IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION APPEAL APPEAL APPEAL FROM ORDER NO. 889 OF 2007 FROM ORDER NO. 889 OF 2007 FROM ORDER NO. 889 OF 2007 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO. 1238 OF 2007 APPLICATION NO. 1238 OF 2007 APPLICATION NO. 1238 OF 2007 K.N. Joshi & Ors. ... ... Appellants Vs. M/s Arpit Builders & ... ... Respondents Developers & Others Mr. Owen Menezes i/b Mr. R.P. Mudholkar & Ms. Sneha S. Dwivedi for Appelants. Mr. Anil Singh a/w Sandesh D. Patil for Respondent no. 1. S.M. Oak for Respondent No. 1(A). CORAM CORAM CORAM : J.H. BHATIA, J. : J.H. BHATIA, J. : J.H. BHATIA, J. DATE DATE DATE : 4th FEBRUARY, 2008 : 4th FEBRUARY, 2008 : 4th FEBRUARY, 2008 P.C. P.C. P.C. : : :- 1) Heard the learned counsel for the parties. 2) The Plaintiff, who is Respondent No. 1 before this Court, filed Special Civil Suit No. 246 of 2007 claiming that under an agreement dated 8/12/2003 with the original owners he is entitled to develop the said property. The Plaintiff also claims to be in possession of the property. According to the Plaintiff, the defendants Nos. 1 to 4 were trying to dispossess the Plaintiff and therefore, he has filed the 2 suit for perpetual injunction against them and also sought direction to the Municipal Corporation not to grant any permission / NOC in favour of defendant Nos. 1 to 4 for construction of building. He had taken out the Notice of Motion for temporary injunction for the similar relief. 3) The defendants nos. 1 to 4 contested the application and contended that as per the Development Agreement dated 6/2/2006, they were already in possession and they have also obtained necessary permission for construction of the suit land. According to them, even though the original owners had entered into an agreement with the Plaintiff on 8/12/2003, that agreement was cancelled by owners on 4/12/2005 and in view of the cancellation of the said agreement, the Plaintiff has no right, interest or title over the suit property. Plaintiff had no documents to show the possession over the suit property. It is also contended that the Plaintiff has not made the original owner as party in the present suit therefore the relief of injunction could not be granted. 3 4) After hearing the parties, learned trial Court found that the Plaintiff is in possession of the suit property and as a result, the trial Court restrained the defendant Nos. 1 to 4 by an order of temporary injunction from disturbing the possession of Plaintiff in respect of the suit property till the final disposal of the suit. The said order is challenged by the defendant nos. 1 to 4 in the present appeal. 5) It is admitted fact that on 8/12/2003 original owners of the property had entered into an agreement for development of property with the Plaintiff and a part of consideration amount was received by him as per the said agreement. The original owners claimed that the said agreement was cancelled on 4/7/2005. However, the learned counsel for the Plaintiff- respondent pointed out that after the alleged cancellation of the agreement, The owners had executed irrevocable Power of Attorney in favour of the Plaintiff on 10/10/2005. In view of this, the agreement dated 8/12/2003 is still valid and alleged cancellation dated 4/7/2005 has to be ignored. Learned counsel for the Plaintiff pointed out that Harishchandra Mahadev Khanjore, the constituted 4 Power of Attorney of the owners had addressed a letter to the Senior Inspector of Police, Kashmira Police Station, wherein he has stated thus : "But the present position is that Mr. Jayesh Maru, proprietor of Arpit Builders & Developers had been occupied the same property and did not allow me and others (my relative) to do the same. Kindly note that there is no valid documents with Mr.Jayesh Maru. He is forcibly occupied our land" 6) In view of this, there appears an admission by the constituted Power of Attorney of the original owners before the Police that the possession was with the Plaintiff. According to him, it was a forcible possession and it was not supported by any documents. 7) On the contrary, learned counsel for the defendants pointed out that several documents to show that since June 2006, the defendants have taken electric supply from Reliance Energy. They also engaged certain security guards and have put up a fencing and their boards. He pointed out that on 20/09/2007, the Municipal Corporation has also sanctioned a Plan of construction prepared by the defendants. He pointed out that in the 5 agreement dated 8/12/2003 in favour of the defendants, there is no mention of valid possession of the property while in the agreement dated 6/2/2006 executed by the original owners of the land in favour of the defendants, there is a clear statement that the possession of the property has been handed over to the defendants. According to him, in view of the documents, it must be held that the defendants are in actual possession of the property and the trial Court has committed an error in holding that the Plaintiff is in possession of the suit property. 8) It is material to note that about the dispute between the parties, the Regular Civil Suit No. 168 of 2006 came to be filed by M/s Arun Bhoomi Corporation, which is said to be partnership firm of the defendants. That suit was against Mr. Jayesh Maru, proprietor of M/s Arpit Builders & Developers, i.e. the Plaintiff in the present suit. In that suit, the present defendants/ appellants had claimed perpetual injunction restraining Mr. Jayesh Maru from causing any interference in the possession over the suit property. However, that suit came to be rejected on 3/4/2006 on the ground that M/s Arun 6 Bhoomi Corporation, the partnership firm was not registered. As a result, M/s Arun Bhoomi Corporation could not get any relief from the Court. Thereafter Suit No. 195 of 2006 was filed by the owners of the property against the present plaintiff seeking perpetual injunction. In that suit, the Plaintiffs- owners had admitted that they themselves were not in possession of the property and they had handed over the possession to Arun Bhoomi Corporation which was not a party to that suit. Finding that the owners of the land were admittedly not in possession, the temporary injunction was refused. It is material to note that in that suit, the defendants, who are also present plaintiffs, had made a counter claim and sought a decree for specific performance of contract and also injunction. That suit and the counter claim are still pending and no relief has been granted to either of the parties. Thereafter, the present suit No.246 of 2007 came to be filed by the Plaintiffs for the injunction. As pointed out earlier, the trial Court has granted the temporary injunction in favour of the plaintiffs and against the defendants. However, it is material to note that in this suit also the 7 original owners of the property are not made parties. 9) Taking into consideration the rival contentions of the parties and the fact that so far no development has been made, if relief is granted to any party, there is a possibility that the such a party may make some unauthorised development and create third party interest and thus create further complication in the matter. Taking into consideration, the statements made by the constituted Power of Attorney holder for the original owners before the Police and the Power of Attorney dated 10/10/2005 in favour of the present plaintiffs, at this stage, it is difficult to come to the conclusion as to who is in possession of the property. There is possibility that the parties may try to take forcible possession in such circumstances. Therefore, in my considered opinion, to protect and preserve the present status-quo, it will be just and proper to appoint the Court Receiver to take possession of the property and the trial Court may be directed to hear and dispose of the suit as early as possible. 8 10(i) For the said reasons, appeal is partly allowed. The impugned order is hereby set aside. ii) The trial Court shall appoint the Court Receiver to take the possession of the suit property. The Court Receiver shall appoint security guards to protect and preserve the present status of the suit property, which allegedly has fencing and boards put up by the defendants and also a board of the plaintiffs. The Court Receiver shall prepare possession panchanama and also take the photographs of the property and the structures etc. which may be presently in existence. Parties shall bear the expenses of the Court Receiver equally. iii) The Trial Court shall hear and dispose of the Special Suit No.195 of 2006 and Special Civil Suit No.246 of 2007 together and shall expedite the hearing and dispose of the same as early as possible and preferably within six months. iv) Parties shall be allowed to make necessary amendments in their plaints to implead the necessary parties in said suits. 9 11) At this stage, the learned Counsel for the Appellant contends that preliminary issue of jurisdiction under Section 9(a) be also decided by the trial Court. However, the learned counsel for the defendant no. 5 who had taken a stand of non maintainability of the suit for necessary notice admits that no application has been made by the Corporation under Section 9(A). Therefore the question of tenability of the suit No. 246 of 2007 may be decided at the time of final hearing of the suit. ( J.H. BHATIA, J.) J.H. BHATIA, J.) J.H. BHATIA, J.)