In the case of The Association of Commerce House Block Owners Ltd. Vs. Vishandas Samaldas & Ors. MANU/MH/0306/1980 : 1981 Bom. C.R. 716 (DB) Justice Chandurkar, as he then was, set out the parameters of Section 4 and held it to be mandatory. It was held that noncompliance of the provisions of Section 4 would result in an invalid transaction.
It is held in paragraph 44 of the judgment that if the promoter does not register the agreement the purchaser himself may present it for registration. It is observed in paragraph 44 of the judgment that if the promoter does not register such an agreement "it does not appear to us that the purchaser is helpless" to have the agreement of sale registered.
It is further observed that the words "under the Indian Registration Act" makes it clear that the mechanics of registration or the procedure for registration as provided in the Registration Act would become automatically attracted under Part IV and VII of the Registration Act.
It is also observed that under Section 32(a) of Part VI of the Registration Act a document is to be presented for registration by a person executing it or claiming under the document and hence if the promoter declined or avoided to get a document registered, it would be perfectly permissible for the person claiming under the document, namely, the purchaser to present it for registration.
It is observed that there was no question of such a transaction being binding between the parties. In paragraph 52 it is observed thus:
"52. Having taken the view that the provisions of Section 4 are mandatory and the agreement was, therefore, statutorily required to be registered the plaintiff cannot found any rights on such an agreement and the agreement must be treated as invalid and ineffective".
In the case of A.K. Velu Vs. K.S. Ramkrishnan & Ors. MANU/MH/0436/1981 : 1983(1) Bom.C.R. 338 it has been held that due to the mandatory nature of Section 4 of MOFA even criminal liability cannot be imputed upon a party to an unregistered agreement since no right can be founded on such an agreement and such an agreement must be treated as invalid and ineffective.
IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 3008 OF 2010
IN
SUIT NO. 2678 OF 2010
Parwan Construction Pvt. Ltd. ...Plaintiffs
Vs.
Ranjitsingh Linga & ors. ...Defendants
CORAM : MRS. ROSHAN DALVI, J.
Date of Pronouncing the Judgment : 8th April, 2015
1. The plaintiff claims ownership rights over the larger
property in which the suit property is situated from one
Muktaben Sanghavi. The defendants claim their rights in
respect of suit property which is Unit No.1C
admeasuring
976 sq. ft from Muktaben Sanghvi. Muktaben Sanghvi has
executed a conveyance of her entire property in favour of one
Mehta and Kanakiya on 2nd January, 1997, ExhibitG
to the
plaint. Mehta and Kanakiya have conveyed the suit property
to the plaintiff on 31st October, 2002 ExhibitA
to the plaint.
2. The entire property of Muktaben Sanghvi consisted of a
plot of land with two structures thereon being Shed–I and
Shed–II and an open space in between and surrounding the
two sheds surrounded by a compound wall. Part of the
property has gone in road widening from where the
compound wall has been demolished. Part of shedI
has also
gone in road widening. That part has yet not been
demolished.
3. Shed–I consisted of about 12 galas. They are tenanted
to different persons. This suit is concerned with unit / gala
No.1C admeasuring 976 sq. ft.
4. Defendant No.3 (D3) was the tenant of Muktaben
Sanghavi in respect of unit / gala No.1C.
Muktaben
Sanghavi executed an unregistered agreement with D3 to
convert the tenancy rights of D3 into ownership rights in
respect of unit / gala No.1C
upon payment of rent of 150
months on 14th September, 1987, ExhibitD
to the plaint. D3
became the owner of unit / gala No.1C
accordingly. D3
created a tenancy in favour of defendant Nos. 1 and 2 (Ds 1 &
2) in respect of unit / gala No.1C
on 15th May, 1991. D3
entered into an unregistered agreement with Ds. 1 & 2 to
convert that tenancy of unit / gala No.1C
in favour of Ds 1 &
2 on 31st August, 1992, ExhibitE
to the plaint. Ds. 1 & 2
unilaterally executed a confirmation deed to register that
unregistered agreement on 10th November, 2005, ExhibitF
to
the plaint.
5. The aforesaid transfer of the entire plot of land of
Muktaben Sanghavi and of one of the tenants in one of the
sheds of Muktaben Sanghavi in favour of the plaintiff on one
hand and in favour of Ds. 1 & 2 on the other can be best
illustrated as below:
Muktaben Sanghavi
________________|__________________
| |
Muktaben – Mehta & Kanakiya Muktaben to D3
02/01/1997 14/09/1987
ExhibitG
ExhibitD
Mehta Kanakiya – Plaintiff D3 Ds
1 & 2
31/10/2002 31/08/1992
ExhibitA
ExhibitE
Confirmation of D1 & D2
10/11/2005
ExhibitF
6. Both parties, therefore, claim their respective rights
from one common owner, Muktaben Sanghavi. The plaintiff
claims ownership rights of the entire plot of land of Muktaben
under the registered conveyance dated 31st October, 2002,
ExhibitA.
Ds 1 & 2 also, surprisingly, claim ownership rights
to the entire plot of land of Muktaben under an unregistered
agreement dated 31st August 1992 ExhibitE.
7. Both the documents relied upon by the parties would
constitute transfer of the right, title and interest of Muktaben
to them. For relying upon those documents through which
both of them claim to be transferred the right, title and
interest of the entire plot of land of Muktaben, it is plain to
see, that their respective documents must be registered as per
the mandate under Section 17(1)(b) of the Registration Act,
1908 for creation of the right of ownership in them and for
transfer of the ownership rights of Muktaben to them.
8. The plaintiff has sued for a declaration that Ds 1 & 2
have no right, title and interest to remain in use and
occupation of unit / gala No.1C
admeasuring 976 sq. ft, and
for recovery of possession of the said unit from them as also
for removal of certain unauthorised construction by them and
for the relief of various injunctions restraining them from
entering upon the larger property or parking their vehicles
thereon or preventing the plaintiff free access to the open
spaces on the suit plot of land, interfering with their
construction of compound wall, 2 galas / units and a security
cabin, for certain damages, access etc.
9. The above notice of motion is for the relief of injunction
restraining transfer, alienation and creation of third party
rights in the suit premises or any part thereof or from carrying
out any construction therein, from entering upon the larger
property, parking their vehicles thereon, restraining the
plaintiff's free access in the open space, interfering with the
plaintiff from constructing the compound wall, 2 gates and a
security cabin and for appointment of Court Receiver in
respect of the suit premises.
10. There are similar suits filed by the plaintiff against the
occupants of the other 12 units / galas. Those suits have
been transferred to the Bombay City Civil Court in view of the
pecuniary jurisdiction of those suits. Those defendants are
also stated to have claimed similar rights as Ds 1 & 2 herein
under similar unregistered agreements executed by Muktaben
Sanghavi with them or their predecessorintitle
in respect of
the units / galas in their occupation in ShedI
on the larger
property of Muktaben Sanghavi.
11. Though the unregistered agreements of Ds 1 & 2 cannot
be relied upon by Ds 1 & 2 and their right, title and interest
transferred to them from Muktaben cannot be considered by
the Court thereunder it would be interesting to read not only
the documents of the plaintiff to consider the rights claimed
by the plaintiff, but also unregistered documents of the
defendants to see the rights claimed by Ds. 1 & 2 under them
to consider the reliefs claimed by the plaintiff in the suit and
in the notice of motion.
12. Muktaben Sanghavi owned the entire property. One
shed belonged to her and has been in possession of the
plaintiff as having been conveyed initially to Mehta and
Kanakiya and then to the plaintiff as a part of the entire
property consisting of open spaces.
13. Ds 1 & 2 who claimed right to the entire property under
the unregistered agreement have been actually given
ownership rights only in respect of the unit / gala which was
initially tenanted to them by Muktaben. That is unit / gala
No.1C.
14. The initial agreement dated 14th September, 1987,
ExhibitD
to the plaint between Muktaben and D3 shows that
Muktaben is the owner of unit / gala No.1C
in shedI
and
described in the schedule to the agreement. The schedule
shows a property bearing CTS Nos. 183 and 34 admeasuring
4664.60 sq. mtrs. Hence Muktaben was the owner of the
entire property as also unit / gala No.1C
therein. This
agreement shows that D3 occupied unit / gala No.1C,
was a
monthly tenant paying a monthly rent of Rs.325/to
Muktaben. Muktaben was interested in developing the
property utilizing the balance FSI available on the property
and thereafter forming a cooperative
society and conveying
the said property to the society. D3 had an option to purchase
the tenanted premises in his occupation on payment of 150
months rent to Muktaben under the tenancy agreement dated
1st July, 1985. D3 approached Muktaben to purchase the
unit / gala No.1C admeasuring 976 sq. ft shown in the plan
annexed to that agreement by converting the tenancy into
ownership basis upon consideration of 150 months rent
aggregating to Rs.48,750/.
Upon such recitals Muktaben
agreed to grant, transfer, sell and assign to D3 gala / unit
No.1C admeasuring 976 sq. ft. for his exclusive use as
purchaser upon the consideration of Rs.48750/under
clause
1 of the agreement. (Muktaben did not agree to grant
transfer, sell or assign to D3 the entire property
admeasuring 4664 sq. mtrs to D3).
15. Under clause 3 of the said agreement Muktaben inter
alia covenanted and declared that she was the exclusive
owner of the property described in the schedule (it was 4664
sq. mtrs.) she had authority to sell the unit / gala to D3.
16. Under clause 3(b) of the agreement she gave liberty to
D3 to construct a toilet in the unit / gala and to repair and
renovate and alter the unit / gala as per plans sanctioned by
the BMC.
17. Under clause 6 of the agreement she remained entitled
to use the available FSI above the unit / gala in the property
described in the schedule. She was entitled to put the
foundation beams and pillars within the area of 976 sq. ft
unit / gala. (D3 had no right to construct anything in the
entire property described in the schedule to the
agreement except the right to construct the toilet in his
unit / gala and repair it as per plans of the BMC).
18. Under clause 7 of the agreement D3 agreed to cooperate
with Muktaben to put up the construction such as not
to affect the unit / gala No.1C of D3.
19. Under clause 8 of the agreement upon the formation of
the Cooperative
Society in respect of the units to be
constructed by Muktaben on her property she was to admit
D3 as the member and D3 agreed to be a member of the Cooperative
Society.
20. Under clause 9 of the agreement there was no right
upon D3 to the right, title or interest of any kind over the
immovable property and a right would accrue only upon the
execution of the conveyance in favour of the cooperative
society (such right upon D3 would be to be a member of
the society in respect of unit / gala No.1C in which his
tenancy right was converted into ownership right).
21. Under clause 11 of the agreement D3 was entitled to
sell or transfer or sublet his unit / gala No.1C to any third
party which person would be accepted as owner by
Muktaben.
22. Under clause 12 of the agreement Muktaben would
have no right, title or interest in the unit / gala No.1C which
was sold to D3 (Muktaben would continue to have
ownership rights over the entire property other than the
unit / gala No.1C).
23. Upon such limited right of D3 only in respect of unit /
gala No.1C, D3 executed another unregistered agreement
with Ds 1 & 2 on 31st August 1992, ExhibitE
to the plaint
exercising rights which they never had and conveying the title
which they never had to Ds 1 & 2. Under that astounding
unregistered document D3 is shown as the Vendor and owner
of gala / unit No.1C admeasuring 976 sq. ft but the property
described in the schedule to the agreement is the entire
property of Muktaben. He is shown to have received
Rs.3000/as
rent from Ds 1 & 2 who are shown as
purchasers. He is shown to be interested in developing the
entire property by utilising the balance FSI available and
thereafter forming a cooperative
society of intending
purchasers and to convey the property to the society when
formed. (This was not the right conveyed to D3 by
Muktaben under his unregistered agreement dated 14th
July, 1987, ExhibitD
to the plaint).
24. D3 is shown to have created a tenancy right in favour of
Ds 1 & 2 on 15th May, 1991 with an option to purchase that
portion of the premises on payment of a lumpsum amount of
Rs.4.21 lakhs.
25. Ds 1 & 2 had approached D3 to purchase gala / unit No.
1C by converting the tenancy into ownership on payment of
Rs.4.21 lakhs.
26. Upon such recitals D3 agreed to grant, transfer, sell and
assign to Ds 1 & 2 gala / unit No.1C admeasuring 976 sq. ft as
purchasers upon a consideration of Rs.4.21 lakhs.
27. Under clause 3 D3 covenanted and declared certain
aspects:
1. In clause 3(b) of the said agreement D3 claimed
to be the sole and exclusive owner of the property
described in the schedule and the sheds standing
thereon, which is shown to admeasuring 4664.60 sq.
mtrs. (D3 was never conveyed this property under
his agreement dated 14th September, 1987).
2. Under clause 3(c) of the said agreement D3
declared that he had right to transfer unit / gala No.1C
to Ds 1 & 2 as purchasers.
3. Under clause 4 of the said agreement Ds 1 & 2
had the liberty to carry out repairs, renovations,
alterations inside the existing structure as per the
permission of the BMC. (This was only the right to
carry out repair, renovations and alterations which
D3 had to construct being the toilet in unit / gala
No.1C that would be subject to BMC permission).
4. Under clause 7 of the agreement D3 claimed to be
entitled to use the available FSI above unit / gala No.1C
and to put a slab thereon above the ceiling of the unit
and to put foundation beams or pillars within the area
of 976 sq. ft of unit / gala No.1C. (It was the right of
Muktaben to use the available FSI which was not
given to D3 under his agreement dated 14th
September, 1987.)
5. Under clause 8 Ds 1 & 2 were to cooperate
with
D3 in putting up the construction upon unit / gala
No.1C over its ceiling (which D3 had no right to
construct).
6. Under clause 9 of the said agreement upon the
formation of the society in respect of the units / galas to
be constructed by D3 (which D3 had no right to
construct under his own agreement) D3 agreed to
admit Ds 1 & 2 as members of the cooperative
society
by issuing share certificates in favour of Ds 1 & 2 as the
purchasers !
7. Under clause 10 of the agreement (as in clause 9
of the agreement of D3 dated 14th September 1997) Ds
1 & 2 had no right conferred upon them in the
immovable property (just as D3 had no right under
clause 9 of his own agreement) until the execution of
the conveyance in favour of the cooperative
society.
8. Under clause 13 of the agreement Ds 1 & 2 had
the right to sell, dispose off and sublet
unit / gala
No.1C (just as D3 had such right under clause 9 of
his own agreement).
9. Under clause 15 of the agreement D3 agreed not
to have any right, title and interest in unit / gala No.1C
(just as Muktaben agreed not to have any right, title
and interest in respect of unit / gala No.1C in D3).
28. It is seen that both the agreements are not happily
worded. Both the agreements are for conversion of tenancy
rights to ownership rights of only unit / gala No.1C which
was tenanted initially by Muktaben to D3 and later by D3 to
Ds 1 & 2. D3 and later Ds 1 & 2 can have ownership rights
only in respect of the said unit / gala No.1C. They can have
and they had specifically no other right in respect of any
other part of Muktaben’s property consisting of 2 sheds and
open spaces under CTS Nos. 183 and 34 admeasuring
4664.60 sq. mtrs. Aside from the conversion of the tenancy
rights into ownership rights Muktaben continued to be the
owner of the remaining property. Incidentally though not
required under the unregistered agreement, under which no
right can be claimed, none is claimed in any civil action filed
by D3 or Ds 1 & 2. Muktaben who was interested in
developing her own plot of land by utilizing the balance FSI
available thereon agreed to make D3 a member of the society
to be formed by her upon such development and construction
and to transfer and convey the entire plot to such society.
Such development and construction was to be made only by
Muktaben Sanghavi. D3 had no right in such construction or
development. Such construction or development would be
under sanctioned plans. Muktaben has not submitted any
sanctioned plans. D3 or Ds 1 & 2 have not seen or inspected
any plans or specifications.
29. Merely because the plot was to be developed and
constructed upon, balance FSI was to be utilized, cooperative
society was to be formed and the plot of the land conveyed to
the cooperativce
society which was the intention of the
Muktaben which never materialized into any action until the
filing of the suit and thereafter, Ds 1 & 2 claim that their
unregistered agreement to convert their tenancy into
ownership rights is an agreement under the Maharashtra
Ownership Flats Act 1963 (MOFA) as a prospective purchaser
being a flat purchaser / unit purchaser. It is easily seen that
the agreement in favour of D3 or Ds 1 & 2 is not an
agreement under Section 4 of MOFA. It is not executed by a
developer as a Promotor as under Section 4 is defined in
Section 2 ( c) of MOFA because Muktaben never sought to
construct a block or a building or flats for selling them to
other persons or to a cooperative
society under any
sanctioned plans as required to be disclosed under Section 7
of MOFA. It was only her intention to so construct units over
unit / gala No.1C as also other units tenanted to other
tenants for utilizing the available FSI by her on her own plot
of land which remained with her and it was not transferred to
D3 and consequently to Ds 1 & 2.
30. It is trite that none can transfer a better title than what
he has. D3 had title only to unit / gala No.1C upon
conversion of his tenancy into ownership rights. D3 could,
therefore, transfer only unit / gala No.1C to Ds 1 & 2 as
tenants and / or as purchasers. D3 was never given any right
in the available balance FSI which was to be utilized by
Muktaben for development of her property and which can be
done only upon plans sanctioned by the BMC.
31. Consequently D3 and later Ds 1 & 2 are not flat
purchasers as contemplated under MOFA. They are only
owners of unit / gala No.1C. They would have no right in
respect of any other portion of the property of Muktaben.
They however would be entitled to all rights that the tenant
would have in respect of his tenanted premises. That would
be the right of having access to the tenanted premises from
the land appurtenant to the tenanted premises. Such right
would be conferred upon the tenant becoming a owner of the
tenanted premises. This would mean and include the right to
have access from the road to the tenanted premises and to
park the vehicles of the tenant / owner on the land
appurtenant to the tenanted premises.
32. Section 4 of MOFA gives a mandate in its subtitle
itself
for registration of the agreement to be entered into by any
promoter with any flat purchaser in respect of any premises in
a proposed cooperative
society for taking the flat / shop /
industrial unit on ownership basis upon deposit of advance
payment.
33. In the case of The Association of Commerce House
Block Owners Ltd. Vs. Vishandas Samaldas & Ors. 1981
Bom.C.R.716 (DB) Justice Chandurkar, as he then was, set
out the parameters of Section 4 and held it to be mandatory.
It was held that noncompliance of the provisions of Section 4
would result in an invalid transaction.
34. It is held in paragraph 44 of the judgment that if the
promoter does not register the agreement the purchaser
himself may present it for registration. It is observed in
paragraph 44 of the judgment that if the promoter does not
register such an agreement “it does not appear to us that the
purchaser is helpless” to have the agreement of sale
registered.
It is further observed that the words “under the Indian
Registration Act” makes it clear that the mechanics of
registration or the procedure for registration as provided in
the Registration Act would become automatically attracted
under Part IV and VII of the Registration Act.
It is also observed that under Section 32(a) of Part VI of
the Registration Act a document is to be presented for
registration by a person executing it or claiming under the
document and hence if the promoter declined or avoided to
get a document registered, it would be perfectly permissible
for the person claiming under the document, namely, the
purchaser to present it for registration.
It is observed that there was no question of such a
transaction being binding between the parties. In paragraph
52 it is observed thus:
“52. Having taken the view that the provisions of Section
4 are mandatory and the agreement was, therefore,
statutorily required to be registered the plaintiff cannot
found any rights on such an agreement and the
agreement must be treated as invalid and ineffective”.
35. In the case of A.K. Velu Vs. K.S. Ramkrishnan & Ors.
1983(1) Bom.C.R. 338 it has been held that due to the
mandatory nature of Section 4 of MOFA even criminal
liability cannot be imputed upon a party to an unregistered
agreement since no right can be founded on such an
agreement and such an agreement must be treated as invalid
and ineffective.
36. Gala / unit No.1C is an industrial unit. The rules
applicable to industrial units must be seen in respect of such
rights. Mr. Joshi on behalf of Ds 1 & 2 produced before the
Court the notification dated 7th January, 1967 of the Urban
Development, Public Health and Housing Development
Sachivalaya Bombay showing the Development Control Rules
then modified under the Bombay Town Planning Act, 1954.
The relevant rule is rule 39 relating to layouts dealing with
residential – commercial zones and industrial plots.
37. Under Rule 39(a)(ii), (a) (iii) & (a) (vi)15% of the
holding must be reserved for recreational space (RG) which
shall not be less than 450 sq. yds and having a means of
access. Aside from the RG under rule (ix) parking and
loading – unloading spaces is required to be shown on the
plan. In all industrial plots under rule 39(i) &(ii) 10% of the
area of the plot is required to be provided as amenity open
space having a means of access to be conveniently utilized by
the persons working in the industry. Under rule 39(iii)
parking and loading – unloading space is to be shown on the
plans.
38. Hence it is seen that under the rules then prevailing
there had to be an amenity open space which was equivalent
to 10% of the total area to be utilized by all the workers in
the industry. There had also to be parking and loading –
unloading space to be provided. The parking and loading –
unloading space would be other than the amenity open space.
Reading rule 39 with regard to residential and
commercial zones along with the rules with regard to the
industrial plots it becomes clear that in residential and
commercial zones there has to be a RG of 15% of the area
with a minimum of 450 sq. yds having an independent
means of access. In industrial plots there has to be an
amenity open space of 10% of the total area of the property
having a proper means of access.
39. Aside from the RG and the amenity open space there
has to be parking and loading – unloading spaces. Hence the
parking and loading – unloading spaces would be at a place
other than the amenity open space or the RG. The parking as
also loading – unloading cannot be in the amenity open
space.
40. Amenity open space in the suit plot of land is between
the two sheds as shown in the sketch plan, ExhibitW
to the
plaint. In fact the sketch plan would show the 10% of the
entire plot of land cannot have the amenity open space
anywhere other than between the two sheds; no other open
space is 10% of the suit plot of land having a proper means of
access which can be conveniently utilized by the workers of
the industry. That space is shown as the RG / garden in the
sketch plan, ExhibitW
by the plaintiff who seeks to develop
the entire property. Consequently in the space between the
two sheds Ds 1 & 2 cannot park any of their vehicles.
Similarly in the said space between the two sheds Ds 1 & 2
cannot also park any trucks for loading and unloading
purpose.
41. The Ds. 1 & 2 would need to park their car or trucks for
loading – unloading purposes. They would have had the right
to park the car or the right of loading – unloading from trucks
as tenants also. The parking of the car would be on the land
appurtenant to the tenanted premises or in the specific
portion of parking shown in the original plan. The original
plan of construction of the 2 sheds as industrial sheds is
stated to be 1954. The original plan is not produced by either
party. Ds 1 & 2 have sought to produce a building completion
certificate which is dated 21st June 1955, ExhibitC
in the
affidavit of surrejoinder
of Ds 1 & 2. Their RTI inquiry with
the MMC has resulted in the information that the old file is
not available with the MMC despite diligent search. The
plaintiff also does not have and has not produced the original
plan. Where the parking has been shown in the original plan
is, therefore, not known. Mr. Walavalkar on behalf of the
plaintiff contended that in 1954 – 1955 there were no 13
galas. Hence there can never have been 13 car parking
spaces provided in the original plan. The original plan would
have had at best one parking space.
42. The plaintiff would allow Ds 1 & 2 as also the other
owners of the other galas (whose suits are transferred to
Bombay City Civil Court) to park their cars alongside their
galas in the portion of the suit premises on either side of
shedI
tenanted to a number of tenants and now owned by
them leaving enough space for access to all other owners of
the galas / units as also to the plaintiff who is the owner of
ShedII
claiming through Muktaben. This would be the land
appurtenant to the tenanted premises of Ds 1 & 2 which
could be enjoyed by Ds 1 & 2 to the extent of parking of their
car alongside their galas / units even if such parking is not
shown in the plan. If Ds. 1 & 2 would claim to park their car
in any other place in the entire property of Muktaben later
conveyed to the plaintiff they must show such parking shown
in the plan of 1954. In the absence of such car parking
specifically shown Ds 1 & 2 cannot park their car anywhere
other than the aforesaid space appurtenant to their tenanted
(and now their owned) premises as per Rule 39(iii) relating
to layout in industrial plots relied upon by Ds. 1 & 2
themselves.
43. Mr. Walavalkar would also argue that there is no
question of Ds. 1 & 2 loading – unloading their goods from
the trucks in the space between sheds I & II which is the
amenity open space (also, perhaps erroneously called RG /
garden by the plaintiff) which is far from the doors of the
respective galas of Ds 1 & 2 as also the other tenants or
owners even as a matter of convenience. Such amenity open
space shall have to be kept open with proper means of access
for use of all the persons working in the industry as per Rule
39(ii) in the layout of industrial plots relied upon by Ds 1 & 2
themselves.
44. The plaintiff desires to construct the compound wall on
the road to the south of plaintiff’s property. Mr. Walavalkar
showed the Court the sketch plan, ExhibitW
to the plaint
which shows the compound wall around the entire property
of the plaintiff except on the South side. The original
compound wall has been demolished on the South side upon
a part of the property having gone into road widening as set
back area. The road shown in the photographs, ExhibitV
to
the plaint has been broadened to that extent. A new
compound wall is sought to be put up leaving the setback
area. A part of shed I has also gone in road widening, but has
not yet been demolished. The plaintiff has put up certain
barrels where the plaintiff desires to construct a compound
wall leaving a space for 2 gates and a security cabin.
45. It is seen that the space on the sides of shed I to the East
and West is the access to Shed II of the plaintiff. Ds 1 & 2 (as
also the other owners of the other units / galas) would
require to park their cars outside their respective units /
galas. The remainder of the space would be required for
access of trucks for loading – unloading of goods outside the
industrial galas / units as also for access of the plaintiff and
persons claiming through the plaintiff as also the other
workers in the industry.
46. The construction of the compound wall, at least before
the trial and pending the suit is not seen to be either
necessary or in the interest of all these persons. The
construction of the compound wall is in fact in the nature of
mandatory relief sought by a prohibitory injunction.
47. The reliefs claimed by the plaintiff have to be decided
and are accordingly granted as follows:
1. Defendant Nos. 1 & 2 shall not sell, alienate,
encumber, part with possession or create any third party
rights in any unit / gala pending the suit.
2. Defendant Nos. 1 & 2 shall be entitled to use,
occupy and enjoy unit / gala No.1C.
3. Defendant Nos. 1 & 2 shall also be entitled to park
their car outside unit / gala No. 1C in the space
appurtenant to unit / gala No. 1C so as to leave free
access to all other unit /gala holders as also the plaintiff
and persons claiming through the plaintiff.
4. Defendant Nos. 1 & 2 shall be entitled to carry out
loading – unloading of trucks in respect of their goods
outside unit / gala No.1C.
5. Defendant Nos. 1 & 2 are restrained from entering
upon the larger property seen to be belonging to the
plaintiff except for enjoying the open space between
sheds I & II as amenity open space along with all
persons working in the industry keeping the said space
open at all times and free from parking or loading –
unloading.
6. Defendant Nos. 1 and 2 are restrained from
parking their vehicles or carrying on loading –
unloading from any trucks in the space between sheds I
& II being used as amenity open space.
7. Defendant Nos. 1 & 2 are restrained from
preventing the plaintiff and/or all persons claiming
through the plaintiff from having free access in the
open space on the larger property belonging to
Muktaben and later to the plaintiff.
8. The relief of an injunction against Ds 1 & 2 from
interfering with the plaintiff in constructing the
compound wall, 2 gates and a security cabin is not
granted as it is in fact a mandatory relief.
9. The appointment of Court Receiver is not pressed
and is not granted.
10. The Notice of Motion is disposed off accordingly.
11. There shall be no order as to costs.
12. This order is stayed for 2 weeks.
(ROSHAN DALVI, J.)
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