IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1863 OF 2008 IN FIRST APPEAL NO.1244 OF 2004 Ishwarlal J.Rajput & Ors. )..Appellants Versus Keshavlal J.Rajput & Ors. )..Respondents ---- Mr.Gabriel Pillai for the applicants. Mr.V.K.Mehta for the respondent no.1. Mrs.Vandana Mahadik for BMC. Mr.S.S.Shah for respondent no.3. ---- Coram : R.S.Mohite,J Date : 24.10.2008. PC 1. This is an application preferred by the original plaintiff in S.C.Suit No.4573/2000. Prayer clause-(a) of the Civil Application sought to join the respondent and has already been granted by this Court. Prayer clauses-(b) and (c) seek for direction against the added respondent to give a joint receipt of possession and after construction of the new building to direct the added respondent to hand over the premises jointly to appellant and respondent no.1. The relief (c) is an interim relief sought pending the disposal of this Civil Application. 2. The record indicates that the appellant had : 2 : filed a suit in the City Civil Court seeking a declaration that the act of respondent no.2 i.e. B.M.C. and respondent no.1 who is real brother in getting the suit premises transferred in the sole name of respondent no.1 was illegal. In the said suit, Minutes of Order was filed in Notice of Motion No.3379/2000 and respondent no.1 was restrained from disturbing the appellant’s possession in the varandha. Appellant was also allowed undisturbed use of toilet. Suit was dismissed in 2005 and therefore, appellant has filed this appeal. In this appeal, Civil Application being Civil Application No.2984/2005 was taken out and the interim relief operating during the pendency of the suit was continued. It appears that in spite of this relief, the possession of the premises was surrendered. According to the appellant the surrender of possession itself was violative of the order passed by this Court. It appears that on this contention he would stand on a good prima facie footing. The development agreement is now on the record and the same indicates that the added respondent had agreed to construct the new building and to put respondent no.1 in possession. It is also evident that the added respondent has also agreed to pay an amount of Rs.25,000/- per month to respondent no.1 in order to enable him to secure an alternative accomodation. It does prima facie appear that respondent no.1 has : 3 : flouted the Court’s order. The appellant and the added respondent have now come to terms and file Minutes of Order dated 24.10.2008 which are taken on record and marked as "X" for identification. The same indicates that the added respondent is willing to pay a part of the money payable to respondent no.1 to his brother i.e. the present appellant. The amount agreed as payable is Rs.8333/- per month from 24.4.2008 and this amount is calculated on a proportionate basis to the area occupied by the appellant as compared to the total area of the flat. I find that the Minutes of Order are fair. No doubt, that respondent no.1 is not agreeable to reduction of the amount payable to him, however, having surrendered premises which was not exclusively in his possession, I am not inclined to accept his contention that no amount should be paid. In the circumstances, Civil Application is disposed off in terms of Minutes of Order. Certified copy expedited. Liberty to move for further orders after the newly constructed premises are ready. It is made clear that this order should not influence the Contempt proceedings which is pending between the appellant and respondent no.1. Added respondent has handed over 12 cheques, one of Rs.50000/- and 11 of Rs.8333/- as contemplated in the Minutes of Order to the Advocate for the appellant in court today. Civil Application stands disposed off. : 4 : (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)