1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk NOTICE OF MOTION NO. 3692 OF 2009 IN SUIT NO. 1008 OF 2000 Mr. Qari Mohammed Zakir Hussain .. Plaintiff Vs. F. E. Dinshaw Trust & Ors. .. Defendants Mr. Shoib I. Memon for the Plaintiff. Ms. Mukta Gobse with Mr. S. B. Amin for Defendants CORAM : MRS. R. S. DALVI, J. Date of reserving the order : 22.04.2010 Date of pronouncing the order : 29.04.2010 P.C. 1. The plaintiff has claimed adverse possession in respect of the suit property described in Schedule Exh.A to the plaint. The suit property is shown to be on Survey No. 246 Hissa No. 3 (Part), CTS No.638 (Part) admeasuring 4835.05 sq. meters which is corrected to read Survey No.245 Hissa No.2 on CTS No. 637 (Part) admeasuring 1700 Sq. meters and nalla admeasuring 300 sq. meters which totally admeasures 8323 sq. meters. The suit has been filed in the year 2000. The plaintiff’s Advocate claims that the survey numbers were incorrectly mentioned and hence they have been amended and changed. However the amendments show that additional lands are claimed. 2. The plaintiff has not pressed any relief at this 2 late stage, 10 years after filing of the suit, for any property other than one structure which is used as Bakery. The plaintiff must show his possession in the Bakery. 3. The plaintiff has relied upon his Ration Card. He claims to live in that Bakery with his family. The Ration Card shows the name of the plaintiff and the name of his Bakery Al-Ahmar Bakery which is in Goregaon (E). The Ration Card shows the name of his wife and children. His wife is Shaikh Mehrunnisa. 4. The plaintiff has relied upon his Electoral Roll. This shows name of the plaintiff in Al-Ahmar Bakery Compound at Mulund Link Road. 5. The plaintiff relied upon several N. A. orders which are annexed to the plaint. One of these N.A. Orders shows the names of occupants to be one Mohamed Hussain Ahmed and Sayeeda Mohamed Shaikh at 65, Mutton Street, Rahimi Manzil, 1st Floor, Mumbai-3. Another N. A. order is in the name of one Mohamed Hussain Ahmed at Aminabad Apartment, Bairam Baug, 3rd Floor, Flat No.36, Jogeshwari, Mumbai-64. These N.A. orders are, therefore, not relating to the plaintiff whose wife is Mehrunnisa Shaikh and who is shown to reside in Goregaon (E). 6. The plaintiff’s own Ration Card shows that the N.A. orders relied upon by the plaintiff are not his. Secondly the structures shown in the N. A. orders do not belong to the plaintiff and the plaintiff is not shown as an occupant in respect of any of the structures in the N.A. orders. 7. The plaintiff has relied upon a Registration 3 Certificate issued under the Shops and Establishments Act. The certificate is for a General Stores and Bakery Products in the name of one Abdul Salam S/o Maula Buksh Maulana Mohamed Zakir Hussain (who is not shown to be the plaintiff). This shop is at Mulund Link Road, opposite Santosh Nagar in Malad (E). 8. The plaintiff has also produced two Assessment Bills for Al-Ahmer Bakery which is at Sri Krishna Nagar. The shop is seen to be assessed under No. PN-6800 (5/S), Nagar Modi Pada, Mulund Link Road under Assessment No. P/N-14268 (113) at Mulund Linking Road. 9. The plaintiff has produced copies of his Electricity Bills. Several electricity bills are in the name of Al-Ahmer Bakery at Jai Bhim Nagar, Goregaon (E). The Consumer number of the bills are K-50087865 and 50087866. One electricity meter in the name of one Hafiz Allimuddin is also at Jai Bhim Nagar, Goregaon under Consumer No. K-50087868. Another electricity meter is in the name of Abdul Salam Maula Bax at Jai Bhim Nagar under Consumer No. K-50087866. 10. The plaintiff has also produced Telephone Bills. These are in the name of the plaintiff for Telephone No. 8422761 and in the name of one Maulana M. Zabir Hussain for Telephone No. 8422760. Both are relating to Al Ahmer Bakery. 11. It can be seen from the aforesaid documents that the plaintiff did make a tall claim of adverse possession in respect of a large land including the Bakery. He amended 4 his plaint to show a still larger land with structures. 12. The documents produced by the plaintiff are only in respect of one Bakery called Al-Ahmer. The plaintiff’s Advocate has rightly restricted his reliefs in respect of the Bakery alone. The plaintiff has indeed not made out any prima facie case in respect of any premises other than the Al-Ahmer Bakery. Though the aforesaid documents do show the varying addresses, a reading the addresses on the various documents show that the plaintiff is indeed in possession of the Bakery alone. 13. The plaintiff has also relied upon the licence dated 24.12.1994 valid till 23.12.1995 issued by BMC in respect of the Al-Ahmer Bakery as Exh.G-7 to the plaint. The licence shows the area of the Bakery to be 68.465 sq. meters. The Bakery which is licenced is, therefore about 700 sq. ft. in area. 14. Since the plaintiff claimed the open land along with structures and since the plaintiff could not identify the extent of the land with structures claimed by him and the plaintiff’s possession in respect of the suit property had to be ascertained, a Court Commissioner has been appointed. The Commissioner has gone through the suit property with City Survey Officer. The plaintiff’s Advocate claims that the survey numbers were incorrectly mentioned in the plaint and hence the plaint was amended after the correct survey numbers were shown. That statement is seen to be misconceived. The plaintiff has added various other lands in the suit. As aforesaid, the plaintiff has not shown 5 absolutely any evidence in respect of any open land and hence his Advocate has wisely not prayed for any relief in this Notice of Motion for any open land. 15. The Commissioner is required to show the lands claimed by the plaintiff. The city survey plan has been drawn up. The Commissioner has however also stated in his report, which the plaintiff’s Advocate has relied upon, how much area of the Bakery structure the plaintiff is in possession of. The Commissioner has neither the right nor the authority to opine on the area in the possession of any party. The Commissioner has to merely show the facts on site to assist the Court. 16. The Bakery shown in plan got prepared by the plaintiff spans a much larger area. That area cannot be accepted. 17. After this Notice of Motion was heard, the plaintiff was directed to produce the photographs of the Bakery. The plaintiff’s photographs show the Bakery in one Gala adjacent to two other Galas. In front of the Gala, there is an extension in the open space upon poles/pillars which is enclosed by shutters. The space under poles is open and vacant with the plaintiff and some other persons sitting there. The premises under the adjoining two other shutters are similarly enclosed and are seen to be different and belonging to some other persons. The plaintiff has put up a cloth board/banner around the shuttered premises extending to the other premises also. The defendants’ Advocate has shown how the cloth board/banner is put over 6 the name boards of the adjoining two premises. The earlier cloth banner shows the banner of one Reclamation Development India Pvt. Ltd. And one Kayada Fun and Food Restaurant over other name boards. 18. The act of the plaintiff is seen to be mischievous and fraudulent. The plaint shows the plaintiff’s claim over open land not at all in the plaintiff’s possession but in the possession of some others. The document of the Bakery and the plaintiff’s act in so claiming the premises purported to be of Al-Ahmer Bakery also show claims made towards much larger premises than what is in the possession of the plaintiff. 19. The defendants’ Advocate rightly contended that the plaintiff has gone on extending his area on the defendants’ land by trespassing thereupon. Whatever be the area in the possession of the plaintiff at the time suit was filed, 10 years ago must only be seen. This contention is correct and justifiable. Indeed the plaintiff’s photographs show the extension made over poles/pillars to the original Gala. The lawful area of the original Gala, forming is Bakery as on the date of suit was only 68.465 sq. meters. 20. The plaintiff has not only come to Court with unclean hands but has further sought to overreach the Court with equally unclean hands. The plaintiff is not entitled to any relief. 21. However only since the plaintiff’s possession is seen in the premises of Al-Ahmer Bakery for which the plaintiff has produced the duplicate Ration Card and photo 7 copy of the Municipal licence showing the Bakery to be 68.465 sq. meters, the plaintiff’s possession in the portion of only one Gala under the board of Al-Ahmer Bakery (and not the cloth board/banner of Al-Ahmer Bakery) is protected to the extent of the area of 68.465 sq. meters pending the suit. There shall be no other reliefs in the Notice of Motion. 22. One photograph of the suit premises alongside the other premises of other parties produced by the plaintiff and one photograph of the plaintiff’s Bakery alongside the photograph of adjacent premises of other properties produced by the defendants inter alia showing the cloth board/banner are kept on record. The other photographs are returned to the parties. (R. S. DALVI, J.)