In a notice of motion seeking an injunction and appointment of a receiver regarding a disputed property, the bench held that the plaintiff failed to establish a prima facie case due to lack of registered deeds and non-cooperation from witnesses, dismissing the motion.
Notice of Motion dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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sas
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.4367 OF 2009 IN SUIT NO. 2715 OF 2009
Rajendra S. Rasal
..Plaintiff.
V/s.
Naranappa Thenukyya Kotian & Ors.
..Defendants.
Mr. Swapnil Bangur i/b. Y.R. Shah for the Plaintiff.
Dr.B. Saraf with Ms.Pooja Kshirsagar with Pratik Kothari i/b. I.C. Legal for Defendant No.4.
CORAM : A.K. MENON, J.
DATED : 20TH DECEMBER, 2014
P.C. :-
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creating any third party right, title and interest in the suit property and appointment of Court Receiver of the suit property described in Exhibit-A.
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possession of the land which was occupied by slum. Learned counsel for the appellant also made a reference to the power of attorney dated 10th October, 2006 and the deed of confirmation also dated 10th June, 2006 agreeing to sell the 2nd Defendant's shares in the suit property for Rs.1,25,00,000/-. It is further submitted that on 17th October, 2006, the agreement came to be executed between original Defendant No.2 and the Plaintiff whereby the Plaintiff agreed to purchase the share of original Defendant No.2 in the suit property being 50% undivided share for a consideration of Rs.1,25,00,000/- of which a sum of Rs.20 lacs is said to have been paid in cash, as evident receipt clause in respect of earnest money. The balance of Rs.1,05,00,000/- is said to be payable as and when the vendor, namely Defendant No.2 complies with the obligation under the agreement executing the deed of conveyance. This agreement is also not registered. According to the Plaintiff, Defendant No.1 continues to be in possession of the property.
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purporting to sell the property. It is observed that although the agreement dated 23rd January, 1980 between Defendant Nos.2 & 3 and L.D. Development Corporation, a Partnership Firm, the agreement of 5th April, 2008 between the LD Development Corporation shows that it is primarily a proprietary concern. By this agreement, Defendant No.1 is the vendor and in the recital, he convenants with the Plaintiff that the agreement between the original owners and vendors is genuine and the document is subsisting and binding and not terminated. That under the agreement dated 23rd January, 1980 vendor agreed to grant development rights to Defendant No.1 on “ as is where is ” basis in consideration of payment of a consideration `11,25,000/- and a flat admeasuring 600 sq.ft. to be constructed on the property. This document between the Plaintiff and Defendant No.1 is also not registered.
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“ 3.1 On late Alfred Rebello (deceased) and Defendant No.3
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(collectively erstwhile owners) were joint owners of the suit property each of them having 50% right, title and interest therein. On or about 31st August, 1977 the suit property was declared as slum vide a notification bearing No.5AA/borivali IV. This Defendant craves leave to refer to and rely upon the said notification as and then produced.
3.2 The deceased and Defendant No.3 approached this Defendant and themselves as owners and expressing willingness to sell the suit property and that the same is free from encumbrances. This Defendant took title search in respect of the suit property but no other right or claim was disclosed from the records. On 31st March, 2007, the deceased executed a conveyance for transferring his 50% share in the suit property to this Defendant. On 18th April, 2007 Defendant No.3 executed a Deed of conveyance in favour for transferring his 50% share in the suit property. The Deeds of conveyances dated 31st March, 2007 and 18th April, 2007 shall be hereinafter referred as the “the said conveyances”. The said conveyances are also registered before the SubRegistrar of Borivali division.”
In view of the aforesaid, although the reference to the agreement dated 31st March, 2007 is actually reference to the deed dated 13th March, 2007, Defendant No.4, contended that the suit is misconceived and deserves to be dismissed.
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misunderstanding and in any event, a registered conveyance has since been executed between Defendant No.3 and Defendant No.4. Consideration under the said deed has been paid over and, therefore, the objections taken by Advocate for Defendant No.3 are deemed to be waived.
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of the fact that the documents annexed to the plaint were typed copies of photocopies, inspection of the original documents were sought but has not been given by Plaintiff.
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paragraph 11, it is revealed that Defendant No.1 received a notice of termination dated 31st December, 1984 on behalf of Defendant No.2 and the agreement dated 23rd January, 1980 between the parties came to be terminated in and around December, 1984. Defendant No.1 also admitted the fact of termination but in paragraph 6 of his written statement he described the termination as frivolous and malafide. The aforesaid termination was never challenged before the present suit was filed. Dr.Saraf further submitted that the public notice was sufficient indication of the unwillingness of the owners to sell the property to the Plaintiff. Dr.Saraf submitted that the suit itself is barred by limitation.
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the property register card of village Poisar, Taluka Borivali, District Mumbai Surburban Division. The adjudicating authority has obviously gone by the area in the property register card at the time of registration. This explains the difference in the area. Furthermore, it is seen that there is no challenge whatsoever to the subsequent agreement dated 18th April, 2007 by which Defendant No.4 acquired the rights from Defendant No.3.
Notice of Motion is dismissed. No order as to costs.
1 issue framed by the court
Whether the plaintiff has made out a prima facie case for the grant of interim relief restraining the defendants from dealing with the suit property.
Rajendra S. Rasal
Naranappa Thenukyya Kotian
A.K. MENON
J.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
