Bombay High Court
Saleem Hasan Khan vs Ahsan @ Mansur Hasan Khan And 6 Ors on 25 November, 2016
Author: G.S. Patel
Bench: G.S. Patel
912-NMSL3288-16.DOC
ATUL
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO. 3288 OF 2016
IN
COUNTER CLAIM (L) NO. 1047 OF 2016
IN
SUIT NO. 154 OF 2015
Saleem Hasan Khan ...Plaintiff
Versus
Ahsan Alias Mansur Hasan Khan & 6 Others ...Defendants
Mr. Dinyar Madon, Senior Advocate, a/w Mr. Atul Daga, Ms.
Poorva Garg and Mr. Parikshit Barpujari, i/b Mulla & Mulla
and Craigie Blunt & Caroe, for the Plaintiff.
Mr. J. P. Sen, Senior Advocate,with Ms. Manaswi Agrawal, i/b
Charles De Souza, for the Original Plaintiff in Suit No. 154/15
and for Defendant No.1 in Counter Claim.
Mr. Rahul Soman, i/b Solomon & Co., for the Original Defendant No.
3 in Suit No. 154/15.
Mr. Pankaj Kandhari, for Defendant No. 4 in Counter Claim.
Mr. Uzair Z. Kazi, a/w Mr. Asif Khan, i/b Y. Kanchan, for
Defendants Nos. 6 and 7.
CORAM: G.S. PATEL, J
DATED: 25th November 2016
PC:-
1.The limited controversy at this ad-interim stage is about the access of the 1st Defendant to the terrace of the structure. Mr. Madon for the 1st Defendant claims that his clients' access to a common and undifferentiated terrace over a structure that spans several plots has been obstructed by either the Plaintiff or Page 1 of 3 25th November 2016 ::: Uploaded on - 25/11/2016 ::: Downloaded on - 15/09/2021 15:26:39 ::: 912-NMSL3288-16.DOC Defendants Nos. 6 and 7, or both. Mr. Madon's case is that there was an access door through which the 1st Defendant would enter upon a common area and then approach a flight of stairs to the terrace. He says the door has been sealed by putting up a brick wall behind it so that it no longer opens into the common yard or space beyond.
2. On behalf of the Plaintiffs and Defendants Nos. 6 and 7 the claim is that this door was never used by the Plaintiffs. I am shown a map which is part of page 49 of the counter claim. On this the present door location has been indicated but Mr. Sen for the Plaintiffs also points out from two places marked with a cross on this map, as also from accompanying photographs, that at two other locations there are separate metal or iron gantry-type staircases that go all the way to the terrace, and that both of these are open for use by the 1st Defendant. The plan indicates the existence of such external staircases but I am unable to make out their exact location or whether from the Plaintiffs' portion there is access to these stairways.
3. It would be best if a Commissioner is appointed to carry out a limited local investigation. The Court Receiver is directed to appoint an officer to visit the site at Saki Naka and to make a report on the following:-
(a) Whether in the plan marked Exhibit "B" and which I am taking on record and mark "X" for identification today, the 1st Defendant has access to the metal Page 2 of 3 25th November 2016 ::: Uploaded on - 25/11/2016 ::: Downloaded on - 15/09/2021 15:26:39 ::: 912-NMSL3288-16.DOC external staircases shown at the two locations marked "X"?
(b) The condition of those staircases and whether they are usable and whether they are in fact in use;
(c) Whether those external staircases actually go all the way to the terrace or not;
(d) Whether the brick wall behind the door shown on the plan marked "X" is a recent construction; and finally
(e) Whether the 1st Defendant has any other unobstructed access from his portion of the land toe the terrace?
4. Let the report be made at the earliest with copies to all parties.
5. I defer the consideration of other reliefs for which Mr. Madon moves till the next date.
6. List the matter for ad-interim reliefs on 5th December 2016.
7. Mr. Madon's attorneys will serve the necessary papers to all the Defendants.
(G. S. PATEL, J.) Page 3 of 3 25th November 2016 ::: Uploaded on - 25/11/2016 ::: Downloaded on - 15/09/2021 15:26:39 :::