1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.383 OF 2008 IN NOTICE OF MOTION NO.1629 OF 2008 IN SUIT NO.1396 OF 2008 WITH NOTICE OF MOTION NO.3358 OF 2008 IN APPEAL NO.383 OF 2008 IN SUIT NO.1396 OF 2008 Hajra Zakaria Aghadi & Ors. .. Appellants Vs Virendra Kumar Jhamb Ltd. & 15 Ors. .. Respondents -- Shri S.I. Memon for the Appellants. Ms Divya Shah for Respondent Nos.1 and 2. Ms Jacinta D'silva with S/Shri Robin Jaisinghani and D.D. Madon for Respondent No.3. Ms Kanchan Khan and Ms Archana Khan with Shri Mukesh M. Vashi for Respondent Nos.4 and 5. Shri Nitin V. Gangal for Respondent Nos.7 to 14. Shri K.N. Gaikwad for Respondent No.16. -- CORAM : SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J DATED : 5TH JANUARY, 2009 P.C. 2 Heard. At the request of learned counsel appearing for the parties, the appeal itself along with Notice of Motion No.3358 of 2008 was taken up for final hearing at the admission stage itself. 2. The present Appellants had taken out Notice of Motion No.1629 of 2008 which came to be rejected vide order dated 7th August, 2008 passed by the learned Single Judge. In the suit, the Appellants have challenged the Conveyance Deed dated 6th October, 2006 and Development Agreement dated 8th October, 2006 on the ground that they are fabricated documents and that the Power of Attorney holders who claim to have transferred the title and created interest in the suit premises have no authority to do so. Resultantly, a prayer was made for restraining the Respondents from raising any construction or creating any third party interest in the proprty in question. The learned Single Judge, while rejecting the Notice of Motion, came to a prima facie conclusion and recorded the findings as follows:- “6. In my view, no prima facie case is made out for grant of any interim relief. The conveyance has been made in favour of the Society which is registered under the various clauses in the agreement executed by the original owner with 3 defendant No.1 and also with Zakaria Aghadi and defendant Nos.4 and 5, it was agreed that after the flats are sold, the property would be conveyed in favour of the Society formed by the flat owners. Accordingly, in view of the said clauses, the property has now been conveyed by the original owner in favour of the Society. Since the buildings were in dilapidated condition, Society has taken a decision to demolish the old buildings and to construct two additional new buildings. The builder who has undertaken this task has also demolished the two old buildings and has given an alternative accommodation to the members of the said Society. The photographs which are shown by the learned Counsel appearing on behalf of the developer, reveals that the construction is almost over. Even otherwise, irreparable loss would be caused to the members of the Society if the construction is stayed at this stage. This is obviously an attempt made by the plaintiffs to harass the members of the Society.” 3. The said findings are challenged by learned counsel appearing for the Appellants who has argued that on the basis of the document Exhibit – L, the Appellants had right in the property in question and one Virendra Kumar Jhamb had executed the said document in favour of the Appellants, who has further executed the Conveyance Deed and the Development Agreement as the Power of Attorney Holder on behalf of M/s. R.R. Todiwalla & Co. Thus, these documents are the result of a collusion and fraud played upon the Appellants. At the very outset, we must mention 4 that the findings recorded by the learned Single Judge have not been challenged specifically in the Memorandum of Appeal before us. Be that as it may, there hardly any document which, at this stage of the proceedings, can be taken to be a document creating interest in the property in question. The document further refers to the Agreement dated 4th March, 1980 vide which the land bearing C.T. S. No. 1236, 1232, 1231 Survey Nos. 18, 19, 16 were alleged to have been purchased by Virendra Kumar Jhamb from M/s. R.R. Todiwalla & Ors. and part of it then was given to the Appellants. It is strange that the Appellants had not obtained any enforcement of their right and now after two years, the documents sought to be challenged in the suit filed in the year 2008 are that of the year 2006. In the meanwhile, construction has almost been completed. Equity has changed and it is not fair for this Court, at this stage, to pass any injunctive order particularly in face of the fact that there is no document on record which can, prima facie, establish a right of the Appellants in the property in question so as to justify issuance of prohibitory order. 4. In the circumstances aforesaid, we see no reason to interfere in the impugned order passed by the learned Single 5 Judge. Ofcourse, we notice that the Appellants have already filed a lis pendent notice which controls the right of the parties. The Appeal stands dismissed with no order as to costs. 5. In view of disposal of the present appeal, Notice of Motion No.3358 of 2008 does not survive and accordingly stands disposed of. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J