MULJI UMERSHI SHAH Vs. PARADISIA BUILDERS PRIVATE LIMITED

JUDGEMENT

(1.) THIS group of six appeals arises out of the order passed by the City Civil Court, Bombay on 2nd November 1996 in Notice of Motion No. 2608 of 1996 in Suit No. 2784 of 1996.

(2.) THE facts have been stated in details in the impugned order and, therefore, I would recapitulate briefly the essential and necessary facts for disposal of these appeals only.

(3.) THE disputed property comprises of Gala Nos. 1, 4b, 6b, 15, 16, 17, 18, 26 on the ground floor, all galas on the entire first floor and Gala Nos. 201, 216 to 226 on the 2nd floor of Bezzola Commercial Complex, Sion Trombay Road, Chembur, Mumbai. Mulji Umershi Shah, the plaintiff and appellant in Appeal No. 39 of 1997 filed a suit before the City Civil Court on 24th May 1996 initially impleading the State of Maharashtra, Paradesia Builders Private Limited and the Municipal Corporation for Greater Bombay as defendants Nos. 1 to 3 respectively. Thereafter the defendants Nos. 4 to 24 have been impleaded in the suit. The crux of plaintiffs relief in the suit is that defendant No. 2 Paradesia Building Private Limited is not entitled to dispossess the plaintiff or interfere and/or disturb his possession in respect of the suit premises and decree for permanent injunction accordingly. The basis of the plaintiffs claim rests on the averment that he has 25% share in the building Bezzola Commercial Complex built by defendant No. 2. The plaintiff averred that the disputed property is built on the land originally owned by one Shri Khatau Bhanji who died on 18th April 1967 leaving behind his wife Lilavati (defendant No. 4) and minor son Kiritkumar. The deceased left behind a Will dated 9th July 1966 and the executors mentioned in the Will were his wife Smt. Lilavati, her brother, two partners of the deceased and Jayantilal. The dispute arose between the executors which resulted in filing of the suit before this Court on the Original Side. In that suit Court Receiver was appointed who came in possession. The plaintiff claims that he helped Smt. Lilavati in conduct of the said litigation and in lieu thereof Lilavati executed writing on 29th March 1971 stipulating that the suit plot would go to the plaintiff after discharge of the Court Receiver. On 15th December 1977 the suit was dismissed and Court Receiver was directed to hand over possession to Lilavati. An agreement was executed, according to the plaintiff, with Lilavati on 1st May 1978 confirming plaintiffs status as a lessee in respect of the suit land and factory standing on the part of the land. By the said agreement the plaintiff was permitted to develop the property and raise new construction at his costs on the terms and conditions mentioned therein and to create lease in respect of the new construction in the suit land. There was an agreement for lease of the suit land dated 15th April 1978 between Smt. Lilavati and Gala Construction for 98 years on monthly rent of Rs. 6000/- and other terms and the said lease agreement was cancelled on 22nd January 1981. The plaintiff avers that vide agreement dated 22nd January 1981 between Smt. Lilavati and M/s. Gala Construction wherein the plaintiff was confirming party, his claim of entitlement to 25% of the total built up area and the development on the said property free of cost was confirmed. The plaintiff has further set out a case that on 20th May, 1981 Smt. Lilavati executed an agreement of lease in favour of the defendant No. 2 - Pardesia Buildings Pvt. Ltd. On 11th September, 1981 the lease deed was executed between Smt. Leelavati, Kirit Kumar and defendant No. 2 which was signed by the plaintiff as constituted attorney on behalf of Smt. Lilavati and in the said lease deed also the defendant No. 2 as lessee agreed to take over and fulfil obligation of providing 25% share in the total built up area. The building was complete in the year 1987 and Bombay Municipal Corporation granted full occupation certificate regarding the entire building. The plaintiff avers that he asked Smt. Lilavati and the defendant No. 2 for possession of 25% of built up area and execution of documents and in answer thereto the defendant No. 2 informed the plaintiff that they had executed documents in favour of its employees, close relations, friends but these documents were executed only for tax purposes and defendant No. 2 promised to hand over to the plaintiff part of ground floor, the entire first floor and part of second floor towards his 25% share in the building. The plaintiff wrote a letter to the defendant No. 2 dated 28th June, 1995 to put him in possession of the area to which he was entitled and after various meetings on 12th July, 1995 the defendant No. 2 handed over possession of various galas on ground floor, entire first floor and part of second floor as stated in the plaint and since then the plaintiff has been occupying galas for business purposes. According to the plaintiff, on 22nd May, l996, the dispute arose between the plaintiff and defendant No. 2 and he was threatened that he would be forcibly dispossessed. The plaintiff lodged complaint on 23th May, l996 and filed the suit on 24th May, l996. Alongwith the plaint, the plaintiff produced number of documents inter alia, sketch plan, agreement dated 29th March, 1971, agreement dated lst May, l978, minutes of the agreement dated 21st January, l98i, lease deed dated 11th September, 1991 between Smt. Lilavati and defendant No. 2; letters dated 20th June, 1995, 12th July, 1995 and 23rd May 1996. The plaintiff also look out notice of motion and submitted affidavits including that of Shri Jawahar Gala and contractor. On 25th May, 1996 an ad-interim order was passed by the vacation Judge of the City Civil Court. Against the ad-interim order passed by the Vacation Judge of the City Civil Court, an appeal was preferred before this Court by the defendant No. 2 and the said appeal was disposed of by this Court by directing the trial Court to hear and decide the notice of motion expeditiously and Commissioner was appointed for inspection of the site. The Commissioner visited the site on 10th August, 1996 and submitted his report. The defendant No. 2 filed the affidavit in reply to the notice of motion on 12th September, 1996 and admitted that Smt. Lilavati was the owner of the plot in question. According to defendant No. 2 on 8th April, 1978 an agreement of lease was entered into between Smt. Lilavati an M/s. Gala Construction on the terms and conditions mentioned therein with an option to purchase reversion. The said agreement dated 8th April, 1978 was signed by the plaintiff as constituted attorney of defendant No. 4 - Smt. Lilavati. The said agreement was cancelled on 22nd January, l98l and the minutes cancelling the agreement between Smt. Lilavati and M/s. Gala Construction were recorded. The defendant No. 2 set up the plea that the minutes dated 22nd January, 1981 relied upon by the plaintiff were forged and fabricated. According to defendant No. 2 on 28th May, 1981 an agreement for lease was executed between Lilavati, her minor son Kiritkumar and defendant No. 2 and the said agreement was initialled by the plaintiff as constituted attorney of Smt. Lilavati. On 11th September, 1981 pursuant to the agreement of lease dated 20th May, 1981, indenture of lease was executed between Lilavati, her son Kirit Kumar and the defendant No. 2. However, according to defendant No. 2, the document of lease deed, dated 11th September ,1981 relied upon by the plaintiff was forged and fabricated and the copy of the genuine indenture of lease was placed on record by the defendant No. 2. The defendant No. 2 denied having handed over possession to the plaintiff on 12th July, 1995 as alleged and according to it, letters dated 12th July, 1995 and 10th April, 1996 were fabricated by procuring blank signed letter head through his nephew Shri Dinesh Gala. The defendant No. 2 denied having any privity between plaintiff and defendant No. 2 and stated that it has sold the disputed galas to various purchasers and possession thereof has been given to the respective purchasers. In affidavit in reply, the defendant No. 2 also stated that the plaintiff has illegally and forcibly changed looks on the units on ground floor, first floor and second floor and had tried to usurp possession. Thus, the defendant No. 2 denied the plaintiffs right, title or interest in the property in question or his claim of 25% share in the built up area. Number of circumstances were pointed out in the affidavit in reply by defendant No. 2 to demonstrate that the documents, namely minutes of agreement dated 22nd January, 1981, the lease deed dated 11th September, 1981 and the letters dated 12th July, 1995 and 10th April, 1996 relied upon by plaintiff were forged and fabricated. The defendant No. 2 in support of its averments made in the affidavit in reply relied upon various documents, inter alia, letter dated 9th July, 1996 written by it to Deputy Inspector of Inspection and Deputy Controller of Stamps, Bombay, to take charge of the lease deed forged by the plaintiff, letter dated 11th July, 1996 written by defendant No. 2 to Deputy Inspector, copy of the lease deed dated 11th September, 1981 as relied upon by defendant No. 2, hand writing experts report regarding minutes of the agreement dated 22nd January, 1981, the letter from Superintendent of Stamps dated 13th May, 1982. Form 37 (1) signed by the plaintiff for obtaining no objection certificate, the letter dated 11th April, 1986 from Smt. Lilavati, defendant No. 4 which was signed by plaintiff as her constituted attorney to Shri Romer Dadachandji, plaintiffs letter dated 31st October 1991 as constituted attorney of defendant No. 4 to Bombay Municipal Corporation, the minutes of the agreement dated 22nd January 1981 which according to defendant No. 2 was genuine, agreement dated 8th April 1978 between Smt. Lilavati, which was signed by the plaintiff as her constituted attorney and Gala Constructions, plaintiffs affidavit confirming the agreement dated 8th April 1978 with Gala Construction and their possession and requesting competent authority to grant exemption, the declaration under Urban Land Ceiling and Regulation Act dated 28th July, 1980 signed by the plaintiff and plaintiffs affidavit dated 8th December, 1986. The other defendants also filed their affidavits in reply. The plaintiff appears to have filed affidavit in rejoinder on 14th October 1996. The trial Court thereafter heard the learned Counsel for the parties and did not find any merit in the notice of motion taken out by the plaintiff for grant of temporary injunction. However, looking to the peculiar and exceptional circumstances prevailing, the trial Court by the impugned order dated 2nd November 1996 appointed Court Receiver of this Court as Receiver in respect of Gala Nos. 4b, 6b, 15, 16, 17, 18, 26 on the ground floor, entire first floor and Gala Nos. 201, 216 to 226 on second floor of Bezzola building. The Receiver was directed to appoint the respective purchasers (defendant Nos. 4 to 25) in respect of these galas without requiring them to pay security deposits. The Receiver was also directed to fix the monthly royalty of each Gala and directed the respective agents to deposit 1/4th of such amount per month subject to revision after every five years and the said amount was to be invested and interested in the approved scheme of any nationalised Bank. As regards Gala No. 1, the plaintiff was permitted to remain in possession and the defendants were restrained from disturbing his possession during the pendency of the suit. The trial Court also directed that front side Gala No. 17 would remain in possession of the plaintiff and defendants shall not disturb his possession and the back side of Gala No. 17 would remain in possession of defendant No. 2. The plaintiff, defendant No. 2 and defendant No. 8 were directed not to create any third party rights in respect of Gala No. 17. This order passed by the City Civil Court on 2nd November 1996 is challenged in this group of six appeals.