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Bombay High Court
Abeda W/D Of Nishar Khan vs Mr.Sabir Fazlur Rehman Khan And Ors. on 5 December, 2025
2025:BHC-AS:53394
SNEHA
NITIN
CHAVAN
Digitally signed by 905-FA-592-2024 C.doc
SNEHA NITIN
CHAVAN
Date: 2025.12.06
13:17:55 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 7735 OF 2024
IN
FIRST APPEAL NO. 592 OF 2024
Abeda W/d Of Nishar Khan Alias Abeda ...Applicant/
Habibkhan Naru Sarkhel Appellant
Versus
Mr. Sabir Fazlur Rehman Khan And Ors. ...Respondents
WITH
INTERIM APPLICATION NO. 7738 OF 2024
IN
FIRST APPEAL NO. 593 OF 2024
Abeda W/d Of Nishar Khan Alias Abeda ...Applicant/
Habibkhan Naru Sarkhel Appellant
Versus
Mr. Fazlur Rehman Habib Khan And Ors. ...Respondents
****
Ms. Minal Chandnani for the Applicant.
Mr. Vikhil Dhoka, (thru VC) i/b G.M. Legal for Respondent No.3.
Mr. Upendra Singh for Respondent.
Ms. Pallavi Khale i/b Ms. Komal Punjabi for Respondent/Corporation.
****
CORAM : M.M. SATHAYE, J.
DATE : 5th DECEMBER, 2025
P.C. :
1. Heard learned Counsel for the parties. Perused the record.
The Appeals are already admitted.
2. These applications are filed by Appellant, who is the sister of
Respondent Fazlur Rehman Habib Khan and an aunt of Respondent
Sabir Fazlur Rehman Khan. Record shows that under order dated
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23.01.2024 of this Court, the present Applicant was granted leave to file
appeal challenging the impugned Judgments and Decrees passed in
Long Cause Suit Nos. 987 and 988 of 2021 which were disposed of
between either Sabir and Respondent Developer (M/s. Brijwasi
Builders) or Fazlur and Sabir and Respondent Developer (M/s. Brijwasi
Builders) by entering into consent terms dated 14/15 July 2021.
3. Learned Counsel for the Applicant contended that without
disclosing the statement made before this Court in a substantive suit
filed between the parties -Suit No. 3376/2003 in this Court
(subsequently transferred to the City Civil Court and renumbered as
S.C. Suit No. 7227/2003) that subject matter shop with two open
spaces will not be alienated, Consent Terms were entered into under
impugned Judgments and decrees. She further contends that not only
Fazlur and Sabir, but the Respondent Developer was also aware of the
statement made before this Court not to alienate, encumber or part with
possession of create third party interest, however, despite that PAAA
agreements are executed.
4. Perusal of consent terms shows that indeed, total 3 Permanent
Alternate Accommodation Agreements (PAAA) are executed by
Respondent Developer with Fazlur and Sabir, as specifically mentioned
therein with registration numbers - BRL-5-754-2018, BRL-5-756-2018
and BRL-5-755-2018.
5. As on today, by order dated 22.04.2024, the impugned
Judgment and decree, the consent terms and PAAA agreement are
stayed in respect of L.C.Suit No. 988 of 2021. There is no dispute that
Suit No. 7227/2003 and 7452/2004 are pending in the City Civil Court
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at Mumbai filed by Fazlur/Sabir in which the Applicant has filed
Counter-claim No. 5/2016 and substantive rights of the parties vis-a-vis
their properties are subjudice. Considering that 3 PAAA agreements are
already executed, it is necessary to direct that those PAAA agreements
shall be subject to final outcome of aforesaid suits/counter-claim
pending in the City Civil Court between the parties.
6. So far as payment of transit rent is concerned, learned Counsel
for the Respondent Developer made a statement on instructions that
owing to the dispute amongst the partners of the Developer-firm,
currently transit rent is not being paid. The statement is accepted. This
position is disputed by learned Counsel for the Appellant contending
that the transit rent is being paid in cash. Learned Counsel Mr. Upendra
Singh appearing for Fazlur/Sabir, submits on instructions that no transit
rent is being received.
7. In the aforesaid facts and circumstances, in my view it is
necessary to pass following directions in order to protect the rights of
the Applicant. Both the Interim Applications are disposed of by passing
following directions, which will operate during pendency of first
appeals:
(i) The impugned Judgments and Decrees passed
in L.C. Suit Nos. 987 and 988 of 2021 and both the
Consent Terms dated 14.07.2021 executed between
Respondents, are stayed.
(ii) 3 PAAA agreements whose details are given in the
Consent Terms are stayed and made subject to outcome of
Suit nos. 7227/2003 and 7452/2004 with Counter Claim
No. 5/2016 pending in the City Civil Court, Mumbai
between the parties.
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(iii) The Respondent-Developer is restrained from
handing over the possession of the redeveloped property to
any of the parties, without leave of the Court.
(iv) The Respondent-Developer is further directed to
disclose details of payment of transit rent including, to
whom it is paid and how it is paid, at the time of seeking
leave to hand over possession.
8. All concerned to act on duly authenticated or digitally signed
copy of this order.
(M.M. SATHAYE, J.)
