-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2707 OF 2006 IN SUIT NO. 2439 OF 1990 Vinod Tikamdas Bajaj. ..Plaintiff. Versus Ramesh Tikamdas Bajaj & Ors. ..Defendants. Ms. R. C. Nichani for the plaintiff. Mr. Prem Gidwani for defendant no.1 Mr. S. C. Naidu a/w Deepak Thakare for defendant no.2. Defendant no. 3 is present. Coram : R. V. MORE, J. Date : February 25, 2010. P. C. : 1. This notice of motion is taken out by defendant no.2 for following reliefs : “a. that pending the hearing and final disposal of the suit this Hon’ble Court be pleased to restrain the defendant nos. 1, acting by himself, or through his servants, agents and/or representatives or by any person claiming by, through or under him, by an order and injunction, (i) from in any manner dispossessing and/or forcing defendant no.2 to vacate and/or in any manner taking possession of the office premises being 8, Himalaya House Society Ltd, 79, Phaltan Road, Mumbai 400 001 and residential premises being 5/19, Sindhu Building, 87, Marine Drive, Mumbai – 400 002 to defendant no.1; (ii) from, in any manner, trespassing and/or forcefully entering into the office premises being 8, Himalaya House -: 2 :- Society Ltd, 79, Phaltan Road, Mumbai 400 001 or the residential premises being 5/19, Sindhu Building, 87, Marine Drive, Mumbai – 400 002.; (iii) from threatening and/or intimating the security guards at the office premises being 8, Himalaya House Society Ltd, 79, Phaltan Road, Mumbai 400 001. ...........” 2. The plaintiff and defendant nos.1 to 3 are brothers and original defendant no.4, who has expired, is their mother. After the demise of defendant no.4, her married daughters are impleaded as defendant nos. 4(a) and 4(b). The plaintiff filed the above suit for declaration that the properties mentioned in Schedule - “B” to the plaint are the joint hindu family properties and the plaintiff and defendants have 1/5th share each in the said properties. The plaintiff also claims partition by metes and bounds. 3. The claim of the plaintiff is contested by defendant nos. 1 to 3. They denied that the suit properties belong to the joint family consisting of the plaintiff and defendants. 4. Defendant no.2 has taken out the present notice of motion for the reliefs mentioned above. This notice of motion is restricted to the office premises being 8, Himalaya House Society Ltd, 79, Phaltan Road, Mumbai 400 001 and residential premises being 5/19, Sindhu Building, 87, Marine Drive, Mumbai – 400 002. [hereinafter for the sake of brevity respectively referred to as “the office premises” and “the residential premises”.] -: 3 :- 5. At the time of hearing of this notice of motion for ad-interim relief, Mr. Naidu did not press relief in respect of the residential premises. During the course of hearing of notice of motion also he made a statement that he is not pressing the relief for interim injunction in respect of the residential premises and therefore learned counsel for the respective parties were heard for the relief claimed in respect of the office premises only. 6. Mr. Naidu, learned counsel for defendant no.2 submitted that it is the specific case of defendant no.2 that he is in exclusive possession of the office premises and the plaintiff and defendant nos. 1 and 3 as well as defendant nos. 4(a) & 4(b) have no right whatsoever in it and therefore he is entitled for interim injunction against defendant no.1. In order to show that defendant no.2 is in exclusive possession, Mr. Naidu relied upon following circumstances. (1)The common written statement filed by defendant nos. 1, 2 & 3 in the above suit; (2)The order dated 9th June 1992 passed by this Court in Notice of Motion No. 2316 of 1990 taken out by the plaintiff; (3)The order of the Metropolitan Magistrate at Ballard Pier passed in Case No. 1815/P/2002 dated 9th October 2003. (4)The orders passed by the Division Bench of this Court in Writ Petition No. 316 of 2002. 7. Mr. Gidwani, learned counsel for defendant no.1 on the contrary, in order to substantiate, his claim that defendant no.1 along with defendant no.2 is in possession of the office premises, relied upon several documents in the compilation of documents tendered separately, especially the deed of -: 4 :- assignment dated 20th December 1995 entered into between defendant no. 2 and defendant nos. 1 & 3, the licence issued under the Bombay Shops and Establishments Act, and share transfer form. 8. Having heard the learned counsel for defendant no.2 and defendant no.1 and having gone through the pleadings alongwith the relevant documents, I find merit in the notice of motion. It is the specific contention of the plaintiff that the office premises is joint family property. This contention is denied by defendant no.2 by claiming exclusive ownership and possession of the office premises. The plaintiff in order to prove that the office premises is joint family property must show some nucleus and once that nucleus is proved by the plaintiff, then onus to show that the said office premises is acquired by defendant no.2 independently without the aid of joint family funds shifts upon defendant no.2. This issue obviously will have to be decided at time of final hearing of the suit by giving opportunity to the parties of leading evidence. However, in order to succeed defendant no.1 must prima facie prove that he is the co-owner and in possession of the office premises. 9. Let us ascertain on the basis of documents relied upon by the parties who is in possession of the office premises. Defendant nos. 1 to 3 have filed the joint written statement. The written statement is signed by defendant nos. 1 to 3, however, it is affirmed by defendant no.2 only. In this written statement it is expressedly admitted that there is no Hindu undivided family and defendant no.2 is in exclusive possession of the said -: 5 :- office premises. The written statement is filed on 11th October 1995. The submission of Mr. Gidwani is that the written statement was signed by defendant no.1 in good faith without reading the contents thereof. Defendant no.1 thereafter took out Chamber Summons No.594 of 2004 for filing separate written statement. That chamber summons was taken out in the year 2004, i.e., approximately after 10 years of filing of written statement. The said chamber summons is already rejected by this Court. Thereafter Defendant no.2 filed appeal against the said order and the same is pending. However, at this stage I do not find any merit in the contention of Mr. Gidwani that the written statement was signed by defendant no.1 in good faith without reading the contents thereof. In my view, the written statement which was signed by defendant nos.1 to 3 will have to be accepted and therefore it is difficult to accept the contention of Mr. Gidwani that defendant no.1 was in possession of the office premises alongwith defendant no.2. 10. The plaintiff filed Notice of Motion No. 2316 of 1990 against the defendant for various reliefs. After hearing both parties, the learned Single Judge disposed of the said notice of motion on 19th June 1992. The learned Single Judge recorded a prima facie finding that he was not satisfied about the existence of Hindu undivided family as alleged by the plaintiff. Learned Single Judge further observed that the office premises belongs to defendant no.2. This order, though interim, goes against -: 6 :- defendant no.1. 11. Defendant no.1 had filed Writ Petition No. 316 of 2002 against defendant nos. 2 & 3 for direction to senior inspector of police to register FIR and to proceed against defendant nos. 2 & 3 as per law. The said writ petition was filed by defendant no.1 on the allegation that defendant nos. 2 & 3 were restraining defendant no.1 from entering into the office premises. While disposing of the said writ petition, the Division Bench observed that it is the prayer of defendant no.1 to place him back in possession of the office premises. The Division Bench did not accept the submission of defendant no.1 and consequently the writ petition was dismissed. This order which is passed way back in the year 2002, reveals that defendant no.1 was not in possession of the office premises. 12. Defendant no.1 had also filed criminal proceedings before the Metropolitan Magistrate, Ballard Pier, Mumbai under section 341 r/w 34 of the Indian Penal Code against defendant nos. 2 & 3. It was the allegation of defendant no.1 that he was obstructed by defendant nos. 2 & 3 from entering into the office premises. The learned Metropolitan Magistrate by passing detailed order dated 9th October 2003 concluded that defendant no.1 was not in possession of the office premises and therefore defendant nos. 2 & 3 came to be acquitted of the offence punishable under section 341 r/w 34 of the IPC. 13. If the above evidence is taken into consideration in its totality, then it is clear to my mind that defendant no.1 was not in possession of the office -: 7 :- premises when the above notice of motion was filed. 14. Now, let us consider the evidence relied upon by Mr. Prem Gidwani, learned counsel for defendant no.1. Firstly, he relied upon the deed of assignment dated 20th December 1995 entered into by defendant no.2 and defendant nos. 1 & 3. Under the said deed of assignment defendant no.2 allegedly transferred the shares of the said office premises in favour of defendant nos. 1 & 3. He submitted that the deed of assignment further shows that defendant nos. 1 to 3 are doing the business in the said office premises. Secondly, he relied upon the share transfer form in respect of the office premises. In my opinion, the defendant no.1 cannot rely upon the said deed of assignment as it is not adequately stamped and registered. Under the provisions of Article 11, Schedule-I read with Article 25 of the Bombay Stamp Act, 1958, the said deed of assignment is required to be stamped as conveyance. Since the said deed of assignment is inadequately stamped and it being not registered the same cannot be relied upon by defendant no.1 to show that he has right in the said office premises. It is important to note that the defendant no.1 has for the first time produced this deed of assignment during the course of hearing of the notice of motion, though this deed of assignment is allegedly entered into in the year 1995. Defendant no.1 kept mum till the date of final hearing of the present notice of motion i.e., year 2010. It is also worth to note that though the proposed written statement of defendant no.1 was filed subsequent to the said deed of assignment, no claim is made pursuant to -: 8 :- the said deed of assignment. In any case as I am of the prima facie opinion that the alleged deed of assignment was not acted upon, and thus there is no need to give any credence to this document. 15. Defendant no.1 also relied upon the licence issued to the Bajaj Enterprises under the Bombay Shops and Establishments Act, 1948 for the period 1979 to 2006. The minute perusal of the said licence reveals that the postal address of the said establishment is described as “c/o 8, Himalaya House, Ground floor, 79, Phaltan Road, Bombay – 1.” Had defendant no.1 in possession of the office premises, the address of the establishment would not have been shown as “c/o”. In my view, this document does not show that defendant no.1 was in possession of the office premises on the date of filing of the notice of motion. 16. Defendant no.1 also relied upon several letters alleged received by him at the address of the office premises. In my view, the receipt of letters by itself cannot prove defendant no.1’s possession to the office premises. One can manage to receive the letters indicating the particular address and therefore the letters, pirma facie, cannot be said to be indica of possession. 17. Taking the totality of the facts and circumstances into consideration I am satisfied that prima facie defendant no.2 has proved his exclusive possession to the office premises. The balance of convenience also lies in favour of defendant no.2. This Court by ad-interim order dated 1st October 2006 restrained defendant no.1 from interfering with defendant no.2’s -: 9 :- possession in the office premises. Since I find that on the date of filing of the notice of motion defendant no.1 was not in possession and defendant no.2 was in exclusive possession of the office premises, the notice of motion deserves to be made absolute. Accordingly, notice of motion is made absolute to the extent of office premises only. 18. It is expressedly made clear that the observations made hereinabove are prima facie and tentative in nature and made only for the limited purpose of disposing of this notice of motion and the Court deciding the suit finally shall decide the same independently on its own merits without being influenced by the observations made in this order. (R.V. MORE, J.)