Mr. Aspi Chinoy, Senior Advocate, along with Mr. Vishal Kanade, Mr. Aditya Mehta, Ms. Nikita ...

35 Pages·2017·0.32 MB·English

nmsl-2448-order.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO.2448 OF 2016
IN
SUIT NO. 471 OF 2016
Ashiq Ali Merchant ... Applicant
(Orig. Defendant No.8)
In the matter between:
Maneesh Bawa and others ... Plaintiffs
vs.
Prasad Arvind Sant and others ... Defendants
Mr. Aspi Chinoy, Senior Advocate, along with Mr. Vishal Kanade, Mr. Aditya Mehta,
Ms. Nikita Mishra, Mr. Rahul Lakhiani and Ms. Namrata Vinod, i/by M/s. Federal
and Rashmikant, for the Plaintiffs.
Mr. Nitin M. Pagre, for the Applicant -- Defendant No.8, in support of the Notice of
Motion.
Mr. Nilesh C. Ojha, along with Ishwarlal Agarwal, Rajesh Panchal, Suresh Ghamre,
Reshma Kudalkar, Asmita Misal and Poonam Shinde, for Defendant No.1.
CORAM: S.J. KATHAWALLA, J.
DATE: 8th Februry, 2017
P.C.:

1. According to the Plaintiffs, Plaintiff Nos. 1 and 2 (Maneesh Bawa and Sumeet
Bawa) are the sons of one Randhir Singh Bhalla (son of Bawa Maharaj Singh) who was
a resident of New Delhi, and who died at New Delhi on 29th May, 2014. Plaintiff
No. 3 is the wife of the said Randhir Singh Bhalla and mother of Plaintiff Nos. 1 and 2.
According to the Plaintiffs, they are the owners and in possession of property at
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Mulund, more particularly described in Exhibit-A to the Plaint ("the Mulund
Property"). The Defendant Nos. 1 and 8 are also claiming their alleged right to the said
Mulund Property through the son of Bawa Maharaj Singh. According to the Plaintiffs,
Defendant Nos. 1 and 8 are falsely claiming that the son of Bawa Maharaj Singh was
one Randhir Singh Bhala, an alleged resident of Indore who allegedly died at Indore
on 25th October, 2012.
2. According to the Plaintiffs, Randhir Singh Bhala, the alleged resident of Indore
is non-existent/fictitious and a creation of Defendant Nos. 1, 8 and some others; that
the copy documents submitted by Defendant Nos. 1 and 8 to the Mulund Police
Station to support the existence of the alleged Randhir Singh Bhala of Indore, have
all been found to be fabricated, or based on fabricated documents; and that the
photograph alleged to be of Randhir Singh Bhala on such copy documents have been
found by the Police to be photographs of one Laxmandas
Mulchandani/Uttamchandani who expired at Indore on 24th October, 2012.
3. According to the Plaintiffs, the basis on which they claim to be the owners and in
possession of the Mulund Property and the circumstances which have compelled
them to file the above Suit are set out hereunder:
3.1 That one Bawa Parduman Singh had three sons and one daughter i.e. Bawa
Gurmukh Singh, Bawa Maharaj Singh, Bawa Maqsudan Singh and Ram Rakhi. Bawa
Maqsudan Singh as well as Ram Rakhi died in the year 1930. At the time of his death,
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Bawa Maqsudan Singh did not have any heirs. Bawa Gurmukh Singh had three sons
and three daughters. Bawa Maharaj Singh had two sons and one daughter viz. Bawa
Satyapaul Singh, Randhir Singh Bhalla and Sudershan Sondhi. Bawa Satyapaul Singh
had one son and three daughters viz. Abhai Singh, Abha Ahuja, Geeta Chawla and
Manju Verma, who are joined as Defendant Nos. 4 to 7 in the above Suit. Randhir
Singh Bhalla had two sons and one daughter viz. Maneesh (Plaintiff No.1), Sumeet
(Plaintiff No.2) and Praneeta. As stated hereinabove, Usha Archana (Plaintiff No. 3)
is the wife of Randhir Singh Bhalla. To impart better clarity to what has been stated
hereinabove, the above relationships are set out in the below-given family-tree:
BAWA PARDUMAN SINGH

Ram Rakhi Bawa Gurmukh Singh Bawa Maharaj Singh Bawa Maqsudan Singh
(Daughter) (son) (son) (son)
Bawa Satyapaul Singh Randhir Singh Bhalla Sudershan Sondhi
(Son) (Son) (Daughter)
Urmila(Wife) Usha Archana (Wife)
(Plaintiff no.1)
Abha Ahuja Geeta Chawla Manju Verma Abhi Singh
(Daughter) (Daughter) (Daughter) (Son)
Maneesh Sumeet Praneeta
(Son) (Son) (Daughter)
(Plaintiff No.2) (Plaintiff no.3)
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3.2 That by diverse Deeds of Conveyance executed during the period 1942-1946,
Bawa Maharaj Singh and Bawa Gurumukh Singh (both brothers) acquired the Mulund
Property.

3.3 That in arbitration proceedings between the two brothers and their sons, two
awards came to be made as under:
(i) A Property Award dated 31st March, 1956, which was made a Rule of Court on
7th February, 1957;
(ii) An Award dated 4th April,1956 relating to the Partnership Firm of Bawa
Parduman Singh and Sons which was made a Rule of the Court on 22nd August,
1969. Since Bawa Gurmukh Singh was not a Partner of the said Firm he was not a
party to this second award.
3.4 That under the Property Award dated 31st March, 1956, the Mulund Property
was partitioned and 197,022 sq.yds. was awarded to Bawa Gurmukh Singh and his
branch (Schedule A1 to the Award ) and 209,435 sq.yds. was awarded/allotted to Bawa
Maharaj Singh and his branch (Schedule B1 to the Award). A small portion remained
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as joint property (Schedule C-7 to the Award).
3.5 That in the year 1958, pursuant to an Application made by Bawa Maharaj Singh
on the basis of the Award, Mutation Entry No. 3005 was made by Revenue Officers
transferring the said Mulund Properties between Bawa Maharaj Singh and Bawa
Gurmukh Singh in accordance with the above Property Award.
3.6 That Bawa Maharaj Singh died on 24th August, 1982 leaving behind his two
sons Satyapaul Singh (who had a son Abhai and three daughters viz. Abha, Geeta
and Manju) and Randhir Singh Bhalla (who had two sons i.e. Plaintiff Nos. 1 and 2
and one daughter Sudershan Sondhi).
3.7 That Maneesh Bawa, Plaintiff No. 1 and Sumeet Bawa, Plaintiff No. 2 filed Suit
No. 1665 of 1982 in the Delhi High Court, inter alia, praying for partition (including
that of the suit property). During the pendency of the said Suit, Satyapaul Singh
died in 1991. In the year 1991, a compromise decree was passed in the said Suit
recording that the daughter of Bawa Maharaj Singh i.e. Sudarshan Singh Sondhi had
surrendered/transferred her share to Randhir Singh Bhalla and had partitioned the
Mulund Property between Randhir Singh Bhalla and his family (including the
Plaintiffs herein) and the heirs of Satyapal Singh. In 1991, an Application was made to
transfer the property in accordance with the compromise decree and the statement of
Randhir Singh Bhalla was recorded by the Talathi, Mulund.
3.8 That the Talathi, Mulund passed Fer-far Utara/Mutation Entry No. 4960 dated
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28th February, 1992, excluding Sudarshan Sondhi, but otherwise recording only the
heirs of Satyapal Singh ( three daughters and a son) and Randhir Singh Bhalla. While
making the Mutation Entry, the Talathi instead of writing "Bhalla" erroneously wrote
"Bhala" in Marathi.
3.9 That in November, 2013, by duly registered conveyance deeds the son and
daughters of late Satyapal Singh (Defendant Nos. 4 to 7 herein) transferred their
share in the Mulund Property to Randhir Singh Bhalla and the Plaintiffs.
3.10 That on 29th May,2014, Randhir Singh Bhalla died at New Delhi.
3.11 That on 2nd July, 2015, Defendant No. 8 (Aashiq Ali Merchant) filed a Suit in
the City Civil Court being Suit No. 1553 of 2015 against Defendant No. 1 (Prasad
Arvind Sant) based on a purported Agreement of Sale dated 9th December, 2011 of
the Mulund Property executed by Defendant No. 1 (purporting to act as the Power of
Attorney-Holder of Randhir Singh Bhala, resident of Indore), in favour of Defendant
No. 8. On 20th July, 2015, Defendant No. 1 (as the Power of Attorney-Holder of
Randhir Singh Bhala of Indore) and Defendant No. 8 purported to enter into Consent
Terms recording the purported sale of the said Mulund Property to Defendant No. 8,
on the basis of which an Order was passed by the City Civil Court.
3.12 That both the Power of Attorney dated 24th November, 2011 and the Agreement
dated 9th December, 2011 recite and record that:
" by virtue of award dated 7.2.1957 of Arb Case No. 28/1957 between
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Bawa Gurmukh Singh and his branch and Bawa Maharaj Singh and
his branch passed by Rt. Chief Justice of India his Hon'ble Justice
Meherchandji Maharaj, the aforesaid property was divided into two
parts and the said partition was recorded by revenue dept of Mulund
office vide their Mutation Entry No. 3005 dt. 06.05.2008"
And further stated " Maharaj Singh had two sons Mr. Satyapal Singh
& Mr. Randhir Singh. After the sad demise of Maharaj Singh
according to Succession Act the said property devolved in favour of
Satyapal Singh and Randhir Singh. Thereafter Satyapal Singh expired
on 1.4.1991 and thereafter Urmila Devi also expired.
AND whereas by virtue of succession, I Randhir Singh Bhala son of
Maharaj Singh, aged 84 years, Hindu Inhabitant of Indore ... 2 (1)
Abhay Singh son of late Satyapal Singh.... 2 (2) Mrs. Abha Ashok
Hinduja, daughter of late Satyapal Singh... .. 2 (3) Geeta Deepak
Chawla daughter of late Satyapal Singh, 2 (4) Mrs. Manju Satish
Verma daughter of late Satyapal Singh ...became owner and landlord
of land bearing survey Nos. ... at Mouje Nahar, Village Mulund,
Taluka Kurla, Dist. BSD, Mumbai."
The Schedule of the alleged Agreement of sale refers to "land bearing
survey Nos. .... and all the shares of Shri Randhir Singh Bhala as per
award passed in Case no. 28 of 1956 filed at District Court of Amritsar
dt. 31.3.1956 & decree dated passed therein on 7.2.1957."
3.13. That Randhir Singh Bhalla (father of Plaintiff Nos. 1 and 2 and husband of
Plaintiff No.3) was therefore the son of Bawa Maharaj Singh. He was born on 5th
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April, 1927, was a resident of New Delhi and died at New Delhi on 29th May, 2014.
3.14 That the Plaintiffs were therefore compelled to file the present Suit seeking
reliefs as summarized hereunder:
(i) That it be declared and decreed that the Consent Terms dated 20th July, 2015
(Exhibit-E to the Plaint) filed in the City Civil Court at Mumbai in Suit No.
1553 of 2015 and the Consent Decree passed thereon are void ab initio and of
no legal effect and not binding on the Plaintiffs or upon the suit property, and
be set aside;
(ii) That it be declared and decreed that the Plaintiffs are the owners and are in
possession of the suit property described in Exhibit-A to the Plaint and the
Defendants do not have any right, title and/or interest in the same and are also
not in possession of the same or any part thereof;
(iii) that it be declared and decreed that the Power of Attorney dated 24th
November, 2011 (Exhibit-C to the Plaint), Agreement for Sale dated 9th
December, 2011 (Exhibit-D to the Plaint) and the Letter of Possession dated
21st July, 2015 (Exhibit-F to the Plaint) are illegal, non-est, void ab initio, not
binding on the Plaintiffs and the same be cancelled.
3.15 Though the Plaintiffs have joined Randhir Singh Bhala of Indore as
Defendant No. 3 to the above Suit, he has not appeared before the Court.
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3.16 That it is therefore clear beyond any doubt that Defendant No. 3-- Randhir
Singh Bhala of Indore is non-existent/fictitious and that he is a fraudulent creation
of Defendant Nos. 1 and 8 and the documents submitted by Defendant Nos. 1 and 8 to
establish his existence, are also fabricated and/or procured on the basis of fabricated
documents.
4. In the above Suit, in paragraph 31 (K) of the Plaint, the Plaintiffs have
inter alia stated that on the Award dated 31st March, 1956 being made Rule of the
Court, Bawa Maharaj Singh inter alia applied for transfer of the Mulund Properties
which had come to his share, to his name in the revenue records, which was
sanctioned vide Ferfar Utara/Mutation Entry No. 3005 on 6th May, 1958 and
accordingly the 7/12 extract in respect of the said "awarded" properties was issued in
the name of Bawa Maharaj Singh.
5. After filing the above Suit, the Plaintiffs took out Notice of Motion (L) No.
3272 of 2015 which was later numbered as Notice of Motion No. 1514 of 2016. In the
said Notice of Motion, the Plaintiffs have prayed for several ad-interim and interim
reliefs including relief restraining Defendant Nos. 1 and 8 from acting on the
purported Power of Attorney dated 24th November, 2011 (Exhibit-C to the Plaint),
Agreement for Sale dated 9th December, 2011 (Exhibit-D to the Plaint) and also on
the Consent Terms and Consent Decree filed and obtained in the City Civil Court
Suit No. 1553 of 2015.
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6. On 26th November, 2015, this Court (Coram: A.K. Menon, J.) granted ad-
interim reliefs in terms of prayer clauses (a) and (e) of the said Notice of Motion. As
far as prayer clause (b) was concerned, the same was restricted to Defendant Nos. 1
and 8. The Notice of Motion was directed to be listed on 21st December, 2015.
7. Thereafter Defendant No. 8 filed Notice of Motion (L) No. 3457 of 2015 alleging
that the ad-interim orders were obtained from the Court on the basis of false
averments made in the pleadings, and for setting aside the same. The reliefs sought
in the said Notice of Motion were rejected by an Order dated 22nd January, 2016.
8. Defendant No. 8, in the meantime, also filed Notice of Motion (L) No. 767 of
2016 and prayed that the "maintainability of the present suit be decided as a
preliminary issue on the ground of limitation". By an Order dated 22nd July, 2016,
this Court therefore framed the following issue under Section 9A of the CPC, 1908:
"Whether the suit as filed is barred by the law of limitation"
Though Defendant Nos. 1 and 8 through their Advocates had initially informed the
Court that they were not desirous of leading any oral evidence, but would rely on
documentary evidence in support of their contention that the Suit is barred by the
law of limitation, later filed an Affidavit of Evidence of Defendant No.8, who was
required to submit himself for cross-examination.
8. On 16th August, 2016, Defendant No. 8 lodged the above Notice of Motion,
inter alia, for the following reliefs:
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