Mulji Umershi Shah and others vs Paradisia Builders Pvt. Ltd. and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 77

IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Mulji Umershi Shah others .....Appellants.
Versus
Paradisia Builders Pvt. Ltd. others ...... Respondents.Appeal from order No. 39, 35, 37, 38, 3228, 672 32 of 1997, decided on 6 7-2-1997.
Advocates appeared :
K.K. Singhvi with C.J. Sawant, Kishore P. Jain and Niranjan D. Lapashiya i/by Niranjan Co., for appellant., in A.F.O. No. 39, 35, 37, 38, 3228 32 of 1997.
V.R. Manohar with Milind Sakhardande i/by S.K. Sthalekar, for Paradisia Builders Pvt. Ltd. respondent No. 1., in A.F.O. No. 39, 35, 37, 322 32 of 1997.
A.K. Abhyankar i/by Pandya Gandhi Co., for respondent No. 3., in A.F.O. No. 39, 35, 37, 38, 3228 32 of 1997.
I.M. Chagla with Naval Agarwal i/by Parimal K. Shroff Co., for respondent No. 4, 6 and 8 to 24., in A.F.O. No. 39, 35, 37, 38, 3228 32 of 1997.
Virendra Tulzapurkar and Virag Tulzapurkar i/by Parimal K. Shroff Co., for respondent No. 7., in A.F.O. No. 39, 38 3228 of 1997.
Y.S. Jahagirdar instructed by P. Rustom Khan, for respondent No. 5., in A.F.O. No. 39, 35, 37, 38, 3228 32 of 1997.

Headnote:Section 94-Order XXXIX, Rule 1, Order XL, Rule I-Temporary injunction-Court is not powerless to pass appropriate order for appointment of receiver without any application by any parties-Order passed by Court for appointment of receiver confirmed.
Order XXXIX, Rule 1-In the suit for injunction-The question of possession presupposes lawful possession-Court may hold enquiry in to title right interest or status of the plaintiff to find out whether plaintiff entitled to protection of his possession by decree of injunction.
Order XXXIX, Rule 1, Order XC Rule 1 and Section 94-Application for temporary injunction based on possession-Question of title Whether should be gone into-Held, Yes, as question of possession presupposes lawful possession and for adjudication of that question, enquiry into title can be made-Further while refusing injunction Court may appoint receiver, if necessary and just, on its own.- The learned senior Counsel for appellant plaintiff sought to urge that in the suit for the injunction based primarily on possession question of title cannot be gone into and, therefore, while considering the application for temporary injunction the only considering before the Court was possession and not the title of plaintiff. The contention is neither impressive, nor sound. In the suit for perpetual injunction the Court may be called upon to hold inquiry in the right, interest or status, as the case may be. To find out whether plaintiff is entitled to protection of his possession by decree of injunction, the same consideration, prima facie, is required to be seen while considering an application for temporary injunction. The question of possession presupposes lawful possession and for adjudication of that question whether finally or at interlocutory stage, the inquiry into title, right, interest or status of plaintiff is not foreign to the subject matter.

R. M. LODHA, J. :---This group of six appeals arises out of the order passed by the City Civil Court, Bombay on 2nd November 1996 in Notice of Motion No. 2608 of 1996 in Suit No. 2784 of 1996.

2.The facts have been stated in details in the impugned order and, therefore, I would recapitulate briefly the essential and necessary facts for disposal of these appeals only.

3.The disputed property comprises of Gala Nos. 1, 4B, 6B, 15, 16, 17, 18, 26 on the ground floor, all galas on the entire first floor and Gala Nos. 201, 216 to 226 on the 2nd floor of Bezzola Commercial Complex, Sion Trombay Road, Chembur, Mumbai. Mulji Umershi Shah, the plaintiff and appellant in Appeal No. 39 of 1997 filed a suit before the City Civil Court on 24th May 1996 initially impleading the State of Maharashtra, Paradesia Builders Private Limited and the Municipal Corporation for Greater Bombay as defendants Nos. 1 to 3 respectively. Thereafter the defendants Nos. 4 to 24 have been impleaded in the suit. The crux of plaintiff's relief in the suit is that defendant No. 2 Paradesia Building Private Limited is not entitled to dispossess the plaintiff or interfere and/or disturb his possession in respect of the suit premises and decree for permanent injunction accordingly. The basis of the plaintiff's claim rests on the averment that he has 25% share in the building Bezzola Commercial Complex built by defendant No. 2. The plaintiff averred that the disputed property is built on the land originally owned by one Shri Khatau Bhanji who died on 18th April 1967 leaving behind his wife Lilavati (defendant No. 4) and minor son Kiritkumar. The deceased left behind a Will dated 9th July 1966 and the executors mentioned in the Will were his wife Smt. Lilavati, her brother, two partners of the deceased and Jayantilal. The dispute arose between the executors which resulted in filing of the suit before this Court on the Original Side. In that suit Court Receiver was appointed who came in possession. The plaintiff claims that he helped Smt. Lilavati in conduct of the said litigation and in lieu thereof Lilavati executed writing on 29th March 1971 stipulating that the suit plot would go to the plaintiff after discharge of the Court Receiver. On 15th December 1977 the suit was dismissed and Court Receiver was directed to hand over possession to Lilavati. An agreement was executed, according to the plaintiff, with Lilavati on 1st May 1978 confirming plaintiff's status as a lessee in respect of the suit land and factory standing on the part of the land. By the said agreement the plaintiff was permitted to develop the property and raise new construction at his costs on the terms and conditions mentioned therein and to create lease in respect of the new construction in the suit land. There was an agreement for lease of the suit land dated 15th April 1978 between Smt. Lilavati and Gala Construction for 98 years on monthly rent of Rs. 6000/- and other terms and the said lease agreement was cancelled on 22nd January 1981. The plaintiff avers that vide agreement dated 22nd January 1981 between Smt. Lilavati and M/s. Gala Construction wherein the plaintiff was confirming party, his claim of entitlement to 25% of the total built up area and the development on the said property free of cost was confirmed. The plaintiff has further set out a case that on 20th May, 1981 Smt. Lilavati executed an agreement of lease in favour of the defendant No. 2 - Pardesia Buildings Pvt. Ltd. On 11th September, 1981 the lease deed was executed between Smt. Leelavati, Kirit Kumar and defendant No. 2 which was signed by the plaintiff as constituted attorney on behalf of Smt. Lilavati and in the said lease deed also the defendant No. 2 as lessee agreed to take over and fulfil obligation of providing 25% share in the total built up area. The building was complete in the year 1987 and Bombay Municipal Corporation granted full occupation certificate regarding the entire building. The plaintiff ave

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