Manoj Vallabhji Shah And Anr vs Hamida Bano Bashir Shaikh
2021 Latest Caselaw 6516 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     ORDINARY ORIGINAL CIVIL JURISDICTION
                                  APPEAL (L) NO. 1872 OF 2021
                                                       IN
                     INTERIM APPLICATION (L) NO. 7066 OF 2020
                                                       IN
                                       SUIT (L) NO.7063 OF 2020
Manoj Vallabhji Shah & Anr.                                               ...        Appellants
Versus
Hamida Bano Bashir Shaikh                                                 ...        Respondent
                                            ALONG WITH
                     INTERIM APPLICATION (L) NO. 3084 OF 2021
                                                       IN
                                  APPEAL (L) NO. 1872 OF 2021
                                                       IN
                     INTERIM APPLICATION (L) NO. 7066 OF 2020
                                                       IN
                                       SUIT (L) NO.7063 OF 2020


Mr.Sanjay Jain a/w. Dr.Abhinav Chandrachud, Dr. Pallavi Divekar, Ms. Shreeya
Pednekar, Mr.Chaitanya Rane i/b. Divekar and Company for the Appellants.
Ms.Bijal Gandhi i/b. Elixir Legal Services for the Respondent.


                                   CORAM : S.J.KATHAWALLA, &
                                                      SURENDRA P. TAVADE, JJ.

                                   DATE       :       20TH APRIL, 2021


P.C. :

1. The present Appeal was heard for admission on 7 th April, 2021. On that

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day, it was placed for final hearing on 9th April, 2021. We heard the respective Counsel

for the parties on 9th April, 2021 and closed the matter for orders. The parties were

directed to file their written submissions. Both parties have accordingly filed their

written submissions.

2. The present Appeal challenges an Ad-Interim Order dated 14 th

December, 2020, passed in Interim Application (L) No. 7066 of 2020 in Suit (L) No.

7063 of 2020. By the Impugned Order, the Learned Single Judge has granted an

injunction restraining the Respondent from selling or transferring the Suit Property.

The Learned Single Judge has not granted the other reliefs prayed for by the

Appellants in the Interim Application. The Appellants being aggrieved, have filed the

present Appeal.

3. The Appellants are Trustees of Khetsi Jadavji Memorial Trust, a Public

Charitable Trust registered under the provisions of the Maharashtra Public Trusts

Act, 1950. The subject matter of the Suit is a property, being land admeasuring 5090

sq.mtrs. bearing Survey No. 43, Hissa No.1, Survey No. 43, Hissa No.2B, CTS Nos.

661 and 662/2 in Village Marol, Andheri, Mumbai (the Suit property). The Suit

Property has Mithi River on one side of it and a 44 feet Development Plan Road

passing through it.

4. The Trustees of the Trust agreed to purchase the Suit Property from the

Original Owners being the Creado family in the year 1975. The Creado family executed

an Agreement to Sell dated 10th March, 1975, in favour of the Trustees. Ultimately,

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the Creado family executed a Conveyance dated 16 th October, 1980 in favour of the

Trust. The Creado family was the owner of only Survey No. 43, Hissa No. 1,

equivalent to CTS No. 661. The Conveyance has been duly registered with the Sub

Registrar of Assurances. The Trustees were placed in quiet, vacant and peaceful

possession of the Property conveyed by the Creado family to the Trustees.

5. The Suit Property was landlocked without any access. Part of the

Property acquired by the Trustees from the Creado family admeasuring about 215

sq.mtrs. (shown in yellow colour on the Plan annexed at Exhibit-A to the Plaint) and

later numbered as 43/1/pt, was given by the Appellants to Mr. Raj K. Marwah and

others, the owners of an adjacent property in exchange for their land admeasuring 146

sq.mtrs. bearing Survey No. 43, Hissa No.2B, equivalent to CTS No. 662/2, for

gaining access to the Suit Property (shown in brown colour on the plan annexed at

Exhibit-A to the Plaint). Thus, the area of Survey No. 43, Hissa No. 1 was reduced

from 6070 sq.mtrs. to 5855 sq.mtrs.

6. The Appellants got the Suit Property measured by the City Survey

Office and upon such measurement the area of CTS No. 661 was found to be 4944.90

sq.mtrs., and that of CTS No. 662/2 was found to be 146 sq.mtrs. Thus, the aggregate

area of the Suit Property is 5090.90 sq.mtrs. The exchange of the plots is recorded in

a Rectification Deed dated 8th April, 1999, duly registered with the Sub Registrar of

Assurances. The Property Register Card has been issued in favour of the Trustees of

the Trust.

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7. The Appellants have taken various steps and actions in respect of the

Suit Property which are stated in the Plaint. The Plaint then recites that the

Respondent has attempted to encroach upon the Suit Property. The Appellants

approached the police authorities but could not secure protection from the actions of

the Respondent and hence the present Suit was filed. The Appellants filed an

Application for ad-interim reliefs before the Learned Single Judge. The Respondent

filed a Reply dated 9th December, 2020. After hearing the parties, the Learned Single

Judge passed the Impugned Order dated 14th December, 2020.

8. Before we set out the response of the Respondent in the Reply filed

before the Learned Single Judge, the checkered history of this matter needs to be set

out.

9. In the year 2013, one Shabbir Shaikh claiming as Constituted Attorney of

the Creado family attempted to enter upon the Suit Property. The Trustees

approached this Court by filing Suit (L) No. 168 of 2013 on 26 th February, 2013. On an

Application for ad-interim reliefs made on 28 th February, 2013 in Notice of Motion (L)

No. 457 of 2013, one of us (S.J. Kathawalla, J.) sitting singly, apprehending a law and

order situation, to protect the Suit Property appointed the Court Receiver, High

Court, Bombay, to take possession of the Suit Property and adjourned the Notice of

Motion for hearing to 4th March, 2013. The Court Receiver visited the Suit Property

and took possession of the same on 2nd March, 2013. The Court Receiver has

submitted a Report dated 2nd March, 2013.

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10. The Notice of Motion was allowed by an Order dated 4 th March, 2013.

This Court arrived at a finding that the Appellants are in possession of the Suit

Property and the Defedants to the Suit did not have any right, title or interest in the

Suit Property. The relevant portions of the Order dated 4th March, 2013 read thus :

"11. The Defendant No. 6 has clearly attempted to trespass on the property. He has not stated the date of possession of the Defendant Nos. 1 to 5. No material has been produced to show that Defendant Nos. 1 to 5 were in possession of any part of Survey No. 43, Hissa No.1 after the sale thereof by them. The Defendant Nos. 1 to 5 themselves do not claim to be in possession of Survey No. 43, Hissa No. 1 or any part thereof. False claims and defences are really serious problem with the real estate litigation. Unscrupulous litigants and encroachers attempt to drag litigation in relation to real estate with the hope that the owner will ultimately tire out and settle with them by paying huge amounts. The Courts have to ensure that there is no motivation for such land grabbers.

12. In the circumstances, the Defendants do not have any right over the Plaintiffs' property or any part thereof. They have not been able to point out any right or to show any material that they are in possession or entitled to possession of any part of the Plaintiffs' property. The attempts to enter the property by Defendant No. 6 as constituted attorney of Defendant Nos.

1 to 5 is of recent origin. Thus, the Plaintiffs are in possession of their property being Survey No. 43, Hissa No. 1 alongwith the property acquired by them by way of exchange from Mr.Raj K. Marwah. The Plaintiffs are therefore entitled to injunction restraining the Defendants from in any manner disturbing the Plaintiffs' possession. As is apparent from the letters and averments in the Plaint, the Local Police Station has not assisted the Plaintiffs in protection of their valuable property. Hence, it is necessary to direct the local police station to extend the requisite protection to the Plaintiffs. The

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property belongs to a Public Charitable Trust. The property is reflected in the records of the Charity Commissioner as a property of a Public Charitable Trust. The property needs protection. Hence, prayer clauses (b) and (d) of the Notice of Motion are granted.

13. The Court, on 28th February, 2013 had appointed the Court Receiver and directed the Court Receiver to take possession of the property to avoid any law and order situation at the site. Now since injunction is granted and there is no such apprehension, the Court Receiver, High Court, Mumbai is discharged with a direction to handover quiet, vacant and peaceful possession of the property to the Plaintiffs and to thereupon stand discharged. The Notice of Motion is accordingly disposed of."

11. Defendant Nos. 1 to 5 in the earlier Suit were the very same members of

Creado family through whom the Respondent now seeks to stake a claim.

12. Interestingly, on 22nd March, 2013 i.e. about 14 days from passing of the

Order dated 4th March, 2013, the Respondent herein filed a Short Cause Suit No. 1664

of 2013 in the Bombay City Civil Court at Bombay ('the BCCC Suit'). The BCCC

Suit was originally filed only against Shabbir Shaikh and another. The Trustees of the

Trust were not made parties to the BCCC Suit by the Respondent. The Trustees

intervened and were joined as Defendants in the BCCC Suit pursuant to the Order

dated 8th May, 2013. The Respondent applied for ad-interim reliefs. The Application

for ad-interim relief was rejected by a reasoned Order dated 14 th May, 2013. The

Order dated 4th March, 2013 passed by this Court was placed before the City Civil

Court. The City Civil Court held that the claim to possession of the Suit Property by

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the Respondent cannot be sustained.

13. The Interim Application filed by the Respondent was dismissed. The

BCCC Suit itself was dismissed by the Bombay City Civil Court by its Order dated 8 th

January, 2016. The Order dated 14 th May, 2013 was not challenged by the Respondent.

The Respondent has not intervened in the previous Suit filed by the Appellants. The

Respondent has not assailed the Order dated 4 th March, 2013, or the possession of the

Suit Property having been handed over to the Appellants by the Court Receiver. A

period of 08 years has elapsed therefrom. The Respondent has stated that she has

applied for restoration of the BCCC Suit in the year 2018.

14. In the BCCC Suit, the Respondent has laid a claim to land comprising of

open land admeasuring 3991.6 sq. mtrs. and 1500 sq.mtrs. constructed area, being

Survey No. 43, Hissa No. 1, equivalent to CTS No. 661. The Respondent has shown

the status of the land as per the plan which was annexed as Exhibit-A to the Plaint in

the BCCC Suit (at page 160 of Compilation-II separately tendered, hereinafter called

"Plan A"). In Plan A, a road is shown as passing through the Property.

15. In paragraph 3 of the BCCC Suit (at page 203 of the Compilation), the

Respondent claimed that the Creado family had executed a General Power of Attorney

dated 13th July, 1978 in her favour to look after the affairs of the Suit Property. This

Power of Attorney was the foundation of the Respondent's claim in the BCCC Suit.

The Respondent did not make any independent claim to the title of the Suit Property.

16. As mentioned above, the Respondent filed an Affidavit-in-Reply before

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the Learned Single Judge dated 9 th December, 2020. We have carefully perused the

Affidavit. The Affidavit makes no reference to any Power of Attorney. In the

Affidavit, the Respondent merely claimed to be in settled possession of the Suit

Property since 25th May, 1979.

17. A perusal of the Plaint in BCCC Suit reflects that the Respondent had

claimed to be in possession of the Suit Property from 13 th July, 1978 based on a Power

of Attorney, whereas in the Affidavit the claim was to possession prior to 25 th May,

1979 without any foundation being laid for such possession. This is the first of the

discrepancies in the claims made by the Respondent from time to time.

18. The Respondent has thereafter filed a detailed Affidavit before the

Learned Single Judge dated 16th January, 2021. In the detailed Affidavit, the

Respondent has annexed a Plan as part of Exhibit-D, depicting the Suit Property

(hereinafter called "Plan B"). We find that Plan A and Plan B, are quite different.

The alleged constructions shown thereon are also different. In Plan A, the road passes

through the middle of the Suit Property, whereas in Plan B, there is no such road

shown as passing through the Suit Property. The areas of the alleged structures, their

dimensions, their locations, are all at divergence. In Plan B, the alleged structures are

infact shown at a location from which infact there is a 44 feet Development Road

passing through. This is one more startling discrepancy that we find in the case

propounded by the Respondent.

19. In the Affidavit dated 9th December, 2020, the Respondent has annexed a

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Letter dated 11th September, 2020. The residential address of the Respondent therein

is mentioned as, "Residing at Room No. 06, Joseph-Chawl, Sai Baba Nagar, Opp. Bori

Colony, Marol Pipeline, Andheri (E), Mumbai - 400059". This address is the same as

address of the Respondent mentioned in the Cause Title of the Suit. This is the same

as the residential address of the Respondent mentioned by her in the BCCC Suit, as

well as in the Affidavit dated 16th January, 2021. However, now the Respondent has

filed an Affidavit dated 5th April, 2021 in this Appeal. The Respondent has at Exhibit-

D to this Affidavit filed before us, annexed a Ration Card in support of her claim to

possession of the Suit Property. The address of the Respondent shown in the Ration

Card is, "Marwah Estate, Saki Vihar Road, Bombay - 400062". This is neither the

residential address of the Respondent, nor the address of the Suit Property.

20. In the same Letter dated 11 th September, 2020, the Respondent states

that the Suit Property was originally owned by the Creado family who had given the

Property to the Respondent and the Respondent had paid consideration for the same,

but the Creado family had not executed any document in the name of the Respondent

and that the Respondent had reposed faith in the Creado family. This statement is

contrary to the stand of the Respondent in the BCCC Suit, where the Respondent

claims that the Creado family had executed a Power of Attorney in her favour. As if

this was not enough to reject the claim of the Respondent at an ad-interim stage, the

Respondent in the Affidavit filed before us, in paragraph (ii) reiterates execution of the

Power of Attorney and in paragraph (iv) now for the first time claims that the Creado

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family executed a Sale Deed dated 18th January, 1979 in her favour for a consideration

of Rs.75,000/-. We called upon the Learned Counsel for the Respondent to produce

the originals of the Power of Attorney and the Sale Deed. Her response was that the

Respondent does not have the originals and the same therefore cannot be produced

before the Court. At every stage, there is an improvement being made in the Claim

being setup by the Respondent. The Respondent keeps producing documents one

after another. The documents are inconsistent with the claims and the case setup

from time to time. The documents produced by the Respondent cannot be given any

weightage at this stage.

21. The copy of the alleged Power of Attorney annexed at Exhibit-A to the

Affidavit filed before us and copy of the alleged Sale Deed annexed at Exhibit-C to the

very same Affidavit, refer to the area of the Property as 5855.75 sq.mtrs., whereas the

Respondent has since 2013 been claiming only an area of 3991 sq.mtrs. This

discrepancy is also not explained by the Respondent. The so-called Sale Deed, or the

Power of Attorney are not even registered.

22. These are only some of the discrepancies and contradictions in the

Respondent's Claim as setup and improved upon from time to time. There are many

more such discrepancies in the documents produced and the averments made by the

Respondent from time to time. It is clear that the Respondent in the BCCC Suit has

claimed to be a Constituted Attorney of the Creado family. In the Affidavit dated 9 th

December, 2020 filed by the Respondent before the Learned Single Judge, no such

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contention was raised and infact a statement was made that the Creado family did not

execute any document in favour of the Respondent and now in the Appeal, the

Respondent claims that there is a Sale Deed in her favour albeit unstamped and

unregistered and which has seen the light of the day after 42 years from its alleged

execution.

23. At this prima facie stage, these contradictory stands of the Respondent

and the discrepant stand of the Respondent are sufficient to reject the Claim of the

Respondent to give her any entitlement to enter upon the Suit Property.

24. In the Plaint, the Appellants have set out various acts done by them with

respect to the Suit Property, including letters addressed to the Airport Authority, the

State of Maharashtra and the Municipal Corporation of Greater Mumbai ('MCGM').

The documents produced, reflect that the MCGM had approved construction of a

boundary wall around the Suit property. It is also reflected that the Appellants

permitted a Development Road to be constructed through the Suit Property. The

documents also reflect that the MCGM sought permission of the Appellants to pass

through the Suit Property for the purpose of constructing a retaining wall on the Mithi

River. A 44 feet wide Development Road passes right through the middle of the Suit

Property.

25. There is no dispute that the Suit Property, which is the subject matter of

the Appellants' previous Suit, the present Suit, as well as the BCCC Suit filed by the

Respondent, is one and the same Property. It is too late in the day for the Respondent

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to contend that the Respondent is in possession of the Suit Property, in any event,

atleast at this prima facie stage.

26. One of us (S.J.Kathawalla, J.) sitting as a Single Judge in 2013 found the

Appellants to be entitled to the possession of the Suit Property. The Court Receiver,

High Court, Bombay, had taken vacant possession of the Suit Property and handed

over the same to the Appellants pursuant to the Order dated 4 th March, 2013. The

Court Receiver's Report of taking possession, as well of handing over vacant

possession to the Appellants has not been challenged by the Respondent in the last

eight years. The Bombay City Civil Court also came to a finding that the Respondent's

Claim to possession of the Suit Property cannot be sustained. In the present Suit, the

Learned Single Judge has also confirmed the possession of the Appellants.

27. The Appellants allege that the Respondent during the lockdown again

started making attempts to enter upon the Suit Property and carry out construction

thereon. Hence, the Appellants filed the present Suit and moved for interim reliefs,

which Application was partly granted by the Learned Single Judge.

28. The observations of the Apex Court in the matter of Maria Margarida

Sequeira Fernandes v. Erasmo Jack De Sequeira 1, relied upon by the Appellants apply

on all fours to this matter. In paragraph No. 81 of the Judgment, the Apex Court has

observed as under :

"False claims and false defences

1 (2012) 5 SCC 370

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81. False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This hap-

pens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this prob- lem can be minimized to a large extent."

29. In view of the fact that the Appellants have been found in possession, the

Appellants cannot be denied the relief of restraining the Respondent from entering

upon the Suit Property atleast till such time as the Respondent establishes her

entitlement to possession. The facts as found above, are sufficient to grant the relief of

restraining the Respondent from entering upon the Property, and not disturb the

Appellants' possession of the Suit Property, as well as for directions to the police

authorities to provide protection to the Appellants.

30. In the circumstances, the Appellants have made out a prima facie case at

this ad-interim stage. The balance of convenience is in favour of the Appellants. The

Appellants will suffer irreparable injury if the reliefs prayed for by the Appellants are

not granted. This is a fit case to apply the dictum of the Apex Court in the Maria

Margarida Judgment (supra) and therefore in addition to the ad-interim relief already

granted by the Learned Single Judge, it is necessary to restrain the Respondent or any

person claiming through her, from entering into or remaining upon the Suit Property,

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as well as to direct the Senior Inspector of Sakinaka Police Station and Powai Police

Station to grant protection to the Appellants and the said Suit Property.

31. We make it clear that the observations made in this Order are prima facie

and the Interim Application will be finally decided on its own merits.

32. Accordingly, we pass the following Order :

i.                The Appeal is allowed;

ii.               The Respondent or any person claiming through her is restrained from

entering into or remaining upon the Suit Property.

iii.              The Senior Inspector of Sakinaka Police Station and Powai Police

Station are directed to grant protection to the Appellants and the said Suit Property at

the costs of the Appellants.

33. All concerned to act on an ordinary copy of this Order, duly

authenticated by the PS / PA of this Court.

34. The above Appeal is accordingly disposed off. Interim Application (L)

No.3084 of 2021 also disposed of.

( SURENDRA P. TAVADE, J. ) ( S.J.KATHAWALLA, J. )

35. The learned Advocate for the Respondent seeks a stay on the above

order. The same is declined for the following reasons :

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(i)               The Trust of which the Appellants are the trustees, had in the year 2013,

approached this Court by filing a Suit (L) No.168 of 2013 to stall an attempt made by

one Shabbir Shaikh to enter upon the suit property. In the Notice of Motion taken out

seeking ad-interim reliefs, one of us (S.J.Kathawalla, J.) sitting singly apprehending

law and order situation, appointed the Court Receiver, High Court, Bombay to take

possession of the suit property. The Court Receiver took possession of the property

and has submitted his report dated 2nd March, 2013, wherein except for the Appellant

Trust/Truestees, no other person was shown to be in possession of the suit property

or any part thereof. By an order dated 4 th March, 2013, the Court Receiver was

therefore, directed to handover vacant possession of the suit property to the

Appellants/Trustees.

(ii) Within 14 days from the passing of the order dated 4 th March, 2013, the

Respondent herein filed a Short Cause Suit No.1664 of 20133 in the Bombay City Civil

Court at Bombay against Shabbir Shaikh and another interalia claiming possession of

the suit property/part thereof. The Appellants intervened in the said suit and

produced an order passed by this Court dated 4 th March, 2013. By a reasoned order

dated 14th May, 2013, the City Civil Court rejected the Application filed by the

Respondent seeking ad-interim reliefs on the ground that the Respondent's claim to

possession of the suit property/part thereof, cannot be sustained.

(iii) By an order dated 8th January, 2016, the said Suit filed by the Respondent, itself

was dismissed for default. The Respondent has stated that she has applied for

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restoration of the said Suit in the year 2018.

(iv) The Respondent has in the last 8 years not impugned the order passed by this

Court dated 4th March, 2013 directing the Court Receiver to hand over vacant

possession of the suit property to the Appellants, nor has the Respondent challenged

the order dated 14th May, 2013, whereby the City Civil Court has rejected her claim to

possession of the suit property/part thereof.

(v) The Respondent who in the present Suit, has claimed that she is in possession

of the suit property since the year 1978-79 and has relied upon photostat copies of

unregistered documents like the Power of Attorney and the Sale Agreement, has

informed the Court through her Advocate that she is not in possession of the original

documents and is therefore, unable to produce the same before the Court.

(vi) As set out hereinabove, the Respondent has from time to time, produced

documents before the Courts with the intention of improving the claim set up by her.

The said documents are therefore, inconsistent with the claims and the case set up

from time to time by her in her various pleadings and therefore, cannot be given

weightage.

( SURENDRA P. TAVADE, J. )                              ( S.J.KATHAWALLA, J. )