SARBHANSINGH NUKUMSINGH KEER Vs. HUSSEIN KHAN KADARNAWAZ KHAN

JUDGEMENT

(1.) The petitioners on the one hand and respondents No. 2 and 3 on the other, both claim to be the purchasers of the disputed premises in the building known as Khan House on plot No. 106 T.P.S. III, 24th Road, Bandra, from respondent No. 1 who was doing the business of building-construction under the name and style of Khan Builders. The building in dispute consists of a basement and a ground floor plus five upper storeys.

(2.) Respondent No. 1 had executed an agreement of sale in favour of petitioner No. 1 in respect of the basement and the ground floor, on 31-3-1982. The said agreement was registered on 9-8-1984. An agreement in respect of the first floor was executed by him in favour of petitioner No. 2 on 31-3-1982 and was registered on 24-9-1984. The agreements respect of the second floor were executed by him in favour of petitioners 3 and 4 on 18-12-1981. Both the agreements were registered on 20-9-1984. Although the four agreements referred to above were registered in August and September 1984, the part payments were made under each of them by cheque on their dates of execution. Respondent No. 1 also executed an agreement for sale in favour of respondent No. 2 in respect of the ground floor and the basement on April 19, 1984. That agreement was registered on 15-7-1984 for the consideration mentioned therein. He executed two separate agreements in favour of respondent No. 3 in respect of the first and the second floors on April 16, 1984, registered on the same day. Two agreements in respect of the third floor were executed by him in favour of petitioners 5 and 6. In respect of the fourth floor two agreements we executed by him and register in favour of petitioners 7 and 8. Further two agreements were register in respect of the fifth floor in favour of petitioners 9 and 10. All these six agreements were executed on June 28, 1982 and registered on July 5, 1982. On February 6, 1983, respondents No. 1 wrote a letter to all the petitioners expressing his inability to complete the construction due to his financial difficulties and asked them to take over the possession of the incomplete building and also authorised them to get the construction completed by employing their own agencies. He further authorised them to spend the balance of the consideration for completing the construction. Accordingly, the petitioners took possession of the said building on the same day. The petitioners also held a meeting on March 9, 1982 in the office M/s. Nandlal & Co. and authorised Mr. Nandlal to complete the work of the whole building and agreed to pay him for the same. The petitioners thus claim to be in possession of the entire building from 6th February, 1983.

(3.) Respondent No. 2 on the strength of the agreement referred to above claimed to be in possession of the basement and the ground floor as an owner. He also claimed to be in possession of the whole building of which he was to complete the construction. He filed a Short Cause Suit No. 5356 of 1984 in the City Civil Court at Bombay, and in the suit and ad interim injunction was granted by the Court on 28-8-1984 against respondent No. 1, from forcibly dispossessing him or in any manner interfering with his peaceful possession and enjoyment of the basement and the ground floor. He also preferred an application to the Senior Police Inspector, Police Station Bandra, requesting him to protect his possession of the basement and ground floor on the strength of the ad interim injunction. It may be noted here that in the said suit and in the application written to the police, respondent no 2 had asked for the relief only with regard to the basement and the ground floor. It is stated in the application that while he was protecting his possession in pursuance of the ad interim injunction , respondent No. 1 and petitioner No. 1 tried to dispossess him on September 13, 1984. On the 15th September, 1984, respondent No. 2 filed an application before the Chief Metropolitan Magistrate, 9th Court, Bandra, under section 145(1) of the Cri.P.C. The learned Magistrate relying on the averments made in the application and then affidavit of respondent No. 2 passed a preliminary order under section 145(1) of the Criminal Procedure Code and kept the matter for hearing on October 12, 1984. An application was also made by him to the learned Magistrate on the same day under section 146 of the Criminal Procedure Code claiming exclusive possession of the entire building. On September 15, 1984, the whole property known as Khan House consisting of basement, ground and five upper storeys was sealed by the order of the Magistrate. Respondent No. 1 and petitioner No. 1 appeared in the Magistrates Court and filed their say and affidavits. They also supported their say by the affidavits of their Architect, builder, masons and carpenters showing that the petitioners were in possession of the whole building. Respondent No. 3 preferred an application on October 8, 1984 in the same proceedings with a request for joining him as a party, which application was granted by the learned Magistrate on the same day. After considering the affidavits of the petitioners, the learned Magistrate rejected the application made by the petitioners for unsealing the premises. Against this order, the petitioners have filed this petition for quashing and setting aside of the learned Magistrate.