1 nms11-08.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No. 11 of 2008 . in Suit No.3661 of 2007 Deonar Anudeep Co-op.Hsg. Soc. Ltd. & Another .. Plaintiffs v/s. Ramesh Maheshwar Patil & Ors. ..Defendants Mr.G.S.Shelke i/b.M/s. Shelke & Co. for the Plaintiffs. Mr.D.S.Purandare with Vivek Shetty i/b.DSK Legal for the Defendant Nos. 2 and 3 CORAM : R.Y.GANOO, J. DATED : 1st October , 2010 P.C. : 1. Heard Counsels on both sides. Rejoinder is taken on record. Plaintiffs claim that they are the owners of Survey No.66 Hissa No.9/1 corresponding CTS No.762 (part) admeasuring 2064.23 sq. meters situate at Village Borla, Chembur in Taluka Salsette within the Registration District and Sub District of Mumbai City and Mumbai Suburban, (hereinafter referred to as suit property). According to the plaintiffs, defendants encroached upon the suit property sometime in 2 nms11-08.sxw May 2006 and deprived the plaintiffs of its possession. Hence this declaratory suit seeking declaration that plaintiffs are the owners of the property and for possession is filed. By the present motion No,11 of 2008 plaintiffs are seeking following reliefs. By prayer clause (a), plaintiffs want that they should be put in possession of the suit property pending the disposal of the suit, by prayer clause (b) Receiver is sought to be appointed, by prayer clause (c) injunction is sought restraining the defendants from creating third party rights or parting with possession. At the ad-interim stage the order dated 11.1.2008 the DILR was directed to carry out site inspection and submit his report as regards the land in dispute and also the City Survey No.66 Hissa No.9/2 forming part of 762. The said DILR has filed his report dated 25.5.2009. Copy of the said report was made available by Counsel for the plaintiff. 2. Learned Counsel for the defendant, upon instructions states that the defendants have no concern whatsoever with the suit property and defendants are occupying land bearing Survey No.66 Hissa No.9/2 CTS 762(part), 762 and 762/1 admeasuring about 2424 sq. meters. 3 nms11-08.sxw 3. Learned Counsel for the plaintiffs submit that the report submitted by the DILR is not in compliance with the order passed by the Court and it is necessary to have fresh survey at the hands of DILR so that the suit property can be identified and as to who is occupying the suit property can be observed at the site and the report to that extent can be submitted. 4. Having perused the report filed by DILR, I am inclined to accept the submission advanced by the learned Counsel for the plaintiff. In view of this, it is necessary to direct the DILR to have the second survey by following normal procedure and give his report on the following points. i) DILR should draw a sketch of the land bearing Survey NO.66 Hissa No.9/1 described in para 1 of this order and the land adjacent thereto. On the said sketch he will show the land survey nos.66 Hissa No.9/1 with points such as A, B, C and D. He will visit the site and ascertain as to who is in possession of the said land Survey No. 66 Hissa No.9/1 and mention the same in his report. He shall carry out this job as expeditiously as possible and in any case before 20.11.2010. 4 nms11-08.sxw 5. The plaintiffs shall serve upon the DILR in its office, the authenticated copy of this Order, pay usual charges and make formal application of report in terms of this order. Copy of the said report shall be sent to this Court and the same shall be filed in this suit. Copy of the said report shall be made available to the advocate for the plaintiffs as well as advocate for the defendants. After the new report is receiver, it will be open for the plaintiffs to take out fresh motion depending upon the report filed by the DILR and with these observations the present notice of motion is disposed of with no orders as to costs. It is clarified that no views are expressed as regards merits of the case of encroachment on the suit property. [R.Y.GANOO, J.]