1 Ld IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS SUMMONS SUMMONS NO.1409 OF 2006 NO.1409 OF 2006 NO.1409 OF 2006 IN IN IN E.A. E.A. E.A. NO 306 of 2005 NO 306 of 2005 NO 306 of 2005 inin in S.S. S.S. S.S. NO.1827 OF 2004 NO.1827 OF 2004 NO.1827 OF 2004 Ms. Ms. Ms. Pervana Dara Mistry... Pervana Dara Mistry... Pervana Dara Mistry... Plaintiff Plaintiff Plaintiff vs vs vs Manucher Manucher Manucher & anr .. & anr .. & anr .. Defendants Defendants Defendants Mr.G.B.Kedia Mr.G.B.Kedia Mr.G.B.Kedia for Plaintiff for Plaintiff for Plaintiff Mr.V.Z.Kankaria Mr.V.Z.Kankaria Mr.V.Z.Kankaria with Mr.A.J.Joshi for Plaintiff with Mr.A.J.Joshi for Plaintiff with Mr.A.J.Joshi for Plaintiff Mr.Piyush Mr.Piyush Mr.Piyush Shah Shah Shah for Deft nos.1 & 2 for Deft nos.1 & 2 for Deft nos.1 & 2 Mr.C.Yadav Mr.C.Yadav Mr.C.Yadav for Intervenor for Intervenor for Intervenor CORAM CORAM CORAM : : : SMT R.S.DALVI, J SMT R.S.DALVI, J SMT R.S.DALVI, J DATE DATE DATE : 22nd January, 2007 : 22nd January, 2007 : 22nd January, 2007 P.C. 1.1.1. This Chamber Summons is taken out by the This Chamber Summons is taken out by the This Chamber Summons is taken out by the defendants defendants defendants in a suit for raising attachment levied in a suit for raising attachment levied in a suit for raising attachment levied of of of 31 acres of grass land in possession of the 31 acres of grass land in possession of the 31 acres of grass land in possession of the defendant defendant defendant no.2. This property bears Survey No.942 no.2. This property bears Survey No.942 no.2. This property bears Survey No.942 of of of village Mahim Taluka Palghar District Thane. village Mahim Taluka Palghar District Thane. village Mahim Taluka Palghar District Thane. The The The Chamber Summons is also for allowing the Chamber Summons is also for allowing the Chamber Summons is also for allowing the defendant defendant defendant no.2 to remove the grass and the wild no.2 to remove the grass and the wild no.2 to remove the grass and the wild plants plants plants from their land. from their land. from their land. 2.2.2. In the affidavit in support of the Chamber In the affidavit in support of the Chamber In the affidavit in support of the Chamber Summons, Summons, Summons, the defendant No. 2 stated that the the defendant No. 2 stated that the the defendant No. 2 stated that the property property property which belongs to the family members of which belongs to the family members of which belongs to the family members of defendant defendant defendant no. 2 came to be earmarked and 31 acres no. 2 came to be earmarked and 31 acres no. 2 came to be earmarked and 31 acres 2 thereof thereof thereof came to be in possession of his wife. He came to be in possession of his wife. He came to be in possession of his wife. He relied relied relied upon 7/12 Extract. The land was vacant and upon 7/12 Extract. The land was vacant and upon 7/12 Extract. The land was vacant and he he he desired to cut the grass. No interim order to desired to cut the grass. No interim order to desired to cut the grass. No interim order to such such such an extent is passed. However, the affidavit an extent is passed. However, the affidavit an extent is passed. However, the affidavit inin in support shows the admitted possession of the support shows the admitted possession of the support shows the admitted possession of the defendant defendant defendant no.2 to the land attached. no.2 to the land attached. no.2 to the land attached. 3.3.3. The attachment was initially made before The attachment was initially made before The attachment was initially made before judgment judgment judgment in the suit by the plaintiff. Initial in the suit by the plaintiff. Initial in the suit by the plaintiff. Initial attachment attachment attachment order is 2nd April, 2005. A decree order is 2nd April, 2005. A decree order is 2nd April, 2005. A decree thereafter thereafter thereafter came to be passed on 3rd August, 2005 came to be passed on 3rd August, 2005 came to be passed on 3rd August, 2005 and and and attachment came to be continued in execution. attachment came to be continued in execution. attachment came to be continued in execution. 4.4.4. This Chamber Summons has been taken out on 28th This Chamber Summons has been taken out on 28th This Chamber Summons has been taken out on 28th October, October, October, 2005. 2005. 2005. 5.5.5. The decree is not satisfied. The attrachment The decree is not satisfied. The attrachment The decree is not satisfied. The attrachment has has has continued in execution. No case is made out continued in execution. No case is made out continued in execution. No case is made out for for for raising the attachment. raising the attachment. raising the attachment. 6.6.6. These 4 Chamber Summons These 4 Chamber Summons These 4 Chamber Summons i.e.44/06,45/06,46/06,47/06 i.e.44/06,45/06,46/06,47/06 i.e.44/06,45/06,46/06,47/06 are taken out by the are taken out by the are taken out by the sisters sisters sisters and brothers of defendant no.2.claiming and brothers of defendant no.2.claiming and brothers of defendant no.2.claiming that that that the property which has been attached has been the property which has been attached has been the property which has been attached has been co-owned co-owned co-owned by them. by them. by them. 7.7.7. The property is open land. The respondents has The property is open land. The respondents has The property is open land. The respondents has relied relied relied upon the revenue records in respect of the upon the revenue records in respect of the upon the revenue records in respect of the 3 entire entire entire land. The defendant no. 2 in his Chamber land. The defendant no. 2 in his Chamber land. The defendant no. 2 in his Chamber Summons Summons Summons being Chamber Summons No.1409 of 2005 has being Chamber Summons No.1409 of 2005 has being Chamber Summons No.1409 of 2005 has admitted admitted admitted that his wife owns only 31 acres out of that his wife owns only 31 acres out of that his wife owns only 31 acres out of total total total 169 acres of the land co-owned by the family 169 acres of the land co-owned by the family 169 acres of the land co-owned by the family members. members. members. The plaintiff desires to sell only 31 The plaintiff desires to sell only 31 The plaintiff desires to sell only 31 acres acres acres of the attached land. 31 acres are to be of the attached land. 31 acres are to be of the attached land. 31 acres are to be demarcated demarcated demarcated from the entire land. The plaintiff from the entire land. The plaintiff from the entire land. The plaintiff does does does not desire to attach or sell any other portion not desire to attach or sell any other portion not desire to attach or sell any other portion of of of the respondent’s land. It is admitted that the the respondent’s land. It is admitted that the the respondent’s land. It is admitted that the defendant defendant defendant no.2 no.2 no.2 is one of the family member. Hence, is one of the family member. Hence, is one of the family member. Hence, defendant defendant defendant no.2 no.2 no.2 also has right title and interest to also has right title and interest to also has right title and interest to her her her undivided share. That share once demarcated undivided share. That share once demarcated undivided share. That share once demarcated can can can be sold in execution of the decree obtained by be sold in execution of the decree obtained by be sold in execution of the decree obtained by the the the plaintiff. plaintiff. plaintiff. 8.8.8. It is therefore, clarified in Chamber Summons It is therefore, clarified in Chamber Summons It is therefore, clarified in Chamber Summons that that that the the the plaintiff shall demarcate and sell only 31 plaintiff shall demarcate and sell only 31 plaintiff shall demarcate and sell only 31 acres acres acres of the entire vacant land. Since no of the entire vacant land. Since no of the entire vacant land. Since no attachment attachment attachment to any greater extent is levied, their to any greater extent is levied, their to any greater extent is levied, their need need need be no order for raising any attachment. be no order for raising any attachment. be no order for raising any attachment. Hence, Hence, Hence, there shall be no other order on the Chamber there shall be no other order on the Chamber there shall be no other order on the Chamber Summons. Summons. Summons. 9. No order as to costs. No order as to costs. No order as to costs. (Smt (Smt (Smt R.S.Dalvi,J) R.S.Dalvi,J) R.S.Dalvi,J)