1 ao 1314-2010, 1393-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1314 OF 2010 WITH CIVIL APPLICATION NO. 1617 OF 2010 Shri Kamlesh R. Ambani ...Appellant/ Orig.Plaintiff vs. Shri Prashant Dyaneshwar Patil & Ors. ..Respondents/ Orig.Defendants WITH APPEAL FROM ORDER NO. 1393 OF 2010 WITH CIVIL APPLICATION NO. 1718 OF 2010 Mr.Mohammed Hanif Shaikh ...Appellant/ Orig.Plaintiff vs. Shri Prashant Dyaneshwar Patil & Ors. ..Respondents/ Orig.Defendants Appearance in both matters :- Shri A.A. Kumbhakoni, Sr.Counsel with Shri R.D. Suryawanshi for the Appellant in AO No.1314/2010 and Applicant in CA No.1617/2010 and Respondent No.10 in AO 1393/2010 and CA No.1718/2010. Mr.P.B. Shah for the Appellant in AO No.1393/2010 and Applicant in CA No.1718/2010 and Respondent No. 10 in AO No.1314/2010 and CA No.1617/2010. 2 ao 1314-2010, 1393-2010 CORAM : B.R. GAVAI, J. DATED : JANUARY 11, 2011 P.C :- 1 Both the appellants are challenging a common order passed by the learned 3rd Joint Civil Judge, Senior Division, Pune, below Exhibit 5 in Special Civil Suit No.150/2010 and Special Civil Suit No.633/2010 rejecting the applications for temporary injunction. For the sake of convenience the parties herein are referred to as they are in Appeal from Order No.1314/2010. 2 The plaintiff-Mr.Kamlesh R. Ambani has filed Special Civil Suit No.150/2010 against the respondents and the original plaintiff in Special Civil Suit No.633/2010 whereas Special Civil Suit No.633/2010 is filed by Mr.Mohammed Hanif Shaikh against the respondents and the original plaintiff in Special Civil Suit No.150/2010. It is the contention of both the plaintiffs that they are in lawful possession of suit land bearing Old Survey No.294, New Survey No.59 admeasuring 1820 square 3 ao 1314-2010, 1393-2010 metres and Old Survey No.255, New Survey no.48, admeasuring 2050 square metres situated at Village Navghar, Bhayander, Taluka and District Thane, and as such, have prayed for an order of injunction restraining the defendants from interfering with their peaceful possessions. The learned trial court heard both the applications together and rejected the same. Being aggrieved thereby, both the appeals are filed. 3 Shri Kumbhakoni, the learned Counsel appearing on behalf of the appellant submits that the Memorandum of Understanding of the appellant with the respondent nos.1 to 9 is dated 1st March, 2003 and that the appellants were put in possession of the suit property on 10th April, 2003. It is further submitted that not only this, the learned Joint Civil Judge, Junior Division, Thane, in a suit filed by respondent nos.1 to 9 against the present appellant has come to a specific finding that the appellant herein was in peaceful possession of the 4 ao 1314-2010, 1393-2010 suit premises. He further submits that the appellant had filed a suit for Specific Performance which came to be decreed on 7th October, 2008 and Sale Deed came to be executed on 17th October, 2008. He further submitted that in view of this factual position, the learned trial court ought to have considered that the appellant was in possession and as such, ought to have allowed the application. 4 Mr.Shah, the learned Counsel appearing on behalf of the respondent no.10 and appellant in AO No.1393/2010 on the contrary submits that the rights in favour of the said respondent accrued in view of the Development Agreement which is registered on 26th December, 2007. He submits that the said Development Agreement is registered by paying the entire stamp duty and as such, it has to be considered as nothing else than the Sale Deed. He further submits that subsequently, on 15th May, 2008, the Sale Deed is also executed. It is submitted that therefore, since the Sale Deed in 5 ao 1314-2010, 1393-2010 favour of the said respondent is prior in point of time than that of the appellant, the same will have a more weightage. In any case, he submits that the documents of 2003 and 2004 in favour of the appellant are unregistered documents and in view of Section 17-A of the Registration Act, they cannot be taken into consideration. He further submits that the entry in the Property Card also shows that the said respondent is in possession and as such, the learned trial court ought to have granted an injunction in favour of the said respondent. 5 From the record, it appears that the defendant Nos.1 to 9 have received the amount from both the appellant as well as the contesting respondents and have executed the Deed of Conveyance in favour of both the parties. The said respondents neither appeared before the trial court nor before this Court. As such, it appears that after pocketing the amount from the appellant as well as the contesting respondents, they have not bothered about 6 ao 1314-2010, 1393-2010 the litigation and left the appellant and the respondent to fight among themselves. 6 Since both the parties i.e. the appellant and the defendant claim to be in possession of the suit premises, the question that would have to be considered as to prima facie who appears to be possession of the suit premises. 7 From paragraph 21 of the impugned judgment itself, it would reveal that the trial court has itself given a finding that the documents executed in favour of the appellant Kamlesh R. Ambani are executed prior in time. It is, however, observed by it that all the documents except Power of Attorney executed was inadequately stamped. In para 27, the learned trial court has disbelieved the version of the respondent Mohammed Hanif Shaikh regarding ignorance about the transaction between the appellant-Kamlesh R. Ambani and Dnyaneshwwar Shivram Patil. However, it is to be noted that the 7 ao 1314-2010, 1393-2010 respondent nos.1 to 9 herein had filed Regular Civil Suit No.365/2006 for perpetual injunction against the defendant (appellant herein). It was the contention of the plaintiffs therein that by notice dated 7th April, 2006, the plaintiffs had cancelled the Agreement, however, the defendant was trying to take forcible possession of the suit property. The said suit was contested by the present appellant contending therein that the plaintiffs had executed the Memorandum of Understanding on 1st March, 2003, the Agreement was executed on 10th April, 2003 and that at the time of performance of the said Agreement, the plaintiffs therein had delivered the peaceful possession. It was also his case that the plaintiffs therein had executed irrevocable General Power of Attorney in favour of the said defendant (appellants herein). The learned Joint Civil Judge, Junior Division, Thane, vide his order dated 14th July, 2006 in para 6 has specifically come to a finding that upon the consideration of the material placed on record, it appears that the defendant was 8 ao 1314-2010, 1393-2010 put in possession of the suit premises in pursuance to the Agreement for Sale and that the defendant (appellant herein) has performed the part of the contract by paying the entire agreed consideration and as such, the defendant was entitled to be in possession in view of the provisions of Section 53A of the Transfer of Property Act. It would be irrelevant to refer to the observations of the learned Judge in para 6 which reads as under :- As such the possession of defendant of the suit properties is perfectly protected in view of the provision of Section 53A of the Transfer of Property Act. Defendant has prima-facie shown his possession of the suit properties and also shown that his possession is to be protected in view of the provisions of Section 53A of the Transfer of Property Act. 8 No doubt that the observations of the learned Judge in the aforesaid matter are upon prima facie consideration of the matter. However, it is to be noted that the learned Judge has specifically 9 ao 1314-2010, 1393-2010 come to a finding, though prima facie, that the appellant herein is in possession of the suit premises. Not only this, it is to be noted that in the Special Civil Suit No.671/2007 filed by the present appellant against the respondent nos.1 to 9 for specific performance, the learned Civil Judge, Senior Division, has granted an order of status quo on 13th February, 2008. The said suit came to be decreed in view of the compromise arrived at between the present appellant and respondent nos.1 to 9 on 7th October, 2008 and the registered Sale Deed also came to be executed on 13th October, 2008. As such, it appears to be a clear position that not only that the transaction between the appellant and the respondent nos.1 to 9 was prior in point of time, than the transaction between the contesting respondent Mohammed Hanif Shaikh and respondent nos.1 to 9 and further that the Civil Judge in proceedings between the present appellant and defendant nos.1 to 9 has come to a specific finding that the appellant herein was in possession of the 10 ao 1314-2010, 1393-2010 suit premises and further that in the suit for specific performance filed by the present appellant, an order of status quo was operating. 9 Insofar as the grounds raised by the learned Counsel for the contesting respondent regarding the necessity of compulsorily registered documents are concerned, the same issues will be required to be gone into at the stage of trial. At this stage, the question that is required to be considered is as to who prima facie appears to be in possession. In view of the aforesaid discussion, I find that the appellant Kamlesh is prima facie found to be in possession of the suit premises. In that view of the matter, I find that his application restraining the defendants from disturbing his peaceful possession requires to be granted. However, at the same time, it cannot be forgotten that the respondent Mohammed Hanif Shaikh has also parted with the substantial amount with the defendant nos.1 to 9. If the development of the construction 11 ao 1314-2010, 1393-2010 activities by the appellant Kamlesh is permitted, it would lead to further complication and multiplicity of the litigation. I am, therefore, of the considered view that during the pendency of the appeal, appellant Kamlesh also needs to be injuncted from creating third party rights over the suit property and from carrying on further construction and the developmental activities in the suit structure till the disposal of the suit. In that view of the matter, I pass the following Order :- i) Appeal from Order No.1314 of 2010 is allowed. ii) During the pendency of the suit, the respondents are injuncted from disturbing the peaceful possession of the appellant in the suit premises and are further injuncted from creating any third party rights over the suit property. iii) Appeal from Order No.1393 of 2010 is partly 12 ao 1314-2010, 1393-2010 allowed. iv) The application of the appellant insofar as prayer for injunction restraining the respondents from disturbing peaceful possession is concerned, the same stands rejected. v) However, during the pendency of the suit, the respondents are injuncted from creating any third party rights over the suit property and are further injuncted from carrying out any further construction/developmental activities on the suit structure till the disposal of the suit. vi) It is, however, made clear that the pendency of the present appeal would not come in the way of the learned trial court to proceed with the suit. vii) Taking into consideration the controversy, the learned trial court shall expedite the 13 ao 1314-2010, 1393-2010 proceedings of the suit. In the facts and circumstances, no orders as to costs. (B.R. GAVAI, J.)