1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1922 OF 2008 IN SUIT NO.1697 OF 2008 S. Purandara Lakshni Janardana Joisa ...Plaintiff V/s. Vishnu Damodar Salonkmar ...Defendant Mr.Yashodhan Divekar i/b. Divekar & Co. for the Plaintiff. Mr.B.S. Nayak for the Defendant. CORAM : A.V. NIRGUDE, J. DATE : 20TH FEBRUARY, 2009. JUDGMENT : 1. The Plaintiff took out this Notice of Motion to prevent the Defendant from disturbing his possession of the suit property. The facts leading to the litigation to some extent are admitted. The Defendant is the owner of the suit property, a residential flat, situated in a co-operative housing society at Charkop, Bombay. The Defendant allowed the Plaintiff to occupy the same as licensee some time in 2 2001 and the arrangement continued for next 2 – 3 years. In November, 2004, it was the case of the Plaintiff that the Defendant agreed to sell the said flat to him for a sum of Rs.4 lacs and received Rs.50,000/- as earnest, a writing dated 10-11-2004 to that effect was effected which is annexed to the plaint. It was further agreed between the parties that on the Plaintiff's paying the remaining amount of Rs.3,50,000/-, the Defendant would execute the conveyance. It is the case of the Plaintiff further that in November, 2006, the Defendant orally informed him that he would not honor his word and would not sell the flat to him on 9-1-2005. The Plaintiff sent a legal notice demanding specific performance of the agreement dated 10-11-04. It is the case of the Plaintiff further that on 19-5-07, the Defendant tried to forcibly enter the suit flat. The Plaintiff said he could avert this intrusion by filing police complaint on 22-5-07. He lodged this suit and took out this Notice of Motion soon thereafter. Before the Plaintiff could approach the Court for seeking ad-interim relief, it is the case of the Plaintiff that on 3-6-07, the Defendant entered into the suit flat and occupied part of it. With the result, the Plaintiff and the 3 Defendant both are occupying the suit flat. The Plaintiff, as said above, sought injunction against the Defendant and the learned Advocate appearing for the Plaintiff also sought a suitable order to get the Defendant evicted from the suit flat. 2. The Defendant in reply and in sur-rejoinder contended as under: 3. He said, he indeed granted license to the Plaintiff to occupy the suit flat from 2001-2004, but he asserted that the Plaintiff ' induced' him to execute the writing dated 10-11-04 albeit he admitted having received the amount of Rs.50,000/- from the Plaintiff. It is thus the case of the Defendant that he did not agree to sell the suit flat to the Plaintiff. He said the leave and license agreement expired on 31-7-03 and the Plaintiff' s occupation of the suit flat was unauthorized. He denied having made an attempt to forcibly enter the suit flat on 19-5- 08 but admitted that some of his belongings and luggage are kept in the suit flat. In this sur-rejoinder, the Defendant added after the Plaintiff filed a rejoinder complaining about the Defendant' s forcible 4 entry on 3-6-08. The Defendant stated that at the end of April, 2008, the Plaintiff had vacated the suit premises and thereafter he once again entered / trespassed into the same only to the extent of kitchen portion of the flat. He thus admitted that the Defendant and the Plaintiff both are presently occupying the suit flat. 4. The questions that arose for consideration are : (i).Where there was an agreement for sale of the suit flat on 10- 11-2004? (ii).Whether the Plaintiff vacated the suit flat in or about April, 2008? (iii).Whether the Defendant' s occupation of the suit flat is lawful? 5. The question as to whether there was an agreement between the parties can easily be answered in affirmative. The document is admitted by the Defendant. The writing of 10-11-04 and the payment 5 made pursuant to it is admitted by the Defendant. He somehow and rather hesitatingly stated that the Plaintiff induced him to execute the agreement. He did not elaborate further on this aspect. It is clear that the Defendant is finding it difficult to deny the agreement of sale and therefore he is pleading a lame excuse. On the face of it, the agreement appears prima-facie genuine and so from 10-11-2004, the Plaintiff's occupation of the suit flat would be that of the prospective purchaser of the suit flat. There is no further agreement for leave and license between the parties. Nothing happened between the parties from November, 2004 till November, 2007. 6. The Plaintiff contended that he continued to occupy the suit flat and lastly he demanded execution of the sale deed vide his legal notice dated 9-1-2007. There is no serious dispute about these events and it is therefore clear that until then the Plaintiff was occupying the suit flat. Had the Plaintiff really vacated the suit flat in April, 2008, the Plaintiff would not have filed this suit and taken out this Notice of Motion. More so, the Defendant would have asserted this fact that the 6 Plaintiff had vacated the suit flat in April, 2008 in his reply which he filed on 14-7-2008. This was an important event between the parties and the Defendant would have certainly asserted this as soon as possible in his affidavit. This fact would have certainly nullified the Plaintiff's application. So the case of the Defendant that the Plaintiff vacated the suit flat in April, 2008 apparently is untruthful and does not inspire any confidence. So, if one rejects this theory of the Defendant, it must be held that the Plaintiff would continue to occupy the flat on the date of filing of the suit until date. 7. The next point is in respect of the Defendant's occupation of the suit flat. Here the case of the Plaintiff deserves to be believed. It is quite obvious that the Defendant had made entry in the suit flat some time after filing of the suit and utilizing sheer muscle power he could remained stayed put there. In order to justify this, the Defendant clearly cooked up an unbelievable story that it was the Plaintiff who entered unauthorizedly. It is thus prima-facie clear that it is the Defendant who entered the flat unauthorizedly that too after filing of 7 the suit and during the pendency of this Notice of Motion. 8. The last question is in what way the Plaintiff's grievance can be redressed at this stage. In view of the prima-facie conclusions drawn above, I have no hesitation to appoint Court Receiver, High Court, Bombay as Receiver of the suit flat and further directing him to evict the Defendant and his family members and persons claiming through him from it. The Court Receiver should be further directed to appoint the Plaintiff as his agent without furnishing security etc. On the other hand, the Plaintiff should be directed to deposit the amount agreed by thewriting dated 10-11-2004. Hence the order. "O R D E R" (i).On the Plaintiff's depositing Rs.3,50,000/- in the Court on or before 16th March, 2009, the Court Receiver, High Court, Bombay shall take possession of the suit flat as the Receiver of the same and shall then evict the Defendant and his family members and persons 8 claiming through him from the same. (ii).The Defendant shall have one week' s time to remove himself and his household articles. The Court Receiver shall then appoint the Plaintiff as his agent. (iii).The amount deposited by the Plaintiff shall be invested in the fixed deposit in any nationalized bank initially for a period of one year. (iv).The Notice of Motion stands disposed of accordingly. [A.V. NIRGUDE, J.]