1 WP 4068/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4068 OF 2010 Neeta Mukesh Joshi .. Petitioner V/s Homeland Realtors and Developers Pvt. Ltd. and Anr. .. Respondents Mr. Sunil C. Dubey for the petitioner. Mr. Anil Singh, with Mr. Anil D. Yadav and Mr. Ashwin R. Singh i/b Mr. D.R. Shah for respondent no.1 AND WRIT PETITION NO. 1655 OF 2010 Manjula Babu Dhodi & Ors. .. Petitioners V/s Neeta Mukesh Joshi & Anr. .. Respondents Mr. J.G. Damani for the petitioners. Mr. Anil Yadav with Mr. Ashwin R. Singh i/b Mr. D.R. Shah for respondent no.1. CORAM: D.G. KARNIK, J. DATE : 15TH JULY 2010 P.C. : 1. These two writ petitions arises out of two chamber 2 WP 4068/10 summons taken out in the same suit, namely L.C. Suit No. 1786 of 2009 filed in the City Civil Court, Mumbai. Hence, both the petitions are heard and disposed of by this common order. 2. The petitioner in Writ Petition No. 4068 of 2010 is Mrs. Neeta Mukesh Joshi (hereinafter referred to as “Neeta”). Neeta claims to be in possession of a shade situated in the property bearing survey no. 21, hissa no. 3 (part), CTS no. 561 (part) of village Valnai, Taluka Borivali, Mumbai. The land admeasures 297 sq. ms. and there are several hut type structures in possession of different persons and Neeta claims to be in possession of one such structure. Respondent no.1 in Writ Petition No. 4068 of 2010 (hereinafter referred to as “Homeland Realtors) claims to be the owner of the land on which the suit structure is situated. Mrs. Manjula Babu Dhodi and her kins (for short “Dhodis”), who are the petitioners in Writ Petition No. 1655 of 2010, claim to be protected lessees of the land on which the suit structure is situated. While according to Neeta the land belongs to one Panchal from whom she claims to have taken on rent the suit structure. 3. Municipal Corporation of Greater Mumbai (for short 3 WP 4068/10 “the MCGM”), which is respondent no.2 in both the writ petitions, issued to Neeta a notice under section 351 of the Mumbai Municipal Corporation Act, 1888 (for short “MMC Act”) for demolition of the suit structure on the ground that the suit structure was unauthorised and constructed without prior permission of the MCGM. Thereupon, Neeta filed a suit bearing L.C. Suit No. 1786 of 2009 for injunction restraining the MCGM from demolishing the suit structure. In the said suit, Homeland Realtors took out a chamber summons for being joined as a party to the suit on the ground that they were owners of the land on which the suit structure was erected and they would be proper parties to the suit. Similarly, Dhodis also took out another chamber summons for being joined as parties to the suit on the ground that they were the protected lessees of the land on which the suit structure was erected. Both the chamber summonses were rejected by the learned Judge on the ground that neither Homeland Realtors nor Dhodis were necessary parties to the suit. The order passed in the chamber summons taken out by Dhodis is impugned by them by filing Writ Petition No.1655 of 2010. 4. Order rejecting the chamber summons taken out by 4 WP 4068/10 Homeland Realtors was challenged by them by filing Writ Petition Nos. 544 to 549 of 2010 (more than one writ petition were filed because occupiers of structures had filed separate suits against the MCGM). The writ petitions filed by Homeland Realtors were disposed of by this Court (Coram: A.S. Oka, J.) by an order dated 15 February 2010 which reads thus: “1. Heard learned counsel appearing for the parties. Chamber Summons taken out by the petitioners before the Trial Court are on the basis of the contention of the petitioners that they are the owners of the land below the offending structures which are the subject matter of the suits. There is no finding recorded by the Trial Court while rejecting the Chamber Summons filed by the petitioners that the petitioners have failed to prove prima facie title to the land below the offending structures. If the petitioners prima facie prove the existence of ownership rights in respect of the land below the structures, the petitioner may be impleaded as a necessary and/or a proper party to the suits. As the impugned order is erroneous, the petitions need to 5 WP 4068/10 be admitted for final hearing. The learned counsel for the original plaintiff (first respondent) states that instead of keeping the petitions pending in this Court, the Trial Court be directed to rehear the Chamber Summons taken out by the petitioners in accordance with law. The said request is reasonable. 2. Hence, the writ petitions are disposed of by following order :- A) The impugned orders are quashed and set aside; B) The Chamber Summons taken out by the petitioners are restored to the file of the Trial Court; C) The Trial Court will decide the Chamber Summons afresh in the light of the observations made by this Court; D) The Chamber Summons shall be disposed of within a period of eight weeks from the date on which an authenticated copy of this order is 6 WP 4068/10 produced before the Trial Court; E) All contentions of the parties on the merits are kept open; F) The petitions are partly allowed in above terms; G) Pending civil applications will not survive and the same are disposed of. ” (underlining supplied) In pursuance of the said order of remand, learned Judge of the City Civil Court heard the chamber summons of Homeland Realtors afresh. By an order dated 30 March 2010, the learned Judge of the City Civil Court allowed the chamber summons taken out by Homeland Realtors for joining them as parties to the suit. That order is impugned by Neeta by filing Writ Petition No. 4068 of 2010. 5. The order of remand passed by this Court on 15 February 2010 is binding on this Bench and cannot be reopened in the present writ petition by a coordinate Bench of 7 WP 4068/10 the same Court. I am bound by the direction given by this Court that if Homeland Realtors prima facie prove the existence of ownership right in respect of the land below the structure, they may be impleaded as necessary and proper party to the suit. The learned Judge of the City Civil Court on careful scrutiny of the material adduced before him, has come to the conclusion that Homeland Realtors have prima facie proved the title to the land below the structure. This finding of fact is a possible finding of fact which is not shown to be in any way perverse. In the light of the said finding of fact recorded by the City Civil Court and the order dated 15 February 2010 by Oka, J. who has held that in the event Homeland Realtors prima facie prove ownership right in respect of the land below the structure, they would be impleaded as necessary and/or proper party to the suit, the City Civil Court has committed no error in impleading Homeland Realtors as parties to the suit. Consequently, Writ Petition No.4068 of 2010 deserves to be rejected and is hereby rejected. 6. As regards Writ Petition No. 1655 of 2010, by a parity of reasoning it must be held that if Dhodis prima facie prove their leasehold title to the land below the offending structure, 8 WP 4068/10 then and then alone they could be joined as parties to the suit. No material was placed before the City Civil Court to show that Dhodis were lessees in respect of the land below the structure on which the suit structure is situated. Learned counsel appearing for Dhodis, however, submits that the name of ancestor of Dhodis was shown in the old 7 x 12 extracts, and invites my attention to page 38 of the Writ Petition No. 1655 of 2010. Photocopy of the 7 x 12 extracts of survey no. 15/4 at page 38 pertains to the years from 1935-36 to 1953-54. Perusal of the 7x12 extracts shows the name of Francis D’Souza in the “occupants” column. Homeland Realtors claim to have purchased the land from Francis D’Souza. In the other right column of the 7 x 12 extract, the name of “Kavlya Dubla” is shown as protected tenant. There is no material on record to show that “Kavlya Dubla” is the ancestor of Dhodis. Counsel for Dhodis also invited my attention to pages 56 and 58 which are photocopies of the inquiry register. They also show the name of “Kavlya Dubla” to be the lessee. However, as stated earlier, Kavlya Dubla is not proved to be ancestor of Dhodis. Consequently, there was no material on record either before the City Civil Court or this Court to even prima facie show that Dhodis are or were protected lessees of the land below the suit structure. Since 9 WP 4068/10 they have not been shown to have interest in the land below the suit structure, the trial court committed no error in rejecting their chamber summons for impleading them as parties to the suit. 8. For these reason, Writ Petition No.1655 of 2010 also deserves to be rejected and is hereby rejected. (D.G. KARNIK, J.)