: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3290 OF 2006 IN SUIT NO.1212 OF 1991 Narayan Manik Patil & Ors. ....Plaintiffs V/s. Jaywant J. Patil & Ors. ....Defendants And M/s.Shiv Engineering Industries ....Intervenors Mr.N.K. Mudnaney for the Plaintiffs. Ms.Rajani Iyer, Senior Counsel with Mr.A.L.N. Khatri i/b A.L.N. Khatri & Co. for Defendant No.1. Mr.G.N. Salunke for Defendant Nos.7, 11, 45 and 46. Mr.Pankaj Kansara i/b Kansara & Thanekar for Defendant Nos.56 to 59 and 61. Mr.Shailesh Shah with Ms.Mamta Sadh i/b H.V. Gala & Co. for the Applicants - M/s.Shiv Engineering Industries. CORAM : S.J. VAZIFDAR, J. DATED : 4TH SEPTEMBER, 2008. P.C. :- 1. This Notice of Motion has been taken out by Defendant Nos.7, 45 and 46 who are also the Plaintiffs to the counter claim. Mr.Salunke who appears in support of this Notice of Motion, stated that he was also appearing on behalf of Defendant No.11. 2. The Plaintiffs to the counter claim seek in : 2 : this Notice of Motion an order that all the parties to the suit be restrained by an injunction from selling, transferring, alienating, assigning, letting out, giving on leave and licence basis or parting with possession of or encumbering or creating any third party rights in respect of the properties mentioned in paragraph 8 of the counter claim and from constructing or proceeding further with the construction of any of the said properties or allowing any third parties to construct on the suit properties. 3. It is necessary to note at the out-set that Mr.Salunke stated that he does not seek any orders that may affect the rights of third parties in any manner whatsoever and that even if any orders as prayed for or otherwise are granted, the same would not affect the rights of third parties. He however, clarifies that if the parties to the suit had not parted with all their rights in any of the properties, the order that may be passed may be restricted to the balance/residual rights if any that may be retained by such party or parties. He further clarified that he does not seek any order restraining any party or parties from perfecting the rights they may have agreed to confer or complying with the obligations that may have undertaken to any third parties. : 3 : . The order that I intend passing in this Notice of Motion shall therefore be limited in its operation only between the parties to these proceedings who form part of the said joint family or are the heirs of such member of the joint family and shall not affect the rights of third parties in any manner whatsoever and shall also not restrain any of the parties herein from acting pursuant to or in furtherance of or complying with and implementing any agreement or obligation that they may have undertaken qua third parties. 4. The suit was filed on 4.4.1991 for a declaration that the properties described in Exhibit "A" to the plaint form part of the properties of the joint and undivided family consisting of the Plaintiffs and Defendant Nos.1 to 11 ; that Defendant No.1 is not the absolute owner of the said properties and therefore, not entitled to deal with the same and for a declaration that each of the Plaintiffs and Defendant Nos.1 to 11 and/or the branch represented by them has an undivided share to the extent mentioned in Exhibit "A" to the plaint. The Plaintiffs have also sought partition of the said properties and for possession of their respective shares therein. . The Plaintiffs contended that the properties : 4 : mentioned therein formed a part of the joint family properties. It is not the Plaintiffs’ case that there was any partition in respect thereof. Nor is it contended that any proprietary rights therein were conferred in favour of any particular member or members of the joint family. . The Plaintiffs’ Notice of Motion No.932 of 1991 inter-alia for appointment of a Court Receiver and for an injunction was dismissed. 5. The Plaintiffs filed Appeal No.69 of 1994 against the said order. By an order dated 20.4.1995, the Division Bench allowed the Appeal and granted reliefs in terms of prayer clause (a). The Court Receiver was appointed inter-alia in respect of the suit properties with the proviso that the Court Receiver should not dispossess any party in possession and should allow them to remain in occupation as agents of the Court Receiver. . The Special Leave Petition against the said order was dismissed. 6. Defendant Nos.45 and 46 filed their written statement and counter claim on 3.7.1997. The present Notice of Motion was taken out by them only on : 5 : 25.9.2006. 7. It is not necessary to set out the rather detailed and elaborate family tree. It is sufficient to note that there is no dispute that the Plaintiffs and the concerned Defendants are members of the family as per the family tree, annexed to the plaint. If indeed the properties belong to the jointly family as alleged, the Plaintiffs and the concerned Defendants would be entitled, in the absence of anything else, to a right therein. 8. The properties mentioned in the suit and in the counter claim are situated in three villages namely Nahur, Bhandup and Kanjur. The suit however was filed only in respect of the properties situated in the Nahur village. The counter claim seeks to include the properties in the other two villages viz. Bhandup and Kanjur as well on a basis I will refer to later. The Notice of Motion accordingly seeks reliefs in respect of the properties mentioned in paragraph 8 of the counter claim which fall within the villages of Bhandup and Kanjur. 9. I will first deal with the properties which fall within the village of Bhandup. : 6 : 10(A). It is important to note that it is the specific case of the Plaintiffs to the counter claim that in respect of the Bhandup properties there was a family arrangement in the year 1965 pursuant to which separate rights had been created in respect of specific lands in favour of particular members of the family. Accordingly it is contended that the Bhandup properties stood partitioned in the year 1965. To establish this Mr.Salunke relied upon a certified entry bearing No.762 in the "Hakkache Patra" in form No.6 maintained by the Revenue Authorities which pertains to the Bhandup properties. The entry mentions the particulars of the land against the names of various members of the family. This is prefixed by a narration which as per the agreed translations reads thus :- "This parties under mentioned have stated to this authority about the division of the lands mentioned herein against their respective names as being in their respective actual possession". . According to Mr.Salunke this document evidences the family arrangement arrived at in November, 1965. He submitted that the said extract is a diary entry certified by the Tahsildar under Section 149 of the Maharashtra Land Revenue Code and that it would be reflected in the 7/12th extract for each of : 7 : the properties. (B). Survey Nos.68/1, 68/9 and 69/3 are mentioned against the name of one Ganpat Barik Patil. The Plaintiffs to the counter claim claim a rights to these three pieces of land through the said Ganpat Patil on the basis of the alleged family arrangement which they claim is evidenced inter-alia by the said entry in Form No.6. 11. It would be convenient at this stage to refer to the case of the Plaintiffs to the counter claim in their written statement and in their counter claim. (A). Paragraphs 4 and 5 of the written statement of the Plaintiffs to the counter claim read as under:- "4. With reference to para 4 of the plaint, these Defendants admit that the ancestors of the Plaintiffs and the Defendants Nos.1 to 11 and Defendants Nos.26 to 55 had been in actual physical possession of considerable properties situated at Bhandup, Kanjur and Nahur Village as sutidars/cultivators thereof and were paying assessment thereof. However, these defendants state and submit that the properties situated at Bhandup and Kanjur have been partitioned by meets and bounds and the respective shares of the parties have been given in their exclusive possession and the Mutation entries in the relevant revenue record have been effected to that effect in the year 1965 and the parties are enjoying the respective shares since then as their exclusive property. These : 8 : Defendants further state that, though the partition of the properties at Bhandup etc. took place as above, the properties at Nahur i.e. the subject matter of the present suit were not been partitioned and no shares have been given to any of the heirs of the original owners and the said properties are continued as the joint family properties without partition and the defendant No.1 is holding the said properties at Karta of the Family and liable for partition. 5. With reference to para 6 of the plaint these Defendants deny that the properties situated at Kanjur, the same were treated as joint properties. The Defendants further deny that the plaintiffs are not claiming any reliefs in the present suit in respect of the said properties at Kanjur which have been dealt with as joint Hindu Undivided Family properties. These Defendants state and submit that the properties at Kanjur and Bhandup were the joint family properties till the year 1965. However, in the year 1965 the said properties have been partitioned among the parties and the parties have been given their respective shares by dividing the said properties at Kanjur and the relevant Revenue record is very well maintained to the effect in the separate names of the parties." (emphasis supplied) (B). Paragraph 7 of the counter claim states as under :- "7. The Plaintiffs of counter claim state that in the circumstances mentioned hereinabove, the defendants Nos.1 to 9 of counter claim are in enjoyment of the properties gone to their respective shares and not brought to the common hotchpot of the suit properties which is must and only with an intention to harass the Plaintiffs of counter claim filed suit in respect of : 9 : the properties given to the share of Plaintiffs of counter claim and Original Defendant Nos.7 to 11 and harassing the Plaintiffs of counter claim for which the defendants Nos.1 to 9 of counter claim are not entitled for." 12. It is thus clear that the Plaintiffs to the counter claim expressly contend that the Bhandup properties have been partitioned and that each of the properties in Bhandup village have been allotted to particular members of the family. Mr.Salunke reiterated this stand before me. 13. Mr.Salunke however, stated that the Plaintiffs to the suit had filed another suit for partition in respect of the Bhandup properties being Suit No.3052 of 1992. He submitted that the Plaintiffs to the suit were wrongly seeking to challenge the rights of the Plaintiffs to the counter claim in respect of the Bhandup properties which have gone to their share. This allegedly wrong stand on the part of the Plaintiffs to the suit is the basis for the Plaintiffs to the counter claim claiming the reliefs in this Notice of Motion. It was submitted that if the rightful claims of the plaintiffs to the counter claim are sought to be interfered with wrongly by the Plaintiffs to the suit, there is no reason why the rights of all the parties though admitted by the : 10 : Plaintiffs to the counter claim ought not to be interfered with. 14. This is indeed a curious approach. That it is contrary to the specific case of the Plaintiffs to the counter claim is not disputed. If the Plaintiffs to the counter claim have a grievance regarding the wrongful denial of their rights by the Plaintiffs to the suit, their remedy is to oppose those reliefs and if according to them any interim orders have been passed which wrongly affect their rights, their remedy is to challenge the same or to adopt appropriate proceedings in respect thereof. 15. In the circumstances, the reliefs claimed in the present Notice of Motion as far as the Bhandup properties are concerned are rejected. 16. Before dealing with the properties situated at Kanjur village, it would be appropriate to deal with an application made by the intervenors - Shiv Engineering Industries, a partnership firm. The intervenors have not been impleaded either in this suit or in Suit No.3052 of 1991. The intervenors claim rights in respect of the land at survey No.124 = CTS No.228/A and B of the village Bhandup. : 11 : 17. Mr.Salunke did not dispute that this property came to the share of the branch of one Krishna Joma Patil under the family arrangement of November, 1965. In fact in the affidavit in support of the Notice of Motion, it is admitted that the said properties had been leased to the intervenors and that Defendant Nos.6, 7 and 8 had been enjoying the profits thereof. In view of the above statement, Mr.Salunke did not seek to interfere with the rights of the intervenors as lessees. He however submitted that the reversionary rights ought to be protected. As I will presently indicate, the reversionary rights have also been purchased by the intervenors long ago. The property has been substantially constructed upon and further third party rights have been created thereupon. 18. The intervenors filed an affidavit dated 21.1.2008 which disclosed the facts I will now refer to. (A). The Indenture of Lease dated 21.12.1958 was executed by the said Krishna Joma Patil and Plaintiff Nos.3 and 4 on the one hand and the intervenors. Plaintiff Nos.3 and 4 are the sons of the said Krishna Joma Patil, to whose share the said lands at survey No.124 were allotted under the family arrangement of : 12 : November, 1965. At the time of the execution of the lease, the intervenors carried on business in the firm, name and style of Shiv Industries. Subsequently the name was changed to the present name, Shiv Engineering Industries. The said lease is for a period of 99 years from 1.1.1959 upto and inclusive of 31.12.2057. The intervenors have been in possession of the said properties throughout. (B). The intervenors intended purchasing the reversionary rights from their lessors. They therefore caused a public notice to be issued in the 9th June, 2005 edition of the Asian Age to this effect. The public notice expressly stated that the intervenors were negotiating with various persons mentioned therein for the sale and transfer of their reversionary rights, title and interest in the property described in the schedule thereto and invited objections from the public, if any. The schedule expressly referred to the said survey No.124. (C). Mr.Salunke states that an objection was recorded. However, no proceedings have been adopted for the past over three years against the intervenors. (D). Ultimately on 2.9.2005, a Deed of Conveyance was executed in favour of the intervenors in respect : 13 : of the said property for a consideration of Rs.35,00,000/-. By the said conveyance, the intervenors purchased the reversionary rights, title and interest in the said property. Incidentally, clause XI of the recitals in the Deed of Conveyance records that by an agreement dated 3.4.1959 the name of the intervenors was changed from Shiv Industries to the present name M/s.Shiv Engineering Industries. 19. In view of Mr.Salunke’s statement referred to above, no reliefs in respect of the said property acquired by the intervenors can be granted. The intervenors have perfected their title. Indeed even Mr.Kansara, who appears on behalf of Defendant Nos.56 to 59 and 61 in support of Notice of Motion No.1016 of 2005 did not challenge the intervenors rights to the said property either in view of the above facts. He however stated that he may not make such a statement qua other third parties who were related to the members of the family. Defendant Nos.56 to 59 and 61 have taken out Notice of Motion No.1016 of 2005 which will be dealt with separately. 20. In any event I would not be inclined to grant any interim orders as far as the said property is concerned for more than one reason. : 14 : 21. The intervenors started developing the said property after obtaining a commencement certificate dated 15.12.2005 and demolishing the existing structure. The development involves constructing a multi story building comprising of three wings. The construction in respect of two wings is completed. Third party rights have been created therein. Any interim reliefs granted at this stage would affect not merely the intervenors but also the rights of the third parties. 22. Despite the fact that the nature of these properties was known to all the members of the family, no proceedings have been adopted by any of them against the intervenors. Indeed even the present Notice of Motion is taken out fifteen years after the suit was filed. The counter claim was filed in the year 1997. Yet no proceedings were adopted in respect of the said properties by the Plaintiffs to the counter claim. 23. Mr.Salunke submitted that Chamber Summons No.1561 of 2005 had been taken out by the Plaintiffs in Suit No.3052 of 1991 inter-alia for including the said land in that suit and impleading the intervenors in that suit. Admittedly, an affidavit in reply was filed by the intervenors in that Chamber Summons : 15 : disclosing the above facts. That Chamber Summons was dismissed by an order dated 30.1.2006 for not removing the office objections. It is contended by Mr.Salunke that this was done deliberately by the Plaintiffs to the suit in collusion with the concerned Defendants. Defendant No.5 in Suit No.3052 of 1991 took out Notice of Motion No.1320 of 2006 in the said Chamber Summons No.1567 of 2006 and prayed for an injunction against the concerned Defendants and the intervenors. The Notice of Motion was allowed to be withdrawn by an order dated 2.5.2006. Mr.Salunke contended that Defendant No.5 in Suit No.3052 of 1991 in collusion with the Plaintiffs in this suit, wrongly did not adopt appropriate proceedings. 24. Nothing prevented the Plaintiffs to the counter claim from adopting appropriate proceedings themselves. Any negligence or even alleged collusion on the part of the other parties cannot be a sufficient explanation for the inordinate delay. This inordinate delay has affected the rights of the intervenors and other innocent third parties irreversibly. 25. On the basis of the statement made by Mr.Salunke and the other facts in any event no reliefs can be granted against the intervenors. The : 16 : intervenors are entitled to enjoy the property as full owners thereof and in every respect. 26. Even assuming that any rights were wrongly created in favour of the intervenors, the aggrieved parties must be left to the remedy of claiming compensation or adjustment of the shares at the final hearing of the suit qua the parties against whom they have any grievance in this regard. 27. This brings me to the properties situated in Kanjur village. In paragraph 6 of the plaint, it is alleged that the properties situated at Kanjur were treated as joint family properties and were leased out by the family members to one Taparia and the respective heirs and the legal representatives have been receiving their due share of the rent in respect of the said properties at Kanjur. In the circumstances as the suit properties at Kanjur had been dealt with as joint Hindu undivided properties, the Plaintiffs stated that they were not claiming any reliefs in respect thereof. The written statement and counter claim however alleges that even the Kanjur properties were partitioned. 28. Paragraph 2(d) of the affidavit in support of the Notice of Motion sets out the properties given to : 17 : the share of Defendant No.1. The items listed at serial Nos.33, 34 and 35 therein pertain to the properties situated in Kanjur village. 29(A). Ms.Iyer states that Defendant No.1 is not concerned with the properties mentioned at serial No.33 i.e. CTS No.648. Mr.Salunke however stated that CTS No.648 is a typographical error and it ought to be read as CTS No.643. (B). Defendant No.1 had filed an affidavit in reply mentioning the same. Yet there was no correction by the Plaintiffs to the counter claim. Mr.Salunke stated that the counter claim also contained the same typographical error but that it was corrected at the time of filing of the plaint. However, he admits that through inadvertence the corrected copy was not forwarded to Defendant No.1. Thus Defendant No.1 cannot be faulted for not having dealt with the same. 30. Even assuming that it is typographical error and the description should be read as CTS No.643, no interim reliefs can be granted in view of Mr.Salunke’s statement. No interim reliefs can also be granted as third party rights have in fact been created in favour of Jayashree Developers, who in turn put up : 18 : construction on the property and created further third party rights therein. Moreover it is the case of the Plaintiffs to the counter claim that even the Kanjur properties had been partitioned. The Plaintiffs to the counter claim have not alleged that the said property came to their share. 31. The property mentioned at serial no.34 of paragraph 2(d) of the affidavit in support pertains to CTS No.482 as stated in Kanjur village. In support thereof, I am informed that there is already an injunction in Suit No.3052 of 1991. In view thereof a similar injunction is issued in the present Notice of Motion. 32. Serial No.35 of paragraph 2(d) of the affidavit in support pertains to CTS No.586 also situated in Kanjur village. Ms.Iyer states that her clients are not concerned with the same and claims no rights therein. 33. There are only two other properties situated in Kanjur village in respect whereof reliefs are sought in this Notice of Motion namely CTS Nos.646 and 519 in respect whereof according to the Plaintiffs to the counter claim, the relevant records show the name of Plaintiff No.2. Plaintiff No.2 has no objection to : 19 : maintaining status-quo in respect of the said properties. Only for this reason orders are passed with respect thereto despite the Plaintiffs to the counter claim not having contended that the properties came to their share pursuant to the said family arrangement of 1965. 34. In the circumstances, the following order is passed :- i). The Notice of Motion is dismissed in so far as it claims reliefs in respect of the properties situated in Bhandup village and in respect of the property referred to at serial No.33 in paragraph 2(d) of the affidavit in support of the Notice of Motion. This rejection order is even assuming the reference to CTS No.648 is a typographical error and that in its place should be read CTS No.643. In other words no reliefs are granted even qua CTS No.643 in Kanjur village. ii). The statement on behalf of the Plaintiffs to the suit that they will maintain status-quo in respect of the properties at CTS Nos.646 and 519 situated in : 20 : Kanjur village is accepted and the status-quo thereof is ordered accordingly. iii). The parties to the suit shall maintain status-quo in respect of the properties situated in Kanjur village referred to at serial No.34 in paragraph 2(d) of the affidavit in support subject to the statement which is recorded above.