1 AO-267-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 267 OF 2011 WITH CIVIL APPLN. NO. 389 OF 2011 IN NOTICE OF MOTION NO. 3041 OF 2010 IN S.C. SUIT NO. 1794 OF 2009 Satpal Sardarilal Bhusari .. Appellant (Orig. Plaintiff) vs. Nusli Neville Wadia & Ors. .. Respondents (Orig. Defendants) Mr. A.P.Mishra, Advocate, for the appellant. Ms. Mukta Godse, i/b. Mr. S.B.Amin,Advocate, for the respondent Nos. 1 to 4. Mr. G.N.Pandit, Advocate, for respondent No.5 CORAM: J.H.BHATIA,J. DATE : 2nd August, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. The appeal is preferred by the original plaintiff against dismissal of Notice of Motion. The defendants/respondent Nos. 1 to 4 are the original owners of the suit land which was previously let out to one P.A.Irani. In a suit filed by defendant Nos. 1 to 4 against the lessor P.A.Irani, decree for possession was 2 AO-267-11.sxw passed in September, 1985. The plaintiff was the sub-lessee through one M/s. Moolraj Gedia & Bros., who were the sub-lessees of P.A.Irani. Some negotiations had taken place between the plaintiff and defendant Nos. 1 to 4 as the plaintiff was interested in purchasing the property. However, negotiations failed. As the property belonged to a Trust, defendant nos. 1 to 4 were required to obtain necessary permission from the Charity Commissioner for sale. The Charity Commissioner directed to give publication of the notice to sell the property and to call bidders. The respondent No.5 is the Co-op. Housing Society of the tenants, who were in occupation of the tenements in the building standing on that land. Those tenants had formed a society and with permission of the Charity Commissioner, the property was sold to the said Society in July 1994. It appears that in the year 2004, the plaintiff filed a suit No.2372/2004 for declaration that the defendants did not have title over the property on the basis of the alleged document. That suit came to be dismissed for want of jurisdiction. Then the plaintiff filed S.C. Suit No.179 of 2009 for declaration that he has become owner of the property as the possession of the property was never taken in execution of the decree passed in 1985. In that suit, he took out Notice of Motion No.3041 of 2010 seeking to restrain the respondents from disturbing or interfering in possession of the plaintiff over the suit property or making any redevelopment of the property. That Notice of Motion was contested denying that the plaintiff had 3 AO-267-11.sxw any right, title or interest in the suit property or that he is ever in possession of the suit property. 3. Taking into consideration the facts stated above, it is clear that one P.A.Irani was the lessee and M/s. Moolraj Geda & Bros. was sub-lessee through P.A. Irani. The present plaintiff claims to be sub-lessee through M/s. Moolraj Gedia & Bros. The decree for possession was passed in favour of the defendants Nos. 1 to 4 in September 1985 whereby the lease in favour of said P.A.Irani was terminated. As a result of the same, the sub-lease in favor of M/s. Moolraj Gedia & Bros. and further sub-lease in favour of the present plaintiff also came to an end. On the said land, a building was already constructed and the tenements in that building were occupied by the tenants. Finally, those tenants formed a Co- op. Housing Society, which is defendant No.5 and after following the procedure prescribed by the Charity Commissioner, defendant No.5, being the highest bidder, had purchased that property and thus title over the property vested in defendant no.5. In these circumstances, I do not find any substance in the claim of the plaintiff for temporary injunction. As the members of the defendant No.5 Society are in actual possession, the question of temporary injunction restraining them from disturbing the possession of the plaintiff over the property does not arise. Similarly, the defendant No.5 is in possession of the property as owner on 4 AO-267-11.sxw the basis of the conveyance of July 1994, while the present suit is filed in 2009 i.e. about 15 years after that. Therefore, I do not see any valid reason to interfere in the order passed by the trial Court rejecting the Notice of Motion. 4. Therefore, the Appeal and the Application stand dismissed. (J.H.BHATIA,J.)