RAMNIKLAL TULSIDAS KOTAK Vs. VARSHA BUILDERS

JUDGEMENT

(1.) BY my order dated 30th July 1991, I have granted injunctions, inter alia, in respect of flats and shops in the building under construction on the suit land or any part thereof and also passed a conditional order for appointment of receiver in respect of the suit land and all the structures standing on the suit land or any part thereof. The defendant No. 1 is constructing 51 flats and several shops after amalgamation of the suit plot with two other plots. I had therefore thought it proper to direct the parties to file affidavits so as to identify the flats and shops covered by the abovereferred order dated 30th July 1991. After considering the affidavit of defendant No. 2 dated 5th August 1991 and affidavit of plaintiff No. I dated 8th August 1991 and the submissions of learned counsel for the plaintiffs and defendants Nos. 1 to 3, I pass this clarificatory order to the effect that the order dated 30th July 1991 shall be applicable to 39 flats and 4 shops particularised in exhibits 1 and 2 to the affidavit of defendant No. 2 dated 5th August 1991 in addition to the same being applicable to the suit plot. On a prima facie view of the matter, I have decided to accept the identity of the flats and the shops constructed or being constructed on the suit plot or part thereof as set out in the affidavit of defendant No. 2.

(2.) I am not permitting defendants Nos. 1 to 3 to re-open the matter in respect of any of the matters already decided by me by may order dated 30th July 1991 and not covered by the liberty granted by the said order. Hence it is directed that paragraph 4 of the affidavit of defendant No. 2 dated 5th August 1991 and reply thereto shall be treated as deleted.

(3.) ONE of the questions which arose for consideration of the Court while deciding this notice of motition was about the validity of the certificate of title appended to the printed agreements of sale in respect of flats and shops on the suit plot relied upon by defend-ant No. 1 in support of its plea of bona fides. Having regard to the legal position enunciated in the later part of this order and overall view of the facts of this case, I have no hesitation in observing that prima facie the said certificate of title is unsatisfactory. The said certificate is based inter alia on the declaration of defendants Nos. 4 to 9 to the effect that the plaintiffs are not traceable and the plaintiffs are presumed to have died and that defendants Nos. 4 to 9 are in adverse possession of the suit land as against the plaintiffs. I have already commented on the said declaration in my order dated 30th july 1991. M/s Pravin Mehta and Mithi and Co. Advocates, are lawyers of repute. This fact however is of limited relevance. As Advocates of experience and repute, they have much larger responsibilities in the matter they handle. I express my unhappiness in respect of the said certificate of title. The matter will be examined in further depth at final hearing of the suit. At the stage of issuing of certificate of title, order dated 30th August 1968 cancelling Mutation Entry No. 3072 dated 27th September 1967 was in existence. The said order dated 30th August 1968 passed by the Tahsildar was set aside by the Sub-Divisional Officer much later. If the advocates issuing the certificate of title inter alia had proceeded on the basis that the transaction of conveyance of September 1966 in favour of the plainliffs was vitiated by reason of the said order dated 30th august 1968 passed by the Tahsildar, it could be one of the possible views. Possibility of the said Advocates being misled by their clients cannot be ruled out. However it cannot be ignored that the registered Deed of conveyance itself sets out that the Vendors had handed over vacant possession of the plot to the plaintiffs. This aspect is not even referred to in the certificate of title. Reliance on declaration of defendants Nos. 4 to 9 as one of the basis for certifying the title has disturbed me a lot. I am not going deeper into the matter. This aspect of the matter is interlinked with professional reputation of Advocates. I therefore do not wish to say anything more and leave this aspect open for further investigation at the trial of the suit. I am therefore refraining from making any adverse comments against the Advocates personally. However, in view of disturbing features of this case, it is necessary to consider the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as 'the Act') and the rules made thereunder and formulate the principles of law governing the issue of certificate of title and apply the relevant principles to the impugned certificate of title for taking a prima facie view of the matter.