1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1224 OF 2008 WITH CIVIL APPLICATION NO.1505 OF 2008 Suryakant Shardaprasad Sharma : Appellant versus M/s.Noble Construction & ors. : Respondents. Shri. A Y Sakhare, Senior Counsel with Mr S J Chourasia i/by M/s.Ashoka Law firm for the Appellant. Shri V P Sawant with Shri Sunil Jadhav i/by Shri Rajesh Sharma for Respondent Nos.1 to 3 Shri J N Jayale for Respondent No.4 Smt. K K Soraan for Respondent No.5. CORAM : R.M.SAVANT, J. DATED : FEBRUARY 06, 2009 P.C. 1. This Appeal takes exception to the order dated 18th October 2008 passed by the learned Judge, City Civil Court at Dindoshi, (Borivali Division) Mumbai by which order the Notice of Motion No.733 of 2008 filed by the Appellant/Plaintiff came to be rejected. 2 2. The Plaintiff claims to be the owner of the land bearing Plot No.4, Survey No.44, Hissa No.5, CTS No.376 of village Kondivita, Taluka Andheri, Mumbai Suburban District admeasuring about 1451 sq.yards surrounded by internal road towards North; by Banapur4i CHS Ltd and a temple towards South; by Parsi Colony and Dilkhush Building towards West; and by Varsha Building and open plot of Rashtriya Metal towards East. (hereinafter referred to as the suit property). The Notice of Motion was directed against the Respondent No.1 which is intending to carry on the work of re-construction of the building on the suit property for the Defendant No.4 which is a registered Co-operative Housing Society whose building was situated on the suit property. The Defendant No.5 to the said suit is the Municipal Corporation of Greater Mumbai. 3. It is the case of the Plaintiff that his father late Shri Shardaparasad Ganesh Sharma, who expired on 10th June 2000, had acquired the suit property from one Anne Victeria Mendoza vide Deed of Conveyance dated 25th March 1963 and after acquiring the suit property, constructed a building on the suit property and the 3 occupants of the said building, thereafter formed a society i.e. Defendant No.4. It is further the case of the Plaintiff that the title was never conveyed in favour of the Defendant No.4 and, therefore, the Plaintiff's right, title, interest and claim still continues in respect of the suit property as is evidenced from the record of the Government authorities. It is also the case of the Plaintiff that as per his last Will and Testament, the Plaintiff's father bequeathed the suit property to the Plaintiff and hence the Plaintiff is the absolute owner of the suit property. It is further the case of the Plaintiff that recently he became aware that the Defendant Nos.1 to 3 have demolished and pulled down the building of the Defendant No.4 society at the instance of the members of the Defendant No.4 and are intending to construct a new building/tower on the suit property without the consent and knowledge of the Plaintiff and also without having any title. 4. A notice was accordingly sent by the Plaintiff to the Defendants and called upon them not to proceed with the construction as also a notice dated 22th November 2007 was addressed to the Executive Engineer of the Defendant No.5 Corporation calling upon 4 him not to approve any plan of construction on the suit property and also called upon him to furnish the details, if any, plans are already sanctioned. In spite of calling upon the said Defendants to furnish the details, no such details have been provided and, therefore, the Plaintiff was constrained to file the said Suit and filed a Notice of Motion seeking temporary injunction restraining the Defendants from carrying out the construction activity and/or putting up structure of whatsoever nature on the suit plot or any part thereof, further for restraining the Defendant Nos.1 to 4 from transferring, disposing, assigning or dealing in any manner with the leasehold rights or any other benefit arising or accruing in respect of the suit plot; for appointment of Court Receiver and; also for appointment of Court Commissioner to visit the suit plot and report to the Court about the factual position regarding the construction activities being undertaken upon the suit plot. 5. The case of the Defendant Nos.1 to 4 is that the property in question is out of the larger property bearing Survey No.44 Hissa No.5. The said property has been conveyed to the Defendant No.4 5 Society by virtue of a consent decree dated 26th July 1982. It is the case of the Defendants that the said consent decree was passed in the Suit No.1980 of 1981 filed by the Defendant No.4 against the father of the Plaintiff. It is further the case of the Defendants that though City Survey No.378 is mentioned in the said Conveyance Deed, the same is a mistake as what in fact conveyed is in fact City Survey No.376. In so far as present Plaintiff is concerned, it is the case of the Defendants that the Plaintiff has neither produced the original Will nor the Probate and, therefore, in the absence of the said documents, the Plaintiff cannot be considered to be the owner of the suit property and has no locus to file the present suit. It is further the case of the Defendants that the Defendant No.4 has entered into a Development Agreement with the Defendant Nos.1 to 3 on 15th February 2006 and the said Development Agreement is duly registered with the office of Sub-Registrar. The consideration mentioned in the said Development Agreement is Rs.41,00,000/-. The Defendant No.4 has also executed a Power of Attorney in favour of the Defendant No.1. It is further contended that the Plaintiff, without challenging the said Development Agreement, cannot seek the relief 6 of injunction sought for in the Notice of Motion. 6. I have heard the learned Senior Counsel for the Appellant/Plaintiff and the learned counsel for the Defendant Nos.1 to 3 and Defendant No.4. 7. The principal contention of the learned Senior Counsel for the Appellant/Plaintiff is that the development permission has been obtained by the Defendants by playing a fraud upon the authorities. The learned Senior Counsel for the Appellant/Plaintiff submitted that though there is no dispute as regards the consent decree passed in the suit filed by the Defendant No.4, what has been conveyed to the Defendant No.4 is CTS No.378 and not CTS No.376. He drew attention of the Court to the Schedule of the property mentioned in the Conveyance Deed. The learned Senior Counsel submitted that in the documents submitted by the Defendants to the Defendant No.5 – Municipal Corporation CTS No.376 is mentioned in stead of CTS No.378. According to him, a fraud has been committed, which has not been considered and appreciated by the trial Court at the time of 7 considering the said Notice of Motion filed by the Appellant/Plaintiff for injunction. The learned Senior Counsel further submitted that the Plaintiff has filed number of documents to demonstrate that the Defendants are not entitled to the said CTS No.376 and were only entitled to CTS No.378, but the said documents have not been considered by the trial Court. 8. On the other hand, the learned counsel for the Defendant Nos.1 to 3 submitted that the Defendants have obtained necessary permissions by submitting the documents which are usually required for obtaining such permissions. The learned counsel for the Defendant Nos. 1 to 3 submitted that though CTS No.378 has been mentioned in the said Conveyance Deed of the Defendant No.4, the Schedule of the property contains other description by which the property can be identified. He further submitted that the Defendants have submitted the order of amalgamation dated 16th July 2005, passed by the Collector, by which order Part of CTS Nos.375, 376 and 369 have been amalgamated and a new CTS No.375-B has been given to the amalgamated land. It is on the new CTS No.375-B that 8 the said construction is being undertaken by the Defendants. The learned counsel for the Defendants further submitted that the Defendants have also submitted Malmatta Hakka Patra of the concerned land at the time of seeking permission from the Respondent No.5 – Municipal Corporation. The said documents also include CTS No.376. He further submitted that though the Plaintiff is now seeking to make a hue and cry that the Defendants have fraudulently sought to develop CTS No.376, Plaintiff's right from the time of his father's death in the year 2000 till the year 2007 has not produced anything to show that he has asserted his right as a owner in any manner. It is therefore submitted by the learned counsel for the Defendants that the Plaintiff had acquiesced in the fact that though in the said consent terms CTS No.378 is mentioned, in actual fact it is CTS No.376. 9. I have considered the rival contentions of the respective parties. Though the case of the Plaintiff is that a fraud has been committed by the Defendants, it would be pertinent to note that the Defendants have, whilst obtaining the permission, produced a number of documents. The said documents are in the form of the order of 9 amalgamation dated 16th July 2007 issued by the Collector which apart from CTS No.376 (Part), covers CTS Nos.369 and 375 (Part). It would have to be presumed that the Collector has issued the said amalgamation order considering the situation of the lands mentioned therein. It would also be pertinent to note that though the CTS No.378 has been mentioned in the Conveyance Deed of the Defendant No.4, the description of the land mentioned in the Schedule to the said Conveyance Deed, in my view, would also have a relevance. The land can be identified by the said description and situation mentioned in the schedule of the said Conveyance Deed. Another factor that would have to be considered at the trial of the said suit is, as to whether the Plaintiff can prosecute the said suit as admittedly, the Plaintiff had not produced any Will or Probate of his father under which he could claim interest in the land in question. It is also pertinent to note that the Plaintiff till issuance of notice in the year 2007 to the Defendants calling upon them to furnish him the copy of the plans etc has not done anything in the matter. This belies the conduct of a person who claims to be the owner of the building which has been demolished and for which the work of reconstruction has 10 been undertaken. It therefore cannot be said that the Plaintiff has an open and shut case, and therefore the trial Court is right in observing that the issues which arise in the Suit would require evidence to be led by the parties. 10. The above Motion was moved for ad-interim relief and the learned Judge of the City Civil Court Bombay, by its order dated 11th April 2008 had refused to grant ad-interim relief. While refusing the said ad-interim relief, the learned Judge, relying upon a sketch produced at the hearing, had observed that the CTS No.378 pertains to some other property and has also observed that prima facie the other details of the suit property including the area tallies with the property that is conveyed as per the consent decree. 11. Against the said order refusing the ad-interim relief dated 11th April 2008, the Plaintiff had filed Appeal from Order No.436 of 2008 which Appeal came to be dismissed. Whilst dismissing the said Appeal, a learned Single Judge of this Court did not deem it fit to stop the construction work of the building for the members of the 11 Defendant No.4 Society. Thereafter it appears that the Plaintiff, relying upon the documents furnished to him by the Respondent No.5 – Municipal Corporation, again moved for re-consideration of the ad- interim relief which application was also rejected by the learned Judge of the City Court Bombay by his order dated 16th July 2008. Thereafter the above Motion No.733 of 2008 has been dismissed by the impugned order. 12. Considering the nature of the controversy involved as also considering the material produced on either side, in my view, the trial Court was right in observing that the documents produced by the Defendants would have to be accepted as it is, at the Motion hearing stage and no interpretation is warranted at that stage. The trial Court was also right in observing that the Issue raised would require evidence to be led. It therefore cannot be said that the trial Court has not considered the material on record. 13. Having considered the reasons mentioned by the trial Court in the impugned order, in my view, no fault could be found with the 12 said reasons. The above Appeal from Order is accordingly dismissed. 14. The Defendant Nos.1 to 3 who are implementing the re- development project have filed an Affidavit of one Jitendra M Parmar , the partner of the Defendant No.1, in the above Appeal, disclosing vide Exhibit-A the names of the existing tenants who would be allotted the flats in the re-developed building and vide Exhibit-B the list of third party purchasers who have purchased the flats from the Defendant No.1. Though the date of allotment is mentioned in respect of the third party purchasers, the date of agreement has not been mentioned. The said Defendants are therefore directed to furnish the date of agreement with the third party purchasers to the Plaintiff within two weeks from date. 15. The Defendant Nos.1 to 3 are further directed that all the purchasers and transferees to be put to notice of the pending Suit. 16. In view of the dismissal of the above Appeal from Order, the 13 Civil Application No.1505 of 2008 does not survive and the same is accordingly disposed of. [R.M.SAVANT, J]