1 caf460-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa CIVIL APPLICATION NO.460 OF 2011 IN FIRST APPEAL NO.1664 OF 2002 Shanta N. Shah & Ors. .. Applicants V/s. Smt. Gangubai D. Ulvekar & Anr. .. Respondents ..... Mr. H. S. Venegaonkar i/b. M/s. Zohar & Co. for the applicants. Mr. Rajesh N. Kachare for respondent No.2. ..... CORAM : A. S. OKA, J. DATE : APRIL 28, 2011. P.C.:- Heard the learned counsel appearing fr the applicants and the learned counsel appearing for respondent No.2 (Mr. Narendra Gupta). The applicants are the appellants. The first respondent is the plaintiff. The first respondent filed a suit for declaration against one Tejbai that the first respondent has become owner of the suit land by adverse possession. 2. In the said suit, a decree was passed by the trial Court in exercise of powers under Rule 5 of Order VIII of the Code of Civil Procedure, 1908. A declaratory decree was passed declaring that the first 2 caf460-11 respondent had perfected her title by adverse possession. 3. The applicants were not made parties to the suit though, the applicants had purchased the suit land by registered sale deed dated 9th November, 1979, from the defendant Tejbai. Thus, before institution of the suit, the applicants had already purchased the suit land from Tejbai (original defendant) who was admittedly the owner of the suit land. As stated earlier, the first respondent plaintiff claimed adverse possession in the suit against the said Tejbai. On the date of the institution of the suit, the said Tejbai had already transferred her ownership rights to the applicants and perhaps that is the reason why Tejbai did not contest the suit. 4. The prayer in this application is for restraining the second respondent from alienating and/or transferring the suit land and from taking any benefit by way of transfer of development rights. The second respondent is claiming through the first respondent. 5. The application is opposed by the second respondent. His first submission is that the original defendant who was second respondent in the Appeal has died and her name was deleted. He submitted that as 3 caf460-11 name of the original defendant has been deleted from the Appeal after expiry of the defendant, the Appeal stands abated. His second contention is that the authority under the Urban Land Ceiling Act, 1976, has held that the conveyance executed in favour of the applicants is illegal and therefore, the applicants cannot claim any rights. He pointed out that the area of 1071.20 square meters reserved under the development plan has been already handed over by the second respondent to the Municipal Corporation. He pointed out that DRC issued to the second respondent was challenged by the applicants by filing a writ petition and the writ petition has been dismissed. It is pointed out that the DRC has been transferred to a third party by the second respondent. He, therefore, submitted that no injunction can be granted. 6. I have considered the submissions. On the date of institution of the suit, the defendant had already executed a conveyance in respect of the suit land in favour of the present applicants. In fact a Notice of Motion was taken out by the applicants for setting aside the ex-parte decree. Thus, a declaration of perfection of title by adverse possession was obtained by the first respondent plaintiff against the defendant who had already transferred her ownership rights by a registered conveyance 4 caf460-11 which was executed prior to the institution of the suit. The order of the Authority under Urban Land Ceiling Act, 1976 has been passed in the year 1994. The second respondent is claiming through the first respondent-plaintiff. Prima facie, it appears to me that the decree passed by the trial Court is illegal. Therefore, the suit property will have to be protected except the portion which has been handed over to the Municipal Corporation. In the circumstances, the first part of the prayer (a) will have to be granted. 7. Hence, I pass the following order: :: O R D E R :: i. Till the disposal of the suit, there shall be interim relief in terms of prayer clause (a) except the bracketed portion. ii. It is made clear that the order of interim relief will not apply to area of 1071.20 square meters which has been handed over to the Municipal Corporation. JUDGE