NMS.3566-2009 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3566 OF 2009 IN SUIT NO. 2262 OF 2009 Bijendra R. Singh …Plaintiff. Vs. Hinduja Foundation Trust & Ors. …Defendants. --- Mr. Zujar Udaipuri, i/b V.S. Bhogre, for the Plaintiff. Mr. Kapil Moye with Vinayak Vengurlekar i/b M/s Crawford Bayley & Co. for Defendant Nos.1 to 7. --- CORAM: S.C. DHARMADHIKARI, J. DATE : 7 TH SEPTEMBER, 2010. P.C.: 1] The suit is filed by the plaintiff for a declaration that the Gift Deed dated 15.2.1972 being annexure ‘F to the plaint is vitiated by fraud and rendered unlawful, void, non-operative, invalid and bad in law and therefore should be quashed and set aside. Further, it should be declared that the plaintiff is legally entitled to the possession of the suit plot no. 724, 11th Road, Khar (West), Mumbai as an executor of the Will dated 2.5.2005. The plaintiff is claiming a decree for possession in respect of final plot no.724, CTS No.406 of Revenue Lane, Bandra (W), Mumbai Suburban District which property is more particularly described in Exhibit ‘F’ to the plaint. 1 NMS.3566-2009 2] The plaintiff states that he is the legal representative and legatee of one Shri Ramkishordas Sadhanwala who died on 30.6.2007 leaving behind his last Will and Testament dated 5.2.2005 appointing the plaintiff as his legal representative and sole executor. He has filed a probate petition which was disposed of and probate is granted in favour of the plaintiff. 3] In para 2 of the plaint, it is stated that Ramkishoredas was also disciple and legatee of late Baba Baldevdas Haridas Bairagi who constructed a Ram Madir on the plot no.722 and was in possession and occupation of plot no.724 where Gaushala was constructed on an area admeasuring 7415.5 sq.ft. in the Town Planning Scheme No.III, at 11th Road, Khar (West). The first defendant is sated to be Trust duly registered under the Bombay Public Trust Act, 1950 and defendant nos.2 to 7 are the present Trustees. 4] It is stated that Baba Baldevdas was and since 1956 sole and absolute owner of two plots which are more particularly described in paras 3 and 4 of the plaint. The construction made by Baba Baldevdas is set out in paragraphs 4 and 5. It is stated in para 6 that Baba Baldevdas was a Saint but illiterate. He had migrated to India after partition in the year 1947. The possession of Baba Baldevdas is sought to be established by annexures A and B’. Thereafter, it is stated that on 3.11.1970 Baba Baldevdas executed his last Will and Testament and the late 2 NMS.3566-2009 Ramkishordas through whom the plaintiff is claiming had been nominated as sole beneficiary and legatee. That Will was probated by this Court. It is urged that defendant nos.2 and 4 used to visit Ram Mandir for Darshan and used to attend discussion and religious discourses of Mahant Baba Baldevdas Haridas Bairagi. They developed interest in the immovable property and thereafter it is stated that the Trust was set up to defraud Baba Baldevdas/property and his rights in the plot of land. How the Trust was registered and in relation to which the property is then set out. The litigation which Baba Baldevdas during his life time initiated is referred in para 10 of the plaint. Suffice it to state that Baba Baldevdas could not get any relief during his life time. 5] According to plaintiff thereafter the Gift Deed was executed. This transaction came to the knowledge of Ramkishordas much later when certain persons sought to take measurement of the land being final plot no.724. The challenge to the Gift Deed is then laid and in para 15 this is what is stated:- “The plaintiff says that despite the said alleged gift and the registration of the document under serial No.691 of 1972 in respect of the said Plot No.724, the possession of the said gaushala plot No.724 was never delivered to any third party and the deeds has in reality never been acted upon and/or in any manner enforced right from the year 1972 till date. The said Mahant Baldevdas and after his death the said Ramkishoredas Sadhanwala had/have remained, along withh other Sadhus and saints and Plaintiff, in exclusive possession, use and 3 NMS.3566-2009 occupation of the property; and such use occupation or possession has not been disturbed in any manner or for any purpose by any of the Defendants or persons claiming through or under them. The Plaintiff as member of managing committee of Ram Mandir is managing the said Ram Mandir and gaushala. The Plaintiff further says that in the year 2004, during the pendency of the city civil suit and Appeal from order, the defendant No.4 took the forceful possession of the gaushala which they were not entitled to.” 6] In para 16A the litigation intiated by Ramkishoredas, the predecessor and title of the plaintiff, in the City Civil Court is referred to and particularly Suit No.424 of 2003. It is fairly stated that the Motion for Interim Reliefs in the said Suit was rejected by an order dated 21.3.2003. The Appeal From Order therefrom was admitted but no interim relief was granted. Against the refusal of interim relief, Ramkishoredas preferred Letters Patent Appeal which was dismissed on the ground of non maintainability and later an even a Special Leave Petition came to be dismissed by the Hon’ble Supreme Court on 15.12.2003. Eventually, City Civil Court Suit no.424 of 2003 was withdrawn on 21.11.2006 with liberty to file a fresh suit. Shri Ramkishoredas challenged the permission granted to defendant no.1-Hiduja Foundation Trust by Bombay Municipal Corporation for construction on final plot no.724 by filing a Writ Petition under Article 226 of Constitution of India. That petition was withdrawn on 17.12.2003. 4 NMS.3566-2009 7] From the averments in the plaint it is clear that the rights in respect of the property in question and particularly under the Gift Deed so also alleged Gaushala were asserted by both Baba Baldevdas and Ramkishordas the predecessor in title of the plaintiff, they could not get any relief, interim or final, the plaintiff is claiming through them and claims to be entitled to the very same property i.e CTS No.724. 8] For reasons that are set out in the order refusing interim relief to Baba Baldevdas in his Suit, which was eventually dismissed as withdrawn, even the plaintiff is disentitled from claiming any interim relief. The Motion is therefore dismissed. 9] However, the defendants while dealing with the property and/or transferring the same shall intimate to all purchasers/assignees etc. that the Suit filed by the present plaintiff is pending and all such transactions shall be subject to the final order therein. 10] Needless to state that all observations were made on the basis of the averments in the plaint and they are tentative and prima facie. They shall not influence the Court while trying the Suit. In the view that I have taken, it is unnecessary to consider the preliminary objection with regard to maintainability of the Suit and conduct of the Plaintiff. 11] Accordingly, the Notice of Motion stands dismissed, with no order as to costs. [S.C. DHARMADHIKARI, J.] 5