Defendant No.4 and the vendors of the Plaintiff claim through one Pascol Gonsalves, the Plaintiff should also be allowed to amend the pleadings so as to substitute CTS No.35 by CTS No.36, as also the consequential amendments. 3. On behalf of the Defendant No.4, Affidavit in Reply has been filed opposing the above Chamber Summons as also the Defendant No.4 has filed compilation of orders passed by this Court in the above Suit. 4. It appears that pursuant to the order dated 17th November 2005, a Commissioner came to be appointed to submit a report as to 3 the persons in possession of the CTS No.35, S No.29, Hissa No.3 of village Pahadi, Goregaon, Taluka Borivali, Bombay Suburban District. The Commissioner has, accordingly submitted his report wherein he has stated that he visited the suit premises on 28th November 2005 at 3 p.m. And on the suit property he found a sign board to the following effect :- “Survey No.29, Part CTS No.36 THIS PROPERTY IS EXCLUSIVE POSSESSION OF MR.HEMANT A. DESAI (LEASSEE) LESSOR : Austin Gonsalves and family Further in Marathi it is written as 'Vina parwana aat yenes sakt manai aahe- hukumawarun which meas there is absolute prohibition for entering without permission. By order” Thereafter it appears that Commissioner's work was directed to be done under the assistance of the Superintendent of Land Records. A 2nd Report, it appears that, came to be submitted on 14th December 2005 wherein in the 2nd last Para it has been mentioned that, 4 “CS No.36 is a vacant plot and it is in possession of one Hemant Desai and his sign board is displaced on the property. C.S.No.35 is the suit property. On CS No.35 there is a building of Pampa Co-operative Housing Society Ltd and on the basis of document produced by Mr.Desai it appears that said building is in existence since 1971” A reference could also be made to the order dated 8th August 2006 passed in Chamber Summons No.1552 of 2005 filed by the Defendant No.4 for impleadment in the above Suit. In the said order it has been recorded that the impleadment of the Applicant in the said Chamber i.e. The Defendant No.4 herein is necessary in view of the apprehension expressed by him that the Plaintiff may encroach upon the property which is CTS No.36 that is in his possession. 5. The next order is the order dated 30th March 2007 passed by Justice D.K.Deshmukh in the Notice of Motion No.2251 of 2005 in which order it has been recorded that the Defendant No.4 is on city 5 survey No.36 where as the Plaintiff claims to be the owner of city survey No.35. It is on the said basis that the Notice of Motion 2251 of 2005 filed by the Plaintiff came to be rejected. 6. It appears that as the Plaintiff failed to obtain any relief in this Court, he filed a fresh suit being L.C.Suit No.416 of 2007 in the Bombay City Civil Court at Bombay. The only distinguishing factor is that the Municipal Corporation of Greater Mumbai has been made a party Defendant to the said suit. The Plaintiff has filed a Notice of Motion in the said suit for interim relief in which motion ad-interim relief came to be rejected by an order dated 4th December 2007. The learned Judge of the City Civil Court has recorded in para 8 of the said order that the documents on the basis of which the relief is sought for by the Plaintiff are in respect of CTS No.35 and which position has also been admitted by the Plaintiff. 7. In the instant suit the main substantive relief sought for by the Plaintiff is a declaration that the Deed of conveyance dated 8th April 2005 together with the Agreement for Sale dated 5th February 6 1995 and the irrevocable Power of Attorney dated 5th February 1995 are binding and subsisting viz three-fourth portion of C.T.S. No.35, Revenue Survey No.29, Hissa No.3, village Ekser Pahadi, Taluka Borivali admeasuring 866.1 sq.mt. The Plaintiff has, therefore, based his claim on the said documents. 8. In the teeth of the orders passed by this Court in the above Suit as also the order passed by the Bombay City Civil Court in the fresh suit filed by the Plaintiff, in my view, allowing the Plaintiff to substitute CTS No.35 by CTS No.36 would amount to nullifying the orders passed by this Court and change the subject matter of the suit which is impermissible. The Plaintiff having approached this Court on the basis of the aforesaid documents which relate to CTS No.35 now cannot be allowed to substitute CTS No.35 by CTS No.36. 9. In that view of the matter, the relief sought for by the Plaintiff by way of the above Chamber Summons cannot be granted. The Chamber Summons is accordingly rejected. [R.M.SAVANT, J]