1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk NOTICE OF MOTION NO. 4372 OF 2008 IN SUIT NO. 3372 OF 2008 Melstar Developers Pvt. Ltd. .. Plaintiff Vs. Shrinivas M. Bhagat & 2 Ors. .. Defendants. Mr. Sharan Jagtiani i/b RMG Law Associates for the Plaintiff. Mr. A. A. Kumbhakoni with Mr. C. Moses i/b Jain & Asso. for Defendant No.1. AND NOTICE OF MOTION NO. 4374 OF 2008 IN SUIT NO. 3371 OF 2008 Melstar Developers Pvt. Ltd. .. Plaintiff Vs. Vijay S. Kadam & 2 Ors. .. Defendants. Mr. Sharan Jagtiani i/b RMG Law Associates for the Plaintiff. Mr. A. A. Kumbhakoni with Mr. C. Moses i/b Jain & Asso. for Defendant No.1. AND NOTICE OF MOTION NO. 4375 OF 2008 IN SUIT NO. 3369 OF 2008 Melstar Developers Pvt. Ltd. .. Plaintiff Vs. Mohd. Yunus Mohd. Hussain Shaikh & 2 Ors. .. Defendants. 2 Mr. Sharan Jagtiani i/b RMG Law Associates for the Plaintiff. Mr. A. A. Kumbhakoni with Mr. C. Moses i/b Jain & Asso. for Defendant No.1. AND NOTICE OF MOTION NO. 4376 OF 2008 IN SUIT NO. 3370 OF 2008 Melstar Developers Pvt. Ltd. .. Plaintiff Vs. Anees I. Shaikh & 2 Ors. .. Defendants. Mr. Sharan Jagtiani i/b RMG Law Associates for the Plaintiff. Mr. A. A. Kumbhakoni with Mr. C. Moses i/b Jain & Asso. for Defendant No.1. AND NOTICE OF MOTION NO. 4377 OF 2008 IN SUIT NO. 3368 OF 2008 Melstar Developers Pvt. Ltd. .. Plaintiff Vs. Mohd. M. Khan & 2 Ors. .. Defendants. Mr. D. D. Madon, Sr. Counsel i/b DSK Legal for the Plaintiff. Mr. A. A. Kumbhakoni with Mr. C. Moses i/b Jain & Asso. for Defendant No.1. CORAM : MRS. R. S. DALVI, J. Date of reserving the order : 21st April, 2010. Date of pronouncing the order : 28th April, 2010. 3 P.C. 1. The suits are filed on trespass. The suit is essentially for recovery of possession of the premises from the defendants and for payment of mesne profits and other incidental reliefs. 2. The Notices of Motion are also for recovery of possession of the suit premises from the defendants. 3. It is the plaintiff’s case that the defendant No.1 in each of these suits are in possession of a garage premises of about 150 sq. ft. The plaintiff contends that the defendants park their vehicles for repairs and accordingly trespass upon further premises of the defendants also. The plaintiff has entered into registered Agreement for Sale and Power of Attorney with defendant Nos.2 & 3 to develop the suit property on 08.03.2007 for consideration. 4. The plaintiff claims that the defendants are mere encroachers and trespassers. 5. However a week prior to the plaintiff’s Agreement for Sale, the defendant No.1 in each of these suits has sued defendant Nos.2 & 3 herein and the plaintiff’s sister concern in the Bombay City Civil Court in Suit No. 3219 of 2007 for protection of their possession. A status quo order came to be passed in view of the statement made by the sister concern of the plaintiff to maintain status quo. 6. These defendants claimed possession as tenants. They have not produced rent receipt issued by defendant Nos.2 & 3 but their possession, however wrongly, is not disputed. Similarly the plaintiff’s right, title and 4 interest was also not disputed by defendant No.1 in each of these suits. 7. For the plaintiffs’ development and construction, defendant No.1 in each of these suits had to be vacated. The plaintiffs claim that they entered into certain settlement with these defendants. The defendants were paid off. They vacated their premises and thereafter re-entered upon the premises. 8. The settlement is shown by way of five letters shown to be addressed by defendant No.1 in each of these suits signed by them giving up the premises occupied by them and claiming to have no further rights therein as also a receipt for the consideration received by them. 9. Each of these letters and receipt is dated 26th December, 2007. These documents were executed after the City Civil Court suit was filed by them. However the settlement is not in the suit. The suit did not come to be disposed of in terms of such settlement. 10. Out of these 5 parties only one defendant has been paid Rs.5 lacs. Each of the other 4 defendants (who are sued as defendant No.1 in these suits) were paid Rs. 10,000/-. 11. The Letters/Agreements are identical, stamped and identically signed. 12. There is only one essential difference for the defendant who is paid Rs.5 lacs. The consideration is shown to be paid by cheque. The particulars of the cheque and the bank upon which it was drawn are mentioned in his 5 letter/agreement. In the other 4 letters/agreements the amount is not shown to be paid by cheques and no particulars of the cheque or the bank on which the cheques are issued are stated, though the plaintiffs have produced are bank statement showing entries of Rs.5 lacs as well as 5 entries of Rs.10,000/- each. 13. All these defendants are stated to be in possession of the similar premises of similar dimensions. It is not understood and it has not been explained why only one of them is paid Rs.5 lacs whereas others are paid Rs. 10,000/-. 14. These defendants are stated to have executed even another letter addressed to the plaintiffs then Advocate on 04.03.2008. On the same day the suit No. 3219 of 2007 is stated to be withdrawn. That was the suit in which a status quo order was passed since 02.03.2007, a week before the plaintiff entered into the Agreement for Sale with defendant Nos.2 & 3. 15. During the pendency of the suit, the settlement took place. Yet it was not a part of the record of the suit. The settlement is stated to have taken on 26.12.2007. Defendant No.1 in each of these suits are stated to have reentered upon the suit property in January, 2008. The further letter of these defendants is addressed on 04.03.2008 on which date the suit is stated to be withdrawn. 16. Defendant No.1 in each of these suits has disputed the settlement as well as the withdrawal of the suit. Mr. Kumbhakoni rightly argued that the act of the 6 plaintiff settling the dispute and not making it a part of the record of the suit which was already filed cannot be accepted. He further argued that the defendants were in settled position at least from March, 2007 and this suit has come to be filed in October, 2008 for recovery of the possession. The plaintiff must wait its turn for the suit to reach hearing. 17. Defendant No.1 in each of these suits has filed another suit in the City Civil Court No. 1149 of 2008 alleging that they had not withdrawn the earlier suit and they had not settled the dispute with the plaintiff or its sister concern. The defendants also sued the plaintiff in the Small Causes Court at Bombay under R.A.D. Suit No. 1186 of 2008. The plaintiff contends that no interim relief is granted to defendant No.1 in those suits. 18. Defendant No.1 in each of these suits has not produced any document to show their long standing possession or their tenancy from defendant No.2 or 3. Their possession, however illegal, is accepted for which this suit is filed. The settlement between the parties, if any, is only to be seen. The plaintiffs have produced the original documents. Mr. Madon as well as Mr. Jagtiani rely upon the fact that defendant No.1 in each of these suits has signed against his photograph as well as on the revenue stamp in the receipt. Two of these defendants have also signed in the margin of page 1 of their letter/agreement. The two witnesses in each of these agreements are identical. 19. It may be accepted that defendant No.1 in each 7 of these suits is the party with whom the plaintiff could settle the dispute by payment of consideration. However consideration of such gross difference as Rs. 5 lacs for one of the parties and Rs.10,000/- for 4 others who were in possession of similar premises of similar dimensions cannot be accepted. 20. The reliance upon the judgment in the case of Doram Cawasji Warden Vs. Coomi Sorab Warden & Ors. (1990) 2 Supreme Court Cases 117 which was the case of his stranger recently inducted in the premises co-owned by the plaintiff as a dwelling house, is entirely misplaced. 21. Defendant No.1 in Suit No.3368 of 2008 has been paid off Rs.5 lacs for the premises of 150 sq. ft. being used as garage by him on the suit land. This amount is paid by cheque No. 146046 drawn on Axis Bank Pvt. Ltd., Chembur Branch. Merely disputing that the amount is received by defendant No.1 in Suit No. 3368 of 2008 cannot be accepted. 22. Since it is seen the defendant No.1 in Suit No. 3368 of 2008 has been paid off a reasonable amount of Rs.5 lacs to hand over the possession of the premises in his occupation and since he has not shown his tenancy as claimed by him and must be taken to be only in wrongful possession of the part of the suit premises, he cannot be allowed to re-enter upon the suit premises or to carry on business in the suit premises. 23. The plaintiff shall be entitled to take possession of the premises in occupation of defendant No.1 in Suit No. 3368 of 2008, with police help if necessary. 8 24. The plaintiffs have not made out any prima facie case for being granted precisely the relief that is claimed in the suit as an interim relief in Suit Nos. 3372 of 2008, 3371 of 2008, 3369 of 2008 & 3370 of 2008. No relief is granted to the plaintiff against defendant No.1 in these suits as no acceptable agreement between the plaintiff and defendant No.1 for vacating the premises is shown. 25. All the 5 Notices of of Motion are disposed of accordingly. (R. S. DALVI, J.)