:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE APPEAL FROM ORDER (STAMP) NO.6 OF 2008 APPEAL FROM ORDER (STAMP) NO.6 OF 2008 APPEAL FROM ORDER (STAMP) NO.6 OF 2008 WITH WITH WITH CIVIL APPLICATION (STAMP) NO.7 OF 2008 CIVIL APPLICATION (STAMP) NO.7 OF 2008 CIVIL APPLICATION (STAMP) NO.7 OF 2008 Mr.Rajnikant Vasantrao Warrang & Anr. ...Appellants. v. Municipal Corporation of Greater Bombay & Ors. ...Respondents. Mr.Mohit Jadhav, adv. for the Appellants. Mr.Gautam Mehta alongwith Bimal Bhabhda i/by Apte & Co. , advs. for the Respondents. Mr.Jaideep Mitra i/by Laxmi Jessani, advs. for the Respondent Nos.4 to 10. Mrs.Geeta Joglekar, adv. for the BMC. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 30th January, 2008. DATE: 30th January, 2008. DATE: 30th January, 2008. P.C. P.C. P.C. 1. According to the plaintiffs/appellants, they, alongwith their brother defendant no.3, are the owners of the suit property and the defendant nos.4 to 10 claim to have entered into an agreement to purchase the said property with the defendant no.3 and defendant no.2 claims to have entered into an agreement to purchase the suit property from the defendant nos.4 to 10 and to develop the same. According to the plaintiffs, the alleged agreement and the alleged power of attorney in favour of the defendant nos.4 to 10 are bogus and fake documents and the defendant nos.4 to 10 as well as defendant no.2 have no right or interest in the suit :2: property. In spite of that defendant no.2 obtained permission for construction of building from the defendant no.1 and started construction. The suit was filed in the year 2006 alongwith the notice of motion No.4174 of 2006. By the said notice of motion, plaintiffs sought direction to restrain the defendant no.2 not to make any construction and not to create any third party interest. They also sought direction to the respondent no.1 Municipal Corporation to revoke the sanction for construction and not to issue occupancy certificate. 2. The defendant nos.2 to 10 challenged the contentions of the plaintiffs. According to them, the plaintiffs are also parties to the power of attorney and the agreement executed in favour of the defendant nos.4 to 10 and on the basis of that agreement for sale, the defendant nos.4 to 10 have entered into further agreement for sale in favour of the defendant no.2. It is their contention that the plaintiffs are also parties to the said agreement. It was also contended that having obtained necessary permission from the Municipal Corporation, the defendant no.2 has already commenced construction of 7 storey building and they have also agreed to sell as many as 23 flats in the proposed building. 3. After hearing the parties, the trial Court :3: dismissed the notice of motion. Hence, this appeal by the plaintiffs. 4. Record reveals that on 20th October, 2006, the trial Court had restrained the defendant no.2 from creating any third party interest in the suit property till the next date and that order reveals that the defendant no.2 had made a statement before the Court that he had already created third party interest in 23 flats. In view of injunction granted by that order, the defendant no.2 has not created any further third party interest in the property. Admittedly, after hearing the parties, the notice of motion has been dismissed but the said interim order has been continued. 5. After taking into consideration the rival contentions of the parties and the statements before this Court, it appears that even though the defendants claim that the plaintiffs and the defendant no.3 had entered into an agreement for sale of the property in favour of the defendant nos.4 to 10 and had also executed power of attorney, it is admitted fact that no registered sale deed has been executed in favour of the defendant no.4 to 10 nor any registered sale deed or conveyance deed has been executed by the defendant nos.4 to 10 in favour of the defendant no.2. Agreement for sale and the power of attorney on which the claim of the defendants is based, is challenged by the plaintiffs. :4: In my considered opinion, if the defendant no.2 is allowed to create any third party interest and dispose off whole of the property and if after trial of the suit, claim of the plaintiff is proved and the suit is decreed, it may create further complications and it may become very difficult to execute that decree. Therefore, in my considered opinion, appeal may be disposed off with the following directions in the interest of justice. i. Interim order restraining the defendant no.2 from creating any third party interest passed on 20th October, 2006 by the trial Court shall continue till final disposal of the suit. ii. Defendants, who have not filed written statements so far, shall file their written statements in the suit within two weeks from this day. iii. The trial Court shall expedite the hearing and disposal of the suit and shall dispose off the same within six months from this day. iv. The defendant no.2 shall submit the list of 23 persons in whose favour third party interest has already been created as per the statement made on 20th October, 2006, before the trial Court within one week. As far as remaining four flats are concerned, no third party :5: interest will be created nor they shall be given to anybody for use till the disposal of the suit. Twenty-three persons in whose favour third party interest is already created according to the defendant no.2, shall be informed by the defendant no.2 that they would be taking the property subject to the result of the suit. All the contentions of all the parties are left open and the trial Court shall not be influenced in deciding the suit by this or any earlier order. 6. Appeal From Order stands disposed off. As the Appeal is disposed, civil application does not survive and stands disposed off accordingly. 7. Certified copy expedited. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)