BYRAMJEE JEEJEEBHOY PRIVATE LIMITED Vs. GOVINDBHAI APPAJI BHATTE

JUDGEMENT

(1.) THIS is an appeal preferred by original decree holder in Suit No. 349 of 1970 to challenge legality of judgment dated September 8, 1989 passed by learned Single Judge on Chamber Summons No. 245 of 1978. The Chamber Summons was taken out by respondent No. 13 under Order 21, Rule 99 of the Code of Civil Procedure. The trial Judge by the impugned judgment adjudicated the rights of the appellants and the respondent in exercise of powers under Order 21, Rule 101 of the Code of Civil Procedure. The facts giving rise to the passing of the impugned order are as follows.

(2.) NANABHOY Byramjee Jeejeebhoy was owner of several lands situated in 7 villages including village Poisar in Borivili Taluka. The villages in which the lands were situated were Khoti villages and Nanabhoy was the Khot. Nanabhoy had inherited the lands from his father. Khoti rights were abolished by legislation passed by Government of Bombay and in accordance with provisions of the Act lands were regranted in favour of the Khots. Thus, Nanabhoy became owner of lands situated in 7 villages including village Poisar. On July 24, 1951, Nanabhoy, by deed of conveyance, transferred the ownership rights in favour of Byramjee Jeejeebhoy Private Limited, a Company incorporated under the Indian Companies Act. After abolition of Khoti rights, the Government introduced record of rights in accordance with the provisions of the Land Revenue Code and the name of the Company was entered in the record of rights as owners of lands in 7 villages. The lands at village Poisar include lands bearing Survey No. 19, Survey No. 22, Hissa Nos. 1 and 2 and Survey No. 22, Hissa No. 14. On August 26, 1964, the appellant Company entered into an agreement with Govindbhai Appaji Bhatte and 11 others who were carrying on business in the name and style of New Swastik Land Development Corporation, a registered Partnership to sell 7 pieces of lands comprising of Survey No. 17, Hissa No. 9, Survey No. 18, Hissa No. 1, Survey No. 19 Hissa No. 2, and Survey No. 22, Hissa Nos. 1, 9, 14 and 15. The total area agreed to be sold was 23 acres and 231/2 gunthas. The appellants received a sum of Rs. 1 Lakh as earnest money at the time of execution of the agreement and the purchaser had agreed to pay a sum of Rs. 5 Lakhs more within a period of three months from the execution of the document. The remaining purchase price was to be paid at the time of execution of sale deed. It appears that the purchaser lost interest in securing sale deed and thereupon the appellants instituted Suit No. 349 of 1970 on the Original Side of this Court on April 27, 1970 for specific performance of the agreement. The appellants claimed that the purchaser should be directed to specifically perform the agreement by payment of balance purchase price of Rs. 11,24,520/- along with interest. The appellants, in the alternative, claimed that it should be declared that the sum of Rs. 1,00,000/- paid as earnest money stands forfeited and the purchaser should be directed to pay damages of Rs. 5 Lakhs to the appellants. The suit was resisted by the proposed purchasers by filing written statements but when the suit came up for hearing in July 1976, the parties filed consent terms requesting the Court to pass decree in accordance with the consent terms. By this time, some of the defendants - proposed purchasers had died and their names were deleted, while Oshivara Land Development Corporation Limited was added as defendant No. 12. The consent decree, inter-alia, provided that the agreement dated August 26, 1964 for sale of land stands terminated and rescinded. The purchasers agreed to pay to the appellants a sum of Rs. 5 Lakhs as damages and the earnest amount of Rs. 1 Lakh was to be appropriated towards the claim of damages. The consent decree further provided that the defendants shall hand over to the appellants physical vacant possession of the suit lands.

(3.) IN pursuance of the consent decree, the appellants instituted Execution Application No. 70 of 1978 on April 10, 1978 and the Court directed warrant of possession of lands covered by the consent decree on April 20, 1978. On May 25-1978, the warrant was executed by the Sheriff of this Court with the assistance of the police and actual possession of lands covered by the decree was handed over to the appellants save and except an area of 10 gunthas where the material of the respondent was stored. The report made by the Sheriff sets out that possession of an area of 10 gunthas was not delivered as one Mohamed Yasin, a Watchman present at the spot, claimed that materials of M. K. Patel are lying on that area. The respondent - K. K. Patel - thereafter instituted Chamber Summons No. 245 of 1978 on June 3, 1978 in accordance with the provisions of Order 21, Rule 99 of the Code of Civil Procedure. Order 21, Rule 99 provides that where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property, then the person dispossessed may make an application to the Court complaining of such dispossesion. On such application being made, the Court is required to adjudicate in accordance with the provisions contained under Rule 101 of Order 21 of the Code of Civil Procedure. The Chamber Summons filed by respondent sought restoration of possession of land admeasuring about 37, 986. 50 Sq. Yards bearing Survey No. 19, Hissa No. 2, Survey No. 22, Hissa No. 1 (part), Survey No. 22, Hissa No. 1a (part) and City Survey Nos. 639 and 701 of village Poisar. The respondent also sought mandatory injunction directing the appellants to remove the structure constructed in the portion of the land. The respondent also sought damages or compensation for wrongful dispossession at the rate of Rs. 25,000/- per month from the date of dispossession till restoration.