1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.656 OF 2007 IN NOTICE OF MOTION NO.742 OF 2007 IN SUIT NO.528 OF 2007 Jagdish Jayanand Vyas ..... Appellant V/s. M/s.M.M.Corporation & Ors. ..... Respondents WITH APPEAL NO.657 OF 2007 IN NOTICE OF MOTION NO.1285 OF 2002 IN SUIT NO.1503 OF 2002 Jagdish Jayanand Vyas ..... Appellant V/s. M/s.M.M.Corporation & Ors. ..... Respondents Ms.Rajani Iyer, Sr.Counsel i/b K.P.Tiwari, for the Appellant. Mr.Arif Bookwalla, Sr.Advocate, i/b Thakore Jariwala & Associates, for Respondent No.1. Mr.D.H.Mehta, Advocate, for Respondent No.2. CORAM : SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ. 2 DATED : JUNE 24, 2008. ORDER ORDER ( PER R.M.S.KHANDEPARKAR, J.) 1. Heard. 2. Since common questions of law and fact arise in both these appeals, they were heard together and are being disposed of by common order. 3. The appellant challenges the order dated 18-06-2007 passed in notice of motion No.1285 of 2002 in Suit No.1503 of 2002 and notice of motion No.742 of 2007 in Suit No.528 of 2007. Both the notices of motion were disposed of by common order dated 18-06-2007 by the learned Single Judge. 4. By the impugned order, the learned Single Judge has allowed the notice of motion No.1285 of 2002 taken out by the purchaser and has made the same absolute in terms of clauses (b) & (c) in the said notice of motion subject to conditions specified in paragraph 28 of the impugned order and has dismissed the notice of motion No.742 of 2007 taken out by the set of co-owners, who are the appellants in these appeals. 5. A bare perusal of the impugned order discloses that the learned Single Judge on detailed analysis of the materials placed before him has 3 arrived at the findings that there was a concluded contract between the parties recorded in writing on 04-11-1985, which was modified and altered to the limited extent by further consideration amount in terms of the writing dated 23-10-1989 and further that the possession of the suit property was delivered to the purchasers on 20-09-1989. After the disposal of the suit No.309 of 1983, wherein admittedly the possession was with the Court Receiver and such possession of the Court receiver came to an end consequent to the disposal of the said suit. The said findings are clearly borne out from the record apart from the fact that there is a clear admission to that effect by the appellants in their affidavit filed in Appeal No.873 of 1998, which arose from order passed in notice of motion No.2668 of 1997 in Suit No.1526 of 1996 which was apparently the litigation between the co- owners of the property. In the affidavit filed by Mr.Jagdish V. Vyas, it was clearly stated that M/s.M.M.Corporation were put in possession of the suit property upon Court Receiver in the said suit No.309 of 1983 handing over the possession thereof and such delivery of possession was pursuant to the agreement dated 04-11-1985. 6. It was sought to be contended on behalf of the appellants, though there is statement in the said affidavit that the possession was delivered to the respondents pursuant to the said agreement, in the 4 subsequent consent terms filed in the present suit, there is an admission about the fact that the rent from the tenants was collected by the appellants. 7. In our considered opinion, the stray statement to the effect that the collection of rent was done by the appellants made in the course of settlement of the suit, that itself would not be sufficient to disprove the factum of delivery of possession of the property to the respondents which was categorically and clearly admitted by the appellants in the said affidavit referred to above. Once there is categorical statement on oath that the possession of the property was delivered to the respondents consequent to the agreement entered into between the parties in that regard, a mere statement that rent of the tenants was allowed to be collected by the erstwhile owners of the property, that itself would not amount to redelivery of the possession of the entire property to the owners. Irrespective of the fact that rent from tenants was allowed to be collected, the possession of the entire property may continue with the proposed purchasers. The finding arrived by the learned Single Judge on the point of possession cannot be found fault with. 8. In our considered opinion, in the facts & circumstances of the case, therefore, we find no case is made out for interference with in the 5 discretionary relief granted by the learned Single Judge in the matter in hand. Besides, it is also to be noted that the relief granted is subject to certain conditions imposed upon the purchaser in the impugned order. Being so, no interference is called for in the impugned judgment and accordingly appeals are dismissed. ( P.B.MAJMUDAR, J.) ( R.M.S.KHANDEPARKAR, J.)