RAFIQUE BARKATULLA KHAN Vs. SHAHENSHAH HUSSAIN IQBAL MUNSHI

JUDGEMENT

(1.) The original plaintiff-appellant is taking exception to the judgment and order passed below exhibit 56 in Special Civil Suit No. 82/2008 by the 6 th Joint Civil Judge, Senior Division, Thane on 28th July, 2011. The plaintiff instituted Special Civil Suit No. 82/2008 claiming declaratory decree that the Development Agreement dated 20th April, 2006 as well as the power of attorney of the same date executed by defendant no.1-respondent no.1 herein in favour of the plaintiff pertaining to the development of the property as valid and subsisting. The plaintiff has also sought a declaration that the plaintiff is only and exclusively entitled to develop the said property and construct buildings thereon in pursuance of the agreement dated 20th April, 2006 as well as the General Power of Attorney executed on the same date and in furtherance thereof, the plaintiff is solely entitled to the exclusive,quiet, vacant and peaceful possession of the said property to the exclusion of any other person/s whatsoever. The plaintiff has also sought an direction to defendant no.2 Thane Municipal Corporation to demolish any such illegal constructions that the defendant no.1 may put up on the said property and/or may get the same constructed through his agents, servants or any persons claiming through the defendant no.1. The plaintiff has sought a declaration that defendant no.1 or 3 or any person claiming through them do not have any right of development on the suit property and further hold that the plaintiff has exclusive rights of development of the suit property in exclusion of any other person including defendants 1 and 3. Plaintiff has sought restraining orders by way of permanent injunction from doing any construction work on the said property or any part thereof so also for restraining them from disturbing the peaceful possession of plaintiff on the suit property by encroaching upon suit property or any part thereof. The plaintiff has sought restraining orders against defendant no.2 Thane Municipal Corporation by way of perpetual injunction from entertaining any application by defendant no.1 or 3 or any other person/s claiming through them including application for sanctioning of development plant and permanently cancel any sanction and permission granted to them or any other person/s except the plaintiff. Plaintiff has sought a declaration that the Development Agreement executed on and between defendant no.1 and defendant no. 3 registered in the year 2008 be declared as null and void.

(2.) According to the plaintiff the defendant no.1 had granted development rights in respect of suit property and accordingly executed the Development Agreement and general power of attorney on 20th April, 2006 in favour of the plaintiffs. There is a mention in the Development Agreement that the suit property is clear and marketable. The plaintiff has paid an amount of Rs. 1,50,000/- by way of refundable security deposit in consideration of award of development rights of the suit property. It is the contention of the plaintiff that after execution of the development agreement it was realized that the property is declared as a private forest and there is a revenue entry recorded to that effect. The plaintiff as such took serious efforts and because of the efforts made by the plaintiff, the entry has been deleted and an order to that effect came to be passed by the revenue officials on 30th May, 2006. There was also a problem relating to Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ULC Act) which was also required to be resolved and plaintiff took serious efforts for resolving that problem and was also required to incur expenses for securing an appropriate clearance under ULC Act.

(3.) Initial applications tendered by the plaintiff seeking interim order was not considered favourably by the trial Court. The plaintiff tendered an application at exhibit 54 after seeking an amendment to the plaint and sought a restrained order against the defendant no.1 as well as defendant no.3. The plaintiff requested Court to issue a restrain order against defendants 1 and 3 and all the persons claiming through them from doing any construction work on the suit property or any part thereof and direct them to stop any construction activities on the suit property pending disposal of the suit. The plaintiff also seeks an order of temporary injunction against the defendants 1 and 3 and all the persons claiming through them from disturbing the possession of the plaintiff over the suit property by encroaching upon suit property or any part thereof. An order is also sought against defendant no.2 TMC to stay the construction permission and sanction plan granted to defendant no.1 and/or defendant no.3 or any other person claiming through them. An interim order is sought against defendants 1 and 3 and all persons claiming through them restraining them from selling, transferring or alienating or dealing with the suit property or any part thereof or until disposal of the suit.