1 nms2819-09 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2819 OF 2009 IN SUIT NO.1663 OF 2009 Bhairav Co-op.Housing Society Ltd. .. Plaintiffs Vs. M/s.Ganesh Builders and Ors. .. Defendants Mr.Niranjan Waghela i/b M/s.Pandya and Co. for the plaintiffs Mr.Pankaj Shah for defendant nos.9 and 10 Mr.T.Dahibawkar i/b M/s.Dahibawkar and Co. for defendant nos.1 to 5 CORAM : S.C.Dharmadhikari, J. DATE : December 10, 2010 P.C. : 1. This is a Notice of Motion for interim relief filed in a suit under section 6 of the Specific Relief Act, 1963. It is stated that the plaintiff Co-op.Housing Society was in uninterrupted and continuous possession of the property shown in the plan Annexure C to the plaint alongwith recreation ground, storm/rain water ‘ ’ drain, sewage/septic tank and electric sub-station. It is alleged that on 17.10.08 2 nms2819-09 members of the plaintiff society saw some persons claiming on behalf of defendant nos.9 and 12 making preparation to put up a wall on the plot of the plaintiffs which prevented the direct access of the plaintiff s property to the ’ Recreation ground etc. Members of the plaintiff society took objection to the same and the matter was taken to the police. 2. On 18.10.08 once again defendant nos.9 and 12 started making preparations for construction of a wall. Therefore, letter was addressed calling upon defendant nos.9 and 12 not to carry out construction of the said wall. The members of the plaintiff contacted the police but the police instead of assisting the plaintiff colluded with the defendant nos.9 and 12. These are the allegations in para 43 to 46 and therefore, it is stated that this suit under section 6 of the Specific Relief Act is maintainable. Reliance is also placed upon the statement made in para 22 of affidavit in reply affirmed on 19.4.10. 3. After having heard learned counsel appearing for the plaintiffs and perusing the documents, I am of the view that what the plaintiffs are projecting is an act of encroachment on the plaintiffs property, by the defendants. 3 nms2819-09 4. This is a clear case where the claim of the plaintiffs is disputed and the act of the defendants in putting up and constructing the boundary wall amount allegedly to encroaching on the plaintiffs right to property. Even their act of demolishing the wall would on their own showing amounts to trespassing on the plaintiffs property. Thus, all this makes out a case not under Section 6 of ’ the Specific Relief Act, 1963 but a title dispute and the isolated statement in para 22 of the affidavit in reply would not make out a case for grant of interim relief. It is not clarified as to how the pleadings would satisfy the requirement of section 6 of the said Act. 5. In my view, the remedy of the plaintiffs to set right the alleged wrong is not to institute the suit of the instant nature but to claim substantive rights in the property on the basis that the same has been encroached by the defendants. The Suit is thus, prima facie not maintainable and is misconceived. As a result of the above discussion, there cannot be any interim relief in favour of the plaintiffs. Motion is therefore dismissed. No costs. ( S.C.Dharmadhikari, J. )