IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1057 OF 2005. NOTICE OF MOTION NO.1057 OF 2005. NOTICE OF MOTION NO.1057 OF 2005. WITH WITH WITH NOTICE OF MOTION NO.2926 of 2008. NOTICE OF MOTION NO.2926 of 2008. NOTICE OF MOTION NO.2926 of 2008. IN IN IN SUIT NO.731 of 2005. SUIT NO.731 of 2005. SUIT NO.731 of 2005. Sadanand Sabaji Pawar ..Plaintiff versus Shantaram Sabaji Pawar & Ors. ..Defendants Mr.Hitesh Buch i/b.Shailesh More for the Plaintiff Mr.M.A.Dudhane for the Defendant No.1 Mr.Amol Desai for the Defendant No.2 Mr.S.M.Railkar for the Defendant No.3 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 15th Sept., 2008. DATED : 15th Sept., 2008. DATED : 15th Sept., 2008. P.C. 1. The suit came to be filed by the plaintiff for administration of estate of Mrs. Parvatibai who happens to be mother of plaintiff. Defendant No.1 is the brother of plaintiff and defendant No.2 is the married sister of the plaintiff. The defendant No.3 is the developer and on looking into the plaint it is seen that the said Defendant No.3 intended to take up the property for development wherein the suit tenement No.1/11 more particularly set out in paragraph 2 of the plaint. The plaintiff herein had taken out Notice of Motion No.1057 of 2005 and had prayed for appointment of -2- Court Receiver in respect of the suit tenement, namely 1/11 and had also sought Order of injunction restraining defendant No.1 from dealing with, disposing or, alienating or creating third party rights with regard to the suit tenements. So far as the said motion is concerned, ad-interim relief in terms of prayer clause (b) is granted and the said injunction is running against the defendants and in particular the defendant No.1. During the pendency of this motion, the defendant No.3 has filed Notice of Motion No.2926 of 2008. By this Motion defendant No.3 has sought permission of this Court to allow defendant No.1 to execute the agreement with defendant No.3 as defendant No.1 is found to be occupying the suit tenament. The parties herein showed willingness to go on with these two motions together and considering the subject matter of the two motions, I was also of the view that the two motions can be disposed of by a common Order and accordingly the two motions mentioned aforesaid are being disposed of by this common Order. The record clearly goes to show that as of today, defendant No.1 is in possession of the suit tenament. It is true that the plaintiff contends that he was thrown out of the suit -3- premises at one point of time. That need not be gone into at this juncture. 2. As a result the motion No.2926 of 2008 having been taken out by the Developer, defendant No.3, it is clear that land on which the various structures including suit tenament is standing is about to be taken up by the defendant No.3 for development. In my view if the entire land over which the various structures, including the suit tenament are standing is being taken up for development in accordance with the provisions of law and if the defendant No.1 is restrained from creating third party rights and or parting the the possession etc, as has been demanded in prayer clause (a) of the Motion No.1057 of 2005, it would hamper the development project as a whole and that the interest of other occupants would be in jeopardy. In my view, in the peculiar facts and circumstances where the heirs of Smt. Parvatibai are contesting the administration of estate of Smt. Parvatibai, that dispute can be resolved and the development of land can’t be stopped. For the present, the defendant No.1 can be permitted to enter into agreement with the defendant No.3 to -4- facilitate the development of the entire land including all the structures and the suit tenament standing thereon. In my view, at the time of passing the Order, if the interest of the plaintiff is adequately protected, there should be no difficulty in allowing the defendant No.3 and defendant No.1 to enter into an agreement to enable defendant No.3 to get possession of the suit tenament from the defendant No.1, develop the land and induct the defendant No.1 in flat No.202 as is sought to be proposed. 2. Today, the learned Advocate appearing for the defendant No.3 tendered in the Court a draft agreement, to be entered into between the defendant No.3 as developer and defendant No.1 who is occupying the suit tenament. My attention was drawn to the various documents and in particular the document wherein the list of various occupants along with the existing tenament number and the new tenament to be allotted is mentioned. It is clear that the defendant No.1 is shown to be the occupant of the room No.11 and the new tenament to be allotted to him is 202 on the second floor having area 290 sq.ft. In my view, there is no difficulty -5- in allowing the defendant No.3 to enter into an agreement with the defendant No.1. Similarly, defendant No.1 can be permitted to surrender possession of the suit tenament to defendant No.3 to enable defendant No.3 to carry out the development. Once the development is completed the defendant No.3 will have to induct defendant No.1 in possession of flat No.202 and occupation by defendant No.1 of said flat no.202 shall ofcourse be subject to the result of this suit and that defendant No.1 will have to pay maintenance/ outgoings which may be required to be paid from time to time either to the Mumbai Municipal Corporation or other Government Authorities or defendant No.3 as the case may be. Similarly, defendant No.1 will have to be put to terms so as to see that the defendant No.1 does not create third party right or part with the possession of the flat No.202 which will be alloted to him. The Court is informed that the defendant No.3 is to pay to defendant No.1 the sum of Rs.9000/- per month to enable the defendant No.1 to arrange for his own accommodation during the time of the construction. This amount can be received by the defendant No.1 and the defendant No.1 will have to arrange for his -6- own accommodation till he is accommodated in flat No.202. The defendant No.3 on getting vacant and peaceful possession of the suit tenament will have to inform the plaintiff about he having received vacant and peaceful possession of the tenament No.11 from defendant No.1. Similarly, after defendant No.3 inducts defendant No.1 in possession of the new tenament No.202, the defendant No.3 shall inform the plaintiff accordingly. It is also required to be clarified that this arrangement shall be subject to the result of this suit and merely because defendant No.1 is permitted to get possession of the newly constructed tenament No.202 that by itself will not confer upon him better title. After defendant No.1 gets possession of the new tenament No.202 he shall not create third party rights or part with the possession of the suit Flat No.202. In my view the aforesaid arrangement will meet the ends of justice and both the motions can be disposed of in above terms. . For the reasons mentioned aforesaid, I pass the following Order. ORDER -7- i) The defendant No.3 is permitted to enter into an agreement with defendant No.1, to enable the defendant No.3 to get the possession of the suit tenament No.11 from the defendant No.1. After defendant No.1 surrenders the vacant and peaceful possession of the tenament No.11, defendant No.3 shall inform the said fact to the plaintiff accordingly. Defendant No.1 will have to make his own arrangement for his stay during the time when the project is under construction. After the flat No.202, which is to be alloted in lieu of suit tenament No.11 is ready for occupation, the defendant No.3 shall induct the defendant No.1 in possession of the suit flat No.202. Upon defendant No.1 getting vacant and peaceful possession of the flat No.202 from defendant No.3, defendant No.1 is restrained from transferring, and or creating third party rights in respect of the said flat No.202 to anybody else. Defendant No.1 is restrained from parting with the possession of said flat No.202. After defendant No.1 is inducted in flat No.202 defendant No.1 shall pay to the Mumbai Municipal Corporation or such other authorities or defendant No.3 all outgoings which shall be payable in so far -8- as flat No.202 is concerned. ii. During the time the project is under completion, the defendant No.1 is restrained from assigning benefit of agreement which will be entered into between the defendant No.3 and defendant No.1 in regard to the suit tenament and flat No.202 and it is clarified that none else other then defendant No.1 will be entitled to have possession over flat No.202, subject ofcourse to the result of the suit. It is further clarified that merely because defendant No.1 is permitted to take possession of flat No.202 from defendant No.3, that by itself will not confer any good right, full power, absolute authority or full title of flat No.202 to defendant No.1 and occupation of flat No.202 by defendant No.1 as per the aforesaid arrangement shall be subject to the result of the suit. Merely because defendant No.1 would keep on paying outgoings in respect of the said Flat No.202 it will not create exclusive right in favour of defendant No.1. After defendant No.1 is inducted in flat No.202 defendant No.3 shall inform plaintiff accordingly. It is clarified that by this Order this Court has not certified that the -9- project initiated by Defendant NO.3 is approved of by this Court. The specimen agreement to be entered into by and between the defendant No.3 and defendant No.1 which was tendered in the court today is taken on record. As and when the defendant No.3 enters into a formal agreement with defendant No.1, true copy of the same is to be filed in the Court and true copy of the same is to be served upon the plaintiff. With the aforesaid order the Notice of Motion No,1057 of 2005 and 2926 of 2008 are disposed of in above terms. There shall be no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)