1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.2072 of 2006 IN Suit No.73 of 2000 Shree Swami Hathiramji Mutt. ... ... Plaintiff V/s. 1. Kamlesh Kumar & anr. ... ... Defendants A n d 1. Urmish M. Udani & anr. ... ... Respondents Mr.Shailesh Shah with Ms.Gauri Bhagwat i/by Divekar & Co. for Plff. Ms.Geeta Shastri for Deft.No.1. Mr.Shailesh Naidu i/by Mr.S.G. Walam for Deft.No.2. Mr.Yogesh Dandekar for Res.No.1. Mr.Vishwajit Sawant i/by Mr.U. Bhate & Mr.Prabhakar Jadhav for Res.No.2. -------- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the order : 12th April 2010 Date of pronouncing the order : 28th April, 2010 P.C. : 1.The Plaintiff is a Mutt / Trust registered in Andhra 2 Pradesh, which has properties inter alia in Mumbai and other parts of Maharashtra, for which this Suit is filed. The father of Defendant No.2 was a Mahant of Mutt. He is stated to have executed a Will, bequeathing certain properties to Defendant No.2, which the Plaintiff claims, belonged to the Mutt. Defendant No.1 acted on behalf of Defendant No.2. The Plaintiff, therefore, sued the Defendants for declaration that the properties mentioned in Exhibit-A to the Plaint, were their exclusive properties and assets and the Defendants had no right thereto and for other incidental reliefs of injunction and accounts. 2.An order came to be passed in the initial Notice of Motion No.3062 of 2001 taken out by the Plaintiff on 2.9.2004 by this Court, restraining the Defendants from dealing with, disposing of and creating third party rights in the suit properties upon seeing the claim Defendant No.1 under the Will of his father. Court Receiver also came to be appointed in respect of the suit properties. Defendant No.2 was appointed agent of the Court Receiver to manage the suit properties to receive lands from the tenants and to collect the amount from the collection of the temple. 3.Defendant No.2 was to maintain accounts and submit them every quarter to the Receiver. No account has been 3 furnished by Defendant No.2 until now. The Court Receiver, who was appointed in 2004, put up his board in 2005. 4.The Plaintiff claims that Defendant No.2 acted against the order of injunction and sold the properties to the Respondents. This Notice of Motion is taken out for removing Defendant No.2 as the agent of the Court Receiver and for removing the Respondents from the suit properties with Police help, if necessary. It is also for certain injunctions against the Respondents from constructing and developing upon the suit properties transferred to them. 5.It is the case of Defendant No.1 that he had already disposed of the suit properties under two unregistered Sale-deeds executed on 20.3.1990. It may be mentioned straightway that Defendant No.1 had not informed the Court that some of the suit properties were already sold by him when the aforesaid order came to be passed on 2.9.2004 in the Plaintiff s initial Notice of Motion. 6.The Defendants have produced copies of the Sale-deeds. Mr.Naidu on behalf of Defendant No.2 contended that the properties sold are not the suit properties. The suit properties are shown in the Schedule of properties 4 annexed as Exhibit-A to the Plaint. The agricultural lands which are concerned in the Suit are under survey numbers mentioned in Clause 12(b) of the said Schedule. One Sale-deed is dated 20.3.1990 in respect of Survey Nos.86 and 78. Those are not the survey numbers reflected in the Schedule of properties shown in the Plaint. The other Sale-deed also dated 20.3.1990 shows in its Schedule some of the properties which are part of the suit properties being part of the survey numbers shown in Clause 12(b) of the Schedule of properties marked Exhibit-A to the Plaint. Though Mr.Naidu tried to pass off all the properties shown in the said Sale- deed as not suit properties, a reading of the Schedule shows that that argument is incorrect. The compilation of the Schedule of properties in the Sale-deed dated 20.3.1990 and in Clause 12(b) of Exhibit-A to the Plaint, shows how some parts of the suit properties is sold by the Defendants to the Respondents. This may be shown as below:- Survey Nos. Area in Plaint Area in Sale-deed 112/1 0-95-9 0-50-6 67/1 1-08-0 1-06-0 69/2 0-67-5 0-63-0 5 79-0 3-57-0 3-19-0 80-0 6-50-0 5-34-0 81-1 2-39-0 2-23-0 82-1-1 9-55-0 8-45-0 3-0 0-91-8 0-91-0 84-0 1-36-6 1-20-0 96-2A 0-75-4 0-70-8 The aforesaid table shows that the aforesaid properties are suit properties and part of those suit properties has been transferred under the Sale-deed dated 20.3.1990. Only properties under Survey Nos.7A and 82(3) are not shown to be suit properties which are transferred under that Sale-deed. 7.It is, therefore, clear that several parts of the suit properties have been transferred by Defendant No.2. The Sale-deeds are unregistered. They are on a stamp paper 6 issued to a stranger one Vij. There has been no public notice of the proposed sale. A Deed of Confirmation has been executed on 24.4.2006. The Deed of Confirmation is signed by Respondent No.1 himself as the Constituted Attorney of Defendant No.2 shown as the vendor and both the Respondents as the purchasers. Prima facie, the aforesaid transfers are seen to be executed after the appointment of Court Receiver and despite the order of injunction and the Sale-deeds are seen to be anti-dated and thus fabricated. 8.The Respondents have relied upon and produced certain correspondence stated to be reflecting the execution of the Sale-deed in 1990. The copy letter dated 10.1.1990 of Respondent No.1 shows his application made to the Special Land Acquisition Officer (SLAO) to obtain No Objection Certificate in respect of acquisition in respect of several of the properties transferred. The photo copy of the letter produced by the Respondents shows a photo copy of a rubber stamp of the office of the SLAO dated 10.1.1990. The Respondents were directed to produce the original acknowledgment of the SLAO on their copy letter. The Respondents produced the same copy bearing the original rubber stamp of the office of the SLAO. The copy letter is not a carbon copy of the original letter. It is a photo copy of the letter on the draft paper which shows that it removed from a 7 file. The copy of the letter written to the SLAO made by a mechanical papers at the time of the writing of the letter would only be secondary evidence of the letter having been written. Such a letter alone would be circumstantial evidence of the fact that such a letter was written by the Respondents to the SLAO on 10.1.1990. The Respondents have not shown any such circumstantial evidence of the fact of writing such a letter. Mr.Sawant, on behalf of the Respondents, stated that since the Respondents did not have a copy of the letter dated 10.1.1990, they called upon the SLAO to certify the receipt of the copy letter. The SLAO s office certified it under its rubber stamp on photo copy of the letter taken out from the file in the SLAO s office. Production of such a copy cannot be taken as secondary evidence and is, therefore, not circumstantial evidence of the fact that such a letter was written. Similar is the case with the letter dated 7.7.1994. The letter further shows the original stamp of receipt of the the Special Land Acquisition Officer, Panvel. The reply to the said application by the office of the Special Land Acquisition Officer, has been sent on 17.3.1990, showing that the lands under the application were exempted from land acquisition. The original reply signed by the Special Land Acquisition Officer, Panvel and sent to the Respondents is produced. There is a further letter issued from the 8 office of the Tahsildar, Panvel dated 21.4.1990. With regard to the registration of the Sale-deed putting on record that the application for registration of the Sale-deed made on 10.8.1990 cannot be considered because the copy of Index-II was not sent, showing why the Sale-deed remained unregistered upon its execution. 9.The certificate of the Special Land Acquisition Officer, Panvel, dated 7.7.1994 further specifies that several of the suit properties have not been acquired for Navi Mumbai Project. This is in reply to the application of the Respondents dated 5.7.1994. Copy of the said application received by the office of the Special Land Acquisition Officer, Panvel, is not produced. 10.Defendant No.2 is shown to have filed a Suit in the Court of the Civil Judge, Junior Division, Panvel, on 21.7.2004, months before the injunction order came to be issued by this Court in the initial Notice of Motion of the Plaintiff. The copy of the Plaint shows some of the properties of the Defendant (shown as the Plaintiff therein) being sold on 20.3.1990 to the Respondents, in respect of which the Respondents have right and possession, but one property under Survey No.75/1 (which appears to be house property) was in the possession of Defendant No.2 (shown as the Plaintiff 9 therein). It also shows certain other properties acquired by CIDCO. The Suit shows that Defendant No.2 therein had no right, claim or vested interest but was attempting to enter upon the suit property belonging to the Plaintiff therein (Defendant No.2 herein). The right of Defendant No.2 herein (the Plaintiff therein) was not seen. His application for interim relief was dismissed on 27.9.2006. 11.The case of Defendant No.2 that he has not breached the order of injunction by mentioning that he had transferred the suit properties prior to the injunction order being passed and that he has not transferred the suit properties but some other properties, are both seen to be nebulous defences. Consequently, the Plaintiff would have a claim against the Respondents. 12.The Plaintiff took out a Chamber Summons for bringing the Respondents on record as Defendants. That Chamber Summons has been dismissed. The Plaintiff has, very belatedly filed an Appeal from that order but not obtained any interim relief against the Respondents. The essential relief that the Plaintiff claims is against the Respondents whilst they have not been allowed to join as party Defendants. No relief can be passed against the Respondents if they are not parties to the Suit. Nevertheless, the suit properties deserve 10 to be protected. It is seen that certain parts of the suit properties being specific survey numbers mentioned in Exhibit-A to the Plaint are sought to be transferred to the Respondents. The Court Receiver has already been appointed in respect of the suit properties. Appointment and possession of the Court Receiver of the suit properties, including the properties stated to have been transferred to the Respondents, is confirmed. Defendant No.2 has been appointed agent of the Court Receiver and directed to submit accounts. He has accepted the agency but not furnished accounts. Defendant No.2 shall furnish accounts in respect of the suit properties including the properties sought to be transferred to the Respondents. The other reliefs are at present not granted since the Respondents are not party Defendants to the Suit. 13.The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.)