1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2319 OF 2006 IN SUIT NO. 2433 OF 1997 Mr. Amold J. Von Geyer & Anr. ... Plaintiffs. V/s. Mumtaz Iqbal Shaikh & Ors. ... Defendants. Mr. Denzil D'Mello for the Plaintiffs. Mr. Chirag Balsara a/w. Ms. Gadhagkar i/b. Divya Shah & Associates for Defendants 1 & 2. CORAM : S.C. DHARMADHIKARI, J. DATE : 10TH NOVEMBER 2008. P.C. :- Admittedly, the Plaintiffs have sought the following reliefs in the plaint :- (a) It may be declared by this Hon'ble Court that the Plaintiffs since deceased is the owner of half the undivided share, right, title and interest in the property viz. Half portion of the Building being Block No.8 known as Victoria Terrace comprising of Flat Nos. 1,3 and 5 and the common areas thereof and also half undivided 2 share right, title and interest in the land on which the said building Victoria is situated and the interest in the land situated at 3rd Victoria Cross Lane, Byculla, Mumbai – 400027 : and that the purported conveyance dated 7th February, 1997 executed between the Plaintiff since deceased,a and the Defendant Nos. 1 and 2 being Exhibit "B" hereto is null and void and liable to be cancelled and revoked. (b) It may be declared that the Defendant Nos.1 and 2 have no right, title and interest upon the suit property i.e. Half portion of the Building being Block No.8 known as Victoria Terrace comprising of Flat Nos.1,3 and 5 and the common areas thereof and also half undivided share right, title and interest in the land on which the said building Victoria is situated and the interest in the land situated at 3rd Victoria Cross Lane, Byculla, Mumbai - 400 027. (c) ........., (d) .........., etc. 2. The matter is still pending and I am informed that the 3 evidence is being recorded. The affidavit in lieu of examination in chief of the Plaintiffs is filed. 3. Considering the reliefs claimed in the suit and when the Plaintiffs have yet to succeed in proving that they are entitled to the declaration claimed in prayer clause (a), only limited protection can be granted and which is already granted. In other words, Restraint against alienation of the property has been granted. Admittedly, therefore, all the reliefs that are prayed by the present Notice of Motion proceed on the basis that the Plaintiffs are the owners of the property. However, that aspect is still in dispute. In such circumstances, no relief can be granted in this Notice of Motion. Any alteration or variation done to the structure in question, will be subject to final orders in the Suit and needless to state that if the Plaintiffs succeed in the Suit, then, they can pray for consequential and other reliefs with regard to restoration of the property to them. At that time they can pray that such of the parties/Defendants who have caused loss or damage to the structure shall make good the same. All these reliefs would be considered at that time and contentions of both sides 4 in that behalf are kept open. 4. The Notice of Motion is dismissed, subject to above. No costs. (S.C. Dharmadhikari,J.)