1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1141 OF 2009 WITH CIVIL APPLICATION NO. 215 OF 1020 IN NOTICE OF MOTION NO. 1319 OF 2008 IN S.C. SUIT NO.288 OF 2007 Ravi Ashish Land Developers Ltd. ... Appellant (Org.defendant) Vs. Shri Ramprakash S. Singh & Anr. ... Respondents (Org.Plaintiffs) Mr.AN. Narula, i/b. M/s. Jhangiani, Narula & Associates,Advocates, for the appellant. Mr.Ditendra Mishra,Advocate, for the respondents Nos. 1 & 2. CORAM: J.H.BHATIA, J. DATE : 6th April, 2010. P.C. 1. Heard the learned Counsel for the parties. Perused the relevant documents and the impugned order. 2. The respondents before this Court are the original plaintiffs and the appellant is the original defendant. The plaintiff filed S.C. Suit no.288 of 2007 and took out Notice of Motion No.1319 of 2008 seeking injunction restraining the 2 defendant from transferring, alienating or creating third party rights and interest in respect of the flats premises in the new building constructed on the plot of land bearing Survey No.261 (part) having CTS No.620 (part) situated at Kanya Pada, Gokuldham, Goregaon (East), Mumbai. According to the plaintiffs, they were in occupation of certain structures and the defendant, who is a developer, had made construction of the new building on that land. He had agreed to give transit accommodation and also permanent accommodation to them in the new building. It was contended that the defendant was trying to forcibly evict them from the said structure without providing either transit accommodation or permanent accommodation. 3. The Notice of Motion was opposed by the defendant on the ground that the plaintiff Nos. 1 and 2, who are the husband and wife inter-se, were in occupation of the two structures in that slum area and it was agreed to provide them initially temporary alternative accommodation and after construction of the building to provide permanent accommodation of 225 sq. ft. (carpet) area to each of them in the new building. It was contended that both of them have been individually allotted the tenement with 225 sq. ft. carpet area in the new building and they have also taken possession of the same. Therefore, now they cannot claim anything more nor they can continue occupation of the structures on the 3 land. The trial Court after hearing parties granted temporary injunction by the impugned order dated 27.7.2009. That order is challenged in the present Appeal. 4. On perusal of the record, it appears that on 23.3.96, two separate agreements were entered into : one between the defendant and the plaintiff No.1 and another between the defendant and the plaintiff no.2. As per the agreement with the plaintiff no.1, it was agreed that he would be provided permanent accommodation in the new building to be constructed by the defendant. The area of the flat would be 225 sq. ft. carpet i.e. 280 sq. ft. built up and the said flat would be in the building No. B-4, Wing No__ Shop No.2 on the ground floor. As per similar agreement the plaintiff No.2 was to get a flat having 225 sq. ft. carpet i.e. 280 sq. ft. built up area and the said flat would be in the building No.B/4, Wing B, Flat No.101 on the first floor. Thus, as per these two agreements, each of them was to get one flat each with 225 sq. ft. carpet area. The record reveals that on 16.4.2000, a supplemental agreement was executed between the plaintiff No.1 and defendant and it was recorded that he was in possession of 570 sq. ft. on which a structure was standing and in lieu of that he had agreed to acquire alternative accommodation of 225 sq. ft. carpet area. In the next para, it was mentioned thus: "whereas the said Agreement executed in the year1996 is lost and/or misplaced and the same is not readily traceable”. In view of this, the 4 parties had executed the said supplemental agreement dated 16.4.2000. In this it is also mentioned that the tenement which was assured to him in building B-4 was not available and therefore in lieu of that agreed tenement, he shall receive the tenement of 225 sq. ft. carpet area in building B-5. That agreement records that before execution of the supplemental agreement, possession of the tenement No. 104 in building B-5, Wing A was already given to the plaintiff No.1 and he confirmed having received possession of the same. In para 6 of the said agreement, he also confirmed that save and except the said area of 570 sq. ft. and the structure thereon, he had no other area of the land in his possession out of the said Survey No.261. 5. Supplemental Agreement dated 16.5.2005 between the plaintiff no.2 and the defendant reveals that she was previously in occupation of 250 sq. ft area on which she had constructed a structure and in lieu thereof, she had agreed to acquire the alternative accommodation of 225 sq. ft. carpet area. It also shows that the agreement executed in 1996 was lost and/or misplaced and the same was not readily traceable. It also reveals that the tenement in building no.B-4 which was assured to her in the earlier agreement was not available and therefore, she would receive the tenement of 225 sq. ft. carpet area in the building B-5. In para 3 of the said agreement, it was mentioned that before execution of the said 5 Supplemental Agreement, the tenement No.103 in the building B-5 Wing A was already given to the plaintiff No.2 and she confirmed having received the possession thereof. In para 6 of this agreement also, it was specifically mentioned that save and except the said area of 250 sq. ft. and the structure standing thereon, she had no other area of the land in her possession out of the said Survey No. 261(part) and had no other structure or hutment on any part or portion of the said land. 6. On perusal of this documentary evidence, it is clear that the plaintiff No.1 was in occupation of 570 sq. ft. area with a structure thereon and the plaintiff No.2 was in possession of 250 sq. ft. area with structure standing thereon. Admittedly, these structures were in the slum area and the development of the land was undertaken under the Slum Rehabilitation Scheme and as per the Scheme, each of the occupants in the Slum area was to be provided permanent accommodation having 225 sq. ft. carpet area in the new building. Accordingly, the agreements were executed on 23.3.96. As thosedocuments were either lost or misplaced and were not readily traceable and as the tenements which were assured to them in those agreements were not available,the defendant/developer provided them accommodation in B-5 building. For that purpose, the supplemental agreements dated 16.4.2000 and 16.5.2000 were entered into 6 wherein they confirmed to have received the possession of the permanent accommodation in the new building. They also confirmed that they did not possess any other piece of land or any other structure or hutment in the new area. In view of this, it is clear that having taken possession of the permanent accommodation as per the agreement they do not have any legal right to retain the structures in lieu of which they got the permanent accommodation. 7. The impugned order reveals that though there was no pleading, the learned counsel for the plaintiffs had tried to argue that they were in fact in occupation of 5 pieces of land and structures and therefore they were entitled to 5 tenements in the new building. Same argument was advanced before this Court. Before this Court, original agreements dated 23.4.96 are produced, copies of which were already on record. The supplemental agreements were also produced by the defendant. Besides this, the learned Counsel for the appellant placed reliance on a letter dated 22.12.98 whereby the plaintiff No.2 was requested to take possession of the transit accommodation as the structure was obstructing the construction of the building. 8. The learned Counsel for the plaintiffs/respondents tried to contend that there were in all five agreements in respect of five structures. For this he 7 relied on two agreements of 1996 and two Supplemental agreements of 2000 and a letter of allotment of transit accommodation. The argument is without any basis. As pointed out earlier, the contents of the Supplemental Agreement of 2000 clearly shows that the plaintiff no.1 was in occupation of the piece of land of 570 sq. ft. with a structure and plaintiff No.2 was in occupation of the land 250 sq. ft. with a structure and they were not in possession of any other area or structure. In lieu of that they were to be provided permanent accommodation of 225 sq. ft. carpet area each in the new building as per the agreement of 23.3.1996. As the original agreement was not coming forth at that time, supplemental agreement was executed whereby they confirmed to have received the permanent accommodation as per the agreement in different buildings. The letter to shift the transit accommodation does not provide any right to it independently of the said agreement. It appears that the original agreements of 23.3.96 which were not traceable, have been found and plaintiffs are trying to misuse the same. 9. The learned trial Court did not consider these aspects before granting temporary injunction. Taking into consideration the material before the Court, it is clear that the plaintiffs have already taken possession of the permanent accommodation as per the agreement in building B-5 and they cannot retain possession of the old structures in that slum area. It is true that temporary 8 injunction is a discretionary relief and normally appellate Court will not interfere in the same unless it is per se wrong, illegal or perverse. In the present case, the trial Court granted the temporary injunction without any material in support of the same and without application of mid to the facts. Therefore, the learned Counsel for the plaintiff/respondents relied upon Rame Gowda (Dead) By Lrs. vs. M.Varadappa Naidu (Dead) byLrs. & Anr. 2004 (1) SC 769 in support of his contention that in view of the settled position, he cannot be dispossessed without following due process of law and if dispossessed,he can take back possession under Section 6 of the Specific Relief Act. In view of the facts and circumstances of the present case, the said authority cannot be used to support the claim of the plaintiff. In the present case, there has been agreement and that agreement has been acted upon and the plaintiffs have already taken possession of the permanent accommodation as per that agreement. Therefore, they cannot get any protection from the Court. 10. For the aforesaid reasons, the Appeal is allowed. The impugned order is hereby set aside and the Notice of Motion stands dismissed. 11. As the Appeal itself is disposed of finally, C.A. does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) 9