: 1 : SD IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.2637 OF 2008 OF MOTION NO.2637 OF 2008 OF MOTION NO.2637 OF 2008 IN IN IN SUIT SUIT SUIT NO.2294 OF 2008 NO.2294 OF 2008 NO.2294 OF 2008 Atul Builders & Associates & Anr. ...Plaintiffs V/s. Gitanjali Sheili Shailendra ...Defendant Mr.Roop M. Vasudeo for the Plaintiffs. Mr.D.S. Sakhalkar i/b. Ms. Nutan Moily and Ms.M.S. Kumbhar for the Defendant. CORAM CORAM CORAM : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. DATE DATE DATE : 2ND MARCH, 2009. : 2ND MARCH, 2009. : 2ND MARCH, 2009. P.C.: P.C.: P.C.: 1. In this suit of Section 6 of the Specific Relief Act, this Notice of Motion is taken out for appointment of Court Receiver in respect of the suit property. The case of the Plaintiffs is as under : 2. The suit property is part of a plot of land and a structure standing on it in Khar area. This property once belonged to a famous film lyrist and his wife. Both of them died. They left behind five children namely Dinesh, Manoj, Hemant, Gopa and Amla. Gopa and Amla are the married daughters. : 2 : 3. The lyrist’s wife survived him and before her death in 1991, she made a Will. She appointed her son Dinesh as the executor and in the Will she did not bequeath any property to her other son Hemant. Dinesh then filed the application for probate and obviously Hemant opposed the same by filing caveat. The testamentary suit is still pending in this Court. In the meantime Hemant died. He is survived by the Defendant here and his daughters. 4. While the dispute between the brothers was pending, the other siblings except Hemant agreed to sell the entire bungalow property to a developer by name Anam Properties Pvt. Ltd. in 1990. The said purchaser then filed a suit for specific performance in 1992 and sought an order of temporary injunction against all the siblings including Hemant. This Court prima facie upheld that there existed an MOU between the siblings on one side except Hemant and the purchaser Anam and prevented the vendor from disturbing and/or from creating third party rights etc.. However, the Court refused to pass such order against Hemant because he was not party to the agreement. Thereafter the Plaintiff No.1 entered into similar agreement for development of the : 3 : property with the other siblings except Hemant on or about 17-10-2002. The Plaintiff No.2 thereafter in 2004 purchased the rights of the previous purchaser Anam. It is thus the case of the Plaintiffs that the Plaintiffs who are partnership firm consisting of same partners had right to develop the property to the extent of undivided shares of their vendors namely Dinesh, Manoj, Gopa and Amla. 5. It is their case that Plaintiff No.2 was then put in possession on the ground floor area of the suit bungalow as well as the land appurtenant thereto. They admitted that on 26-2-2005 through a deed of confirmation they were put in possession and at that time the first floor of the suit bungalow was in possession of Hemant and his family. 6. After this transaction, Hemant took out a Notice of Motion in the suit that Anam filed in 1992. Through this Notice of Motion, he sought removal of the Plaintiff No.2 from the ground floor of the suit bungalow. He admitted that the Plaintiff No.2 had put up a lock on the ground floor door of the suit bungalow. The Notice of Motion was dismissed. Some time in 2007, Hemant died. : 4 : 7. The problem erupted on 10-3-2008 at about 8 p.m. in the night. Two visitors to the ground floor and concerned with the Plaintiff No.2 had a quarrel with the Defendant’s daughters. The Defendant made a complaint against these two persons with the police. It appears that from that day onwards the Defendant started obstructing the Plaintiff’s entry into the suit property. As said above, the suit property is consisting of a plot of land and a building which is consisting of ground plus first floor. There is a gate to the compound and the Defendant and her daughters started obstructing the employees of the Plaintiff from entering into the property through the gate. The second incident occurred on 27-3-2008, when other two employees of the Plaintiff tried to take entry into the suit property through the gate but they could not enter inside the compound on account of a lock put on the gate. Nonetheless, after a brief altercations they climbed up the gate and entered into the property and this resulted into a violent incident between the employees of the Plaintiff and the Defendant and her daughter. On both the occasions, the Defendant made police complaints. The copies of police complaints are on record. In the first complaint dated 10-3-2008, the Defendant clearly on unequivocal terms stated that : 5 : her brother in law (her husband’s brother Dinesh) was occupying the ground floor area of the building in 2004. She said he left the property in 2004 and since then the Plaintiffs’ employees are occupying the ground floor area. While opposing the Notice of Motion, the Defendant asserted that he has been occupying the entire property including the ground floor. From these two statements, it is clear that the Defendant is impliedly admitting that she had ousted the Plaintiffs’ employees from the suit property. 8. After the incident of 27-3-2008, the Plaintiffs and their employees could not enter the suit property, the police took action and apprehended the employees of the Plaintiffs and thereafter, I am told the police of Khar Police Station are preventing entry of the Plaintiffs and their employees in the suit property. Admittedly there is now a police guard posted outside the gate of the suit property. 9. The Defendant is now trying to assert that she is occupying the entire property and that the Plaintiffs had not occupied the property at any time. This assertion of the Defendant is per se a lie. As said above, not only the Defendant but her husband : 6 : himself before his death had admitted when he took out a Notice of Motion in 2007 that the Plaintiffs have entered in the ground floor area of the suit structure and that he wanted their ouster but as said above, he could not succeed in ousting the Plaintiffs. This situation then continued until the recent incident of March, 2008. The Defendant admitted in her police statement that the Plaintiffs occupied the ground floor portion of the suit building. 10. Despite of this clear factual situation, the learned Counsel appearing for the Defendant asserted that there was no possibility of the Plaintiffs occupying part of the suit property because the property belonged to a joint family and there was no partition between the members of the joint family and the property was not divided amongst them by metes and bounds. He also asserted that this property is a dwelling house and so there was no possibility of an outsider taking possession of part of the same despite his claim that he had purchased undivided share of some of the family members. He placed reliance on section 44 of the Transfer of Properties Act which reads as under : : 7 : "44. Transfer by one co-owner.-Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house." 11. The learned Counsel for the Defendant also placed reliance on the Judgment of the Supreme Court in the case of Dorab Cawasji Warden Vs. Sorab Warden & Anr. reported in AIR 1990 SC 867. The provision as well as the Judgment of the Supreme Court would not help the Defendant. The facts of the reported Judgment are different. In that case the co-sharer - the tenant in common of the family dwelling house sought injunction to prevent a stranger purchaser of the other co-owners’ undivided shares in the dwelling house. He succeeded in getting the favourable order. The Supreme Court squarely placed reliance on the provisions of Section 44 of the Transfer of Properties Act and held that being the dwelling house : 8 : the purchaser had no right to take possession of the property. But in this case it is not the Defendant who came to the Court first. The Defendant in clear terms admitted that the Plaintiffs rather high handedly entered into the suit property and started occupying the ground floor area way back in 2004. After the Plaintiffs took over the possession of the ground floor area of the suit structure, they got the electrical meter installed on that part of the building changed in their name and they started paying the electricity charges. They demonstrated this through the electrical meter bills. But the Defendant did not come to this Court and sought injunction to prevent the Plaintiffs’ entry. 12. In the light of the Judgment of the Supreme Court mentioned above, the Defendant could have obtained the favourable order had she approached the Court soon after the Plaintiffs’ acquisition of the undivided share and the Plaintiffs’ physical entry into the property. Secondly, this property does not appear to be dwelling house as contemplated under Section 44 of the Transfer of Properties Act. The Defendant herself admitted that this building is divided into two portions, the first floor portion is in use and occupation of her branch of the family : 9 : whereas the ground floor part of the building was in use and occupation of her brother in law, the other part of the family. In that sense, there was no jointness of dwelling house between the members of the family. 13. It is prima facie clear that the Defendant with the help of the police has ousted the Plaintiffs from the ground floor area of the suit structure rather high handedly and without following due process of law. So, the suit apparently falls within the ambit of section 6 of the Specific Reliefs Act which reads as under : "6. Suit by person dispossessed of immovable property.- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2). No suit under this section shall be brought- (a) after the expiry of six months from the date of dispossession; or (b). against the Government. (3). No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4). Nothing in this section shall bar any person from suing to establish his title to : 10 : such property and to recover possession thereof." 14. At this stage the Court is not required to go into the title of the parties. What is required to be seen is whether the Plaintiffs were in settled possession before their unceremonious ousters of the same. This element is clearly seen in this case. 15. So, the Plaintiffs make out a case for taking the ground floor area of the suit structure in the custodialogist. I am not inclined to deal with the open space surrounding the building. I am not convinced that the Plaintiffs were exclusively put in possession of this area. The open space surrounding the building is in common use of all the parties. The Plaintiffs have not demonstrated a specific use of this area save and except having access to their portion of the building. So following order suffice. "O "O "O R D E R" R D E R" R D E R" (1). The Court Receiver, High Court, Bombay is appointed as the Receiver only in respect of the ground floor portion of the suit building. : 11 : (2). The Court Receiver shall appoint the Plaintiff No.2 as agent of the Court Receiver without furnishing any security or royalty. (3). This order shall not affect the Defendant’s user of the first floor as well as open space for parking car etc., so also the Plaintiffs are also entitled to use the open space for parking their car whenever they bring in one car. (4). To facilitate execution of this order, the Defendant shall forthwith remove the lock put on the gate of the property. (5). Request of Shri Sakhalkar for keeping this order in abeyance is rejected obviously because the Defendant apparently took law in her hand. [A.V. [A.V. [A.V. NIRGUDE, J.] NIRGUDE, J.] NIRGUDE, J.]