-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3389 OF 2009 IN SUIT NO. 2440 OF 2009 Hemant Krishna Waradkar. ..Plaintiff. Versus Housing Development & Infrastructure Ltd & Ors. ..Defendatns. ------ E. P. Bharucha, Senior counsel a/w D. D. Madon Sr. counsel, Kevik Setalwad, Sarosh Bharucha, Dhiren Shah i/b Vimla & Co. for the plaintiff. Pravin Samdani, Sr. counsel a/w Rajesh Shah, Satyen Vora, Prashant Ghelani i/b Markand Ghandhi & Co., for defendant no.1. Nitin Thakkar, Sr. counsel a/w Gaurav Joshi, Gobind Mohanty i/b Kirit Damania & Co., for defendant no.2. Omprakash Pandey i/b Pandey & co. for defendant nos. 9, 11, 12, 13 & 15. T. N. Subramaniam, Sr. counsel a/w Yogendra Khanchan, Uzair Kazi i/b Vijay Dhingreja for deft. nos. 4a to 4d and 5a & b. -------- CORAM : S.C.DHARMADHIKARNI, J. DATE : 30th November 2009. P.C.: 1. Pursuant to the Agreement reached between the parties, Notice -: 2 :- of motion was listed for final hearing. It is finally disposed of by this order. 2. The Plaintiff claims to be the sole and exclusive owner of the portion of land which is more particularly described in the schedule as Annexure -A to the plaint. 3. The first defendant is claiming a part of the suit property from defendant nos. 2, 3 and 6 to 8. The extent of these defendants share (37.5%) has been transferred in favour of the defendant no.1. 4. It is stated that the defendants namely, defendant nos. 4(a) to 4(d) claim to be entitled to an undivided share of 7.81% share each in the suit property. Defendant Nos.5(a) and 5(b) claimed to be entitled to share of 15.62% share in the suit property. Defendant Nos. 9 to 15 are parties impleaded to the suit because of litigation between them and the defendant no.2. They claim the property through defendant no.2 and a suit is filed being suit No. 3488 of 2006. The defendant no.16 is a party who has entered a Memorandum of Agreement for development/ agreement for sale in respect of a part of the suit property. -: 3 :- 5. The Notice of motion seeks interim relief restraining the defendants, their agents and servants or anybody acting for or on behalf of them or claiming through them from entering upon, developing, constructing on the suit properties as also creating any third party rights in respect of the land itself. Further interim relief is to seek a restraint against them from acting in pursuance of agreement for sale dated 13th November 2007, Deed of conveyance dated 7th March 2008, three deeds of conveyance all dated 18th December 2008, the Declaration dated 16th November 1961, the Memorandum of Understanding dated 4th April 1994 and the Deed of Confirmation dated 10th August 2008. 6. Very briefly stated the controversy is that the plaintiff alleges that one Lila Umedram Desai, an Indian citizen residing at Worli Mumbai was owner of the suit land. By a registered sale deed dated 16th November 1961 she conveyed and transferred the suit property to one Arjandas Menghraj Thakur stated to be residing at CCI Chambers, Churchgate, Bombay. The total consideration was Rs. 3,79,165.95. There were certain terms in this document / deed which came to be registered with the Sub-Registrar of Assurances on -: 4 :- 16th November 1961. A copy of this deed is annexed as Annexure-B to the plaint. 7. In paragraph nos. 11 & 12 of the plaint the plaintiff alleges thus:- “11) The said Arjandas, who as per the terms of the said Deed of Conveyance dated 16th November 1961, had became the absolute owner of the Suit Property, sold and conveyed the entire Suit Property in favour of the plaintiff vide a registered Deed of Conveyance dated 20th November , 1979 for the total consideration of Rs. 8,75,540/- on the terms and conditions, as more particularly mentioned therein. A copy of the certified copy of the registered Deed of Conveyance dated 20th November 1979 is hereto annexed and marked EXHIBIT- C. 12) The said Deed of Conveyance dated 20th November 1979 was duly lodged for registration with the Sub- Registrar of Assurances at Mumbai on 20th November -: 5 :- 1979 at Sr. No. S/2679/79. Since at the relevant time, all documents lodged for registration at Bombay were being sent to Pune at the Head Office of the Sub- Registrar of Assurances for scanning/scrutiny, the documents used to take several years before the same were effectively registered since various requisitions were firstly required to be complied with. The said Deed of Conveyance dated 20th November 1979 was thus eventually registered by the Office of the Sub- Registrar of Assurances on 03.06.2004. However, it is pertinent to mention here that no notice/intimation of any nature whatsoever was given to the plaintiff by the office of the Sub-Registrar of Assurances in that regard. Since the suit property comprised of portions which fell within two revenue villages, i.e., village Chakala and village Mulgaon, two separate Index II certificates were issued by the Office of the Sub-Registrar of Assurances in respect of the said Deed of Conveyance dated 20th November 1979. Hereto annexed and marked as Exhibit D and E are the true copies of t he certified index II -: 6 :- certificates issued by the Sub-Registrar of Assurances in respect of the said Deed of Conveyance dated 20th November 1979.” 8. In paragraph 13 of the plaint it is alleged that signatures of said Arjandas on conveyance deed dated 16th November 1961, the conveyance dated 20th November 1979 and the signature made at the time of lodging of the conveyance dated 20th November 1979 for registration are all similar. 9. It is alleged that despite the entire suit property being sold to Arjandas and thereafter by Arjandas to the plaintiff, the second defendant claims that he had executed an un-registered unilaterally signed declaration dated 16th November 1961 wherein he mentions that the consideration paid by said Arjandas for acquiring the suit property was contributed in the following manner : (a) 20% by the defendant no.2., (b) 10% by the defendant no.3, (c) 30% by the father of the Defendant nos. 4a to 4d, (d) 30% by the predecessor in title of Defendant nos. 5a and 5b, (e) 10% by the mother of the defendant nos. 2 & 3 so also by the father of defendant nos. 4a to 4d -: 7 :- and predecessor in title of defendant nos. 5a-b. This declaration states that the right, title and interest in the suit property vests in accordance with the shares determined above in between these parties. 11. It is alleged that the signature of Arjandas / defendant no.2 on the declaration (Annexure-F) is completely different from the signature on the conveyance dated 16-11-1961 and also from the deed of conveyance dated 20th November 1979. Thus, all throughout the plaintiff names one Arjandas and does not accept that the said Arjandas and defendant no.2 to the present suit are one and the same individual. 12. In paragraph no. 15 of the plaint, the plaintiff alleges that : “15. At the time when the suit property was sold to the plaintiff, large portions of the same were overrun by various illegal structures, including illegal encroachments and slums. The plaintiff, despite being the owner of the suit property, was not in a financial position to take steps to clear -: 8 :- the suit property of various structures and encroachments – which would have entailed entering into protracted and expensive litigation – and hence the plaintiff for several years took no steps in respect thereof, despite at all times being the owner thereof. The plaintiff at all times remained the owner of the suit property and was advised that since he was the owner of the suit property, pursuant to registered deed of conveyance, his ownership title to the suit property was protected. In or around the begging of the year 2008, the plaintiff was approached by some parties who offered to develop the suit property. However, since the plaintiff was not in possession of the original deed of conveyance dated 20th November 1979 (as the same was lodged for registration), the same did not materialize. In this view of the matter, plaintiff took the assistance of one Nilesh Jadhav who introduced the plaintiff to one Mr. Hemant Rane and one Mr. Yatin Prabhavalkar, who agreed to asit the plaintiff in connection with the suit property. The said Mr. Hemant Rane pursued the matter with the office of the Sub-Registrar of Assurances and made relevant enquireis as regards the -: 9 :- said Deed of Conveyance dated 20th November 1979 which was lodged for registration with the office of the Sub- Registrar of Assurances on the same day as that of its execution. The said Mr. Hemant Rane then learnt that the said Deed of Conveyance dated 20th November, 1979 was duly registered by the Sub-Registrar of Assurances on 03.06.2004 and accordingly informed the plaintiff about the same. Thereafter, under instructions from the plaintiff, the said Mr. Hemant Rane initiated the process for obtaining the original duly registered Deed of Conveyance dated 20th November 1979 from the office of the Sub-Registrar of Assurances. The said Deed of Conveyance dated 20th November, 1979 was duly handed over to the said Mr. Hemant Rane for and on behalf of the plaintiff on 22nd August 2008. The plaintiff states that after the said Deed of Conveyance dated 20th November 1979 was duly registered, the same was sent to Pune for scanning, as per the usual practice of the Sub-Registrar of Assurances. The plaintiff has obtained a certified copy of the entry made in the Register maintained by the Sub-Registrar of Assurances to that effect. -: 10 :- A true copy of the certified copy dated 16.07.09 of the entry made in the register maintained by the Sub-Registrar of Assurances along with the receipt for payment of fees in that regard is hereto annexed and marked as EXHIBT-G. The plaintiff states that a bare perusal of the entry made in the Register maintained by the Registrar of Assurances interalia showing that the said Deed of Conveyance dated 20th November 2009 was sent to Pune on 09.02.2005 will disclose that the said document was infact sent by the office of t he Sub-Registrar of Assurances for scanning after the same was duly registered. The plaintiff further states that on or about 05.08.2009, he caused an application to be made to the Joint Sub-Registrar of Assurances under the provisins of the RTI interalia seeking certified copies of the relevant page of the Registers (MIX Book/Day Book) maintained by the Sub-Registrar of Assurances interalia showing entries of all original documents handed over to the concerned parties thereof. Accordingly, in pursuance of the said RTI application, the Joint Sub-Registrar of Assurances forwarded a Certified copy of the relevant page of the MIX book -: 11 :- maintained by them, i.e., Page No. 91 alongwith their letter dated 12.08.2000 interalia stating that since the DAY book maintained by their office was not available, they were providing the applicant with a certified copy of the MIX book maintained by them. Hereto annexed and marked as Exhibit G-1 and Exhibit H are the true copies of the said Page no.91 of the MIX book maintained by the Sub-Registrar of Assurances and the said letter dated 12.08.2009 issued by the Joint Sub-REgistrar of Assurances. It is pertinent to note that the relevant entry on page 91 of the MIX book maintained by the Joint Registrar of Assurances categorically sates that the Original Deed of Conveyance dated 20th November 1979 was handed over to the said Mr. Hemant Rane for and on behalf of the plaintiff on 22.08.2008.” 13. The Plaintiff states that he has executed a special power of attorney dated 19th November 2008 in favour of one Yatin Prabhavalkar in order to make an application and take steps so that the plaintiff’s name is inserted in the revenue records. Pursuant to this power of attorney said Yatin was authorised to file suits, -: 12 :- proceedings etc and to make appropriate applications before the revenue authorities. A copy of the power of attorney is annexed as Annexure-I to the plaint. It is stated that said Mr. Yatin obtained a certified copy of the deed of conveyance so as to get the name of the plaintiff entered in the property card and other revenue records and an application was also made to the City survey office and other authorities. During the course of these proceedings before the revenue authorities it was learnt that some of the defendants have illegally executed various documents pertaining to the suit property. It is stated that these documents were executed despite the deed of conveyance dated 20th November 2009 in favour of the plaintiff being registered as required by law. Further when in January 2009, the plaintiff and said Prabhawalkar inspected the suit property they were shocked to see that it was fenced and board of defendant 1 was put up thereon. On enquiry with the security guards it was learnt that possession in respect of the portion of the suit property was claimed by one Variam Singh, Director of defendant no.1. A rough sketch plan was prepared and thereafter said Prabhawalkar went to the office of the Registrar of Assurances at Old Custom house in order to make enquires in respect of the possession of the suit property. When -: 13 :- said Prabhawalkar caused a search to be done in the office of the Sub- Registrar he noticed afore mentioned documents executed between the defendants interse. In paragraph 20 of the plaint after referring to each of these documents, the plaintiff makes comments on the contents thereof so also the signature of said Arjandas. 14. It is specifically alleged in para 20(d) that in view of the substantial divergence in the signatures of Arjandas and defendant 2, the plaintiff suspected that the defendant no.2 was impersonating said Arjandas with a malafide attempt to use the said property. Consequently, in January 2009 the plaintiff went to the Election Office to find out whether or not a person by name Arjandas was alive or not. The plaintiff learnt that in the electoral list of 2009 the name of Arjandas was missing. Thereafter said Yatin went to the office of the BMC North ward, Dadar and made enquiry as to whether said Arjandas was alive. Pursuant to an application made, the BMC provided a death certificate of Arjandas stating that said person expired on 10th June 2004. On the basis of this, plaintiff alleges that the original owner of the suit property expired, yet the defendant nos. 1 & 2 have filed several proceedings including criminal complaint -: 14 :- against the defendant and Yatin for allegedly obtaining a false certificate. It is stated that the defendants are falsely alleging that deed of conveyance dated 20/11/1979 is forged and fabricated document. The said conveyance is a registered document therefore all proceedings are initiated with a view to harass the plaintiff. 15. The agreement for sale dated 13th November 2007 is referred by the plaintiff on account of the fact that according to him 3 suits are pending in respect of the suit property. One of the suits, suit 3488 of 2006 was filed by deft. no.2 against the deft. nos. 3, 5, 4(a) to 4(d), 6, 7 and 8 and interim order was passed in the said suit but consequently consent terms were executed by the parties. Then other two suits are referred. It is stated that a deed of conveyance dated 7th March 2008 by the defendant no.3 in favour of the deft. no.1 with the defendant no.2 being joined as the confirming party has been executed. Pursuant to this deed, defendant no.3 purported to sell his alleged 11.25% share in the suit property to the defendant no.1 for an alleged consideration of Rs.12 crores. The plaintiff states that even this conveyance has been registered with the Registrar of Assurances on 25/8/2008. -: 15 :- 16. Second consent terms led to the rights of the defendants being transferred in favour of the defendant no.1. In that behalf the deed of conveyance dated 18th December 2008 has been referred to. 17. Questioning all these documents it is alleged that the plaintiff is the sole and exclusive owner of the suit property and is entitled to a declaration to that effect. It is plaintiff’s own case that the deed of conveyance in his favour dated 20/11/1979 was duly registered and Index-II in respect thereof was also issued on 3rd June 2004. Since the documents are now traced, it is stated that the suit claim is within limitation and the averment in that behalf is in paragraph 31 of the plaint. 18. Thus the declaration with regard to the ownership rights of the plaintiff on the basis of the conveyance deed dated 20/11/1979 coupled with further declarations so as to invalidate the documents in favour of the defendant no.1 are claimed. In furtherance of these final reliefs the interim orders are sought by the instant notice of motion. -: 16 :- 19. Mr. Madon learned Senior counsel appearing on behalf of the plaintiff urged that the plaintiff has come to court on the basis of claim of exclusive ownership of the entire property. Mr. Madon learned sr. counsel submits that the conveyance dated 20/11/1979 is duly registered. He submits that there is a presumption in law that official acts are performed in the manner in which they are supposed to be performed. Once there is a registration in favour of the plaintiff and that being a prior document, then the defts. cannot lay any claim to the suit property. Their actions being subsequent in time and both parties claiming through the same owner, then untill and unless this court finally resolves the controversy with regard to the genuineness and validity of the documents in question, no development work at site or construction activity should be permitted. Further the first defendant should be restrained from acting in furtherance of the documents executed in his favour and alienating and transferring or selling the suit property or portions thereof. 20. Mr. Madon learned sr. counsel submits that today there is a serious dispute as to whether on the strength of an unilateral act of -: 17 :- Arjandas the plaintiff can be deprived of his share in the suit property. The declaration is not registered as required by section 17 of the Registration Act, 1908. The declaration is also not stamped as conveyance under Article 25 or as a release under Article 52 of the Bombay Stamp Act, 1958 as it then stood. The declaration being only document relied upon by the certain defendants to show the source of their title to the suit property, it cannot be relied on. Defendant no.2 claims to have executed both deed of conveyance dated 16th November 1961 and the declaration on the same day, however his signatures on these documents completely differ. Although the second defendant’s reply proceeds to state that on the conveyance deed of 1961 his short signature appears and on the declaration is his long signature that explanation is not acceptable or convincing at all. However, such signature does not find place in any other document. Further the defendant no.2 has produced the Ration card, passport, election card and driving license wherein the signature is completely different. Mr. Madon learned sr. counsel submits that the defendant no.2 now comes before the court with a version that he was residing earlier at CCI Chambers, Churchgate yet his identity cannot be held to be proved on the basis of the documents produced -: 18 :- on record. The documents thus will have to be proved. The identity of the person is in dispute. It is not clear from the documents produced that the second defendant is the same person Arjandas. Moreso, when Arjandas residing at CCI Chambers, Churchgate, Bombay is reportedly dead as per the death certificate. For all these reasons unless and until this Court investigates the matter fully, interim orders in terms of the prayers be granted. 21. Mr. Madon learned sr. counsel has invited my attention to section 114 of the Indian Evidence Act and Section 41 of the Transfer of Property Act and several provisions of the Registration Act including Part-X and XI thereof. 22. Mr. Madon learned sr. counsel has also relied upon the Benami Transactions (Prohibition) Act, 1988 and more particularly section 4 thereof. He also relies upon the decision of the Hon’ble Supreme Court reported in (2009) 7 SCC 363 – Suraj Lamp & Industries Pvt. Ltd v/s. State of Harayana and Another, and a decision of the Supreme Court reported in (2003) 12 SCC 35 – Bhagat Ram and Ano. v/s Suresh and others. He also relies upon another decision of the Supreme Court reported in AIR-1978 SC 1142 – Sone Lal & Ors. v/s. -: 19 :- The State of U.P. reiterating the principle that the legal presumption is that official acts must have been duly performed. 23. On the other hand, Shri. Samdani, learned Sernior counsel appearing for the first defendant submits that the version of the plaintiff is completely false and totally unbelievable. Inviting my attention to the verification of the pleadings / plaint, Shri. Samdani, learned Sr. counsel submits that the plaintiff himself has not stated anything about the deed of conveyance allegedly executed in his favour. It is the version of Yatin Prabhawalkar and Hemant Rane who have some documents / authorities executed in their favour that the plaintiff makes the allegations. Shri. Samdani, learned Sr. counsel submits that this is indeed a serious and grave matter. The criminal proceedings are pending. A person is reported to be dead, namely, Arjandas, a defendant to the suit. He has filed his personal affidavit. He is very much alive. He had appeared before the Sessions Court at the hearing of the anticipatory bail application. He submits that the plaintiff is a criminal inasmuch as he is accused of forging documents together with his accomplices, namely, Prabhawalkar and Rane. He is accused in the criminal case. He is an absconding and has never -: 20 :- appeared before the investigating machinery. Even in this Court he has not appeared during the course of this notice of motion. 24. It is unbelievable that plaintiff would not do anything after he is supposedly confronted with ownership rights a immovable property at Mumbai. Shri. Samdani, learned Sr. counsel submits that the consideration allegedly paid by the plaintiff of Rs.8.75 lacs was a substantial sum in the year 1979. The conveyance deed does not appear to have been executed after any negotiations or discussions. There is no reference to any prior document. The clear forgery is apparent inasmuch as some document allegedly executed on 20/11/1979 is planted in the records of the Sub-Registrar of Assurances and the Registration is obtained. The registration is stated to be of the year 2004. This date is not mentioned without any co- incidence. If the complete story is to be believed then plaintiff has to proceed on the basis that the erstwhile owner Arjandas is nowhere around. Therefore, by obtaining a forged and false document involving the original owner, the version in the plaint has been set up. Shri. Samdani, learned Sr. counsel submits that if the documents are perused even with a naked eye it would be apparent that the plaintiff -: 21 :- and his accomplices planted these documents. Even the registration is obtained fraudulently. The Registration Officer has clarified the entire position in his statement to the police. Relying upon the extract of the statement Shri. Samdani, learned Sr. counsel submits that although in law their evidentiary value is well settled, yet it is only with regard to pointing out the falsity of the version of the plaintiff himself that