1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.362 OF 2009 WITH CIVIL APPLICATION NO.438 OF 2009 Esamail Abdul Karim Qasam Virani & Ors. ....Appellants Versus Vedprakash Gopalprasad Nigam ....Respondents. Ms.Gauri Godse for the Appellants. Mr. N. V. Walawalkar i/b. Mr.Jeetendra Sachdev for Respondent No.8. CORAM : R. V. MORE, J. DATED : 5TH MAY, 2009. P.C. Heard, Ms.Gauri Godse, learned Counsel for the Appellants and Mr. Walawalkar, learned Senior Counsel for the Respondent No.8. 2. The Appellants are the Original Plaintiffs and the Respondent No.8 is the Original Defendant No.8. In the year 1969, Respondent Nos.1 to 3 and one Anandi entered into an agreement with the predecessor in title of the plaintiffs to sale the suit properties mentioned in clause (a) and (b) of the plaint. It is not disputed that the property under the agreement came to be acquired by Respondent No.6, for Navi Mumbai project and the award was passed in the year 1986. 3. The Appellants filed Special Civil Suit No.608 of 2008 for claiming the amount of compensation in respect of the above said suit land and also for declaration 2 that they are entitled for allotment of plot being plot no.18, Sector 22, Kamothe in Navi Mumbai. The aforesaid relief of declaration seems to have asked for in as much as the Respondent Nos.1 to 3 in pursuance of Government policy were allotted the said plot. The Respondent Nos. 1 to 3 initially assigned the suit plot to M/s. Aawas Homes and subsequently M/s. Aawas Homes assigned the said plot to Respondent No.8. 4. The Appellants filed interim application at exhibit-5 for temporary injunction restraining the Respondent No.8 from carrying out any construction on the said plot of land or creating third party interest. 5. Ms.Godse, learned Counsel for the Appellant submitted that out of the total consideration amount of Rs.75,000/-, an amount of Rs. 45,000/- was already paid to the original owners viz. Respondent Nos. 1 to 3 under an agreement to sale. She further submitted that the Appellants participated in the acquisition proceedings and in the award passed under section 11 of the Land Acquisition Act, 1894, the Appellants’ names are also mentioned. In these facts, Appellants are interested persons and therefore entitled for allotment of the suit plot. She also relied upon the Government’s policy dated 6th March, 1990 and Apex Court’s decision in Rojasara Ramjibhai Dahyabhai Versus Jani Narottamdas Lallubhai (Dead) by LRs and Anr. reported in 1986 Supreme Court Cases, Page No.300. 6. Mr. Walawalkar, learned Senior Counsel, per contra supported the impugned order and submitted that the Appellants’ are not entitled for any rights in the suit plot which was allotted to the predecessor in title of Respondent No.8 in pursuance of the 12.5% scheme. He submitted that the Respondent No.8 has already commenced construction and completed upto six floors. 7. Having heard, learned Counsel and having gone through the impugned order and the Government’s policy and the decision of the Apex Court, I do not find any merit in the Appeal from Order. It is true that the agreement was executed in favour of the 3 Appellants in the year 1969, however, fact remains that the subject matter of the agreement viz. the suit property is already acquired by the Government for Navi Mumbai project. Thus, performance of the agreement has become impossible under section 41(e) of the Specific Relief Act. The said plot in respect of which relief is claimed was not the subject matter of the agreement of 1969. The said plot was granted independently to the Respondent Nos.1 to 3 in pursuance of the Government policy dated 6th March, 1990. Under this policy, the owners are entitled for allotment of plot to the extent of 12.5% of the land under acquisition. The Appellants at the most can be said to have interest in the land under acquisition by virtue of the agreement of 1969. However, by no stretch of imagination it can be said that the Appellants had acquired title to the land under acquisition. The title always remained with the original owners/Respondent Nos.1 to 3 and therefore, in my view, the Appellants cannot claim any right in the plot. So far as the Apex Court’s judgment in Rojasara Ramjibhai Dahyabhai Versus Jani Narottamdas Lallubhai (Dead) by LRs and Anr. reported in 1986 Supreme Court Cases, Page No.300, is concerned, same is under section 13 of the Specific Relief Act. Section 13 of the said Act speaks about the right of predecessor or lessee against person with no title or imperfect title. It is not the case of the Appellants that the Respondent Nos.1 to 3 and one Anandi had imperfect title at the time of execution of agreement to sale in the year 1969. There is one more circumstance, which in my view disentitles the Appellants from claiming any reliefs viz. the advanced stage of construction on the said plot. Mr. Walawalkar, learned Senior Counsel, produced photographs of the construction. The photographs reveals that during the pendency of the suit, except barring the period in which status-quo order was in force, the construction is proceeded ahead and it is on the verge of completion. 8. Taking over all circumstances into consideration, I do not find prima-facie case in favour of the Appellants and the balance of convenience also lies in favour of Respondent Nos. 1 to 3. In the circumstances, Appeal from Order is dismissed. 9. Needless to mention that the above observations are the prima-facie observations and the same are made for the purpose of disposal of the present Appeal 4 from Order. The Trial Court shall dispose of the Appellants’ suit independently on its own merit and without being influenced by the present order or the impugned order in the Appeal. At this stage, Ms. Godse prays for direction to direct the parties to maintain status-quo in order to enable her to approach the Apex Court. Mr. Walawalkar, learned Senior Counsel, had already made a statement that the Respondent No.8 will not create third party interest in the suit property and this statement can be continued for some reasonable time. In the above circumstances and in the interest of justice, the statement of Mr.Walawalkar that he will not create third party interest in the suit property is continued for the period of two weeks from today. (R. V. MORE, J.)