1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.67 OF 2009 WITH CIVIL APPLICATION NO.86 OF 2009 Azim Haseeb Khan ..Appellant V/s M/s.Mahendra Builders & ors ..Respondents Mr.S.M.Gorwadkar with Mr.Vijay Pandey and Mr.Kapil Shetye i/b.Mr.V.V.Vashi, Advocate, for the appellant Mr.V.A.Thorat, Senior Counsel with Mr.Sharan Jagtiani & Mr.Mihir Mody i/b.M/s.K. Ashar & Co., Advocate, for the respondent No.1 Mr.Y.K.Tiwari i/b.M/s.K.P.Tiwari & Co, Advocate, for the respondent No.2 Mr.Vinod Mahadik, Advocate, for the respondent No.3 - MCGM CORAM : R.M.SAVANT, J. DATE : 18TH FEBRUARY, 2009 P.C. . This appeal which is filed by the original plaintiff, takes exception to the Order dated 6th November, 2008, passed by the learned Judge of the City Civil Court by which order the Notice of Motion filed by the plaintiff came to be rejected. The plaintiff has filed Long Cause Suit No.4144 of 2006 for restraining the defendants from interferring with his possession in any manner in respect of the suit 2 premises being Office No.62 at Empire Building (known as Mahendra Chambers), 2nd floor, 134-136, Dr.D.N.Road, Fort, Mumbai – 400 001. 2. In the said suit, the plaintiff filed Notice of Motion which came to be numbered as 3715 of 2006. By the said Notice of Motion, the plaintiff claimed an injunction restraining the defendants from disturbing his possession in respect of the suit premises till final disposal of the suit. It is the case of the plaintiff that he is in possession of the premises being Room No.62 and carrying on business under the name and style of M/s. Reena Associates therein and that he is a member of the defendant No.2- Welfare Association. It is further his case that he is doing business with one Bashir of Recruiting and Travel Agent under the said name and style of M/s.Reena Associates. It is further his case that as the said Bashir incurred heavy losses, he, therefore, left the business and the plaintiff continued the said business from the suit premises. It is further his case that whereabouts of the said Bashir are not known and that he is in exclusive possession of the suit premises. 3. The defendant No.1 filed its reply to the Notice of Motion. 3 The defendant No.1 claimed to be owner of the building wherein the suit premises are situtated. The defendant No.1 having purchased the said building in the year 1974. In so far the suit premises are concerned, the said premises were purchased by one Inderpal singh from one Suraj Kanav. Thereafter, the defendant No.1 i.e.respondent no.1 herein has purchased the suit premises from the said Indrapal Singh by a registered document. It is the case of the defendant No.1 that the said Indrapal Singh had filed a suit against the said Bashir and in the said suit, an injunction came to be passed against the said Bashir restraining him from creating any third party interest. This was on the basis of an Undertaking furnished by the said Bashir in the said suit. It is the case of the defendant No.1 that the said Bashir in his affidavit filed in the said suit stated that he is the Sole Proprietor of M/s.Reena Associates and is in exclusive possession of the suit premises. The case of the respondent No.1 is that it has purchased the suit premises from Indrapal Singh on 5th July, 2004. 4. The Trial Court considered the said application for injunction filed by the plaintiff. The Trial Court on the basis that the 4 plaintiff has not produced any document in support of his claim that he is doing the business with the said Bashir and that the said Bashir had inducted him in the suit premises, as also considering the fact that th defendant No.1 had purchased the suit premises from Indrapal Singh by registered Conveyance and also taking into consideration the Order dated 20th December, 2005, passed in the Notice of Motion filed by it in Suit No.3553 of 2004 as also the Order dated 24th November, 2006, passed by the Appeal Court confirming the said order, dismissed the Notice of Motion filed by the plaintiff. 5. I have heard the learned counsel for the parties. The main contention of the learned counsel for the plaintiff i.e.the appellant was that the documents produced by the plaintiff have not been considered by the Trial Court. The said documents according to the learned counsel for the plaintiff substantiates his case of being in settled possession of the premises. On the other hand, the learned Senior Counsel appearing for the respondent No.1, Mr.V.A.Thorat submitted that the plaintiff has failed to demonstrate that he is in possession of the premises in question. The learned Senior Counsel 5 relying upon the Order passed by Y.S.Jahagirdar, J. (as the then was) dated 26th February, 1998, in Notice of Motion No.3107 of 1997 in Suit No.3959 of 1997 submitted that there was a restraint against the said Bashir from creating any third party interest and therefore, assuming that any right has been created in favour of the plaintiff, the same would be in breach and violation of the said order passed by Y.S.Jahagirdar, J. The learned Senior Counsel further submitted that in so far as the possession of the defendant No.1 is concerned, the same was allowed by Order dated 20th December, 2005 passed in Notice of Motion No.4025 of 2005 in Suit No.3553 of 2004 filed by the defendant No.1 and which has been confirmed by the Appellate Court. The learned Senior Counsel further submitted that on account of the activities of the said Bashir, the premises were sealed in the year 2000 by the Custom Authorities and ultimately the premises came to be de-sealed on 20th October, 2000. Therefore, it is impossible to believe that the plaintiff is in possession of the suit premises. 6. On behalf of the respondent No.2 – Welfare Association the 6 learned counsel Mr.Y.K.Tiwari submitted that the affidavit filed by the Welfare Association that the plaintiff is in possession of the suit premises and that he is in arrears of the maintenance from the year 2001 till date has notbeen taken into consideration. The learned counsel sought to raise a dispute as regards the title of the defendant No.1 as regards the building in question. The sum & substance of the argument advanced on behalf of the appellant and the respondent No.2 was that the material on record has not been considered by the Trial Court. 7. Having considered the rival submissions and having considered the Orders passed in the said Notice of Motion No.3107 of 1997 and Suit No.3959 of 1997 filed by Inderpal Singh against the said Bashir, it is not possible to accept the contention of the plaintiff that he was put in possession by the said Bashir. Significantly, the said Bashir had filed an affidavit in the said Notice of Motion No.3107 of 1997 where there is not a whisper that the said Bashir is doing business with the plaintiff. In fact, the said Bashir stated that he is in exclusive possession of the premises in question. The next 7 circumstance which goes against the plaintiff is the Order of sealing by the Custom Authority in the year 2000. The said premises were de-sealed only on 18th October,2000. On the said count also it is not possible to accept the case of the plaintiff that he is in possession of the suit premises. 8. It would also be pertinent to note that in the Suit filed by the defendant No.1, a Motion was filed, being Notion of Motion No.4025 of 2005 in which Motion an Order came to be passed on 20th December, 2005, by which order the defendant Nos.2 & 3 i.e.Welfare Association and the Secretary were held not to be entitled to restrain the plaintiff i.e. the respondent No.1 here in from entering the suit premises i.e. office No.62. The said order has also been confirmed by the Appellate Court. 9. On behalf of the plaintiff reliance was sought to be placed on the letter dated 19th December, 2003, issued by the respondent No.2 – Welfare Association mentioning therein that the plaintiff is carrying on business in the name and style of M/s.Reena Associates and asking the plaintiff to stop the unauthorised use of the premises. 8 The said letter does not carry the case of the plaintiff any further as the plaintiff has to show his possession prior to the Order dated 26th February, 1998, passed by Y.S.Jahagirdar, J. as thereafter the restraint Order of Y.S.Jahagirdar, J. would apply. The plaintiff has not been able to show his possession prior to the said order. On behalf of the plaintiff reliance was also placed on a document purported to be an Agreement between the said Bashir and the plaintiff. The said agreement is on Rs.20/- stamp paper dated 21st June, 1996. By the said agreement, the premises in question were purportedly let out to the plaintiff for a sum of Rs.1200/- for the purposes of godown only. The said Agreement further records that a sum of Rs.1,00,000/- has been deposited by the plaintiff. Significantly, there is no reference to the said Agreeement in the plaint. The said Agreement, in my view, also militates against the case of the plaintiff that the plaintiff was doing business with the said Bashir in the name and style of M/s.Reena Associates. Pertinently in Clause 5 of the said Agreement, it is mentioned that the plaintiff does not get any right, title and/or interest over the said property except for using the same as godown. Therefore, in my view, the said documents do not support 9 the plaintiff's case. 10. On behalf of the plaintiff reliance is placed on the Judgment of the Hon'ble Apex Court reported in (2004) 1 Supreme Court Cases 769 in the matter of RAMA GOWDA (DEAD) BY LRS. Versus M. VARADAPPA NAIDU (DEAD) BY LRS. AND ANOTHER in support of the submission that occupant in settled possession cannot be dispossessed without recourse to law. In my view, in the facts & circumstances of the case reliance on the said Judgment is misplaced. 11. In so far as other documents are concerned, the same are relating to the said Bashir and not the plaintiff. The said documents are in the nature of Telephone Bills etc. In my view, therefore, the same do not have bearing on the issue as regards possession of the plaintifff in respect of the suit premises; as the said Bashir had specifically mentioned in the suit filed by Inderpal Singh that he is in exclusive possession of the suit premises. 10 12. Having considered the impugned order and the reasons cited therein, in my view, the Trial Court has considered the relevant material and thereafter, has come to a conclusion that the plaintiff has failed to prove his possession of the suit premises. In my view, the said order does not call for any interference in the above Appeal. The appeal is accordingly dismissed. 13. In view of the dismissal of the above Appeal from Order, the Civil Application does not survive and the same is accordingly disposed of. (R.M.SAVANT, J.)