Bombay High Court
The Chairman Secretary Of Andheri Dhake ... vs Smt. Suman Trimbak Dhake And Anr on 19 March, 2025
2025:BHC-AS:12851
FA-464-2017 (final).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 464 OF 2017.
1) The Chairman Secretary of Andheri Dhake ]
Colony CHS Ltd., having its office at Andheri ]
Dhake Colony CHS Ltd., J. P. Road, Andheri ]
(West), Mumbai ] ... Appellant.
Versus
1) Smt. Suman Trimbak Dhake ]
(Since Deceased, through LRs.) ]
Indian Inhabitant, R/o. 4/24, Andheri Dhake ]
Colony CHS Ltd., J. P. Road, Andheri (West), ]
Mumbai ]
1A. Pradeep Trimbak Dhake (son) ]
Age-69 Yrs. Occ. Business ]
Residing at : 4/24, Andheri Dhake Colony ]
C.H.S.L., J. P. Road, Andheri (West), Mumbai- ]
400 053. ]
1B. Shekhar Trimbak Dhake (Son) ]
Age. 67 Yrs. Occ. Business ]
Residing At: 401, Dheeraj Apartments, ]
Natwar Nagar, Road No. 1, Jogeshwari East, ]
Mumbai - 400 076. ]
1C. Dhananjay Trimbak Dhake (Son) ]
Age: 68 Years Occ. Business ]
Residing at: C-101/102, Lake Florence, Lake ]
Homes, Powar, Mumbai- 400 076 ]
1D. Ranjana Sidramappa Abdulpurkar ]
(Daughter) ]
Age: 71 Years Occ: Nil ]
Residing at: 295/96, West Mangalwar, ]
Solapur City, Solapur, Maharashtra.
1E. Sarita Balasaheb Ghongade ]
(Deceased Daughter through her L.rs. ]
1E.(i) Manish Ghongade ]
(Son of predeceased i.e., Sarita B. ]
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Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
1E.(ii) Harish Ghongade ]
(Son of predeceased i.e., Sarita B. ]
Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
1E.(iii) Rishikesh Ghongade ]
(Son of predeceased i.e., Sarita B. ]
Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
2. The Estate Manager - II, ]
Maharashtra Housing & Area Development ]
Board, Griha Nirman Bhavan, Bandra (E) ]
Mumbai - 400 051. ] ...Respondents.
WITH
FIRST APPEAL No. 466 OF 2017.
1) The Chairman Secretary of Andheri Dhake ]
Colony CHS Ltd., having its office at Andheri ]
Dhake Colony CHS Ltd., J. P. Road, Andheri ]
(West), Mumbai ] ... Appellant.
Versus
1) Smt. Suman Trimbak Dhake ]
(Since Deceased Through Lrs.) ]
Indian Inhabitant, R/o. 4/24, Andheri Dhake ]
Colony CHS Ltd., J. P. Road, Andheri (West), ]
Mumbai ]
1A. Pradeep Trimbak Dhake (son) ]
Age-69 Yrs. Occ. Business ]
Residing at : 4/24, Andheri Dhake Colony ]
C.H.S.L., J. P. Road, Andheri (West), Mumbai- ]
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400 053. ]
1B. Shekhar Trimbak Dhake (Son) ]
Age. 67 Yrs. Occ. Business ]
Residing At: 401, Dheeraj Apartments, ]
Natwar Nagar, Road No. 1, Jogeshwari East, ]
Mumbai - 400 076. ]
1C. Dhananjay Trimbak Dhake (Son) ]
Age: 68 Years Occ. Business ]
Residing at: C-101/102, Lake Florence, Lake ]
Homes, Powar, Mumbai- 400 076 ]
1D. Ranjana Sidramappa Abdulpurkar ]
(Daughter) ]
Age: 71 Years Occ: Nil ]
Residing at: 295/96, West Mangalwar, ]
Solapur City, Solapur, Maharashtra.
1E. Sarita Balasaheb Ghongade ]
(Deceased Daughter through her L.rs. ]
1E. (i) Manish Ghongade ]
(Son of predeceased i.e., Sarita B. ]
Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
1E. (ii) Harish Ghongade ]
(Son of predeceased i.e., Sarita B. ]
Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
1E.(iii) Rishikesh Ghongade ]
(Son of predeceased i.e., Sarita B. ]
Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
2. The Estate Manager - II, ]
Maharashtra Housing & Area Development ]
Board, Griha Nirman Bhavan, Bandra (E) ]
Mumbai - 400 051. ] ...Respondents.
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Mr. Abhijit P. Kulkarni, Mr. Abhishek Roy, Ms. Sweta Shah, Mr. Shreyas Zarkar
and Mr. Gourav Shahane for the Appellant.
Mr. Akshay Kolse-Patil for the Respondent No. 1.
Mr. S. P. Dighe for the Respondent No. 2-MHADA.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on: 13th January, 2025.
Pronounced on : 19th March, 2025.
JUDGMENT :
1. Both the Appeals are at the instance of original Defendant No. 2
and arise out of common Judgment and decree dated 18 th February,
2015 passed in S. C. Suit No. 793 of 2011 and S. C. Suit No. 425 of 2013
partly decreeing the suit. Common submissions were advanced and
both the Appeals are decided by this common Judgment and order.
For sake of convenience, parties are referred to by their status before
the Trial Court.
PLEADINGS IN S.C. SUIT NO. 793 OF 2011 :
2. As in the facts of the case, the description of the suit premises
assumes significance, the exact words used in both the plaints are
being reproduced. The plaint pleads that the Plaintiff was the Tenant
of Maharashtra Housing and Area Development Authority since 1960
of Flat No. 4/24 along with the back portion terrace in Andheri Dhake
Colony Co-operative Housing Society Limited and used to pay
compensation of the flat as well as back portion terrace from 1960 till
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today. The building was owned by Plaintiff and her family members and
in 1960 MHADA acquired the building along with the land from the
Plaintiff's husband and was collecting rent from the occupants of the
building. The Plaintiff was tenant of the suit premises along with
terrace floor admeasuring 1058 sq. ft. compound of the Defendant No.
1 and Defendant No. 1 was issuing the rent receipt in favor of the
Plaintiff for the room along with terrace floor which is a suit premises
before this Hon'ble Court and admeasuring 1058 sq. ft. compound. The
occupants of the building are tenants of MHADA prior to 1991 and
converted to ownership of the said tenement portion by MHADA.
3. In 2001, the Plaintiff paid ownership charges to Defendant No.
1 and got share certificate of Society in 2001 for premises bearing No.
4/24 of Defendant No. 2. The terrace was granted by MHADA to the
tenant on tenancy basis and MHADA collected the charges towards the
terrace floor from the Plaintiff but Defendant No. 2 did not issue any
receipt for sum of Rs. 581/-. In 2010, without conveyance from MHADA,
Defendant No. 2 was interested to develop the property and was not
ready to consider the terrace floor ownership of Plaintiff for which
Notice was sent to Defendant No. 1-MHADA. The plaint pleads about
the further correspondence between the parties. As there was no
response, the suit came to be filed initially seeking the following prayer
clause 'a' which reads as under:
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"a. The Hon'ble Court pleased to restrain the
defendant No. 1 not to enter any kinds of agreement
or conveyance in favour of the Defendant No. 2 or
their representative agents or any person/s claiming
through them without providing terrace floor
applicable FSI to the plaintiff at the place of terrace
floor of the Andheri Dhake Colony CHS Ltd, J. P.
Road, Andheri (W), Mumbai - 400 053.
4. It appears that subsequently, the suit came to be amended and
it was pleaded that the Defendant No. 1 MHADA is proposing to
execute lease of area of 2485.31 sq. metres in favor of Defendant No.
2 though predecessor of Plaintiff conveyed land and five buildings
admeasuring 3777.70 sq. metres. However, the Defendants have not
joined the area of terrace floor though in Conveyance Deed of 8 th July,
1960 the Plaintiff is shown as tenant of Building No. 4 of her flat at Sr.
No. 14 of list of tenants with back portion terrace and the rent was
fixed at Rs 140/ per month. The Defendants are not ready to give floor
space index of the back portion terrace of plaintiff along with the flat
of Plaintiff. The prayer clause was also amended to incorporate the
following relief:
"(aa) That the Hon'ble Court please declare that the
Plaintiff is the owner of the flat alongwith back
portion terrace floor in the building known as
ANDHERI DHAKE COLONY CHS Ltd, J.P. Road,
Andheri (W), Mumbai 400 053 and she have right to
claim FSI of the back portion terrace floor alongwith
her flat situated abovesaid address."
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WRITTEN STATEMENT OF DEFENDANT NO. 1- MHADA :
5. MHADA contended that the Plaintiff is tenant of Room No. 24 in
Building No. 4. There are 53 members of the Society and the entire
terrace of the said building belongs to the Society and Plaintiff has no
right to claim the terrace of the Society. During the pendency of the
suit the Plaintiff has filed another Suit No. 425 of 2013 for the same
relief. It was contended that MHADA and Defendant No. 2 has already
executed conveyance deed and suit building has been conveyed to the
Society and Society is the owner of the building. The Plaintiff is
residing in Room No. 24 in Building No. 4 and the room has been
regularized in pursuance of policy of MHADA on 28 th February, 1991. In
the communication of 15th January, 2003 the Plaintiff has mentioned
that the Plaintiff is owner of Room No. 24 in Building No. 4 and there is
no mention of area of terrace in the said letter and during
redevelopment, the Plaintiff on 19 th January, 2011 sent letter to
MHADA mentioning that she is owner of back portion with terrace.
MHADA has transferred only Room No. 24 in Building No. 4 in the name
of Plaintiff and there is no mention of terrace i.e. back portion. The
back portion of terrace which has been mentioned by the Plaintiff can
be unauthorized terrace erected by the Plaintiff and there is no
question to regularize the said unauthorized terrace. For a period of 12
years, the Plaintiff has not intimated MHADA to regularise the terrace
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and no notice has been given during the said period. As per the policy
decision MHADA has regularized Room No. 24 in Building No. 4 in name
of Plaintiff and at that time there is no terrace attached to Room No.
24 and now there is no question to regularize the terrace.
6. Although written statement was filed on behalf of the
Defendant No. 2-Society, the Defendant No. 2 failed to lead any
evidence and chose not to participate in the proceedings.
7. On 15th February, 2015 the Trial Court framed the following
issues which came to be answered by the impugned judgment as
under:
Sr. Issues in Suit No. 793/2011 Findings
No.
1. Whether Plaintiff proves that she is the owner At present owner
of terrace alongwith Flat No. 4/24 adm. 1058 of flat
sq.ft. At Dhake Colony, now Andheri Dhake
Colony CHS Ltd., J.P. Road, Andheri (W),
Mumbai-400 053 ?
2. Whether Defendant Nos. 1 and 2 right to No.
create third party right in the terrace ?
3. Whether Plaintiff is entitled for declaration as To some extent
prayed for ?
4. Whether Plaintiff is entitled for perpetual To some extent
injunction as prayed for ?
5. What order and decree ? As per final order
PLEADINGS IN S. C. SUIT NO. 425 OF 2013 :
8. The Plaintiff pleaded that the predecessor of Plaintiff was the
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owner of Survey No. 133 and CTS No. 811 to 815 (part) prior to 1960
and had constructed five buildings on the plot of land which was let
out on rental basis to several occupants in and around 1952/1953. The
land and structures were acquired by Bombay Housing Board by virtue
of an agreement entered into with the Plaintiffs predecessor. In the
list handed over to the Bombay Housing Board along with rent, it is
clearly shown that Plaintiff is tenant of Building No. 4 along with back
portion terrace and paying rent of Rs. 140/- and subsequently rent was
paid to the Bombay Housing Board. As per registered deed of
declaration dated 30th March, 1960 filed by the Plaintiff's husband
regarding sale of five buildings on the second page, it is stated that the
Plaintiff is tenant of flat on second floor with terrace in building on
Plot No. 4 and on completion of sale he will attorn tenant to Bombay
Housing Board. After referring to various documents it was pleaded
that the compensation paid to Bombay Housing Board was for back
portion with terrace and also the letter of allotment dated 1 st April,
1960 mentioned back portion with terrace. After acquisition, the
Bombay Housing Board was collecting rent as per the list provided by
the predecessor from the tenants including the Plaintiff. The
Defendant No. 2 was inclined to develop the property without any
conveyance from Defendant No. 1 which was brought to the Notice of
the Defendant No. 1 by the Plaintiff. After receiving copy of sale deed
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from Defendant No. 1 the Plaintiff came to know that the lease deed is
not properly prepared in favor of Defendant No. 2 and it is wrongly
stated that the Defendant No. 1 constructed the building on the piece
of land. It was further pleaded that the Defendant No. 2 on the
strength of the lease deed started meeting with the developers and
was not ready to provide flat along with terrace floor area to the
Plaintiff on the basis of fake and bogus documents. Thus the suit is
being filed for restraining the developers not to redevelop the said
building and not to use FSI of the Plaintiff. The substantive relief
sought in the said suit reads as under:-
"a. The Hon'ble Court pleased to declare the
documents prepared by the defendant No. 1 in
favour of the defendant No. 2 Null and Void
and on the strength the said documents
defendant No. 2 have No right to enter into
redevelopment purpose with any builders or
developers without providing FSI of the flats
and terrace floors and others to the plaintiff."
WRITTEN STATEMENTS:
9. The Defendant No. 1-MHADA filed the written statement
identical to the one filed in S. C. Suit No. 793 of 2011. The Defendant
No. 2 did not file written statement and no evidence was led.
10. The Trial Court framed and answered the issues as under:-
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Sr. Issues In Suit No. 425 of 2013 Findings
No.
1. Whether the Sale Deed executed by Defendant No. No
1 in favour of Defendant No. 2 dated 20.09.2012 is
null and void ?
2. Whether Defendant No. 2 has no right on the basis Yes
of said Sale Deed to enter into redevelopment with
any builder or developer without providing the FSI
of the terrace to the Plaintiff ?
3. Whether Plaintiff is entitled for declaration as To some extent
prayed for ?
4. Whether Plaintiff is entitled for perpetual To some extent
injunction as prayed for ?
5. What order and decree ? As per final
order
EVIDENCE:
11. The parties filed pursis adopting the evidence led in S.C Suit No.
793 of 2011 be treated as evidence in S.C Suit No. 425 of 2013. On
behalf of the Plaintiff, the constituted attorney and son of Plaintiff
entered into witness box and deposed as to the contents of the plaint.
He produced the General Power of Attorney Exhibit 11, Rent Receipt
Exhibit 12, Allotment Letter Exhibit 13, correspondence with MHADA
Exhibit 14, Declaration of landlord alongwith list of tenants Exhibit 15,
and Legal Notice-Exhibit 16.
12. In cross-examination by MHADA, he admits that Flat No. 14 was
converted into ownership basis in the year 2000. He admits that he has
paid Rs. 25,924/- towards conversion of the flat on ownership basis. He
was confronted with letters dated 19 th January, 2011 which was the
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legal notice issued to the Defendant No. 1, and 15 th January, 2003
which was addressed by the Plaintiff to MHADA and same were marked
as Exhibit 17 and 18 respectively.
13. On behalf of the Defendant No. 1, the Estate Manager was
examined who deposed as to the contents of his written statement.
He produced the Sale Deed and Lease Agreement dated 20 th
September, 2012 Exhibit 22, MHADA policy for sale of tenements on
ownership basis dated 28th February, 1991 Exhibit 25, MHADA receipt
for cost of conversion paid by Plaintiff Exhibit 23, List of tenements
Exhibit 24.
14. In cross-examination he has stated that the room of Plaintiff is
No. 24 in building No. 4 and the area is 1057.93 sq. ft. He has admitted
that MHADA had acquired the building from Trimbak Dhake. He has
admitted that he is not aware that on the second floor of Building No.
4 there is only on Flat No. 24 and he is not aware that there is only
terrace above Flat No. 24 and not flat. He has admitted that in the year
1991, MHADA had transferred the ownership of gala in favor of
Plaintiff.
15. The Trial Court assessed the documentary evidence produced on
record broadly as under:
a) The rent receipt dated 28.11.1962 and allotment letter issued by
MHADA mentions about the Tenement in building No. 4 having back
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portion with terrace.
b) By Letter dated 14th March, 1991- Exhibit-14 issued by Plaintiff to
MHADA, the Plaintiff had mentioned about her tenement having
terrace in Building No. 4.
c) In the letter of 28.02.1991 issued by MHADA for conversion of
tenements on ownership basis, there is no mention about the terrace
in question which is part and parcel of tenement of Plaintiff as per
original rent receipt and the Plaintiff had promptly put her grievance
but MHADA did not respond.
d) The deed of declaration of Trimbak Dhake dated 30.03.1960
categorically mentioned that the Plaintiff is tenant of flat on second
floor with terrace in Building No. 4.
e) In the memo of 07.04.1960 issued by Assistant Housing
Commissioner to Bombay Housing Board, the copy of list of Tenants is
annexed which includes the name of Plaintiff at Serial No. 14 and
shows her tenement with back portion terrace.
f) The area and rent of the present Plaintiff is highest than other
tenants in Building No. 3 to 6 and 8. The area of the flat of the Plaintiff
is shown as 1057.93 sq. ft. and the cost of construction in respect of
other Tenement is shown from Rs. 3,627/- up to Rs. 23,359/- and cost of
Plaintiff's tenement is shown as Rs. 25,924/-.
16. Based on documentary evidence, the Trial Court arrived at a
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finding that the original owner had specifically disclosed that Plaintiff
is tenant of Flat No. 24 coupled with terrace and rent receipt was
issued, which later on stopped referring to terrace. While transferring
flat No. 24 in favor of the Plaintiff on ownership basis ,Defendant No. 1
did not utter single word in regard to "attached terrace" but there is
documentary evidence to say that terrace in question was attached to
Flat No. 24 which was in possession of the Plaintiff. It is not pleaded or
made clear by MHADA why the terrace in question was separate from
Flat No. 24. The Trial Court further held that the area of terrace is not
mentioned, however, the terrace in question is just abutting to Flat No.
24 of Plaintiff and part and parcel of tenement. MHADA made a
mistake in converting only flat on ownership basis in name of Plaintiff.
17. On aspect of Plaintiff's legal right, the Trial Court came to a
conclusion that the terrace was and is Plaintiff's possession as tenant.
The area of terrace is not clear. While accepting the purchase price
MHADA did not include price of terrace but as per letter dated 28 th
February, 1991, MHADA ought to have considered the area of terrace.
The said terrace in question was part and parcel of Flat No. 24 and
Plaintiff is entitled to get the same on ownership basis. The Defendant
No. 2 is the owner of the property and it is duty of Defendant No. 2 to
show the area of terrace in question in the tenement of Plaintiff by
imposing requisite charges prevailing in the year 1991.
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18. The Trial Court held that the deed between the MHADA and the
Society cannot be declared null and void in the absence of other
documents on record however the legal right of the Plaintiff to the
terrace in question would not be hampered as Defendant No. 2-Society
is owner.
19. The Trial Court partly decreed the suit as under:-
ORDER
"1. Suit No. 793/2011 and Suit No. 425/2013 are
hereby partly decreed as under:-
(i) It is hereby declared that the terrace in question
was and is a part and parcel of tenement of Plaintiff
vide No. 24 in Building No. 4.
(ii) Defendant No.2/Society is hereby asked to recover
requisite charges/price amount of terrace as per the
rate prevailed in the year-1991 from the Plaintiff.
(iii) After depositing the aforesaid charges by the
Plaintiff, Defendant No.2./Society should show the
terrace as belongs to the Plaintiff in their record.
(iv) Terrace in question would be considered as it
belongs to the Plaintiff while redevelopment of said
property.
(v) Defendant No. 2/Society would have a liberty to
get the said property redeveloped through the
developer on compliance of aforesaid directions.
(vi) Rest of the claim of the Plaintiff is hereby
dismissed.
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(vii) Considering the facts and circumstances,
Defendant No. 1/MHADA does bear the costs of the
Plaintiff.
SUBMISSIONS :
20. Mr. Kulkarni, learned counsel appearing for the Appellant has
pointed out the pleadings in S. C. Suit No. 793 of 2011 to demonstrate
that the suit property is shown as premises along with terrace floor
admeasuring 1058 sq. ft. He submits that decree declares that the
terrace in question is part and parcel of the tenement of Plaintiff vide
No. 24 in Building No. 4 and directs Defendant No. 2 to show terrace as
owned by Plaintiff, which cannot be granted. He submits that by
granting such a decree the Trial Court has granted specific
performance of the policy of MHADA without any prayer. He submits
that the challenge to the conveyance has failed and there is no policy
of MHADA to show that the terrace above the building can be
conveyed. He submits that the suit was barred by limitation as per the
period from 2003 till 2011, no steps were taken for seeking ownership
rights in respect of the premises from MHADA. He submits that the
rent receipt of the year 1991 does not make any reference to the
terrace and only Flat No. 24 was converted to ownership. He submits
that MHADA has specifically denied the tenancy of the plaintiff in
respect of the terrace. He submits that by communication of 15 th
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January, 2003 the Plaintiff has informed MHADA that she has paid the
premium for conversion of flat to ownership and has become member
of the Co-operative Society in which there is no reference about back
portion terrace. He submits that in response to the letter of 28 th
February, 1991 the Plaintiff had written to MHADA that the tenement
is having terrace and requested that the entry of the back portion of
the receipt be corrected as tenement along with terrace and despite
thereof there was no proceedings initiated for seeking ownership of
the terrace. He submits that therefore it is implied that MHADA has
rejected the tenancy rights in respect of the terrace and after period of
20 years when the Society decided to go for redevelopment the suit
was filed seeking additional FSI.
21. He submits that there is no declaration of ownership of terrace
sought by the Plaintiff. He would further submit that the impugned
Judgment proceeds on the basis that the terrace in question is
attached to the tenement and therefore the right of ownership has
been granted by the Trial Court. He submits that the Trial Court was
under an impression that there is abutting flat in view of the
description given in the plaint. He submits that the decree does not
grant the FSI which was claimed by the Plaintiff and the Respondent
No. 2 cannot convey the ownership of the terrace which is common
terrace. He submits that it is admitted that the terrace in question if
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above the building and not abutting Flat No. 24.
22. He submits that the Constituted Attorney had stepped in the
witness box who had no personal knowledge about the acts deposed.
He submits that the evidence refers to the documents of 1960-1961
and the witness does not depose that he has any personal knowledge
about the transaction of the year 1960-1961. In support he relies upon
the following decisions:
Manisha Mahendra Gala vs. Shalini Bhagwan Avatramani1
Ramagauri Keshvlal Virani vs. Walkeshwar Triveni Co-
operative Housing Society Ltd.,2
Trojan And Company vs. RM. N.N. Nagappa Chettiyar3
Om Prakash vs. Ram Kumar4
Janki Vashdeo Bhojwani vs. Indusind Bank Ltd., 5
23. Per contra, Mr. Kolse-Patil, learned Counsel appearing for the
Respondent No. 1 would submit that the decision of Ramagauri
Keshvlal Virani vs. Walkeshwar Triveni Co-operative Housing Society
Ltd.,(supra) is inapplicable as transaction is of the year 1960. On the
aspect of deposition by the Constituted Attorney, he submits that no
objection was taken at the relevant time and the documents came to
be marked as exhibit and therefore could be read in evidence.
1 (2024) 6 Supreme Court Cases 130.
2 1999 (3) Mh.L.J. 145.
3 (1953) 1 Supreme Court Cases 456.
4 (1991) 1 Supreme Court Cases 441.
5 (2005) 2 Supreme Court Cases 217.
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24. He submits that the declaratory relief has been rightly granted
as in suit for injunction the issue of title can be gone into. He submits
that there is no dispute about possession of terrace and specific issue
is about title of Plaintiff which was framed and thus all parties were at
notice and led evidence accordingly in the first suit. He submits that
the evidence proves that the Plaintiff has been allotted Flat No. 24
along with terrace way back in April, 1960. He submits that the
communication of 7th April, 1960 Exhibit-15 includes statement which
shows the Plaintiff as the tenant of tenement No. 24 and back portion
with terrace. He submits that the rent receipt produced on record at
exhibit-12 shows tenancy also in respect of back portion in terrace. He
submits that as Plaintiff in both suits prayed for grant of FSI of terrace,
the Trial Court has rightly moulded the reliefs. He submits that the
area of the terrace has been described in the plaint as 1058 sqr. ft.
which has been admitted by the Society in the written statement. He
submits that the flat is at the back portion of the building and the
terrace is above the flat. He submits that the first suit came to be filed
in view of the anticipation of the agreement being executed and the
second suit came to be filed after the development agreement was
executed. He submits that the suit is not barred by limitation and no
objection to limitation was raised. He submits that as per Section 190
of Maharashtra Housing and Area Development Act, 1976, the
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provisions of Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act, 1963
does not apply while conversion from tenancy to ownership therefore,
the judgment of Ramagauri Keshvlal Virani vs. Walkeshwar Triveni
Co-operative Housing Society Ltd.,(supra) is inapplicable. In support
he relies upon following decisions:
Anathula Sudhakar vs. P. Buchi Reddy (dead) By Lrs.6
Laxman Bisan Uke vs. Ashok Ishwar Shinde.7
Satish Chand Makhan vs. Govardhan Das Byas8
U.P. State Brassware Corporation Ltd. vs. Uday Narain Pandey9
Bhagirath s/o Ramprasad Charkha vs. Ramprasad s/o
Chunilal10
25. Mr. Dighe, learned counsel appearing for MHADA would submit
that the terrace was not part of the tenement and no tenancy right or
ownership right accrued to the plaintiff during acquisition of premises
by MHADA or during conversion. He submits that the document of 28 th
February, 1991 makes it clear that 53 tenements have been handed
over on as is where as basis. He has taken this Court through the
Maharashtra Housing and Area Development (Estate Management,
Sale, Transfer and Exchange of Tenements) Regulations, 1981 [for
6 (2008) 4 Supreme Court Cases 594
7 2018 (4) Mh.L.J. 151.
8 (1984) 1 Supreme Court Cases 369.
9 (2006) 1 Supreme Court Cases 479.
10 2010 (6) Mh.L.J. 169.
Sairaj/Shubham 20 of 43
FA-464-2017 (final).odt
short, "Regulations of 1981"] and would submit that Regulation 2 (za)
defines the tenement which will exclude terrace. He further submits
that the Clause-12 of Allotment Letter specifically refers to the
applicability of the Regulations.
26. He submits that the MHADA's decision to convert only tenement
in ownership basis has not been challenged and there is no prayer for
direction to MHADA to convert tenancy rights into ownership in
respect of terrace. He submits that there were no steps taken right
from 2003 till 2011 and therefore the suit is barred by limitation. He
submits that the area of terrace has not been identified and 1/ 3 rd of
the terrace is covered by water tank.
27. In rejoinder, Mr. Kolse-Patil, would submit that the definition of
tenement in Regulation 2 (za) is not exhaustive. He submits that after
receipt of the letter in February-1991 the Plaintiff had replied to the
same and therefore, it cannot be said that there is no dispute. He
submits that there is no question of limitation as the possession of the
Plaintiff was not threatened and it is only when the process of
redevelopment started without granting the FSI of the terrace to the
Plaintiff that the right to sue accrued.
28. The following points would arise for determination :-
(i) Whether the conclusion of the Trial Court that the terrace in
question is part and parcel of the tenement and MHADA erroneously
Sairaj/Shubham 21 of 43
FA-464-2017 (final).odt
converted only flat into ownership is sustainable?
(ii) Whether the Plaintiff proves that she was tenant of Flat No. 4/24
along with part of the terrace above the Building No. 4 and the
tenancy in respect of the flat as well as the terrace was attorned to
MHADA ?
(iii) Whether the Plaintiff proves that MHADA has converted the
tenancy rights into ownership rights in respect of the Flat alongwith
the part of the terrace above the Building No. 4 in favor of the
Plaintiff?
(iv) Whether the statutory regulations permit the grant of ownership
rights in respect of portion of terrace located above a building in
favour of one member of the Society?
(v) Whether the Trial Court was right in partly decreeing the suit after
holding that the Plaintiff has only proved ownership of flat and in
absence of any relief of mandatory injunction directing the Defendants
to grant ownership of portion of terrace ?
(vi) Whether the Constituted Attorney could have been examined on
behalf of and in place of the Plaintiff?
AS TO POINT NO. (i) :-
29. S.C Suit No. 793 of 2011 was initially filed only for seeking
injunction restraining MHADA from entering into an agreement of
conveyance with Defendant No. 2 without providing terrace floor
Sairaj/Shubham 22 of 43
FA-464-2017 (final).odt
applicable FSI to Plaintiff. As the conveyance came to be executed
during pendency of suit, the relief became redundant and suit came to
be amended to incorporate pleadings to support the amended prayer
for a declaration that the Plaintiff is owner of the flat along with "back
portion terrace floor" in Defendant No. 2-building.
30. Considering the language of the plaint, I have extracted the
exact words used in various paragraphs in Plaint :-
"2. The plaintiff further state that the plaintiff
was the tenant of MHADA since around 1960, the
Flat No. 4/24 along with the back portion terrace
in the Andheri Dhake Colony CHS Ltd., and use to
pay compensation to the concerned office of
Defendant No. 1 of the flat as well as back
portion terrace from 1960 to till today. The
plaintiff crave leave to referred to rely upon the
receipt issued by the Maharashtra Hsg. Board in
favor of the plaintiff hereto annexed and marked
as Exhibit "A" collectively.
3. The plaintiff say that in the beginning, the
plaintiff and her family members were owner of
the said building, but somewhere in 1960, the
abovenamed Defendant No. 1 acquired the said
building along with land from the husband of the
plaintiff and started collecting rent from all the
occupants of the said building and plaintiff is also
one tenant of the suit premises along with
terrace floor admeasuring 1058 sq. fit compound
issuing the rent receipt in favour of the plaintiff
of the room and along with terrace floor, which is
Sairaj/Shubham 23 of 43
FA-464-2017 (final).odt
a suit premises before this Hon'ble Court, and
admeasuring 1058 sq. fit. compound. The
plaintiff further state that the plaintiff has
several correspondence along with the
defendant No. 1. The plaintiff crave leave to refer
to and rely upon the copy of the correspondence.
Hereto annexed and marked as Exhibit "B".
4. ....However the terrace granted by MHADA to
the tenant on the tenancy basis and the MHADA
collected the charges of towards of the terrace
floor from the plaintiff, but defendant No. 2 not
issued any receipt for the same of Rs 581/-
5A......the Plaintiff further say that in the above
area defendant No. 1 and 2 are not joined the
area of the terrace floor through in the
conveyance deed of dated 8.7.1960 it is very
clear that the Plaintiff abovenamed is a tenant
of the building No. 4 of her flat at Sr No. 14 of
list of the tenants back portion with terrace and
rent fixed Rs 140/ per month, bu the
abovenamed defendants not ready to give the
FSI of the back portion of the terrace of the
defendant no. 1 already collected rent of the
said back portion plaintff and the terrace
alongwith flat from the plaintiff....
7A. The Plaintiff further state that after filing of
the present suit, the abovenamed defendant
No. 2 without permission interested to take the
less area from the defendant No. 1 by way of
lease and not ready to provide FSI of the back
portion of the terrace floor to the plaintiff....
8.....The Plaintiff further state the plaintiff is
lawful occupier of flat No. 4/24, along with the
back portion of the terrace floor, the plaintiff
Sairaj/Shubham 24 of 43
FA-464-2017 (final).odt
further say that the plaintiff have several
documentary evidence to prove it that plaintiff
is lawful occupant of the said flat along with the
back portion of the terrace."
(emphasis supplied).
31. In paragraph 2 of the subsequent S. C. Suit No. 425 of 2013 filed
by the Plaintiff, it is pleaded that in the list of tenants which is handed
over by her predecessor to the Bombay Housing Board along with rent,
it is very clearly shown that she is tenant of Building No. 4 along with
the back portion terrace and paying the rent at the rate of Rs. 140/- to
the predecessors. Thus both the plaints describe the subject premises
as flat along with back portion terrace.
32. From the pleadings reproduced above, it is clear that the subject
premises is described as Flat along with back portion of terrace floor.
The said description would commonly describe a flat which has an
abutting or adjacent terrace to the flat in question. In his deposition,
the Constituted Attorney has deposed that he is in use, occupation and
possession of terrace floor in the backside portion of Dhake Colony,
Building No. 4 above Flat No. 4/24, which was not noticed by the Trial
Court.
33. The incorrect description of the subject premises has led to the
suit being partly decreed and direction being issued to grant ownership
of the terrace in question. The inquiry would have been different if the
terrace portion would have been accurately described as part of the
Sairaj/Shubham 25 of 43
FA-464-2017 (final).odt
terrace which is situated above Building No. 4. As the subject premises
was not correctly described, there was no inquiry into the question
whether the part of terrace located above the building and a common
amenity for all the occupants of the building could have been directed
to be converted into exclusive ownership of one single member.
34. As declaration was sought in respect of immovable property, it
was necessary for the plaint to contain the description sufficient to
identify it. Order VII, Rule 3 of Code of Civil Procedure, 1908, clearly
provides that where the subject-matter of the suit is immovable
property, the plaint shall contain a description of property sufficient to
identify it. Considering the pleadings, the plaint was defective as it did
not describe the suit property sufficient to identify the same.
35. Apart from the defective description of the suit premises, the
area of the terrace in question is nowhere mentioned in the pleadings.
As relief of declaration of ownership of flat and terrace was sought,
the pleadings must be specific so that the specific relief can be
granted. The Plaint describes the area of the Flat along with the
terrace floor admeasuring 1058 sq. ft. It is therefore, not clear as to
whether the carpet area of Flat is 1058 sq. ft. or the area of 1058 sq. ft.
includes the area of flat along with terrace floor.
36. Based on the pleadings in the plaint, the impression which the
Trial Court carried when it partly decreed the suit in favor of the
Sairaj/Shubham 26 of 43
FA-464-2017 (final).odt
Plaintiff is revealed from its findings as under :
(a) MHADA while transferring Flat No. 24 has not mentioned
attached terrace and there is documentary evidence to say
that terrace in question was attached to Flat No. 24 which was
in possession of Plaintiff;
(b) The terrace in question is just abutting to Flat No. 24 and is
part and parcel of tenement but while converting to
ownership only Flat was converted;
(c) As the said terrace in question is part and parcel of the Flat
No. 24, she is entitled to get the same on ownership basis by
paying requisite price prevailing in the year 1991.
37. In light of the discussion above, the conclusion arrived at by the
Trial Court in respect of the terrace in question is clearly unsustainable.
Point No. (i) is answered accordingly against the Plaintiff.
AS TO POINT NOS. (ii), (iii) AND (iv) :
38. These three points pertain to tenancy rights and conversion of
tenancy rights into ownership rights by MHADA and are taken together
for discussion.
39. I shall firstly consider whether the Plaintiff has established that
her tenancy was in respect of Flat No. 24 along with part of terrace
located above the building and that the same was attorned to
MHADA. The dispute is confined only to the tenancy and ownership of
part of terrace located above the building. The undisputed position is
that plaintiff is the widow of Trimbak Dhake who had constructed five
Sairaj/Shubham 27 of 43
FA-464-2017 (final).odt
buildings which was occupied by tenants and in the year 1960, he had
sold the land and buildings to MHADA and attorned the tenancies to
MHADA. Subsequently, MHADA started collecting rent from occupants
of the buildings and in the year 1991, MHADA converted the flats in
those buildings in favor of occupants on ownership basis after payment
of certain amount. The Defendant No. 2-Society thereafter, issued
Share Certificate to all the occupants. In the year 2010, when the
Society intended to go for redevelopment, the plaintiff claimed
tenancy of Flat No. 4 /24 along with terrace floor admeasuring 1058 sq.
ft.
40. In the Written Statement, it is specific case of MHADA that
plaintiff is tenant of Flat No. 4/24, and not of the terrace floor. As the
terrace portion was inaccurately described, the Written Statement of
MHADA proceeds on the basis that the back portion of terrace stated
in the Plaint is adjacent to Flat No. 4. MHADA contends in the Written
Statement, that back portion of terrace mentioned by Plaintiff is
unauthorized terrace erected by the Plaintiff and there is no question
of regularizing the unauthorized terrace which is subsequent erection
by the plaintiff.
41. To establish her case of being tenant in respect of the terrace in
question, the Constituted Attorney has deposed as to contents of the
Plaint of S.C Suit No. 793 of 2011 and thereby incorrectly deposing to
Sairaj/Shubham 28 of 43
FA-464-2017 (final).odt
the location of the terrace as back portion terrace floor. As to the
documentary evidence produced, the document first in point of time is
the Affidavit of declaration dated 30th March, 1960 , which is a
unilateral declaration by the original landlord- Exhibit 15 which appears
to have been executed at the time of sale of the properties to Bombay
Housing Board. In clause 4 of the Unilateral declaration by Trimbak
Dhake, it is stated that his wife is a tenant of a flat on second floor with
a terrace in building on Plot No. 4 at a rent of Rs. 140/- (Rs. 130/- for
the flat and Rs. 10/- for the terrace) and on completion of the sale, her
tenancy will be attorned to Bombay Housing Board. Along with Deed
of Declaration, the list of tenants is annexed and as far as Building No.
4 is concerned, the name of the plaintiff appears at Serial No. 14 and
the description of tenanted premises is 'back portion with terrace' and
there is no details of area.
42. The description in the unilateral Deed of Declaration was carried
forward by MHADA in the rent receipt and the rent receipt by Office of
the Estate Manager, MHADA - Exhibit 12 describes the Plaintiff as
tenant and Tenement Number is written as 'back portion with terrace'
without any mention of Flat No. 24. The statement of arrears
produced on record also refers to tenement as back portion with
terrace and there is no reference to Flat No. 24. If the rent receipts are
to be accepted as proof of Plaintiff's tenancy, the same would mean
Sairaj/Shubham 29 of 43
FA-464-2017 (final).odt
that the plaintiff's tenancy is only in respect of "back portion with
terrace" and thus no tenancy rights were established by plaintiff based
on the rent receipts.
43. For being entitled to ownership rights from either MHADA or
Defendant No. 2 in respect of part of the terrace, the Plaintiff had to
prove her tenancy rights since the year 1960 in respect of the terrace
and the continuation of the tenancy after attornment, upon the
property being conveyed to Bombay Housing Board. It was necessary
for the plaintiff to adduce cogent evidence to establish that the
portion of the terrace was tenanted to her in respect of which rent was
paid to Trimbak Dhake. There is no document produced to establish
this position prior to the sale to Bombay Housing Board.
44. On 7th April, 1960, the Assistant Housing Commissioner
addressed letter to Estate Manager in which the list of tenants was
annexed and name of Plaintiff appears in respect of Building No. 4
mentioning only "back portion with terrace" with rent of Rs 140/-. The
Deed of Declaration is a unilateral document executed by the
Plaintiff's husband and there is not a single rent receipt produced prior
to the sale of the property to Bombay Housing Board to show tenancy
in respect of portion of terrace above the Building No. 4. The rent
receipts, which are produced on record are rent receipts issued by the
Estate Manager of MHADA which does not correctly describe the
Sairaj/Shubham 30 of 43
FA-464-2017 (final).odt
tenanted premises and cannot be accepted as proof of attornment of
tenancy rights of part of terrace. In addition, MHADA has deposed that
plaintiff was not tenant of terrace. In the communication dated 14 th
March, 1991- Exhibit 14, addressed by the Plaintiff to MHADA, it is
specifically stated that the subsequent rent receipt after November,
1962, does not mention "back portion with terrace" which means that
after November, 1962 there is not even the rent receipt to substantiate
the plaintiff's claim of tenancy. The plaintiff seeks to rely on tenancy
receipt of 1960-1962 to prove continued tenancy till 2011, which
cannot be accepted. There was no reply to the letter of March, 1991
and no steps were taken by the Plaintiff to seek declaration of tenancy
in respect of the part of terrace.
45. The evidence adduced by the Plaintiff fails to prove that the
Plaintiff was tenant in respect of the terrace in question and the
tenancy of the terrace was attorned to Bombay Housing Board after
execution of conveyance of the land and the building. Further, DW-1
has produced the list of authorized tenants at Exh. 24 which shows
that the Plaintiff was tenant only in respect of Flat No. 4. The said list
was prepared for calculating the cost to be paid by the Occupants
while converting tenancy into ownership basis. Hence, at all times,
MHADA has accepted the Plaintiff's tenancy only in respect of the flat.
Despite the said evident position, Plaintiff has not sought an
Sairaj/Shubham 31 of 43
FA-464-2017 (final).odt
appropriate relief of tenancy rights in respect of portion of terrace.
46. Coming to issue of conversion of tenancy rights to ownership
rights, the tenancy rights were converted into ownership rights
pursuant to policy decision of MHADA. A communication dated 28 th
February, 1991- Exhibit 23 was issued by MHADA to the Plaintiff
extending the scheme for conversion of tenancy rights to ownership.
The offer given by MHADA was for conversion of Flat No. 4/24 and
makes specific reference to "gala". The purchase price based on the
area of the residential tenement was calculated at Rs. 25,924/- and the
Plaintiff was directed to make the payment along with arrears of rent.
The document establishes that what was offered on ownership basis
was Flat No. 4/24. In response to said letter, the plaintiff addressed the
communication at 'Exhibit-14' dated 14th March, 1991, stating that since
the conversion into ownership is being done, it is important that rent
receipt also mentions the words "with terrace". She has specifically
admitted that in the subsequent rent receipt, the words "back portion
with terrace" is not mentioned and that in future rent receipts, the
word "with terrace" be mentioned.
47. Once the offer has been made for converting only the flat into
ownership from the tenancy, communication dated 14 th March, 1991 is
clearly misconceived as upon the payments of requisite payment for
converting tenancy rights to ownership in favor of plaintiff there was
Sairaj/Shubham 32 of 43
FA-464-2017 (final).odt
no question of future rent receipt being issued. It is also pertinent to
note that along with communication of 28 th February, 1991, the terms
and conditions of the conversion from the tenancy to ownership basis
dated 25th February, 1991 was enclosed, which provided that sale is
under the provisions of rules and regulations framed under the
Maharashtra Housing and Area Development Act, 1976. The provisions
of Regulations of 1981 defines the term "tenement" in Section 2(za) as
under:-
"(za) "tenement" means a part of a
property intended for independent use
including one or more rooms or
enclosed space located on one or more
floors (on part or parts thereof), in a
building constructed under any housing
scheme [or any scheme for a
Commercial Centre and intended to be
used principally for residence, or for a
commercial purpose] or such other use
as the Board may permit in this behalf
with a direct exit to any public street,
road or highway or to a common area
leading to such street, road or highway,
and includes an apartment within the
meaning of the Apartment Act"
48. The definition of the 'tenement' makes it clear what can be
allotted under the said regulation is an enclosed space located on one
or more floors, which answers the description of a flat. The Regulations
do not permit the authorities to allot on ownership basis a portion of
Sairaj/Shubham 33 of 43
FA-464-2017 (final).odt
terrace which would be common amenity to be enjoyed by all the
occupants of the said building. In his affidavit of evidence, the Estate
Manager of MHADA has clearly deposed that the entire terrace of the
said building belongs to the Society and Plaintiff has no right to claim
the terrace of the Society.
49. PW-1 has specifically deposed in the year 1990, the Defendant
No. 1 handed over the said flat along with terrace floor to Defendant
No. 2 and Defendant No. 2 stopped collecting maintenance of terrace
floor from Plaintiff. The same makes it expressly evident that only flat
was converted into ownership and not the terrace portion.
50. It is therefore, clear that what was converted into ownership was
only the flat, which was accepted by the Plaintiff and no steps were
taken to seek conversion of the terrace portion into ownership based
on previous claim of tenancy rights. The Share Certificate issued by the
Society in the year 2001 was only in respect of Flat No. 24, which was
not objected by the Plaintiff. By communication dated 15 th January,
2003-'Exhibit-18', the plaintiff had written to Estate Manager-II that she
was tenant of Flat No. 24 till November, 1991 and that she had paid
premium of Rs. 25,924/- on 11th November, 1991 for conversion of her
flat to ownership to the Housing Board and thereafter, had became the
member of the Co-operative Society and as she was no longer tenant
of the Housing Board, she has been advised to pay to Housing Board
Sairaj/Shubham 34 of 43
FA-464-2017 (final).odt
Rs. 58/- per month towards the Housing Board charges. The
communication makes it clear that the tenancy as well as the
ownership was only in respect of Flat No. 24 and not in respect of
portion of terrace and no objection was taken by the plaintiff upon the
Flat No. 24 being converted on ownership basis.
51. It is only in the year 2011, when redevelopment of Society was
taking place that claim had been made in respect of tenancy and
ownership rights of the flat as well as portion of terrace. The evidence
on record establishes that only ownership of the flat was transferred
to the plaintiff and not ownership of portion of terrace. Point Nos. (ii),
(iii) and (iv) are accordingly answered against the Plaintiff.
AS TO POINT NO. (v):
52. The Trial Court has held that the Plaintiff has proved only
ownership of the flat. The Plaintiff had come with a case that she is
entitled to declaration of ownership of the flat and portion of the
terrace as she was tenant of the flat and portion of terrace and the
Defendant No. 2 in re-development was not ready to provide FSI of the
back portion of the terrace floor to the Plaintiff. The plaint sought
declaration of ownership of flat and back portion terrace floor and
therefore right to claim FSI of the back portion terrace floor along with
her flat. The Plaintiff having failed to establish that she was tenant in
respect of the portion of terrace and that the terrace portion was
Sairaj/Shubham 35 of 43
FA-464-2017 (final).odt
converted by MHADA into ownership, no declaration of ownership or
right to claim FSI qua the terrace portion could have been granted. The
suit ought to have been dismissed qua the claim for ownership portion
of terrace.
53. There is nothing produced on record to show that even after the
conversion of ownership rights of the flat in the year 1991, the Plaintiff
was paying rent to MHADA in respect of portion of terrace. The sale
deed and lease deed were executed by MHADA in favor of the
Defendant No. 2 Society in the year 2012 and Defendant No. 2 became
owner of the building and lessee of the land.
54. As MHADA had not converted the purported tenancy rights of
portion of terrace into ownership, it was necessary to seek the
appropriate relief of declaration of tenancy rights and for mandatory
injunction directing MHADA or Defendant No. 2 to grant ownership
rights of portion of terrace, which was not prayed. It also needs to be
noted that the conversion of tenancy rights to ownership took place in
the year 1991 and suit for declaration of ownership was filed in the
year 2011. In event the relief of conversion of tenancy rights of portion
of terrace to ownership was prayed, different considerations would
arise as regards the entitlement of Plaintiff to the ownership rights,
the policy decision of MHADA, the permissibility under the statutory
regulations, the vested rights of Defendant No. 2-Society, the issue of
Sairaj/Shubham 36 of 43
FA-464-2017 (final).odt
limitation etc.
55. Although it is sought to be contended by Mr. Kolse-Patil that the
relief can be appropriately moulded, to apply the said principle, on the
basis of evidence and pleadings, the same should be possible. In facts
of present case, the relief could not have been moulded as the core
issue of entitlement of Plaintiff who was a member of the Defendant
No. 2-Society to exclusive ownership of portion of common terrace
located above the building was not dealt with. The Trial Court
proceeded on an erroneous footing that the terrace was adjacent to
the flat, which is attributable solely to the incorrect pleadings in the
plaint, to reach a conclusion about the Plaintiff being entitled to
ownership rights of the terrace portion.
56. Mr. Kolse-Patil would rely on decision of Anathulsa Sudhakar vs.
P. Buchi Reddy (Dead) By LRs (supra), Laxman Bisan Uke vs. Ashok
Ishwar Shinde (supra) and Ramrao Tukaramji Dindalkar through
L.R.'s11 to contend that as there was specific issue framed with respect
to title of Respondent No. 1 and mere absence of seeking declaratory
relief of ownership would not come in the way of decreeing the suit
when the civil court has power to mould the reliefs. Mr. Kolse-Patil
would submit that there was no denial of occupation by Respondent
No. 1 and there was no serious dispute that Respondent No. 1 was
11 2023 SCC Online Bom 2833.
Sairaj/Shubham 37 of 43
FA-464-2017 (final).odt
tenant of the terrace since before 1960 and therefore, entitled to
become owner of the same. The submission of Mr. Kolse-Patil is based
on erroneous assumption of converse situation that the relief of
direction to Defendants to grant ownership of portion of terrace is
sought without seeking declaratory relief of ownership.
57. The Plaintiff has failed to lead cogent evidence to prove that she
was tenant of portion of the terrace. There was no conversion of
ownership of portion of terrace. In any event, the statutory
Regulations permit grant of ownership of tenements and not common
amenities. The land as well as the buildings stood transferred and
conveyed in favor of the Defendant No. 2 Society in the year 2012.
There can be no interference in the common right of all the occupants
to the common terrace of the building. As the Trial Court had held that
the Plaintiff has failed to prove her ownership of portion of terrace, it
could not have directed Defendant No. 2 to grant ownership of portion
of terrace by accepting prevailing price of the year 1991 in absence of
such relief. The facts of the case do not permit the grant of such relief
against the Defendant No. 2 in respect of common property of the
Society.
58. Apart from the fact that there was no appropriate reliefs sought,
the direction of the Trial Court to Defendant No. 2 to grant ownership
rights of terrace cannot be sustained, as the findings of the Trial Court
Sairaj/Shubham 38 of 43
FA-464-2017 (final).odt
to support the direction, stems from the fact that due to incorrect
description of suit premises in the plaint, MHADA as well as the Trial
Court carried an impression that the declaration sought by the plaintiff
was in respect of terrace, which was adjacent and abutting to Flat No.
24. Therefore, the Trial Court had held that terrace is part and parcel of
Flat No. 24 and there is no reason to grant ownership of only flat and
not the terrace in question. Based on an incorrect finding that the
terrace is part and parcel of the tenement abutting Flat No. 24, the
direction has been given to the Society to recover the price as per the
rate prevailing in the year 1991 from the plaintiff and to show the
same in the ownership of plaintiff. This finding of the Trial Court is in
itself in sufficient to set aside the decree of the Trial Court.
59. The Trial Court had held that MHADA had transferred the
tenement in the name of plaintiff on ownership basis by showing
carpet area of 1057 sq. ft. and that if area of terrace was comprising of
carpet area of 1057.93 sq. ft. then grievance of plaintiff would have
been different. The plaintiff has not described the area of terrace and
had merely referred to the suit premises as Flat No.24 in Building No. 4
along with back portion admeasuring 1058 sq. ft. The Trial Court has
not given much importance to the area of terrace as it was under an
erroneous assumption that the terrace was adjacent to the flat. As the
admitted position is that the terrace is located above the building and
Sairaj/Shubham 39 of 43
FA-464-2017 (final).odt
rights are claimed in portion of the terrace, specific pleading and
specific prayer in that respect was mandated.
60. The Trial Court has considered the unilateral deed of declaration
and the rent receipts which states "back portion terrace" at rent of Rs.
140/- to hold that plaintiff's rent is highest than other tenants in the
buildings. Based on the same, the Trial Court holds that terrace in
question was in possession of the plaintiff in the capacity of tenant.
The Trial Court failed to notice that rent receipt only mentions "back
portion of terrace" which was carried forward from the list of tenants,
annexed to the Memo dated 7 th April, 1960 issued by the Assistant
Housing Commissioner, Bombay addressed to the Estate Manager,
Bombay Housing Board. The Trial Court erred in partly decreeing the
suit as the plaintiff failed to bring any evidence on record to establish
her tenancy rights and ownership rights in respect of portion of terrace
located above the building. The finding of the Trial Court is vitiated for
the reason that the Trial Court accepts the claim of tenancy on an
inference that the terrace in question is abutting Flat No. 24 and was
part and parcel of tenement.
61. The Trial Court after accepting the findings on the aspect of
tenancy has misconstrued the communication dated 14 th March, 1991
as readinesss and willingness of the plaintiff to pay requisite charges in
respect of the terrace in question. The finding is unsustainable as the
Sairaj/Shubham 40 of 43
FA-464-2017 (final).odt
letter of 14th March, 1991 does not make any claim of tenancy rights of
portion of terrace or seeks conversion from the ownership of terrace,
but only request was made for the future rent receipts to include the
word 'terrace' in the rent receipts. The Trial Court had erred in holding
that there is documentary evidence to show that terrace in question
was attached to Flat No. 24, which was in possession of plaintiff and
MHADA had failed to plead or establish whether the documents in
question was for Flat No. 24.
62. The Trial Court based on erroneous finding that terrace is
adjacent to Flat No. 24 had directed the Defendant No. 2 Society to
recover the amount of terrace from the plaintiff as per the rate of
1991. Admittedly, the terrace is common to all occupants of the
building considering that it is located on top of Building No. 4 and is
part of common amenities. There was therefore, no question of sale of
portion of common terrace to the plaintiff. The findings of the Trial
Court are therefore unsustainable. Point No. (v) is answered against
the Plaintiff.
AS TO POINT NO. (vi ):
63. On behalf of Plaintiff, evidence was led by her Constituted
Attorney, who is her son and had deposed on her behalf. He had also
produced documents, which were duly marked as Exhibits. It is not
discerned that any objection was taken to the Power of Attorney
Sairaj/Shubham 41 of 43
FA-464-2017 (final).odt
holder deposing on behalf of the plaintiff. In the case of Manisha
Mahendra Gala vs. Shalini Bhagwan Avatramani (supra), the Apex
Court has held that general power of attorney holder cannot be
witness on behalf of party represented by him. The Apex Court had
considered the decision in Janki Vashdev Bhojwani vs. Indusind Bank
Ltd (supra), in which it was held that Power of Attorney holder can
maintain a plaint on behalf of the person he represents provided he
has personal knowledge of the transaction in question. The Power of
Attorney Holder who has no knowledge regarding the transaction
cannot be examined as witness. In the present case, the Constituted
Attorney has not deposed that he is giving evidence on behalf of
Plaintiff in respect of facts which are personal to his knowledge and
the deposition indicates that he has deposed in his individual capacity.
The deposition was in respect of facts not personal to his knowledge.
64. It is well-settled that Power of Attorney holder can depose and
verify on oath before the Court, but he must come as an agent and
Power of Attorney holder having no personal knowledge cannot be
examined for and on behalf of the principal as to facts personal to the
knowledge of the principal. The Trial Court failed to note the settled
position in law and had accepted the evidence led by the constituted
attorney by holding that he is well-acquainted with the facts of the
case.
65. To overcome this obstruction, Mr. Kolse-Patil would submit that
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FA-464-2017 (final).odt
the documents filed by the Constituted Attorney were exhibited
without objection and those can be read in evidence. The submission
overlooks the settled position in law that mere marking of documents
as exhibit does not dispense the requirement of proof of document.
For proving the documents, the person who can vouchsafe as to the
truth and contents of the documents has to step into the box. As the
Constituted Attorney has not deposed that he is deposing in respect of
facts which are personal to his knowledge, the mere marking of
documents as exhibit cannot assist the case of Plaintiff. The Power of
Attorney holder could not have deposed and produced the documents
as he was neither the author of the document nor had personal
knowledge about the same. Point No. (vi) is accordingly answered
against the Plaintiff.
66. In light of the above, First Appeals are allowed. The impugned
judgment dated 18th February, 2015 is hereby quashed and set aside.
Though the Trial Court had dismissed the claim of plaintiff as regards
the declaration of conveyance as well as the redevelopment being null
and void, there is no challenge by the plaintiff to the same. Resultantly,
both suits stand dismissed.
67. In view of above, nothing survives for consideration in pending
Interim/Civil Applications, if any, and the same stand disposed of.
[Sharmila U. Deshmukh, J.]
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