- 1 - nm3516.2204 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3316 OF 2009 in SUIT NO.2204 OF 2009 Mrs Nikhat Jehan Siraj Khan .. Plaintiff vs Shaikh Ibrahim Lal Mohammed & ors .. Defendants Mr.A.M.Saraogi for Plaintiff Mr.P.N.Kulkarni for Defendants CORAM: S.C.DHARMADHIKARI, J DATE: 6th September, 2010 P.C. 1. Mr.Saraogi appearing on behalf of the plaintiff states that he has received copy of the affidavit dated 6th September, 2010 and the court should record that the plaintiff proceeds on the basis of denials. 2. Mr.Saraogi submits that this is a suit filed by the plaintiff who is the daughter of the defendant no.3. The plaintiff has sought a declaration of title and on that basis a decree for possession of an Immovable property. The title is claimed on the basis of a Gift deed which is annexed at page 50 of the suit and it is stated that it is - 2 - nm3516.2204 registered gift deed executed by defendant no.3 in favour of the plaintiff making a gift of the immovable property being flat nos. 401 and 402 admeasuring about 440 sq.feet in NeelKamal Apartments, 4th floor, Belgrami Road, Kurla (W) Mumbai-400 070 details of the flats are set out in the gift deed and the schedule thereto so also in the plaint. 3. Mr.Saraogi further submits that the defendant nos. 1 and 2 are trespassers. They had been inducted by defendant no.3 purely as gratuitous licencee and they had no right, title or interest in the premises. They are licencees in respect of flat No.401 (suit property). Relying upon the undertaking dated 24th September, 2007 copy of which is annexed as Exhibit B and averments in the plaint filed in the Bombay City Civil Court, being Suit No. 1513 of 2008, Mr.Saraogi submits that the 1st defendant was the original plaintiff therein and defendant no.3 to this suit was the sole defendant. In the plaint, the plaintiff makes a reference that he has purchased the suit premises in the year 2002 from the 3rd defendant-mother for Rs.3,00,000/-. He had paid Rs.1,80,000/- and incurred - 3 - nm3516.2204 expenses of Rs.2,00,000/- for construction of the suit premises. Possession was handed over in the month of November, 2002 and since then the defendant no.1 (Original plaintiff in the suit) his wife and family members are residing therein but, the 3rd defendant-mother was threatening to dispossess them without due process of law. 4. Mr.Saraogi submits that in the affidavit that is filed today, the version is that the agreement was of sale and there is no whisper of the undertaking or the licence in respect of the subject premises. The details of payment made allegedly in cash and cheque are set out but, each one of them are towards licence fees/security deposit. Some of the cheques are paid towards security deposit and some towards licence fees and in no case an agreement for sale can be spelt out from the same. For all these reasons and defendant nos. 1 and 2 being rank trespassers, Court Receiver High Court, Bombay should be appointed as receiver of this flat. 5. Mr.Saraogi submitted that till the receiver takes - 4 - nm3516.2204 possession order as prayed in terms of prayer clause (c) shall be passed. 6. On the other hand, Mr.Kulkarni appearing for defendants’ 1 and 2 relies upon the contents of the affidavit filed in reply and annexures thereto and submits that defendant no.3-mother cannot throw out defendant nos. 1 and 2 from the premises. The mother agreed to sell the premises and taken a sum of Rs.1,80,000/- and balance of Rs.1,20,000/- is required to be paid to her. The defendant nos. 1 and 2 would pay/deposit the sum with interest at 12 % per annum from 30th November, 2002 within two months from today. In such circumstances, he submitted that this court should not pass drastic interim orders and particularly ousting the defendant no.1 and 2 from the suit premises. 7. After having considered the oral arguments and perused the plaint and annexures so also the affidavits on record, I am of the opinion that an opportunity needs to be given to defendant nos. 1 and 2 to show their bonafides and if there was really any agreement for sale prima facie, there does not seem to be any justification for - 5 - nm3516.2204 not offering the sum so also for not initiating legal proceedings against the mother-defendant no.3. Equally, from 2002 till date, the state of affairs have been allowed to be continued by the plaintiff and defendant no.3 who are none other than daughter and mother. In such circumstances, a balance will have to be struck and following order would serve ends of justice : 1) The defendant nos. 1 and 2 are given two months time to deposit a sum of Rs.1,20,000/- with interest at 12 % p.a. from 30th November, 2002 till the date of deposit and on such deposit being made, the defendant nos. 1 and 2 can continue in possession of the premises but, without creating any third party rights or parting possession thereof in any manner till the disposal of the suit In the event of default, Court Receiver, High Court, Bombay shall stand appointed as receiver of flat bearing No.401, NeelKamal Apartments, 4th floor, Belgrami Road, Kurla (W) Bombay-70 with all powers under Order 40 Rule 1 of the Code of Civil Procedure. 2) The Court Receiver, High Court, Bombay shall - 6 - nm3516.2204 appoint defendant nos. 1 and 2 as his agents but, on payment of royalty/compensation as may be determined by him. 3) The Receiver shall determine the royalty amount on the basis that prima facie defendant nos.1 and 2 could not satisfy the court that they have right, title and interest in the premises. Till the receiver takes possession, as directed above, so also to give opportunity to defendant nos. 1 and 2 to show their bonafides, but to preserve and protect the property, order of injunction as made shall continue for a period of eight weeks from today. Notice of motion disposed of with consent of the parties. S.C.Dharmadhikari, J - 7 - nm3516.2204