Bombay High Court upholds single‑judge refusal to reopen possession order, directs alternative forum for title disputes

A division bench of Justices G. S. Kulkarni and Aarti Sathe heard the Letters Patent Appeal arising from Writ Petition No. 1461 of 2011, challenging the Single Judge’s order disposing of a petition by Sheikh Amin Akhtar (Appellant No.1). The appeal raised the question whether the learned Single Judge erred in declining to interfere with orders of the Co‑operative Appellate Court and in directing the appellant to pursue remedies before the appropriate forums, where disputed questions of title and possession had been adjudicated.

The Court dismissed the appeal and upheld the Single Judge’s reasoning that contested questions of title and possession could not be decided in writ or interlocutory proceedings and that the remedy lay before the appropriate civil/co‑operative fora. The bench recorded the factual findings of the Cooperative Court and the Appellate Court that Appellant No.1 “did not have any document to prove his ownership” of Flat No. 702 and observed that the appellant had not come to court “with clean hands.” The Court, in its reasoning, observed: “After having heard the learned counsel appearing for Petitioners and perusing with her assistance the order dated 22.12.2010, I am of the view that there is no necessity to interfere therewith... The remedy lies elsewhere and the Court below opined that he must take recourse to such proceedings as are permissible in law before the appropriate forum. The Court cannot assist him in review jurisdiction.” The division bench recorded that it was “not inclined to interfere” with the impugned order and permitted Respondent No.5 to take appropriate steps to secure possession, noting that Court Receivers had earlier been appointed.

Background The litigation concerned Flats Nos. 701 and 702 in Suyog Darshan Co‑operative Housing Society, Versova, Mumbai. Appellant No.1 claimed to be owner of a composite 1,500 sq. ft. unit (later divided into 701 and 702) and asserted that he gave Flat No.702 on leave‑and‑license to Appellant No.2. Respondent No.5, a government employee, claimed entitlement to Flat No.702 pursuant to prior allotment and orders of the Cooperative Court and Appellate Court. The Society and its records, affidavits and earlier orders showed that Flats 701, 702 and 705 were recorded as separate units and that Respondent No.5 was directed to be given vacant and peaceful possession of Flat No.702 by the Appellate Court’s order dated 11 June 2010. Pursuant to that order, a Court Receiver was appointed and possession measures were taken; Appellant No.1 was not impleaded in the earlier proceedings.

Appellant No.1 contended that proceedings before the Co‑operative Court and Appellate Court were vitiated by fraud and denial of natural justice, that he had purchased a 1,500 sq. ft. flat (No.701) on 16 January 2008 and thereafter divided it to create flats 701 and 702, and that he had licence agreements and payments supporting his occupation. The Appellate Court, however, examined the sale deed and society plan and recorded that the sale deed showed title only to Flat No.701 and that Appellant No.1 produced no authenticated building plan or permission to divide 701 into two flats; the court noted FIR references and prior disputes indicating Flat No.702 had existed earlier. The Appellate Court concluded numerous disputed questions of title and fact were not amenable to interlocutory relief and allowed limited relief to remove belongings subject to conditions.

The Single Judge reviewed those records and dismissed the writ petition, holding there was “no necessity to interfere” and reiterating that Appellant No.1’s remedy lay in competent proceedings to adjudicate title, fraud and related allegations. The Division Bench agreed, after hearing Mr. Mandar Soman for the appellants, Mrs. M. P. Thakur, AGP for the State, and Mr. Vinod L. Desai for Respondent No.5, and having inspected the impugned orders and society documents, concluding that the appellant had not established ownership of Flat No.702 and that the impugned order required no interference. The Letters Patent Appeal was dismissed; the bench left it open for Respondent No.5 to pursue necessary steps to secure possession, observing no order as to costs.

Case Details: Case No.: Letters Patent Appeal No.244 of 2011 (in Writ Petition No.1461 of 2011) Case Title: Sheikh Amin Akhtar & Anr. v. The State of Maharashtra & Ors. Appearances: For the Petitioner(s): Mr. Mandar Soman (for Appellants) For the Respondent(s): Mrs. M.P. Thakur, AGP (for Respondent No.1, State); Mr. Vinod L. Desai (for Respondent No.5)