:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE APPEAL FROM ORDER NO.977 OF 2007 APPEAL FROM ORDER NO.977 OF 2007 APPEAL FROM ORDER NO.977 OF 2007 WITH WITH WITH CIVIL APPLICATION NO.1337 OF 2007 CIVIL APPLICATION NO.1337 OF 2007 CIVIL APPLICATION NO.1337 OF 2007 M/s. Jairaj Estate A Partnership Firm, incorporated under the Indian Partnership Act, 1932, having its office at A-1, Success Chambers, 1232, Apte Road, Deccan Gymkhana, Pune- 411 004 through it’s partner Mrs.Alpana Surendra Sancheti, Age about 37 years Occ:Business, residing at Flat No.7, Pooja Co-op. Hsg. Soc. Bibvewadi, Pune 411 037 ..Appellant. (Orig.Deft.No.3) v. 1. Smt. Geetabai Pukhraj Vyas about 65 years, Occ: Business, and Household. 2. Mr.Santosh Pukhraj Vyas, age about 32 years, Occ:Business 3. Mr.Laxmikant Pukhraj Vyas Age: 40 years Occ: Business Nos.1 to 3 residing at Survey No.573, Plot No.7, Bibvewadi, Pune- 411 037. 4. Mr.Mohanlal Umedmal Dharmawat Age about 67 years Occ: Business 5. Mr.Govind Mohanlal Dharmawat Age about 52 years, Occ: Business Nos. 4 and 5 residing at 727, Guruwar Peth, Pune- 411 042. 6. Mr.Mahavir Kantilal Lodha Age: 44 yrs., Occ: Business, residing at survey no.18, Sukhsagar Nagar, Katraj, Pune 411 046. 7. Mr.Mishrilal Giridharilal Oza Age: 68 yrs., Occ:Business, residing at 206, Bhavani Peth, Pune 411 042. :2: 8. Mr.Rajendrakumar Khivraj Oza, Age:48 yrs., OCc: Business, 9. Mr.Rahul Rajendrakumar Oza Age:25 yrs. Occ:Business, 10. Mr.Niranjan Rajendrakumar Oza Age: 24 yrs., Occ: Business 11. Mr.Ritesh Rajendrakumar Oza Age: 23 yrs., Occ: Education. 12. Miss. Rakhi Rajendrakumar Oza Age: 25 yrs., Occ: Business Nos.8 to 12 residing at Daund, Taluka: Haveli, Dist. Pune. 13. Mr.Santosh Mishrilal Oza Age:34 years, Occ:Business, residing at 206, Bhavani Peth, Pune- 411 042. 14. Mr.Parag Walchand Oza, Age: 34 yrs., Occ:Business, residing at Himali Housing Society, near Mhatre Bridge, Erandwane, Pune 411 004. 15. Mr.Ramkishan Girdharilal Oza Age: 51 yrs., Occ:Business, residing at 206, Bhavani Peth, Pune- 411 042. 16. Mrs. Gulabbai Harilal Dabi Age: 70 yrs., Occ: Household, residing at Flat No.21, Profile Eden, Prabhat Road, Pune 411 004. 17. Mrs.Kusumbai Kanhyalal Oza Age: 50 yrs., Occ:Household, residing at Katraj Gaon, Near Primary School, Pune- 411 046. 18. Mr.Walchand Giridharilal Oza Age: 61 yrs., Occ: Business, residing at Himali Housing Society, near Mhatre Bridge, Erandwane, Pune 411 004. 19. Mr.Atul Walchand Oza, Age: 38 yrs., Occ: Business, residing at Himali Housing Society, Near Mhatre Bridge, Erandwane, Pune 411 004. :3: Nos.5 to 19 through constituted Attorney holder Shri Jagadish Prabhakar Deshpande, Age:53 yrs., Occ: Business, having office at Success Chambers, 1232, Apte Road, Pune 411 004 and Mr.Surendra Rikhabdas Sancheti, Age about 39 yrs., Occ: Business, having office at Success Chambers, 1232, Apte Road, Pune 411 004. 20. Pune Municipal Corporation, Pune notice and summons of the said appeal to be served on Commissioner Pune Municipal Corporation Pune at PMC Building, Shivaji nagar, Pune 411 005. 21. Chief Legal Advisor, Law Department, P.M.C. Building, Shivajinagar, Pune 411 005. 22. Mr.Rajkumar Kantilal Lodha Age about 44 yrs., Occ: Business, residing at 18 Sukhsagar Nagar, Katraj, Pune 411 046. 23. Shri Jagadish Prabhakar Deshpande Age about 53 years, Occ: Business having office at Success Chambers, 1232, Apte Road, Pune 411 004. 24. Mr.Surendra Rikhabdas Sancheti Age about 39 years, Occ: Business, having office at Success Chambers, 1232, Apte Road, Pune 411 004. ...Respondents. Mr.N.V.Walawalkar Sr. Counsel a/w S.G.Karandikar , advs. for the Appellant. Mr. Y.S.Jahagirdar Sr. Counsel a/w P.S.Dani , advs. for the Respondent Nos.1 and 2. Mr.S.N.Gawde, AGP for the Respondent No.2. Ms.Roopali Pawar h/for Mr.V.G.Mujumdar, advs. for the Respondent Nos.20 and 21 (P.M.C.) CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 5th February, 2008. DATE: 5th February, 2008. DATE: 5th February, 2008. :4: ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The original defendant no.3 has preferred this appeal against the order passed by the Civil Judge Senior Division on Application Exhibit 5 in the Special Civil Suit No. 1398 of 2007 restraining the defendant no.1 Municipal Corporation from issuing commencement or completion certificates to the defendant nos.3, 3a to 3d and 6 to 20 or anybody claiming through them based on the issuance of TDR and from accepting revised layout map if any, in respect of the suit property till the final disposal of the suit. The original plaintiff nos.1 and 2 are the respondent nos.1 and 2 before this Court. For the sake of convenience the parties may be referred to as per their original status in the suit. 2. Admittedly, the land Survey No.659/15 admeasuring 1 Hector 45 R situated at Bibwewadi, Munjeri and two other lands originally belonged to the Government and they were Inam Lands. One Girdharilal Oza had acquired the rights of Mirashi Tenant (permanent tenant) over the said lands prior to 1953. The Inam was abolished in 1953. However, Girdharilal Oza moved the Government for the purpose of re-grant of the land. Meanwhile, Tulshiram Vyas and one Mohanlal Dharmawat, who is defendant no.5 had entered into some agreement :5: for sale of the said land with Girdharilal Oza. Said Tulshiram and Mohanlal Dharmawat filed the Suit No.116 of 1968 against Girdharilal Oza for the specific performance of the contract of the sale of land. On 10-12-1973 the said parties submitted consent terms, on the basis of which decree was passed in favour of Tulshiram and Mohanlal Dharmawat. As per the Consent Terms and the decree, Girdharilal Oza was to obtain re-grant of the land from the Government within six months failing which Tulshiram Vyas and Mohanlal Dharmawat were to take steps for re-grant and thereafter, the sale deed could be executed in their favour. Admittedly, till before 1999, no steps were taken by any of the parties for the purpose of re-grant of the land. On 6-7-1999 defendant no.8 Mishrilal Oza, who is son of Girdharilal Oza, as a Manager of Oza Joint Family got the land re-granted on new and impartible tenure. It was made clear in the order of re-grant that the said property could be sold to Dharmawat and Vyas families only after obtaining necessary permission from the Government. 3. One Pukhraj Vyas was son of Tulshiram Vyas. The plaintiff Geetabai Vyas is a widow of said Pukhraj Vyas and the plaintiff no.2 Santosh Vyas and defendant no.4 Laxmikant Vyas are sons of plaintiff Geetabai and the deceased Pukhraj Vyas. According to the plaintiffs, :6: shortly before filing of the suit in the year 2007, they had come to know that the land was re-granted and attempts have been made to transfer the property to the defendant no.3, who is appellant before this Court by entering into some suspicious and mysterious transactions in conspiracy among all the defendants and the plaintiffs were being deprived of their rights in the suit property. According to them, in view of the consent decree in Suit No.116 of 1968, they are entitled to get sell deed of the land and they are also entitled to seek partition and their share in the said land as co-owners. According to them, their ancestor Tulshiram Vyas and the defendant no.5 Mohanlal Dharmawat had equal shares and, therefore, the plaintiffs are entitled to get half share in the property. For the sake of this appeal, it will not be necessary to give all the minute details about the allegations made in the plaint. Suffice to state that with the said contentions, plaintiffs filed the suit basically for the partition of the said land and for their shares and they also sought declaration that any transfer by the defendant no.4 to 20 in favour of the defendant no.3 was illegal and not binding on them. They also sought declaration and perpetual injunction restraining the defendant no.1 Corporation from sanctioning any plan or map for construction of any building on the said land or on the basis of this TDR, which was or might have been granted :7: by the Corporation in lieu of the said land. Plaintiffs also filed application Exhibit 5 for temporary injunction restraining the defendant nos.1 and 2 from allowing the defendant no.3 to use the said land or the TDR on any building or any other land. They also sought temporary injunction restraining the defendant no.1 from granting commencement certificates and completion certificates of the buildings, which might have been or may be commenced by the defendant no.3 or anybody on behalf of the defendant no.3. 4. Application was mainly contested by the defendant nos.1, 3a to 3d and 6 to 20. It appears that the defendant no.4, who is son of the plaintiff no.1 and the defendant no.5 Mohanlal Dharmawat did not contest the application. According to the contesting defendants after the re-grant of the land, the defendant no.4 Laxmikant Vyas and defendant no.6 Govind, who is son of the defendant no.5, representing their families, executed agreement dated 17-6-2000 and relinquished 50 R of the land out of the suit land in favour of the defendant no.8 Mishrilal Oza, who accepted the relinquishment as a manager of the Oza Joint Family. It is contended that the whole of the suit land was reserved for steel yard in the development plan of Pune city and, therefore, the land has been acquired by the Pune Municipal Corporation under the provisions of :8: M.R.T.P. Act .In lieu of the said land, Municipal Corporation granted Transferable Development Rights (TDR) of 9850 sq.mtrs. under one certificate and TDR of 4650 sq.mtrs. under the another certificate. Both these certificates were issued by the Corporation on 30th March, 2007. The defendant nos.4 to 6 representing Vyas and Dharmavat Families and defendant nos.8 to 20 representing Oza family executed power of attorney in favour of the defendant no.3 and on the basis of that power of attorney, certificates were issued in favour of the defendant no.3 and the defendant no.3 on the basis of that power of attorney has already transferred the said TDR in favour of the two parties namely, Lake Town Developers and M/s. Goyal Associates for construction. It is the contention of the Municipal Corporation that the TDR has already been granted in lieu of compensation of acquired land and it has also been loaded and used on other projects and, therefore, the Municipal Corporation can not stop commencement of such buildings nor it can refuse to issue completion certificate as per the rules. According to the defendants, the suit has been filed by the plaintiffs in collusion with the defendant no.4, who had entered into an agreement relinquishing rights of Vyas family in the said land. Not only this the plaintiff no.2 was attesting witness of the said agreement and, therefore, he had full knowledge about the said agreement. Plaintiffs and defendant no.4 were :9: living together and as such, plaintiffs were fully aware about developments, which had taken place from 1999 onwards. The defendant no.3 actually paid an amount of Rs.94,25,000/- to the Government towards the Nazrana, which is 50% of the price of the land as per the ready reckoner prepared by the Government. According to the defendant no.3, it had also paid an amount of Rs.1 crore 20 lakh to the defendant nos.4 to 7. Besides that the defendant no.3 had also paid an amount of Rs.50 lakh separately to the defendant no.4 Laxmikant Vyas. He has thereafter transferred the TDR in favour of the Lake Town Developers and M/s. Patel Goyal Associates for a consideration of Rs.2 crore 80 lakh. The said purchasers have utilised the said TDR on their different projects and the TDR has been fully utilised. It is contended by the contesting defendants that the land has already been acquired by the Corporation and, therefore, it is not available for the purpose of partition. It is further contended that the plaintiffs or their predecessors had never taken any steps for execution of decree, which was passed in the year 1973 and due to the lapse of more than 12 years, execution of that decree itself is barred by the limitation. As that decree was not executed and Vyas and Dharmawat Families never got the sale deed executed as per the said decree, they did :10: not get any title over the land and as they do not have any title over the land, the plaintiffs can not seek partition and separate possession over the same. It is contended that the TDR granted by the Municipal Corporation in lieu of the compensation for the said land acquired by it is moveable property because it is only a certificate and that TDR can be sold, transferred and utilised anywhere. Therefore, the suit for partition can not be successful, and hence, the plaintiffs can not claim perpetual or temporary injunction of any kind. 5. After hearing the parties, the learned trial Court granted temporary injunction against the respondent no.1 Corporation restraining it from issuing completion certificates of the buildings on which the said TDR has been used. That is why the original defendant no.3 has come to this Court. 6. Heard the learned senior counsel for the Parties. Perused the relevant documents and the impugned judgment. It is material to note that the learned trial Court also noted that the plaintiffs and their predecessors have not taken any steps for the execution of the consent decree passed in 1973 and it :11: may be barred by the limitation. The learned trial Court also noted that the plaintiff no.2 was attesting witness of the agreement dated 17-6-2000, which was executed by his brother defendant no.4 and the defendant no.6 Govind Dharmawat relinquishing their rights in the suit land in favour of the defendant no.8. However, the learned trial Court observed that merely because plaintiff no.2 was attesting witness of this document, it can not be presumed that he was fully aware about the contents of that document or the nature of the said document. The learned trial Court criticised the acts of defendant nos.4,6 and 8 observing that defendant nos.4 and 6 could not represent plaintiffs and defendant nos.5 and the defendant no.8 also could not be Manager of the Oza joint family. The learned trial Court found that these persons appear to have entered into conspiracy and executed power of attorney in favour of the defendant no.3 on the basis of which TDR was accepted by the defendant no.3 and he had transferred the said TDR to the other parties. The learned trial Court observed that though the execution proceedings in lieu of the decree in the suit has not been filed within the prescribed period of limitation either by the plaintiffs or their predecessors in title, one can not and should not neglect the fact that the execution of :12: the compromise agreement by the defendant nos.4 and 6 in favour of the defendant no.8 was without knowledge of the plaintiffs and behind their back as well as the defendant no.5. The learned trial Court observed that serious allegations have been made against them. The learned trial Court observed that it could not be overlooked that the defendant no.4 had never acted as a Manager of the Joint Family and the plaintiffs have legal right on the property. With these observations, the learned trial Court granted temporary injunction only to the extent of issuance of commencement or completion certificates on the buildings. 7. It is material to note that the suit was filed on 10th August, 2007 and on the same day application for temporary injunction was also filed. The impugned order was passed on 3-11-2007. During the arguments before this Court, the learned counsel for both the sides conceded that the construction has already been commenced and it is at the advance stage. Just to find out whether any portion of the TDR was still not utilised, this Court directed the defendant nos.1 and 2, who are respondent nos.20 and 21 in the present appeal, to file an affidavit in respect of the use of the said TDR. In response to the said direction, Mr.Prashant :13: Waghmare, the City Engineer of Pune Municipal Corporation has filed an affidavit dated 2nd February, 2008 before this Court wherein he has explained that TDR of 9850 sq.mtrs. has been received and loaded on plot no.1 of Survey no.11 at Katraj and it is utilised by Jayant H. Shah. He has also stated that commencement certificate has been issued on 30th March, 2007 in respect of that project. 4650 sq.mtrs. TDR granted under another certificate has been loaded on 3 different projects, which are being carried out on Plot No.2, CTS No.1714 Bopodi, on City Survey No.2447, 2462 and 1714 (Part) of Bopodi and on Survey No.13 (Part) Udaybaug Ghorpadi. Three commencement certificates were issued on 30th March, 2007 and in respect of last one, commencement certificate was issued on 1-8-2007. Thus, whole of the 14,500 sq.mtrs. TDR granted under the two certificates has been received, loaded and used on these four projects specified in the affidavit. In view of this it is clear that no more TDR is available about the disputed property. 8. Certain facts, which can not be disputed are that even though the consent decree was passed in 1973, as per the consent decree, Girdharilal Oza was to secure re-grant of the land within six months and in case of :14: his failure Vyas and Dharmavat were to make efforts to get the re-grant. Admittedly only after re-grant, the sale deed could be executed in their favour. Admittedly no attempt was made either by Girdharilal Oza or by Tulshiram Vyas or by Mohanlal Dharmawat for the re-grant of the land. It appears that nothing was done in this respect till 1998. Decree could have been executed within twelve years. Prima-facie, it appears that the execution of that decree is barred by the limitation and it was so even prior to 1999 when defendant no.8 Mishrilal son of Girdharilal Oza got the order of re-grant. Prima-facie it appears that the rights, which Vyas and Oza families had on the basis of consent decree were no more legally enforceable due to lapse of more than 12 years. Mishrilal Oza got the re-grant for and on behalf of Oza family as a Manager of the said Joint Hindu Family. However, in the said certificate, there was a clause that the land could be sold to Vyas and Dharmawat family after obtaining necessary permission from the competent authority as it was new and impartible tenure. It is material to note that no such permission was obtained from the competent authority for transfer of the said land to Dharmawat and Vyas family and hence the land could not be sold. Admittedly long before 1999, the suit land was reserved for steel yard :15: under the development plan of the Pune city and, therefore, the said land came to be acquired by the Municipal Corporation under the provisions of M.R.T.P.Act. As per the scheme, the Pune Municipal Corporation did not pay any compensation in cash but issued certificates of TDR, which could be transferred from person to person and could be loaded on any land or building as per the development rules of Pune Municipal Corporation. In view of these circumstances, prima-facie, the plaintiffs are not in a position to execute the concerned decree for specific performance of the contract granted in 1973 and they have also not taken sale deed of the land executed. As long as on the basis of that consent decree, sale deed was not executed, the plaintiffs could not claim any right or title over the said land. As a result of this, the said land could not be put to a partition among Vyas and Dharmawat families or within the members of the Vyas Family. Secondly, because the land itself is not available for partition, the suit, which is mainly filed for the purpose of partition and separate possession is not likely to succeed. Admittedly the TDR can be transferred like a moveable property and it can be sold from person to person till it is finally loaded and use on a particular project. :16: 9. The record also reveals that the defendant nos.4 and 6 entered into an agreement on 17-6-2000 whereby they relinquished their rights in the said property in favour of the defendant no.8 Mishrilal Oza. Plaintiff no.2 Santosh, who is brother of the defendant no.4 and son of the plaintiff no.1, was a signatory to that document as witness. It is material to note that during the relevant period, defendant no.4 and plaintiffs were living together, and, therefore, it is impossible to believe that the plaintiff no.2 was not aware about the nature of the contract or the terms of the contract, which he had attested. After that power of attorney came to be executed by Oza Family in favour of the defendant no.7 Lodha, defendant no.6 Govind Dharmawat and defendant no.4 Laxmikant Vyas. It appears that on 22nd September, 2005, defendant no.3 entered into an agreement with members of Oza family, defendant no.6 Govind Dharmawat and Laxmikant Vyas about transfer of the benefits in respect of suit land in the form of TDR. For this the consideration was Rs.1 crore 20 lakhs. Record further reveals that besides the payment of Rs.1 crore 20 lakhs to the members of Oza Family, Dharmawat and Laxmikant Vyas and a further amount of Rs.50 lakh was paid to Laxmikant Vyas by cheque dated 5-2-2007 by :17: the defendant no.2. Thus, the defendant no.4, who was member of the family of the plaintiffs and also eldest male member of that family had received huge amount in consideration of relinquishment of rights in the said property. Record reveals that the defendant no.3 paid Rs.94,25,000/- as Nazrana to the Government on 16-3-2007. This was half of the market value of the land as per the Ready Reckoner. On the basis of this and other necessary documents, which were executed, TDR could be accepted by the defendant no.3 and finally the defendant no.3 transferred the said TDR in favour of the two others namely, M/s. Patel Goyal Associates and M/s. Lake Town Developers for a consideration of Rs.2 crores 80 lakhs. 10. The learned trial Court granted temporary injunction only on the basis of doubtful legal rights of the plaintiffs, particularly after observing that execution of the consent decree appeared to be barred by the limitation. It is difficult to understand how irreparable loss would be caused to the plaintiffs if the temporary injunction could be refused. Infact, as pointed out earlier, plaintiffs are not in a position to get the decree for partition and separate possession of the land. At the most they could claim share in the :18: TDR, which is saleable as moveable property in the market. They could assess the price of TDR and infact for the purpose of valuation of the suit, they did assess value of the TDR. Therefore, it can be said that they could at the most claim money decree in respect of their rights in the property and nothing more. On the other hand to the knowledge of the plaintiffs long before filing of the suit, the defendant no.3 had taken TDR and had also transferred the said TDR to other parties, who had started actual construction of the buildings. The learned trial Court noted that there was nothing to show that commencement certificate was issued and construction was commenced but this observation does not appear to be correct. The affidavit filed by the City Engineer clearly shows that the commencement certificates were issued in respect of three buildings on 30th March, 2007 and about one building on 1-8-2007. Purchasers of the TDR have loaded the said TDR on their projects at four different places. Naturally large number of people must have invested their hard earned money for the purchase of flats or premises in the proposed buildings. If the defendant no.1 is restrained from issuing completion certificates of those buildings, the builders as well as the