: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1379 OF 2009 IN SUIT NO.894 OF 2009 Sabira Aslam Sikwani .. Plaintiff v/s. Abdul Rahim Abdullah Junsani & Anr. .. Defendants ......... Mr. A.A. Pandey i/by Mr. A.R. Pande for the plaintiff None for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 17th JUNE, 2010. P.C. : 1. Learned advocate for the plaintiff states that defendants are served and the affidavit of service is not filed. However, I accept the statement made by the learned Counsel across the bar. 2. The plaintiff by this suit seeks a declaration that he is the owner of the suit flat. He has also sought possession in terms of the appropriate prayer. By this motion, plaintiff has prayed for a : 2 : mandatory direction that defendants should vacate the premises and handover the possession to him. The plaintiff also wants appointment of the Receiver and an injunction restraining the defendants from creating third party rights. The plaintiff wants an order that defendant no.2 should be directed to pay a sum of Rs. 20,000/- per month as and by way of damages. 3. I have heard learned Counsel for the plaintiff. The document dated 28th March, 2001 is the Agreement to Sale purported to have been executed by and between plaintiff and defendant No.1. Since this document is the Agreement to Sale, it is apparent that no ownership rights are transferred in favour of the plaintiff. Learned Counsel for the plaintiff submitted across the bar that Sale Deed has not been executed by defendant no.1. If this is the position, prima- facie the plaintiff is unable to make out a case that he is the owner of the suit flat. 4. In so far as the consideration is concerned, the document annexed to the plaint indicates that plaintiff has paid to the : 3 : defendant No.1 the entire consideration at the stage of execution of document. It is pertinent to note that possession was not given to the plaintiff. The mode of payment is not mentioned in the document i.e. to say whether by cheque or by cash. It is mentioned in the receipt clause of the document that a separate receipt would be issued. Such a separate receipt is not produced before the Court. If all these factors are considered, one can easily doubt the veracity and genuineness of the document dated 28th March, 2001. The Agreement to Sale is said to have been executed on 28th March, 2001, whereas the present suit is filed for the reliefs only in February, 2009. The motion was taken out in February, 2009 and the plaintiff did not move the Court for ad-interim orders till today. 5. In the plaint as well as in the affidavit in support of the notice of motion, there is nothing specifically pleaded to make out the case for appointment of Court Receiver. Even otherwise, no specific averments are found in the plaint as well as in the affidavit in support of the notice of motion to say that since after the filing of the suit, defendant nos. 1 and / or 2 are likely to create third party rights or : 4 : part with possession. The very fact that the plaintiff did not apply for the ad-interim reliefs to protect his interest makes me to doubt the case of the plaintiff. I am not inclined to accept the case of the plaintiff that plaintiff had paid a sum of Rs.3,50,000/- and other claims of plaintiff. The plaintiff has not been make out a prima-facie case to show that he is owner of the suit flat. His conduct considered from all angles does not show that he is entitled to any protection. Hence, following order is passed in to dispose of the motion. ORDER (i) The Notice of Motin is dismissed with no order as to costs. (R.Y.GANOO, J.)