1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2177 OF 2007 IN SUIT NO.1574 OF 2007 Rani Kishanlal Punjabi & Ors ....Plaintiffs V/s. Shyam Gopaldas Punjabi and 3 ors ....Defendants Mr. Suresh K Mali, for the Plaintiff. Mr. O. B. Molankar, for Defendant No.1. Ms Rajani Iyyer, Senior Counsel a/w Mr. Mohd Akram i/b Harilal Thakkar & Co. for defendant NO.3 CORAM : S.J. VAZIFDAR, J. DATE : 16TH NOVEMBER, 2009. P.C. :- 1. By this Notice of Motion, the Plaintiffs seek interim relief in respect of the two tenanted premises and a shop. According to the Plaintiffs, original Plaintiff had been expired. His heirs have been brought on record. According to the Plaintiffs the original plaintiff was a son of one Gopaldas from his first wife and Defendant No.1 is a son of the said Gopaldas from his second wife. 2. The said Gopaldas died intestate. The suit is for the partition of the property. 3. No reliefs can be granted in respect of the tenanted 2 premises. Further admittedly neither the original Plaintiff nor his heirs, who have now been impleaded ever resided therein. Nor had they ever been in occupation of or use of the said shop. 4. The said Gopaldas expired in the year l992. No steps have been taken for l5 years. Defendant No.1 has denied that the original Plaintiff was a son of the deceased. The only document relied upon by the original Plaintiff in support of his contention of being a son of the deceased is a letter dated 13th February, 1993 addressed to Defendant No.1 by the newly added Plaintiffs on behalf of the original Plaintiff. In the affidavit in reply receipt of this letter is admitted. 5. However, considering that there is delay of 15 years in filing the suit as well as the absence of any cogent evidence establishing that the original Plaintiff was the son of the deceased; as also the fact that the suit properties have been maintained throughout only by Defendant No.1, no interim relief ought to be granted. 6. In any event, no interim relief of the nature sought for against Defendant No.3-the developer, can be granted. The developer has control/possession of 95% of the property wherein tenanted premises are situated. Any interim relief in respect thereof cannot affect the the rights of the developer to develop the same. According to Defendant No.3 the rooms claimed by the Plaintiffs have never been tenanted to the deceased 3 Gopaldas or to the original Plaintiff or to the newly added Plaintiffs. 7. In the circumstances the Notice of Motion is dismissed.