1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION A.O.1214/2008 Bijendra Ramkailash Singh Appellant Vs. M/s SMGK Developers Pvt.Ltd.& Ors. Respondents Mr.P.K.Dhakephalkar ,Sr.Counsel with Mr.Mohan Jadhav for the appellant Mr.S.R.Singh for Res.no.1 Mr.G.S.Godbole for Res.no.12 Mrs.Geeta Joglekar for BMC. CORAM: S.J.VAZIFDAR,J. DATE : 18th December,2008 P.C. 1] The impugned order warrants no interference. I would however supplement the reasons given by the learned Judge. 2] It is pertinent to note that the Appellant/plaintiff claims his rights in respect of the suit property under an alleged conveyance/ deed dated 15th April,1989 executed by one Smt.S.Pujari in his favour. For about 20 years the plaintiff has not filed any suit for specific performance himself. According to the plaintiff the said Smt. S.Pujari in turn had acquired rights in respect of the suit property under an alleged agreement to sell dated 2nd May,1983 from the 2 original owners. 3] It is important to note that the plaintiff as a constituted attorney of said Smt.S.Pujari filed a suit being Suit no.2970/90 in the City Civil Court ,Bombay for specific performance of the alleged agreement dated 2nd May,1983. It is important also to note that the suitwas filed on her behalf by the Appellant acting as her constituted attorney. That suit abated upon the death of said S.Pujari. It is further important to note that the Chamber Summons was filed by the plaintiff for bringing himself on record. That Chamber Summons was dismissed by a detailed order and judgment dated 30th March, 1993 wherein stictures have been passed against the plaintiff .That order was not challenged and has attained finality. 4] The plaintiff claims through the said Smt.S.Pujari . The suit of S.Pujari having been dismissed in fact now no rights survive in favour of the plaintiff.Even assuming they do they would be barred by limitation as even knowledge of refusal of performance was at the latest when suit no.2970 of 1990 was filed. 5] Even more important is the fact that the plaintiff himself filed a Suit No.2345/96 in the City Civil Court,Bombay only for an injunction against the servants of the constituted attorney of the original owner. That suit came to be dismissed in the year 2001. 6] The present suit is filed in the year 2006. Even today there 3 is no suit for specific performance . Realising that the suit for specific performance would be hopelessly barred for more than one reasons only injunctions and other reliefs have been sought restraining the defendants from exploiting the rights in respect of the suit property. It is now contended that the plaintiff seeks to protect a right of alleged possession. 7] It is difficult to accept even on facts of the case of possession. The evidence does not support the plaintiff's case in respect of possession. 8] The 7 x 12 document refers to said Smt.Pujari in the other rights column. This by itself would not assist the plaintiff . Further it appears that even this entry was deleted in the year 1991. The mere fact that the alleged agreement dated 15th April,1989 and 2nd May,1993 recite possession having been handed over would in the facts and circumstances of the case not make any difference. From the documents annexed to the proceedings the entire property of which the suit property forms but a part appears to have been developed. There is nothing to indicate the plaintiff's alleged possession. 9] Neither the plaint nor the alleged agreement dated 15th April,1989 identify the suit property viz.3393 sq.mtrs. as required by law. This suit property is a part of a larger plot bearing CTS No.60. 10] Reliance was placed on order dated 23rd April,1997 in A.O.no.436/97 filed by the plaintiff against the order passed by the 4 City Civil Court in a Notice of Motion taken out in said suit no.2345/96. That order does not recognize the plaintiff's possession. It is merely directs the parties to maintain status quo as it existed on the date when the impugned order came to be passed.Nor does the commissioner's report made in said proceedings establish the plaintiff's possession . 11] In the circumstances the A.O.is dismissed.