-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 731 OF 2008 W I T H CIVIL APPLICATION NO.854 OF 2008 IN APPEAL FROM ORDER NO.731 OF 2008 M/s. Dream Properties ........Appellant (Orig.Defendant no.1) Versus Smt.Pushpa Chandrakant Devalikar & Ors. ..Respondents no.1 & 2 (Orig.Plaintiffs) ..Respondents no.3to24 (Orig.Defendants) ========== Mr.Uday Warunjikar, adv.for appellant. Mr.D.S.Sakhalkar i/by. Manjusha Kumbhar, adv.for respondents no.1 and 2. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 16TH OCTOBER, 2008. P.C. : 1. The appellant who is original defendant no.1 takes exception, by the present appeal, to the interim order dated 21st June, 2008 passed in Special Civil Suit No.889 of 2008. By the impugned order, the appellant has been restrained from -: 2 :- erecting construction on the suit property and/or from creating any sort of third party interest therein pending disposal of the suit. Respondents no.1 and 2 are the original plaintiffs. Respondents no.3 to 24 are the original defendants. The parties will hereinafter be referred to by their original nomeclature. 2. Defendants no.16A to 22 (hereinafter referred to as `Bharitkar Family') were the owners of land admeasuring 1 hectare 43 Are situate at Survey no.24, Hissa no.1. Out of the said land, plaintiff no.1 and defendant no.16 purchased undivided and unidentified land admeasuring 5 Are and 6 Are respectively vide registered sale deed dated 20th February, 1992. As per the sale deed, actual possession of the land was to be given to plaintiff no.1 on the Bharitkar Family laying out plots for the purpose. 3. On 22nd July, 2007 plaintiff no.1 granted development rights in respect of the undivided and unidentified land to plaintiff no.2. It is only thereafter, after waiting for more than 16 years the plaintiffs on 7th May 2008, filed the suit herein seeking several reliefs including partition and separate possession. Perusal of the plaint shows that almost all the prayers sought therein are vague in nature, in as much as, they do not contain description of the suit property. The -: 3 :- reliefs at prayer clauses (b), (c) and (d) are for cancellation of deeds. These reliefs do not even name the persons who are parties thereto. By prayer clause (a), the plaintiffs seek a declaration that plaintiff no.1 is the owner of “5 Are land, out of the suit land”. By prayer clause (h), they seek that “partition of plaintiffs 5 Are land out of 112 Are land to be effected”. And by prayer clause (i) they ask for directions to defendants no.1 to 15, 16A and 17 to 22 to hand over vacant possession of land admeasuring 5 Are. The other reliefs relate to creation of third party interest and parting with possession. There can be no order in terms of vague prayers. Therefore, the plaintiffs are not, as the plaint stands today, likely to get final reliefs in the suit. In a suit in which final reliefs cannot be granted, there can be no interim reliefs either. 4. It is obvious from the facts of the case, that the main purpose of filing the suit is to seek partition of the land admeasuring 1 Hectare 43 Are situate at Survey no.24, Hissa No.1 to enable plaintiff no.1 to enjoy separate possession of the land admeasuring 5 Are purchased by her in the year 1992. The plaintiffs have been constrained to seek other reliefs only for warding off the effect of the events/transactions that took place during the period of next sixteen years. In these -: 4 :- circumstances, it can be reasonably expected that the plaint would contain some explanation as regards the delay in approaching the court. The delay of sixteen years is long enough to warrant an explanation. However, no such explanation can be found in the plaint. All that the plaintiffs have to say at paras 19 and 23 of the plaint, is that on 19th October, 2007 they deposited charges of Rs.2250/- for demarcation of the land of plaintiff no.1 when they learnt for the first time that there is no vacant land left and somebody has started the work of construction at site. Therefore, according to the plaintiffs the cause of action to file the present suit arose for the first time in October, 2007. The sale deed in favour of plaintiff no.1 does not specify boundaries of the land admeasuring 5 Are purchased by her. Therefore, one wonders as to how demarcation of that land by government authorities could be done. The only way in which plantiff no.1 could obtain actual possession of the land was either by calling upon the Bharitkar Family to partition the land or insist upon the layout plan as mentioned in the document. Plaintiff no.1 had never called upon Bharitkar Family to take up either course of action prior to filing of the suit. Not just that, but, she did not even get the revenue records mutated until 7th June 2006 to enter her name as owner of undivided share to the extent of -: 5 :- 5 Are in the land. She has thus clearly been sleeping over her rights. 5. During the intervening years, land admeasuring 31 Are out of Survey no.24, Hissa No.1 came to be transferred to Vijay Shirodkar and five others. Further, the Bharitkar family by registered sale deed dated 16th July, 2004 sold the remaining land admeasuring 1 hectare 12 Are (which included the land sold to plaintiff no.1 and defendant no.16) alongwith land admeasuring 9 Are from Survey No. 24/5/1 to M/s. Astron Plastic Industries Pvt. Ltd. Defendant no.18 is the owner of that company. The said company in turn sold the entire property to 13 persons i.e. defendants no. 2 to 13 and defendant no.17 by registered sale deed dated 16th July, 2007. Defendants no.2 to 13 then executed development agreement dated 5th December 2005 in favour of defendant no.1. Pursuant to the agreement, defendant no.1 has carried out extensive construction on the suit land and set up a housing complex thereon. The flats in the housing complex are already sold to third parties. Several flat holders have taken loans from financial institutions against their flats. These are the facts on the background of which the grant of interim reliefs to restrain the defendants from carrying out further construction or creating any third party rights are required to be considered. -: 6 :- 6. Mr.Warunjikar, the learned counsel for defendant no.1 submits that the plaintiffs who have been guilty of serious laches are not entitled to any relief of injunction. Besides, the flat purchasers in the housing complex would be affected by the interim reliefs passed in the suit. None of the flat purchasers have been impleaded to the suit. Defendant no.1 has produced photographs of the suit land showing extensive construction which is in the completed stage including gardens at site. The learned trial judge at para-13 of the order, observes that, it is evident from the photographs that major portion of the land appears to be still vacant and open with debri and building material dumped on it. Therefore, a specific query was put to Mr.Warunjikar. He stated that the land seen vacant in the photographs is actually the space required to be left compulsorily open under the building laws. The plaintiffs themselves have been unable to point out any specific portion of the suit land which is not part of the housing complex and which can be available to them for separate possession on partition. The extent of the construction seen in the photographs could not have been possible within a short time. It has been submitted on behalf of defendant no.1, that the work of construction commenced in the year 2005. The present suit was filed two years thereafter. Considering the -: 7 :- above factual position, there was no point in granting an interim injunction restraining the defendants from carrying out any construction on the suit property. 7. Mr.Sakhalkar, the learned counsel for the plaintiffs, submits that since plaintiff no.1 is owner of a portion admeasuring 5 Are of the land at Survey no.24, Hissa No.1, there was no transferable interest left in Bharitkar Family in respect of that portion of the land for transfer to defendants no.3 to 13. This makes title of these defendants defective. The defendants who have been in possession of the land with such defective title should not be allowed to defeat the lawful rights of plaintiff no.1. He further submits, that defendants no.3 to 13 must be deemed to have been aware of the sale by Bharitkar Family in favour of plaintiff no.1, since registration of the sale deed is notice to all. The submissions of Mr.Sakhalkar are technically correct. However, the facts and circumstances of the case show that plaintiff no.1 had not taken any steps until 7th June, 2006 to get the revenue records mutated in order to show herself as owner of undivided portion of land at Survey no.24, Hissa no.1. Therefore when in the year 2004 the next transaction of sale took place, there was no change in the revenue records. Besides, the land owned by plaintiff no.1 forms a very small -: 8 :- portion of the land which has been sold to the defendants. In these circumstances, the present instant case cannot be said to be a plain and simple case of double sale of the same property. 8. Perusal of the impugned order, shows that the learned judge has not considered the defects in the prayer, unexplained delay on the part of the plaintiffs in securing separate possession of the land purchased by plaintiff no.1, the defendants being purchasers for value, completion of the work of construction and the sale of flats in the housing complex to several persons. Taking these factors into consideration, there could not have been any order of interim injunction in favour of the plaintiffs. However, at the same time the interest of the proprietary rights of the plaintiffs in respect of the land admeasuring 5 Are must be protected in some way. In my considered opinion, the only way in which the interest of plaintiff no.1 can be protected is by directing defendant no.1 to deposit the amount of market value of the land admeasuring 5 Are in the court. Mr.Warunjikar, states that as per the ready reckoner of the year 2008 the present market value of the plaintiffs land would be Rs.3,68,500/-. Hence, the order. -: 9 :- O R D E R 9. (i) The appeal from order is allowed. The impugned order dated 21st June, 2008 passed by the 8th Joint Civil Judge Senior Division, Pune in Special Civil Suit No. 889 of 2008 is set aside. The application at Exhibit-5 for interim reliefs is dismissed. (ii) The original defendant no.1 (appellant) is directed to deposit Rs.3,75,000/- in the trial court within a period of four weeks from today i.e on/or before 14th November, 2008. On such deposit being made, the amount be invested in a fixed deposit initially for a period of five years. In the event, original defendant no.1 fails to deposit the amount within the time specified, the impugned order shall stand revived without any further reference to the court. Sd/- [SMT.R.P.SONDURBALDOTA,J] -: 10 :-