Bombay High Court
Punam Co-Operative Housing Society ... vs Pratap Issardas Bhatia And 5 Ors. on 15 October, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-OS:19130
-S-1894-2010+.DOC
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 1894 OF 2010
Punam Cooperative Housing Society Ltd,
A Cooperative Housing Society Ltd registered
under the Maharashtra Cooperative Society's Act
1960, having its registered address at Punam
67, Nepeansea Road, Mumbai 400 006. ...Plaintiff
Versus
1. Pratap Issardas Bhatia
of Mumbai, Adult, Indian Inhabitant,
Formerly residing at Flat No. 1, 1st floor,
Punam Building, Punam
Cooperative Housing Society Ltd,
67, Nepeansea Road, Mumbai - 400 006
present correct address not known
2. Ramesh Issardas Bhatia
of Mumbai, Adult, Indian Inhabitant,
Formerly residing at Flat No. 1, 1st floor,
Punam Building, Punam
Cooperative Housing Society Ltd,
67, Nepeansea Road, Mumbai - 400 006
present correct address not known
3. Manoj Kumar Hemchand Bhatia
of Mumbai, Adult, Indian Inhabitant,
Formerly residing at Flat No. 1, 1st floor,
Punam Building, Punam
Cooperative Housing Society Ltd,
67, Nepeansea Road, Mumbai - 400 006
present correct address not known
4. Chetan Kumar Hemchand Bhatia
of Mumbai, Adult, Indian Inhabitant,
Formerly residing at Flat No. 1, 1st floor,
Punam Building, Punam
1/92
-S-1894-2010+.DOC
Cooperative Housing Society Ltd,
67, Nepeansea Road, Mumbai - 400 006
Current correct address not known
5. Sunita Prakash Kikla
of Mumbai, Adult Indian Inhabitant,
residing at 34, A-1 Apartments,
270, Walkeshwar Road,
Mumbai - 400 006.
6 Alok Agarwal
7. Shibani Alok Agarwal
Defendants No. 6 and 7 of Mumbai,
Adults, Indian Inhabitants
residing at Flat No.1, 1st floor,
Punam Building, Punam Cooperative
Housing Society Ltd,
67, Nepeansea Road, ...Defendants
Mumbai - 400 006.
WITH
CONTEMPT PETITION (L) NO. 119 OF 2010
IN
SUIT NO. 1894 OF 2010
Alok Agarwal ...Petitioner
residing at Flat No.1, 1st floor,
Punam Building, Punam Cooperative
Housing Society Ltd,
67, Nepeansea Road,
Mumbai - 400 006.
Versus
1. Sonal Shrenik Mehta,
residing at Flat No. 9,
Punam Building, Punam Cooperative
Housing Society Ltd,
67, Nepeansea Road,
Mumbai - 400 006.
2/92
-S-1894-2010+.DOC
2. Bina I Ramchandani
residing at Flat No.4,
Punam Building, Punam Cooperative
Housing Society Ltd,
67, Nepeansea Road,
Mumbai - 400 006.
3. Shrenik M Mehta
residing at Flat No.9,
Punam Building, Punam Cooperative
Housing Society Ltd,
67, Nepeansea Road,
Mumbai - 400 006.
4. Veena A Gahankary,
residing at Flat No.17,
Punam Building, Punam Cooperative
Housing Society Ltd,
67, Nepeansea Road,
Mumbai - 400 006.
5. Hiten Jhaveri,
residing at Flat No.31,
Punam Building, Punam Cooperative
Housing Society Ltd,
67, Nepeansea Road,
Mumbai - 400 006.
6. Bharat Choksey,
residing at Flat No.25,
Punam Building, Punam Cooperative
Housing Society Ltd,
67, Nepeansea Road,
Mumbai - 400 006.
7. Arun Kumar Gahankary,
residing at Flat No.17,
Punam Building, Punam Cooperative
Housing Society Ltd,
67, Nepeansea Road, ...Respondents
Mumbai - 400 006.
3/92
-S-1894-2010+.DOC
WITH
SUIT NO. 196 OF 2021
Punam Cooperative Housing Society Ltd,
A Cooperative Housing Society duly registered
under the provisions of Maharashtra Cooperative
Society's Act 1960, having its registered office at
Punam 67, Nepeansea Road, Mumbai 400 006. ...Plaintiff
Versus
1. Pratap Issardas Bhatia
having address at Flat No.1, First floor,
Punam, Punam
Cooperative Housing Society Ltd,
67, Nepeansea Road, Mumbai - 400 006
2. Ramesh Issardas Bhatia
having address at Flat No. 1, first floor,
Punam, Punam Cooperative Housing Society Ltd,
67, Nepeansea Road, Mumbai - 400 006
3. Manoj Kumar Hemchand
having address at Flat No. 1, first floor,
Punam, Punam Cooperative Housing Society Ltd,
67, Nepeansea Road, Mumbai - 400 006
4. Chetan Kumar Hemchand
having address at Flat No. 1, first floor,
Punam, Punam Cooperative Housing Society Ltd,
67, Nepeansea Road, Mumbai - 400 006
5. Sunita Prakash Kikla
residing at 34, A-1 Apartments, 270,
Walkeshwar Road, Mumbai 400 006.
6 Alok Agarwal
residing at Sohrab Minar,
5, Carmichael Road,
Mumbai 400 026 and also having
address at Flat No.1, First Floor, Punam,
Punam Cooperative Housing Society Ltd.
4/92
-S-1894-2010+.DOC
67, Nepeansea Road, Mumbai, 400 006. ...Defendants
Mr. Rajesh Shah, with Deepak Chitnis, i/b Deepak Chitnis and
Chiparikar and Co, for the Plaintiff in both suits.
Mr. Mangal Bhandari, with Shamima Taly, Aziz Mohd & Sehyr Taly,
i/b S. Mohomedbhai & Co, for Defendant Nos. 6 and 7 in Suit
No. 1894/2010 and for Defendant No. 6 in Suit No. 196/2021.
CORAM: N. J. JAMADAR, J.
RESERVED ON : 14th FEBRUARY 2025
PRONOUNCED ON : 15th OCTOBER 2025
JUDGMENT :
1. In respect of the same subject matter, two proceedings
were instituted. Suit No. 1894 of 2010 before this Court and a dispute
before the Cooperative Court at Mumbai, being Dispute Case
No.CCII/572/2008. By an order dated 10th May 2016 in SLP (C) No.
35195 of 2012, the Supreme Court transferred the dispute before the
Cooperative Court, Dispute Case No.CCII/572/2008 to the High Court
to be clubbed and consolidated with Suit No. 1894 of 2010, and
directed disposal of both the proceedings. Upon transfer, the
Cooperative Dispute came to be registered as Suit No. 196 of 2021. The
parties led evidence in Suit No. 1894 of 2010. Thus, Suit No. 1894 of
2010 is considered as the main proceeding. Both the Suits are, however,
decided by this common judgment.
-S-1894-2010+.DOC
SUIT NO.1894 OF 2010 :
2. This Suit is instituted for the declarations that the area
marked in yellow and red colour boundary lines in the map (Exhibit "A"
to the Plaint) is owned by the Plaintiff and the the Conveyance dated
30th May 2007 is illegal, null and void and unenforceable qua the
Plaintiff to the extent of the said area, the Defendant Nos. 6 and 7 are
rank trespassers in relation thereto, the Defendant Nos. 6 and 7 have no
right, title and interest to use and occupy the said area exclusively for
themselves, and for possession of the said area and the consequential
reliefs of injunction.
3. The material averments in the Plaint can be summarised as
under :
3.1 The Plaintiff is a Cooperative Housing Society registered
under the Maharashtra Cooperative Societies Act 1960 ("the Act of
1960"). The Plaintiff is the owner of the premises bearing Plot No. 67,
Cadastral Survey No. 3/358, Malabar Hill Division, Nepeansea Road,
Mumbai, consisting of a building, "Punam" having ground plus nine
floors, housing 42 flats, along with an annex block consisting of three
parking lots and a small bath-room, and open space/garden.
3.2 Frany Ram Gidwany and Baijansingh Bhashasingh Lulla,
were the owners of the said Plot of land. They were carrying on
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business of real estate development under the name and style of,
"National Housing Company" ("NHC"). The said NHC constructed
Punam building. NHC sold the flats and garages constructed on the said
plot by executing Agreements for Sale. One of the flats, i.e., Flat No.1,
admeasuring 1750 sq yards along with two car garages bearing Nos. 12
and 13 admeasuring 384 sq yards only, were sold by the NHC by
executing an Agreement for Sale in favour of Mrs. Sayeeda Rauf.
3.3 An application was filed by the then Promoter of the
Plaintiff-Society to register the said Society. Copies of the instruments
under which the various flats were sold by NHC to each of the
purchasers, and the list of members, alongwith the particulars of the
flats and garages sold to them, and the area thereof, were submitted to
the Registrar with the said Application. The Agreement in favour of Mrs.
Sayeeda Rauf and those documents clearly record that the Flat No.1
admeasuring 1705 sq yards along with two garages admeasuring 384 sq
yards only was sold to Mrs. Sayeeda Rauf.
3.4 On the strength of the said Application and documents, the
Plaintiff-Society was registered on 23rd March 1965.
3.5 Eventually, NHC executed a Registered Deed of Conveyance
dated 26th May 1965 in favour of the Society thereby conveying the
entire property in favour of the Plaintiff.
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3.6 Annex block and the open space/garden were part of the
property conveyed to the Plaintiff and were in use of the Plaintiff-
Society. Annex block and the open space /garden were never sold and
conveyed by NHC to Mrs. Sayeeda Rauf. Since 1965, the Plaintiff's
members and their children used to play in the said open space/garden.
The drainage line, sewerage lines, water pipelines as well as the
electricity cables of the Plaintiff-Society pass through the said open
space/garden. The sweepers employed by the Plaintiff used to clean the
open space/garden, and its repairs and renovations were carried out by
the Plaintiff.
3.7 On 5th December 1972, Mrs. Sayeeda Rauf entered into an
Agreement for Sale of the said Flat No.1 with Sitabai Bhatia, the
predecessor-in-title of Defendant Nos. 1 to 5.
3.8 The Plaintiff asserts, though Mrs. Sayeeda Rauf, and
thereafter, Sitabai Bhatia, were using the annex block, yet, at no point
of time, the annex block and the open space/garden were conveyed to
Mrs. Sayeeda Rauf. Thus, Mrs. Sayeeda Rauf, could not have conveyed a
better title to Sitabai Bhatia in respect of the said annex block and the
open space/ garden. Neither Mrs. Sayeeda Rauf nor Sitabai Bhatia and
Defendant Nos. 1 to 5 were in exclusive occupation and possession of
the annex block and the open space/ garden.
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3.9 In the wake of impending transaction between the
Defendant Nos. 1 and 5 and Defendant No. 6, the latter issued a public
notice in Economic Times dated 14th February 2006. The said notice
revealed that, as a part of Flat No.1, Defendant Nos. 1 and 5 professed
to sell the open space/garden and the annex block belonging to the
Plaintiff-Society to Defendant No. 6. The Plaintiff gave appropriate reply
to the public notice vide letter dated 27th March 2006.
3.10 Thereupon, there was exchange of lengthy correspondence
between the Plaintiff and Defendant Nos. 1 to 5, on the one part, and
Defendant Nos. 1 to 5 and Defendant No. 6 , on the other part. Initially,
the Defendant Nos. 1 to 5 took a stand that the Defendant Nos. 1 to 5
had agreed to sell only the Flat with two annex rooms, one closed
garage and one stilt car parking garage and not the open space/garden.
The Defendant No. 6 was also informed that the Plaintiff-Society
refused to give its No Objection for transfer.
3.11 As a dispute arose between the Defendant Nos 1 to 5 and
Defendant No. 6, the Plaintiff claims, the Defendant No.6, instituted a
collusive Suit, being LC Suit No. 179 of 2007 in the High Court. The
Plaintiff -Society was not made a party to the said Suit. In the said Suit,
behind the back of the Plaintiff, certain ad-interim orders were obtained
as the Defendant Nos. 1 to 5, with dishonest and ulterior motive, did
not defend the said Suit.
-S-1894-2010+.DOC
3.12 Eventually, despite having taken a categorical stand that
Defendant Nos. 1 to 5 were never the owners of the open space/ garden
and had not agreed to sell the same, the Plaintiff asserts, the Defendant
Nos.1 to 5 surreptitiously executed the Conveyance dated 30 th May
2007 in favour of Defendant No. 6 and dishonestly professed to sell Flat
No. 1 purportedly admeasuring 2050 sq ft along with the annex block
and covered garage admeasuring 250 sq ft, stilt garage admeasuring
140 sq ft and the open space/ garden admeasuring 1900 sq ft. The
Defendant Nos.1 to 5 and Defendant No. 6 were fully cognizant that the
Defendant Nos. 1 to 5 have no semblance of right over the annex block
and open space/garden and, yet, the Deed of Conveyance was executed.
3.13 After referring to the events that unfolded, post execution
of the said Deed of Conveyance dated 30 th May 2007, the Plaintiff
asserts that, the Defendant Nos. 6 and 7 illegally and forcibly took
possession of the open space/garden on the night intervening 14 and
15th April 2008. After obtaining the forcible possession of the annex
block the Defendant No. 6, the Plaintiff alleges, has converted the
parking lots therein for residential use. The Defendant Nos. 6 and 7 are
thus rank trespassers qua the annex block and the open space/garden.
3.14 Initially an effort was made to usurp the open
space/garden by paying monetary consideration to the Society. As the
Plaintiff did not cave in, in order to obtain the possession of the annex
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block and open space/garden, according to the Plaintiff, the Defendant
Nos. 6 and 7 resorted to various illegal means. A false and frivolous
complaint was lodged against office bearers of the Plaintiff-Society with
Malabar Hill Police Station. The Defendant No.6 with the help of the
police machinery, illegally and unlawfully grabbed the open
space/garden and three parking lots on the midnight of 14 th and 15th
April 2008 and committed trespass in respect of the areas marked in red
colour boundary line in the map annexed to the Plaint. Hence, the Suit.
4. Defendant Nos.6 and 7 resisted the suit by filing the
Written Statement.
4.1 Apart from denying averments in the plaint which are
adverse to the interest of Defendant Nos.6 and 7, at the outset,
Defendant Nos.6 and 7 contended that the suit is clearly barred by the
provisions of the Limitation Act, 1963. Even otherwise, the averments
in the plaint, which came to be amended as many as four times, are
irreconcilably inconsistent with the original case pleaded by the
Plaintiff. On this count alone, the suit, being devoid of cause of action,
deserved to be dismissed.
4.2 Defendant Nos.6 and 7 categorically contended that, under
a registered Agreement dated 30 May 2007, Defendant Nos.6 and 7
have purchased the entirety of right, title and interest of Defendant
Nos.1 to 5 in the premises comprising Flat No.1 with annexed room,
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attached garden / open space and a closed garage and have been in
exclusive possession thereof since 30 May 2007. The Plaintiff had
initially approached the Court with a case that on the night intervening
14th and 15th April 2008, Defendant No.6 broke open the locks of the
Plaintiff on the passage going to open space/garden and thereby
illegally took possession of the said open space/garden. Subsequently,
the Plaintiff gave up the case of forcible dispossession on the night
intervening 14th and 15th April 2008, and, instead, tried to camouflage
the issue by asserting that Defendant Nos.6 and 7 unlawfully
established complete control over the suit premises. In the process, the
Plaintiff has admitted that Defendant No.6 has been in possession of the
open space/garden since prior to July 2007. This judicial admission
works out the retribution of the Plaintiff's case that Defendant No.6
illegally obtained possession of the open space/garden. These two
versions of the Plaintiff, being mutually destructive, a suit based on the
original cause of action for alleged dispossession on the night
intervening 14th and 15th April 2008 becomes wholly untenable.
4.3 It was further contended that the Plaintiff was never in
possession of the open space/garden right from 1962. Since the
Plaintiff primarily alleges trespass by Defendant Nos.6 and 7, the failure
to establish the prior possession and the alleged dispossession, dents the
claim of the Plaintiff.
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4.4 The Defendants contend, at the very inception of the
construction of Punam building in the year 1962, open space/garden
has been constructed at the level distinct and separate from the
remaining compound of the building and had been so designed as to be
especially constructed for and accessed from and be used as an
extension of Flat No.1. Under an Agreement dated 18 July 1961, the
suit premises comprising open space/garden and two annex rooms,
were sold by National Housing Company, to Mrs. Sayeeda Rauf along
with Flat No.1 and garage, etc. In the said Agreement, the open
space/garden was referred to as 'the rear garden' and the two annex
rooms were referred to as 'the two rear rooms'. The Defendants could
obtain a copy of the Agreement dated 18 July 1961 between National
Housing Company and Mrs. Sayeeda Rauf, only after the dispute arose.
4.5 The Defendants contend, such arrangement and the
provision for exclusive use of the occupants of Flat No.1 was made as
Mrs. Sayeeda Rauf lived in the Flat No.1 along with her sister, 'X', a
famous Hindi actress. Open space/garden is directly adjoining Flat
No.1 on the first floor and opens out from the rooms / bed room of Flat
No.1. Annex rooms which have always been a part of the living areas
with Flat No.1 can only be accessed through the open space/garden.
According to Defendants, Flat No.1 and the open space/garden and the
annex block rooms have been used as one composite residential
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premises since the construction of the building. The area of the annex
room has always been counted with, and included in, the area of Flat
No.1 for the purpose of levy of taxes by the Municipal Corporation and
the maintenance charges by the Society in the year 1972. Mrs. Sayeeda
Rauf sold her right, title and interest in the suit premises to Sitabai
Bhatia, the predecessors in title of Defendant Nos.1 to 5. During her
lifetime Sitabai and, after her demise, Defendant Nos.1 to 5 have
asserted ownership and exclusive possession over the two annex rooms
and closed garage and the open space / garden. The Plaintiff-Society
and its office bearers had been fully aware of the said fact. Yet, no
dispute was ever raised by the Plaintiff.
4.6 The Defendants contend, when Bhatia's sought NOC from
the Society to transfer the suit premises to Defendant No.6, the Society,
for the first time, raised the issue of title over the said open
space/garden. Even, at that point of time, the Society did not dispute
that the exclusive possession of the said open space/garden was with
Bhatias. Nor any dispute whatsoever was raised with regard to the
ownership, use and possession of the said annex block or garage or any
other portion of the suit premises.
4.7 The Defendants alleged, few members of the managing
Committee of the Plaintiff demanded huge sums of money as transfer
fee for the transfer of the suit premises in the name of Defendant Nos.6
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and 7. When the Defendants did not cave in to the said unlawful
demand and after Defendant Nos.1 to 5 and 6 entered into a registered
Sale Deed, the Plaintiff-Society started making false claim that
Defendant Nos.1 to 5 were not entitled to transfer the possession of
open space/garden to Defendant No.6.
4.8 The Defendants contend, the issues between Defendant
Nos.1 to 5 and Defendant Nos.6 and 7 were eventually resolved and
under registered Sale Deed dated 30 May 2007, Defendant No.6
purchased the suit premises from Defendant Nos.1 to 5, inclusive of the
two annex rooms, a closed garage, one stilt car parking, together with
the exclusive use, occupation and possession of attached open
space/garden. Since 30 May 2007, Defendant Nos.6 and 7 have been in
exclusive possession of the suit premises.
4.9 After alluding to the correspondence that ensued between
the Society and Defendant Nos.6 and 7, the Defendants contend that,
on 14th and 15th April, 2008, some persons broke open the lock on the
door leading from common internal passage on the first floor to the
open space/garden belonging to the Defendants. Thereupon,
Defendants immediately secured their premises and relocked the door
which had been broken open with new padlocks and, on the following
afternoon, Defendant No.6 lodged a complaint with the police
regarding the said incident. To give a counter blast to the said
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complaint, the Plaintiff has concocted a false story of Defendant Nos.6
and 7 having unauthorizedly established possession over the open
space/garden on the night intervening 14th and 15th April 2008.
4.10 In substance, Defendant Nos.6 and 7 contend that
Defendant Nos.6 and 7 and their predecessors in title have been in
exclusive use, occupation and enjoyment of the open space/garden.
Annex rooms, garage and garden/open space form part and parcel of
Flat No.1. The landscape of Flat No.1 and the annex rooms, garage
and open space/garden unmistakably indicates that they were
constructed for the exclusive use and enjoyment of the occupants of Flat
No.1. Successive occupants of Flat No.1 have been in exclusive use and
enjoyment of the suit premises to the knowledge of the Plaintiff-Society
for over 45 years. Yet no objection was ever raised till the acquisition of
the subject premises by Defendant No.6 under a Conveyance dated 30
May 2007.
5. In the wake of the aforesaid pleadings, issues were settled
on 13th October 2021. I have extracted the issues with my findings
against each of them for the reasons to follow :
Issues Findings
1. Whether the suit is barred by law of In the negative
limitation ?
2. Does the plaintiff prove that the plaintiff is In the affirmative, except
the owner of plot bearing cadastral new annex block
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survey No. 3191 and C/3191 (part) and new
Survey No. 7168, 2/7168 and 3/7168 (part)
and Cadestral Survey No. 368 (part) of
Malabar and Cumbala Hill division bearing
Municipal Assessment No. 14D, Ward No.
3292/2, New Street No. 67, Napensea Road
and building known as Punam constructed
thereon as also the compound of the building
on the ground floor level along with annex
block consisting of three parking lots and the
small bathroom raised to above the first floor
flat ?
3. Does the plaintiff prove that in the night of In the negative
14th and 15th April, 2008 the defendant No.
6 with police assistance took forcible
possession of the areas marked in yellow and
red in the plan at Exhibit A to the plaint ?
4. Do the defendant Nos. 6 and 7 prove that In the negative qua open
defendant Nos. 6 and 7 are in lawful and space / garden only, from
exclusive possession of flat No. 1 (shown in the date of the suit.
green in the plan at Exhibit A to the plaint)
with attached garden/ open space
admeasuring approximately 1900 sq.ft
(shown in red in the plan at Exhibit A to the
plaint), with two annexe rooms and one
closed garage (shown in yellow in the plan at
Exhibit A to the plaint) since the date of
purchase i.e. 30th May, 2007 ?
5. Does the plaintiff prove that the agreement In the affirmative to the
dated 30th May, 2007 is illegal, null and void extent of open space /
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and not enforceable qua the plaintiff in garden
respect of the areas marked in yellow and red
in the plan at Exhibit A to the plaint ?
6. Do the defendant Nos. 6 and 7 prove that In the affirmative
their predecessors-in-title were in lawful and
exclusive possession of flat No. 1 (shown in
green in the plan at Exhibit A to the plaint)
with attached garden/open space
admeasuring 1900 sq.ft (shown in red in the
plan at Exhibit A to the plaint) with two
annexe rooms and one closed garage (shown
in yellow in the plan at Exhibit A to the
plaint) ?
7. Do the defendant Nos. 6 and 7 prove that the In the affirmative
garden/open space and annexe rooms have
at all times used along with flat No. 1 as a
composite residential premises ?
8. Does the plaintiff prove that defendant Nos. In the negative
6 and 7 have illegally converted 3 parking
lots into the residence ?
9. Is the plaintiff entitled to clear, vacant and In the affirmative qua
peaceful possession of the areas marked in open space / garden, to
yellow and red in the plan at Exhibit A to the the extent indicated in
plaint ? the operative order
10. Is the plaintiff entitled to compensation from An inquiry under Order
the defendant Nos. 6 and 7 in the sum of Rs. 20 Rule 12, qua open
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1,30,00,000/- towards unlawful occupation space / garden to the
of the areas marked in yellow and red in the extent indicated in the
plaint at Exhibit A to the plaint for the period operative order
14th/15th April, 2008 till May, 2010, and
thereafter at the rate of Rs. 5,00,000/- till the
delivery of the possession of the said areas to
the plaintiff ?
11. What order and decree ? Suit stands partly
decreed
REASONS
6. In order to substantiate the averments in the Plaint, the
Plaintiff has examined seven witnesses, being Sunil Lulla (PW-1), the
Secretary of the Plaintiff-Society, Mona Doctor (PW-2), Hiten Jhaveri
(PW-3), Shrenik Mehta (PW-4), the residents of Plaintiff-society, Kishore
Vikamsey (PW-5), a Government Approved Valuer, Aarti Kamble (PW-
6), a handwriting expert, and Mr. Satyen Vaishnawa (PW-7), a partner
of N. N. Vaishnawa and Company (Regd) Advocates, who had entered
into correspondence on behalf of the Defendant Nos. 1 to 5. The
Plaintiff has placed on record a number of documents in proof of its
claim.
7. In the rebuttal, Alok Agarwal-D6 (DW-1) entered into
witness-box. The Defendant Nos. 6 and 7 have examined eight more
witnesses, namely, Mushtaq Rauf (DW-2), the son of Sayeeda Rauf,
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Anmol Mathur (DW-3) and Hiral Mehta (DW-9), the handwriting
experts, Arvind Jadhav (DW-4), the photographer, Vinay
Karamchandani (DW-8), a cyber expert, and Prem Surinder Singh (DW-
5), Sayeeda Shakoor Khan (DW-6) and Manju Singh (DW-7), all
residents of the Plaintiff-society. The Defendant Nos. 6 and 7 have also
placed on record a number of documents to bolster up their defence.
8. The Defendant Nos. 1 to 5 have not participated in the
trial.
9. At the conclusion of the trial, I have heard Mr. Rajesh Shah,
learned Counsel for the Plaintiff and Mr. Bhandari, learned Counsel for
Defendant Nos.6 and 7 extensively. Learned Counsel have also
tendered notes of arguments in elaboration of the submissions
canvassed across the bar.
ISSUE NO.1 - Limitation
10. As noted above, the Sale Deed came to be executed in
favour of Defendant Nos. 6 by Defendant Nos. 1 to 5 on 30 th May 2007.
It is the case of the Defendant Nos. 6 and 7 that they were put in
possession of the Suit premises on 30th May 2007 itself, as evidenced by
the Possession Receipt (Exhibit "D-60") executed by Defendant Nos. 1 to
5, their predecessors-in-title. The Suit came to be instituted on 28 th May
2010.
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11. So far as the relief of declaration in regard to the legality
and validity of the said Sale Deed (Exhibit " D/59") and the character of
the proprietary title of the Plaintiff, and, consequently, the character of
the possession of the Defendant Nos. 6 and 7, the institution of the Suit
on 28th May 2010 can be said to be within the stipulated period of
limitation.
12. Mr. Bhandari, the learned Counsel for the Defendant Nos. 6
and 7, fairly submitted that so far as the initial cause of action pleaded
by the Plaintiff premised on the alleged dispossession of the Plaintiff
and recovery of possession of the annex block and the open
spaces/garden, the institution of the Suit on 28 th May 2010 was within
the period of limitation as in that event the provisions contained in
Article 64 of the Limitation Act would have governed the Suit.
13. Mr. Bhandari would, however, urge that the subsequent
amendments to the Plaint in the year 2010 and 2011 rendered the Suit
barred by limitation. It was forcefully submitted by Mr. Bhandari that
the net effect of the aforesaid amendments was that the theory of
forceful dispossession on the night of 14th/15th April 2008 was
completely given up by the Plaintiff.
14. In the 2010 amendment, with regard to the annex block,
the Plaintiffs have admitted that they were never in possession of the
annex block right from the initial allotment to Mrs. Sayeeda Rauf. Vide
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amendment of the year 2011, the Plaintiffs have substantially altered
the cause of action from "forcible dispossession by Defendant No. 6" to
taking, "complete control of the open space/garden on the night of
14th/15th April 2008".
15. Mr. Bhandari would further urge that, the Plaintiff has to
surmount a further impediment to sustain the Suit claim on the basis of
proprietary title as the Plaintiff has not sought the relief of declaration
of title on the basis of the Deed of Conveyance dated 26 th May 1965
registered with Sub-Registrar of Assurances. Therefore, in the absence
of prayer for declaration of title, the Suit for the reliefs of possession
and injunction is not maintainable. Reliance was sought to be placed on
the decisions of the Supreme Court in the cases of Anathula Sudhakar
Vs P Buchi Reddy (Dead) By LRs and Ors1 and Kayalulla Parambath
Moidu Haji Vs Namboodiyil Vinodan.2
16. Mr.Bhandari would urge that as the Plaintiffs have
subsequently claimed that the Suit is based on title and the source of
title is the Deed of Conveyance dated 26th May 1965, the period of
limitation would begin to run from the year 1965. Therefore, the Suit is
barred by limitation.
17. Mr.Shah, the learned Counsel for the Plaintiff submitted
that the Suit is indeed based on the title of the society over the Suit
1 (2008) 4 SCC 594.
2 2021 SCC OnLine SC 675.
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property. Since there was no cloud on the title of the Plaintiff over the
Suit property, the Plaintiff was not at all required to seek a specific
prayer of declaration of title. In any event, Mr. Shah would urge, it was
never the case of the Defendant Nos. 6 and 7 that the possession of
Defendant Nos. 1 to 5, or for that matter Mrs. Sayeeda Rauf, in respect
of the open space/garden was adverse to that of the Plaintiff. Therefore,
the bar of limitation sought to be canvassed by Mr. Bhandari in a
convoluted manner, is unsustainable.
18. It is necessary to note as far as the prayers of declaration
contained in prayer clause (a). i.e., validity of the Sale Deed dated 30 th
May 2007 (Exhibit "D/59"), prayer clause (b), i.e., the Defendant Nos. 6
and 7 are the rank trespassers in respect of the annex block and open
space/garden and prayer clause (d), i.e., Defendant Nos. 6 and 7 have
no exclusive right, the institution of the Suit is clearly within the
stipulated period of limitation as the aforesaid claims for declaration
would be governed by Article 54 of the Limitation Act.
19. Incontrovertibly, the rights of the Defendant Nos. 6 and 7
in the Suit properties stem from the Sale Deed dated 30 th May 2007
(Exhibit "D/59") and the possession receipt (Exhibit "D-60"). The
institution of the Suit on 28th May 2010 qua the aforesaid reliefs is thus
clearly within the period of limitation. The reliefs of injunction and
possession appear to be essentially consequential.
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20. Mr.Shah is justified in canvassing a submission that in the
absence of a specific case that the possession of Defendant Nos. 1 to 5
and Mrs. Sayeeda Rauf was adverse to that of the Plaintiff, a Suit for
recovery of possession based on title would not be barred by law of
limitation.
21. However, as the core controversy revolves around the
extent of the property sold to Mrs. Sayeeda Rauf by NHC, and in
particular, whether Flat No.1 comprised the open space/garden and the
annex block and the nature and character of possession of the
predecessors-in-title of the Defendant Nos. 6 and 7, those issues would
be dealt with a little latter. Subject to the consequences that ensue such
determination, the issue of limitation is required to be answered in
favour of the Plaintiff. Thus, Issue No.1 is answered in the negative.
Issue Nos.3 and 8 :
22. The Plaintiff's claim is required to be appraised in two
parts. First, the annex block shown in yellow colour, and the open
space/garden shown in red colour in the plan Exhibit "A" to the Plaint.
The evidence on these two components of the Plaintiff's claim, though,
at times overlaps, is, yet, capable of being appraised independently.
23. The controversy with regard to the annex block revolves
around the question as to whether the annex block did form part and
parcel of the Flat No.1, since Flat No.1 was allotted to Mrs. Sayeeda
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Rauf. The broad case of the Plaintiff is that, the annex block was in fact
the parking space and the Defendant Nos. 6 and 7 have unlawfully
converted the said parking space for residential purpose.
24. Mr. Shah would urge that the fact that the annex block
does not form part of Flat No.1 is borne out by the plan (Exhibit "P-
1/37"), submitted on behalf of the Defendant to the Municipal
Corporation, wherein the space where the annex block is situated is
shown as parking space. The Flat No.1 and the annex block are at
different levels. From the plan it becomes evident that there was no
access to the alleged annex block from Flat No.1. Taking the Court
through the evidence of the Plaintiff's witnesses, Mr. Shah endeavoured
to impress upon the Court that the Plaintiff has adduced adequate
evidence to prove the illegal conversion of three parking lots into two
residential rooms by Defendant Nos. 6 and 7.
25. In opposition to this, Mr. Bhandari would submit that the
claim of the Plaintiff that the Defendant Nos. 6 and 7 have illegally
converted the parking lots into annex rooms is a creature of an
afterthought. At no point of time prior to February/March 2010, the
Plaintiff had ever raised the issue of the alleged illegal conversion of the
parking lots into the annex rooms. In fact, the Plaintiff, in
contemporaneous judicial proceedings, had referred to the said area as
annex rooms. Attention of the Court was invited to averments in Writ
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Petition No. 2150 of 2009 in respect of the alleged illegal repairs and
renovation by Defendant No. 6 and Cooperative Court Dispute No. CC-
II572/2008 (High Court Suit No. 196 of 2021), and the pleadings and
Affidavits filed in the proceedings before the Registrar of Cooperative
Societies to bolster up the submission that in those proceedings, on the
one hand, annex block was referred to as the annex rooms and, on the
other hand, no dispute was raised that the Defendant Nos. 6 and 7 had
illegally converted the parking lots into the living rooms. It was only in
the Affidavit in Rejoinder dated 22nd Mach 2012 filed in Writ Petition
No. 2150 of 2009, the issue of alleged illegal conversion was sought to
be agitated.
26. Mr. Bhandari would submit that, the said contention is
based on a copy of the proposed plan (Exhibit "P-1/37") submitted by
the Defendant No. 6's Architect and not a sanctioned plan of the first
floor of the building. Despite notice to produce the sanctioned plan,
Plaintiff and its witnesses have failed to produce the same.
27. Mr.Bhandari would further urge that, the Defendant Nos. 6
and 7 have adduced overwhelming evidence to show that the annex
block always formed part and parcel of Flat No.1 in the form of
maintenance bills raised by the Plaintiff, the inspection extracts issued
by the BMC and the building permission granted by the BMC for repairs
of the annex block.
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28. At any rate, the issue of illegal conversion of the parking
lots into annex rooms stands concluded by the order dated 26 th July
2010 of the Division Bench of the High Court in Writ Petition No. 2150
of 2009. Neither the Plaintiff has assailed the said order of dismissal of
the Writ Petition nor the Plaintiff has challenged the regularization
order dated 29th September 2009 (Exhibit "D98") despite liberty having
been reserved to the Plaintiff by the said order dated 26 th July 2010.
The finding on the said issue would thus operate as res-judicata, urged
Mr. Bhandari.
29. The controversy essentially boils down to the question as to
whether the annex block formed part and parcel of Flat No.1. To
explore an answer, the starting point would be, the Plaintiff's case as to
what was allotted to Mrs. Sayeeda Rauf by NHC. The Plaintiff banks
upon the Application for Registration (Exhibit "P1/31") and list of
members annexed thereto. In the said list of members the name of Mrs.
Sayeeda Rauf finds place at Sr. No.1 as the allottee of Flat No.1 and
area of the flat is 1750 sq yards and Garages Nos. 12 and 13
admeasuring 384 sq. yards. There is evidence to indicate that the flats
on the upper floor of Flat No.1 admeasured 1400 sq ft each.
30. Evidently, in the Application for registration, an area of
384 sq yards was shown to have been consumed by Garage Nos. 12 and
13, which were allotted to Mrs. Sayeeda Rauf. The Garage Nos. 12 and
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13 were thus shown independent of the area of 1750 sq yards of main
Flat No.1. If the claim of the Plaintiff is correctly appraised, it becomes
clear that the Plaintiff desired to assert that apart from these Garage
Nos. 12 and 13, the Defendant Nos. 6 and 7 have illegally converted the
parking lots for the residential purpose.
31. From the tenor of the pleadings of the Plaintiff, it also
becomes quite evident that the acts of conversion of the parking lots
into residential premises have been attributed to Defendant Nos. 6 and
7 and not to their predecessors-in-title. Keeping this construct of the
Plaintiff's claim the case set up by the Plaintiff is required to be
appreciated.
32. In paragraph 4b(i), the Plaintiff has averred that the annex
block was used by Mrs. Sayeeda Rauf and, thereafter, by Bhatias, and
the Bhatias thereafter gave possession thereof to Defendant No. 6. The
annex block was a garage. The Defendant No. 6 has lowered the plinth
level and converted garage into two rooms and, thus, Defendant Nos. 6
and 7 are the trespassers qua annex block Nos. 6 and 7. In paragraph 9
of the Plaint, by way of amendment, the Plaintiff have deleted the
"three parking lots" from the property which was allegedly illegally and
unlawfully grabbed by the Defendant on the midnight of 14 th and 15th
April 2008.
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33. A conjoint reading of the aforesaid averments in the Plaint
would lead to an inference that the Plaintiff concedes that the annex
block has been in the possession of Mrs. Sayeeda Rauf, the original
allottee, and her transferee, the Bhatias, the predecessor-in-title of the
Defendant Nos. 6 and 7. Conversely, the case that Defendant Nos. 6
and 7 trespassed into the annex block is given up.
34. It is in this context, the veracity of the allegation that
Defendant Nos. 6 and 7 have illegally converted the parking lots into
residential premises deserves to be examined.
35. As noted above, the said allegation appeared to have been
made for the first time in the Affidavit in Rejoinder filed in the month of
March 2010 in Writ Petition No. 2150 of 2009. Prior to the said
Affidavit in Rejoinder, in the Writ Petition No. 2150 of 2009, the
Plaintiff had furnished the description of Flat No.1 as under :
"the Compound of the building on the ground floor level is
raised to abut the first floor flat along with an annex block
with garage abutting the first floor flat (the first floor flat
along with garage and annex block is hereinafter referred to
as the "the said flat)"
36. The Plaintiff had thus described the very suit property in
three distinct components, flat, garage and annex block. At that stage,
the Plaintiff had not asserted that the annex block was formed by
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garage and the Defendant Nos. 6 and 7 had illegally converted the
garage into the annex block.
37. The aforesaid averments, coupled with the averments in
the pleadings/Affidavits in the contemporaneous proceedings, wherein
the case of illegal conversion of the parking lots into the annex block
was not pleaded, in a sense, constitute judicial admissions which stand
on a higher pedestal than the evidentiary admissions (Nagindas Ramdas
V Dalpatram Ichharam3).
38. It is imperative to note that the amended Plaint also, it was
not the case of the Plaintiff that the annex block was in the nature of
garages while it was in the possession of Mrs. Sayeeda Rauf and
Bhatias. Instead, it was asserted that Mrs. Sayeeda Rauf and Bhatias
were in possession of the annex block and the same was delivered to
the Defendant No. 6 by Bhatias.
39. Thus, case of the Plaintiff as regards the alleged illegal
conversion of the parking lots into annex block for residential purpose,
is belied by the pleadings.
40. The thrust of the Plaintiff's case is that though the Deed of
Conveyance was executed on 30 th May 2007, yet, the Defendant No. 6
was not put in possession of the suit premises as the Plaintiff-society
had declined to transfer the share certificate in respect of Flat No.1. To
exert pressure on the Plaintiff-society and its office bearers the
3 (1974) 1 SCC 242.
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Defendant No. 6 had lodged a false complaint with police on 18 th March
2008, and with a view to forcibly take possession of the Suit premises,
the Defendant No. 6 had made another false complaint that the
Defendant No. 6 was in possession of the annex block and open
space/garden and the Plaintiff had allegedly broken open the locks put
up by Defendant No. 6 on the gate leading to the open space/garden
and carried out repairs without permission of Defendant Nos. 6 and 7.
Taking undue advantage of the said false complaint, the Defendant No.
6, on the night intervening 14th and 15th April 2008 broke open the
locks and unlawfully grabbed the possession of the annex block and
open space/garden.
41. The aforesaid case was sought to be established primarily
on the basis of the oral evidence of Sunil Lulla (PW-1), Mona Doctor
(PW-2) and Hiten Jhaveri (PW-3) and the purported admissions elicited
in the cross-examination of Defendant No. 6 (DW-1). Mr. Bhandari
would submit that, the entire story with regard to the forcible
dispossession of the Plaintiff on the night intervening of 14 th and 15th
April 2008 stood completely disowned and discredited by the pleadings
of the Plaintiff which were clearly mutually destructive.
42. Attention of the Court was invited to the averments in
paragraph 4(b)(i), 5(b), 5(f), 9 and 4(w) of the Plaint. The Plaintiffs
have in fact admitted that the predecessor-in-title of the Defendants
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have been in possession of the annex block and its possession was
handed over by the Bhatias to the Defendant No. 6. The ocular account
sought to be pressed into service by the Plaintiff was also stated to be
bereft of any evidentiary value as neither Sunil Lulla (PW-1) nor Mona
Doctor (PW-2), Hiten Jhaveri (PW-3) or Shrenik Mehta (PW-4) had
witnessed the alleged occurrence of dispossession on the night
intervening 14th and 15th April 2008. Mr. Bhandari would urge the
Plaintiff-society had not raised the grievance of alleged forcible
dispossession on the night intervening 14th and 15th April 2008,
immediately. Had the society been dispossessed of a sizeable portion of
its property, it would not have maintained silence for over one and half
month, urged Mr. Bhandari.
43. Mr.Bhandari placed reliance on the decisions of the
Supreme Court in the case of Devasahayam (dead) by LRs V/s. P.
Savithramma and Ors.4 and a judgment of this Court in the case of
Shyamlal Biharilal Pandey V/s. Reliance Infrastructure Ltd. and Ors. 5 to
lend support to the submission that mutually destructive pleas are not
permissible. In the case of Devasahayam (supra), the Supreme Court
observed that a party to the lis cannot raise pleas which are mutually
destructive, but ordinarily inconsistent defences can be raised. In the
case of Shyamlal Biharilal Pandey (supra), the learned Single Judge of
4 (2005) 7 SCC 653
5 2009(2) Mh.L.J. 204
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this Court enunciated that, it is true that alternative pleas are
permissible. However, alternative pleas may not be mutually
destructive. In the facts of the said case, it was held that the plea of
tenancy and plea of adverse possession cannot co-exist and they are
mutually exclusive.
44. Mr.Shah, learned Counsel, on the other hand, would urge
that the case set up by the Plaintiff cannot be said to be inconsistent or
mutually destructive. Even otherwise, it is permissible for the Plaintiff
to pray for the alternative reliefs which may be inconsistent with one
another. At any rate, according to Mr. Shah, the doctrine of relation
back would come into paly and once the plaint was permitted to be
amended, the amendment would relate back to the institution of the
suit and the evidence is required to be appreciated in the light of the
averments made in the amended plaint.
45. To bolster up the aforesaid submissions, Mr. Shah placed
reliance on the judgments in the cases of Firm Sriniwas Ram Kumar
V/s. Mahabir Prasad and Ors.6 Deochand and Ors. V/s. Mt. Parwatibai 7,
Siddalingamma and Anr. V/s. Mamtha Shenoy 8 and Sampath Kumar
V/s. Ayyakannu and Anr.9
6 AIR (38) 1951 SC 177
7 AIR (39) 1952 Nagpur 115
8 (2001) 8 SCC 561
9 (2002) 7 SCC 559
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46. In the case of Firm Sriniwas Ram Kumar (supra), the
Supreme Court enunciated that the fact that one prayer would have
been inconsistent with the other prayer is not really material. The
Plaintiff may rely upon different rights alternatively and there is nothing
in the CPC to prevent a party from making two or more inconsistent sets
of allegations and claiming relief thereunder in the alternative.
47. In Siddalingamma and Anr. (supra), the Supreme Court
postulated that, on the doctrine of relation back, which generally
governs amendment of pleadings unless for reasons the Court excludes
the applicability of the doctrine in a given case, the petition for eviction
as amended would be deemed to have been filed originally as such and
the evidence shall have to be appreciated in the light of the averments
made in the amended petition.
48. Following the aforesaid pronouncement, in the case of
Sampath Kumar (supra), the Supreme Court reiterated that the
amendment once incorporated relates back to the date of the suit.
However, the doctrine of relation-back in the context of amendment of
pleadings is not one of universal application and in appropriate cases
the Court is competent while permitting an amendment to direct that
the amendment permitted by it shall not relate back to the date of the
suit and to the extent permitted by it shall be deemed to have been
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brought before the court on the date on which the application seeking
the amendment was filed.
49. There can be no duality of opinion on the propositions
which were pressed into service by Mr. Shah. However, though a party
is permitted to take inconsistent pleas, yet, when the inconsistency in
the pleadings is such that one set of assertions works out the retribution
of another set of assertions, the position cannot be salvaged by
canvassing a submission that the party is permitted to make inconsistent
assertions. If the degree of inconsistency is such that one works out the
retribution of another, the inconsistencies in pleadings dent the veracity
of the claim.
50. The facts in the case at hand, in regard to the theory of
dispossession of the Plaintiff, appear to fall in the category of cases
where one inconsistent statement works out the retribution of another.
51. The variance in the pleadings resulting in an admission of a
state of facts becomes evident from a bare perusal of the averments in
the Plaint. In paragraph 4(b)(i), as noted above, the Plaintiff admitted
that the annex block was used by Mrs. Sayeeda Rauf and, thereafter, by
Bhatias and the latter had given possession thereof to Defendant No. 6.
Yet a case that the Defendant No. 6 had illegally dispossessed the
Plaintiff of the annex block on the night intervening 14 th and 15th April
2008, was sought to be pursued. Curiously, in paragraph 9 of the Plaint
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by way of amendment, the allegation of illegal and unlawful usurpation
was given up qua the three parking lots (annex block).
52. The manner in which the Defendant No. 6 allegedly
unlawfully dispossessed the Plaintiff is also not free from infirmities. In
paragraph 5(f) of the Plaint, it was asserted that the Defendant No. 6
along with six persons threatened the security guards and forcibly took
from them the key of the gate, broke open the original locks and
committed trespass and, thereafter, put his own locks. In contrast, in
paragraph 9 it was affirmed that the Defendant No. 6 with the help of
police machinery grabbed the open space/garden. By way of
amendment (carried out on 30th September 2010), the Plaintiff
propounded a case that though the Defendant No. 6 had put his own
locks forcibly and illegally on the collapsible gate, yet he did not have
complete control over the open space/garden and on the night
intervening 14th and 15th April 2008, the Defendant No. 6 took complete
control over the open space/garden by breaking open the locks. After
14th and 15th April 2008, the access of the society to the compound was
totally blocked.
53. Interestingly, the Plaintiff had initially asserted that to
retain illegal possession over the open space/garden, the Defendant No.
6 had lodged a complaint with police on 18th March 2008.
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54. The aforesaid pleadings would indicate that the case of the
Plaintiff with regard to the possession over and dispossession from the
suit premises wavered from one end to another. At one stage, it was
asserted that with a view to retain possession a false complaint was
lodged. At another stage, an endeavour was made to show that the
theory of dispossession on the night intervening 14 th and 15th April 2008
was restricted to open space/garden and the annex block had always
been in the possession and enjoyment of the predecessor-in-title of the
Defendant No. 6, right from the first allottee Mrs. Sayeeda Rauf. Even
with regard to the manner in which, and with the assistance of whom,
the Plaintiff was allegedly dispossessed, the Plaintiff's case appears to
be materially discrepant. In one breath, it was asserted that the
Defendant No. 6 took assistance of antisocial elements. At another
breath, the police machinery was stated to be in cahoots with the
Defendant No. 6 in dispossessing the Plaintiff.
55. The oral evidence is equally unsatisfactory. Sunil Lulla (PW-
1) claimed to have learnt about the incident in question from some
members of the society. Sunil Lulla (PW-1) went on to admit that at
least on 5th June 2007, he was aware that the Defendant No. 6 has put
his own locks to both the gates of the garden (Question No. 273). Mona
Doctor (PW-2) conceded that she had no personal knowledge about the
incident that occurred on the night of 14th and 15th April 2008. Hiten
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Jhaveri (PW-3) also conceded that he had neither witnessed the
incident nor heard the commotion on the night intervening 14 th and 15th
April 2008. None of the witnesses appear to have any personal
knowledge about the alleged dispossession of the Plaintiff-society on the
night intervening 14th and 15th April 2008.
56. Mr. Shah submitted that the Defendant No. 6 (DW-1)
conceded that he was not put in possession of the entire Suit premises
on 30th May 2007. During the course of the cross-examination of the
Defendant No. 6 (DW-1), an effort was made to show that though the
Sale Deed was executed on 30 th May 2007, the Defendant No. 6 had
applied for the transfer of the share certificate till 4 th March 2008 and,
in the intervening period, the society had obstructed the Defendant No.
6 in the exercise of possessory rights over the Suit premises. What
Defendant No. 6 (DW-1) conceded was that the society blocked ingress
of his employees and workmen (Question 311). This admission, even if
construed liberally, would not necessarily imply that the Defendant No.
6 was not in possession of the Suit premises and, therefore, took
forcible possession thereof on the night intervening 14 th and 15th April
2008.
57. What significantly dents the Plaintiff's claim is the absence
of any contemporaneous remedial steps on behalf the society. It defies
comprehension that society, which was allegedly dispossessed of an
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open space/garden admeasuring about 1900 sq ft and the annex block,
would have maintained a stoic silence. It does not appear that any
Special General Meeting of the society was convened to address the
critical situation. The absence of precipitative steps is plainly
inexplicable.
58. I am, therefore, inclined to hold that the Plaintiff failed to
establish that the Defendant No. 6 took forcible possession of the annex
block and the open space/garden on the night intervening 14 th and 15th
April 2008.
59. The Issue Nos.3 & 8 are, therefore, answered in the
negative.
ISSUE NOS. 4, 6 AND 7 :
60. The proprietary and possessory title of the predecessor-in-
title of Defendant No. 6 over the Suit premises can be conveniently
appraised in three parts. First, the Flat No.1 without any appurtenant
land or annex as shown in green in the plan Exhibit "A". Second, the
annex block as shown in yellow, and, third, the open space/garden
purportedly admeasuring 1900 sq ft as shown in red in the said plan.
61. On the aspect of the proprietary and possessory title over
the Flat No.1 as such, the controversy no more survives.
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62. With regard to the annex block also, by and large, the
Plaintiff has admitted, in the least, the possession of Mrs. Sayeeda
Rauf and Bhatias, the predecessor-in-title of the Defendant No.6.
63. Mr. Shah would urge that the Plaintiff cannot be said to
have admitted the exclusive possession of Mrs. Sayeeda Rauf and
Bhatias.
64. In contrast, inviting the attention of the Court to the
averments in paragraph 4 (b)(1) and paragraph 9 of the Plaint, Mr.
Bhandari would urge that the Plaintiff has admitted the possession of
Mrs. Sayeeda Rauf and, thereafter, Bhatias throughout.
65. The relevant averments in paragraph 4(b)(1) read as
under :
"The Plaintiffs-Society desires to know in whose favour
the title of the said annexe block stands. The Plaintiffs-
Society however state that the said annexe block was
used by Mrs. Sayeed Rauf and thereafter by Bhatias and
Bhatias have thereafter given possession to the
Defendant No. 6. The Plaintiffs-Society stat that since
the Plaintiffs-Society do not have earlier Agreements
and since the plan shows parking lots whereas the
contention of Defendant No. 6 that they are annexe
rooms according to BMC extracts, the Plaintiffs-Society
are unable to digest as to how parking lots were
converted into annexe rooms and the Plaintiffs-Society
are relying upon the Plan which is submitted by the
Architect of Defendant No. 6. The Plaintiffs-Society say
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that it appears that the possession of the annexe block
was taken by Defendant No. 6 from Bhatias."
66. The aforesaid averments in the Plaint indicate that, at
best, the Plaintiff has made an attempt to feign ignorance and express
surprise as to how the predecessor-in-title of the Defendant No. 6 laid
claim over the annex block. The assertion that the Plaintiff-society
desired to know in whom title to the said annex block vests betrays a
sense of uncertainty and indicates that Plaintiff was unsure about its
rights over the annex block.
67. What follows erodes the Plaintiff's claim as to possession
over the annex block, irretrievably. The Plaintiff has categorically
admitted that the annex block were being used by Mrs. Sayeeda Rauf
and, thereafter, by Bhatias. The Plaintiff does not stop at that. It is
averred that Bhatias, thereafter, gave possession of the annex block to
the Defendant No. 6. The said assertion is reiterated in the last
sentence of paragraph 4(b)(i) (extracted above). These averments in
the Plaint constitute a clear and categorical admission of the factum of
possession of annex block with Mrs. Sayeeda Rauf and, thereafter,
Bhatias.
68. The submission of Mr. Shah that the aforesaid averments
in paragraph 4(b)(i) do not constitute an admission as the Plaintiff has
not explicitly admitted the exclusive possession of the predecessor-in-
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title of the Defendant No. 6 over the annex block is clearly against the
weight of the pleadings. The annex block, even otherwise, did not
admit of a common possession and enjoyment. Therefore, the
endeavour of Mr. Shah to wriggle out of the situation cannot be
countenanced.
69. If at all there was any doubt about the stand of the
Plaintiff with regard to the annex block, the same stood cleared by the
amendment in paragraph 9 of the Plaint. Initially, the Plaintiff asserted
in paragraph 9 that on the night intervening to 14 and 15 th April 2008,
the Defendant Nos. 6 & 7 illegally and unlawfully with the help of
police machinery grabbed the open space/garden and three parking
lots, marked in yellow and red colour. By way of amendment, the
Plaintiff chose to delete the symbol and figure and words, "& 7", "3
parking lots" and "yellow and". By this amendment the Plaintiff plainly
withdrew its claim that on the night intervening 14 and 15 th April
2008, the Defendant Nos. 6 and 7 had illegally and unlawfully
obtained possession of the annex block, which was designated by the
Plaintiff as three parking lots.
70. In the face of the aforesaid pleadings, no amount of
evidence, primarily ocular, sought to be adduced by the Plaintiff to
establish that the annex block did not form part of Flat No.1 and the
Society was in possession of the annex block and not the predecessor-
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in-title of the Defendant No. 6, would be of any significance. Moreover,
in the face of the aforesaid pleadings and the documentary evidence,
the oral evidence does not command any preference.
71. This leads me to the third component of the Suit premises,
i.e., open space/garden. To substantiate the defence that the
predecessor-in-title of the Defendant Nos. 6 and 7 have been in lawful
and exclusive possession of the open space/garden, the Defendants
have relied upon the evidence of Mushtaq Rauf (DW-2), the son of Mrs.
Sayeeda Rauf, and Prem Surinder Singh (DW-5) and Sayeeda Shakoor
Khan (DW-6), the residents of the Plaintiff-society.
72. In contrast, the Plaintiff attempted to disprove the factum
of possession by banking upon the evidence of Sunil Lulla (PW-1) and
Mona Doctor (PW-2). In addition, the parties have banked upon
documents which they reckoned establish the factum of possession.
Having regard to the nature of the dispute, the oral evidence may not
have the sustainability to bear the weight of the finding one way or the
other.
73. A reference to the documentary evidence may, therefore,
become necessary. First, the conveyance executed by the Bhatias in
favour of Defendant No. 6 (Exhibit "D/59"). Bhatias (D1 to D5), it
appears, were quiet clear as to what they professed to convey under
the said Sale Deed. In recital (c), the Defendant Nos. 1 to 5 claimed
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that attached to the Flat No. 1 there were open space/garden
admeasuring 1900 sq ft, which has been in the exclusive and
uninterrupted use, possession and enjoyment of Mrs. Sayeeda Rauf and
the Bhatias since the year 1963. Consistent therewith Defendant Nos. 1
to 5 agreed to sell, transfer, assign and convey to the Defendant No. 6,
the Flat No.1 together with annex block consisting of two rooms and
bathroom totally admeasuring 2410 sq ft and one closed garage
admeasuring 250 sq ft, and, one stilt parking No. 10, admeasuring 140
sq ft.
74. The schedule to the property, appended to the said Sale
Deed, also does not refer to the open space/garden as the property
thereunder conveyed by the Bhatias to the Defendant No. 6. The
Defendant Nos. 1 to 5 however acknowledged that they had handed
over to the transferee, vacant and peaceful possession of the open
space/garden admeasuring 1900 sq ft attached to the said premises. It
is in the aforesaid context, the possession receipt (Exhibit "D/60") is
required to be considered.
75. Under the said possession receipt (Exhibit "D/60"),
Defendant Nos. 1 to 5 confirmed the delivery of possession of Flat No.
1 together with annex block, one closed garage and one stilt parking
bearing No.1 and that the Defendant Nos. 1 to 5 have also given vacant
and peaceful possession of the open space/garden adjoining the
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aforesaid premises. They had also delivered the keys of the locks on the
garden gates, outside entrances to the said open space/garden to the
Defendant No. 6 and no other persons/members of the society had any
key to any of the said outside gate entrance of the open space/garden.
76. Mr. Shah would urge that, the aforesaid instruments under
which the Flat No. 1 was conveyed and the possession of the open
space/garden was allegedly delivered to the Defendant No. 6 are of no
assistance to the Defendant Nos. 6 and 7. The Deed of Conveyance
(Exhibit "D/59"), Mr. Shah would urge, categorically records that the
said open space/garden was never professed to be sold by Bhatias to
the Defendant No. 6. The claim of the Bhatias that they were in
exclusive possession and enjoyment of the open space/garden is belied
by the correspondence that was exchanged between the Defendant
Nos.1 to 5, on the one part, and Defendant No. 6, on the other part,
before the execution of the Deed of Conveyance. In the said
correspondence especially Exhibit "PW1/18", it was clearly recorded
that not only the Defendant Nos. 1 to 5 had no title over the open
space/garden but they were not even in exclusive possession of the
said open space/garden.
77. In the said communication dated 5th July 2006 addressed
on behalf of the Defendant Nos. 1 to 5 to the Defendant No. 6, the
Defendant Nos. 1 to 5 claimed that they had not purchased the Flat No.
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1 along with garden being on East & North side of the said flat under
the Agreement dated 5th December 1972 executed by Mrs. Sayeeda
Rauf in favour of Sitabai Bhatia. Therefore, they cannot sell the open
space/garden, as it was not purchased by the Defendant Nos. 1 to 5.
However, the Defendant Nos. 1 to 5 also asserted that they had been
using the said open space/garden from the date of purchase.
78. The submission of Mr. Shah that the Defendant Nos. 1 to 5
did not claim in the said letter dated 5 th July 2006 (Exhibit "PW1/18")
that they were not in possession of the said open space/garden is not
borne out by the said communication. Mr. Shah attempted to draw
home the point that Defendant Nos. 1 to 5 did not claim that they were
in exclusive possession of the open space/garden.
79. A further communication on behalf of Defendant Nos. 1 to
5 in response to the letter of Defendant No. 6, dated 18 th July 2006,
makes the position of the Defendant Nos. 1 to 5 absolutely clear. In
paragraph 2 of the said letter (Exhibit "PW-1/19), the Defendant Nos.
1 to 5 categorically contended that they have been exclusively using
the garden and passage from the date of purchase of the said Flat No.1
onwards but to state that they were the owners of the said garden was
not correct. The Defendant Nos. 1 to 5 never represented to the
Defendant No. 6 that the open space/garden belonged to the
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Defendant Nos. 1 to 5. What was stated was that they were exclusively
using the said open space/garden (Paragraph 4).
80. If the recitals and covenants in the Deed of Conveyance
(Exhibit "D/59") are read, as a whole, it becomes evident that they are
consistent with the stand of the Defendant Nos. 1 to 5 as is evincible
from the correspondence (Exhibits "P-1/18" and "P-1/19") which
preceded the execution of the Deed of Conveyance (Exhibit "D/59").
81. Mr. Shah would urge that the Defendant Nos. 1 to 5 have
not appeared before the Court and contested the claim of the Plaintiff
and, therefore, the defence of the Defendant Nos. 6 and 7 that their
predecessor-in-title were in exclusive possession of the open
space/garden cannot be accepted. The non-appearance of the
Defendant Nos. 1 to 5 after having divested themselves of their interest
in the Suit premises is understandable. Therefore, the issue of exclusive
and lawful possession of predecessor-in-title of the Defendant Nos. 6
and 7 cannot be determined on the basis of non-contest on the part of
the Defendant Nos. 1 to 5.
82. Landscape of the Suit premises assumes importance.
Evidently the open space/garden appears to be on a raised slab put in
alignment with the Flat No.1. The doors of Flat No.1 directly open on
to the open space/garden. The annex blocks were accessible from
inside the Flat No.1.
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83. The manner in which Sunil Lulla (PW1) and Mona Doctor
(PW 2) fared in the cross-examination in regard to the situation of
open space/garden and the access thereto deserves to be appreciated.
Mr. Sunil Lulla, (PW1) conceded in the cross-examination that there
were aesthetic fixtures and garden furniture, including flooring and
stairs which cover the original flooring and stairs. There was also an
awning which was supported, facing Nepean Road. There were stairs
leading to a covered area which would also be a room. There was a
grill leading to electric and plumbing fixtures. In the late 1960s/early
1970s there was playpen or kennel like structure (Answers to
Questions 43 and 44). Sunil Lulla (PW-1) further stated that he faintly
recalled that the resident of the flat No.1 and the garden space had a
dog.
84. To a pointed question (Question No. 68), Sunil Lulla (PW-
1) conceded that two accesses were available for the resident of Flat
No.1 to the garden space. It would be contextually relevant to note that
the Defendant No. 6 pressed into service the photographs (Exhibits
"D/105", "D/107" and "D/109" which show the existence of kennel in
the said open space/garden.
85. Mr. Mushtaq Rauf (DW2), the son of Mrs. SayeedaRauf,
also deposed to the existence of artifacts and garden furniture
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including the kennel while he used to occupy the Flat No.1 along with
his mother and aunt, who was a famous actress.
86. True the veracity and reliability of the oral testimony of
the witnesses in regard to the situation then obtained and the events
those transpired prior to 40 odd years, may be debatable. However, it
is not the mere ocular account on the strength of which the issues are
required to be determined. The infirmities with which the testimony of
defence witnesses suffers, also taint the veracity of the claim of the
witnesses for the Plaintiff.
87. Mona Doctor (PW-2) endeavoured to impress upon the
Court that she along with Sunil Lulla (PW-1) and Ramon Kriplani used
to play in the garden/open space, and there was no wall between what
the Defendant No. 6 calls "annex block" and the adjoining ground and
particularly the open space.
88. Though Mona (PW-2) did not concede to the suggestion
that the Rauf family or the children in the Rauf family would never
permit any children of the building to run around the open
space/garden and/or to enter the said open space/garden area of Flat
No.1, yet added that the film actress used to welcome the children and
she would go and play in the open garden. Mona (PW-2) claimed that
she must have been between 4 to 6 years old at that time.
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89. Such being the quality of the oral evidence, on both the
sides, in my considered view, the Issue Nos. 6 and 7 are required to be
decided on the basis of broad probabilities of the case.
90. It is pertinent to note that apart from the photographs of a
sweeper of the society, no other material could be placed on record by
the Plaintiff to demonstrate that the Plaintiff-society had been using the
open space/garden, at any point of time for any purpose. A period of
over 40 years is too long not to afford the society to have evidence to
show that the members of the society or their children were using the
open space/garden as a common or compulsory open space. If the
open space/garden was put to the common use and enjoyment, say for
functions and celebrate festivals or events or for any social gathering,
there must have been evidence to establish such user.
91. In the absence of such contemporaneous evidence, the
landscape of the open space/garden, free access thereto to the
occupant of the Flat No.1 and, conversely, no direct access to the other
members of the society except through a small entry, which could be
controlled by the occupant of Flat No. 1, lend support to the claim of
Defendant Nos 6 and 7. The evidence is required to be appreciated
keeping in view the fact that the famous actress used to occupy the Flat
No.1. To ensure her security and privacy, the open space/garden, as
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claimed by the Defendants, was used by Mrs. Sayeeda Rauf and her
family.
92. The manner in which the Plaintiff-society had assessed its
position qua the open space/garden also throws light on the factum of
possession and enjoyment of the open space/garden. In the Chairman's
Report dated 30th July 2006 (Exhibit "D-57"), it appears that the then
Chairman had then apprised the other members that, the occupant of
Flat No.1 (Bhatia) though agreed that the open space/garden adjacent
to his flat belonged to the society but since it was in exclusive use of
the said member/occupant since 35 years and hence did not want to
surrender the open space back to the society. Though the society had
asserted its proprietary rights over open space/garden, it does not
appear that, even at that stage, the fact that Bhatias were in possession
of the open space/garden was explicitly refuted.
93. In the Resolution passed in the AGM held on 30 th July
2006 (Exhibit "P1/43"), relied upon by Mr. Shah to demonstrate that
the Bhatias had then not contested the claim of the society, it is
pertinent to note that, the discussion on the Agenda Item 11 records
that, Kiranjit Bajaj had thrown light on the past history of open space
adjoining to Flat No.1 and how it was under the use of present
occupant member (Bhatias) and the then occupant member ( Mrs.
Sayeeda Rauf). Bajaj stated that the said open space was also under the
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common use of the society members and their children. Post discussion
it was decided that management can issue No Objection Letter only for
transfer of shares in respect of concerned flat. Open space should be
kept open for the common use by the society members.
94. I am afraid, the aforesaid Resolution No.11 in the 42 nd
AGM dated 30th July 2006 advances the cause of the submission of Mr.
Shah to the extent desired. On the contrary, the discussion under
Agenda Item 11 underscores the fact that Mrs. Sayeeda Rauf and
thereafter Bhatias were in use and occupation of the open
space/garden.
95. Lastly, there is a communication addressed by BMC on 5 th
September 1986 to Sitabai Bhatia (Exhibit "D/53") whereby, Sitabai
Bhatia was informed that as per the then policy of the BMC, work
proposed by the Bhatia, i.e., shed in the rear open space of her flat was
not permissible. This implies that Bhatia asserted possessory right over
the open space/garden and had sought permission to erect a shed
therein which was then refused by the BMC.
96. Mr. Shah made an effort to assail the veracity and
reliability of the aforesaid documents especially in the light of the fact
that the Plan (Exhibit "P-1/37") submitted by the Architect of the
Defendant, does not indicate that there was direct access to the open
space/garden or the annex block from Flat No.1. Suffice to note that
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the said Plan (Exhibit "P1/37") appeared to be a proposed building
plan. It does not appear to be a sanctioned plan. Secondly, the Plaintiff-
society did not place on record the copy of the sanctioned Plan. In the
backdrop of the material which has emerged, the claim of exclusive
possession of predecessor-in-title of the Defendant No. 6 over the
annex block and open space/garden cannot be discarded on the basis
of the said proposed Plan (Exhibit "P1/37").
97. The Court also cannot loose sight of the fact that the
Plaintiff has categorically conceded that Mrs. Sayeeda Rauf and
Bhatias were in possession and enjoyment of the annex block. Even the
case that the Defendant No. 6 had illegally and unlawfully grabbed the
possession of the annex block was given up by deleting the reference to
annex block from paragraph 9 of the Plaint. Having regard to the lay of
the Suit premises, that the access to annex block has to traverse
through a part of the open space/garden and having conceded the
possession of Mrs. Sayeeda Rauf and Bhatias over the annex block, it
was an uphill task for the Plaintiffs to demonstrate that the
predecessor-in-title of the Defendant No. 6 were not in the occupation
of the open space/garden. As noted above, the Plaintiff has also
asserted that the Bhatias delivered the possession of the annex block to
the Defendant No. 6.
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98. In the totality of the circumstances the possession of the
predecessor-in-title of the Defendant Nos. 6 and 7 over the annex block
and open space/garden can be said to have been established.
99. Issue Nos.6 and 7 are, therefore, required to be answered
in the affirmative.
100. The necessary corollary of the findings on the Issue Nos. 6
and 7 is that that the exclusive possession of the Defendant No. 6 over
the annex block and open space/garden can also be said to have been
established. Resultantly, issue No. 4 also deserves to be answered in
the affirmative.
ISSUE Nos.2 and 5 :
101. The Plaintiff's claim of ownership over the Suit premises
primarily rests on Deed of Conveyance dated 26 th May 1965 (Exhibit
"P1/29") executed by NHC in favour of the Plaintiff-Society, coupled
with the individual Agreement for Sale executed by NHC in favour of
the individual flat purchasers under which, according to the Plaintiff,
the flat purchaser have the right to only occupy the flat, and not the
appurtenant land and other areas. The Application (Exhibit "P1/31")
filed by the promoter for registration of the Plaintiff-society was pressed
into service to substantiate the case that the individual flat purchasers
were entitled to use and occupy their respective flats and garages, only.
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102. The Deed of Conveyance dated 26 May 1965 (Exh.P-1/29)
inter alia, records that NHC had sold, conveyed and transferred the
plot of land and all the interest of the NHC in the said land and
building to the Plaintiff and the flat holders have been put in
possession of their respective flats and garages. In effect, NHC has
conveyed all its right, title and interest in the land in favour of the co-
operative society formed by the flat purchasers.
APPLICATION FOR REGISTRATION OF THE
SOCIETY (EXHIBIT "P1/31"):
103. In the list of Promoters and Members of the then proposed
society, the particulars of members along with the area of the Flat and
costs of the flat was furnished. The area of Flat No.1, which was
allotted to Mrs. Sayeeda Rauf, was shown 1750 sq yards plus 384 sq
yards. The consideration for the Flat was shown Rs.65,000/- and for
Garages Rs.10,000/-. In the remark column it was mentioned the
occupant holds two Garages 12 and 13 (combined one).
104. In another list appended to the said Application, the
number of flats, owners names, area and amount of consideration were
mentioned. The area of Flat No. 1 was shown 1750 sq yards and the
consideration Rs. 65,000/-.
105. Mr. Bhandari attempted to canvass a submission that the
consideration paid by Mrs. Sayeeda Rauf was significantly more than
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the consideration paid by the other flat owners. A faint attempt was
made to draw home the point that the additional consideration was
towards the open space/garden and the annex room.
106. It is true from the plan as well as from the perusal of the
statements annexed to the Application for registration, it becomes
evident that the area of the flats on the upper storey of Flat No.1 was
1400 sq yards. Whereas the area of Flat No.1 was 1750 sq yards.
However, if the particulars furnished in the statement annexed to the
Application are compared and contrasted, such an inference, sought to
be propounded by Mr. Bhandari, cannot be readily drawn.
107. If the consideration paid by the holders of flats having an
area 1050 sq yards, i.e., Rs.40,000/- and 1400 sq yards, i.e.,
Rs.50,000/- is compared with the consideration paid by Mrs. Sayeeda
Rauf i.e., Rs.65,000/- for a flat admeasuring 1750 sq yards, it appears
that the consideration commensurated with the area of the flat and no
additional consideration for the area covered by the garden was paid.
108. The absence of evidence to show the payment of separate
consideration for the open space / garden by Mrs. Sayeeda Rauf to
NHC cannot be brushed aside as inconsequential. The material on
record indicates that, for two garages, separate consideration of
Rs.10,000/- wad paid. The list annexed to the application (Exh.P-
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1/31) does reveal that, separate consideration for garages was also
paid by other allottees, who were given garages apart from the flats.
109. The submission of Mr. Bhandari that Mrs. Sayeeda Rauf
had paid significantly her consideration, therefore, does not carry
substance as consideration of Rs.65,000/- for a flat admeasuring 1,750
sq. yards in comparison to a consideration of Rs.50,000/- for a flat
admeasuring 1,400 sq. yards, by no measure, can be said to be
comparatively higher.
110. If the developer was cautious enough to claim additional
consideration for two garages, it defies comprehension that the open
space / garden admeasuring 1,900 sq.ft. would have been allotted
without charging any additional consideration therefor. Such a large
area of land, which even exceeded the carpet area of Flat No.1, could
not have been allotted as an adjunct of Flat No.1, without charging any
consideration. The absence of evidence of payment of consideration
would, therefore, bear upon the claim that the Flat No.1 was sold along
with open space / garden.
111. The contemporaneous conduct of the parties, at the very
inception of the transaction between the Defendant Nos. 1 to 5 and the
Defendant No. 6, is of relevance. In response to the public notice issued
on behalf of the Defendant No. 6, the Plaintiff addressed a
communication to the Chartered Accountant of the Defendant No. 6,
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that the public notice dated 14 th February 2006 does not contain
correct information about Flat No.1 and the Defendant No. 6 was
called upon to send the original documents before the transaction was
completed.
112. In the aforesaid context, the correspondence that ensued
between the Defendant Nos. 1 to 5, on the one part, and the Defendant
No. 6, on the other, adverted to above, makes the position of the
Defendant Nos 1 to 5, crystal clear.
113. On 6th April 2006, the Defendant No. 6 addressed a
communication (Exhibit "P1/5") to Pratap Bhatia (D1) with reference
to the aforesaid letter of the Plaintiff (Exhibit "P1/17"), reiterating that
the Defendant No. 6 was ready to enter into the Agreement for
Purchase of entire Flat No.1 along with other areas. The Defendant
No.1 was called upon to get No Objection Certificate from the Plaintiff-
society. It was followed by another communication dated 30 th May
2006 (Exhibit "P-1/6") again reiterating that the agreement was to sell
the Flat No. 1 along with exclusive garden attached to the said Flat No.
1 and the annex block, and the society's denial of the Defendant Nos. 1
to 5's title to the attached garden. What followed bears upon the
representations made by, and the intent of, the vendors of the
Defendant No. 6.
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114. In the communication dated 5th July 2006 (Exhibit "P-
1/18"), on behalf of the Defendant Nos. 1 to 5, it was categorically
asserted that a photostat copy of the Agreement dated 5 th December
1972 in favour of Sitabai Bhatia, was furnished to the Defendant No. 6
and the said Agreement records that Sitabai Bhatia had purchased the
Flat No.1 and not flat with garden on the East and North side of Flat
No.1, though it was also claimed that the Defendant Nos. 1 to 5 had
been using the said garden from the date of purchase. The Defendant
Nos. 1 to 5 clarified in clear and explicit terms that they cannot sell the
garden as it was not purchased by them.
115. Refuting the aforesaid stand of Defendant Nos. 1 to 5, the
Defendant No.6 vide communication dated 18 th July 2006 (Exhibit "P-
1/7") reiterated that the Defendant Nos. 1 to 5 had entered into a
bargain to sell the said premises along with garden and, therefore, they
must assert their title over the said garden and obtain N.O.C. and sell
the same along with the attached garden, with good and marketable
title.
116. The Reply to the said letter (Exhibit "P-1/19") on behalf of
the Defendant Nos. 1 to 5 makes the position of Defendant Nos. 1 to 5
as to the title to the open space/garden beyond cavil. It bears repetition
to record that the Defendant Nos. 1 to 5 contended that by using the
garden exclusively or otherwise, the Defendant Nos. 1 to 5 cannot
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become owners thereof. It was not possible for the Defendant Nos. 1 to
5 to make out title for the sale of the said garden.
117. The aforesaid correspondence exchanged between the
parties would indicate that though the Plaintiff-society raised objection
to the proposed transaction instantaneously and the Vendors made it
explicitly clear that they had no title over the open space/garden, yet
the prospective purchaser insisted that the title did vest in the Vendors
and they should sell the Flat No.1 along with the open space/garden
by making good their title.
118. Ordinarily, where the prospective purchaser is confronted
with a situation of defect in the title of the Vendor, the prospective
purchaser attempts to secure his position and reconsiders the decision
to enter into the transaction. In the case at hand, the Defendant No. 6
despite being put on guard, not only reiterated the resolve to proceed
ahead with the transaction but insisted that the Vendors did possess
the title; which they categorically denied.
119. The fact that subsequently Agreement for Sale dated 30 th
May 2007 (Exhibit "D-59") came to be executed by the Defendant
Nos.1 to 5 consistent their stand that they had no title over the open
space/garden, though they claimed to have been in exclusive
possession thereof, indicates that the Defendant Nos. 1 to 5 never
professed to represent that they were the owners of open
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space/garden. In a sense, this conduct of Defendant No. 6 betrays
animus on the part of the Defendant No. 6 to enter into the transaction
with full cognizance of the absence of the title over the open
space/garden in his vendors.
120. What is the effect of these clear and categorical admissions
on the part of the Defendant Nos. 1 to 5, the Vendor of the Defendant
No. 6, on the claim of the Defendant No. 6 ?
121. Ordinarily a statement made by a co-Defendant cannot be
set up as an admission qua another Defendant. However, the character
in which a party to the proceeding or a person through whom the party
to the proceeding derives interest assumes importance. Under Section
18 of the Indian Evidence Act, 1872 ("the Act, 1872"), statements
made by a person from whom the parties to the Suit have derived their
interest in the subject matter of the Suit, are admissions, if they are
made during the continuance of the interest of the persons making the
statements.
122. In the case of Sri Chand Gupta Vs Gulzar Sing & Anr,10
after adverting to the provisions contained in Section 18 of the Act,
1872, the Supreme Court enunciated that Section 18 postulates that
statements made by a party to the proceeding, or by an agent to any
such party, whom the Court regards, under the circumstances of the
case, as expressly or impliedly authorised by him to make them, are
10 AIR 1992 SC 123.
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admissions. Equally, statement made by a person who has any
proprietary or pecuniary interest in the subject matter of the
proceeding or persons having derivative interest make statements
during the continuance of the interest also are admissions.
123. In the instant case the twin conditions of the Defendant
Nos. 1 to 5 being the persons from whom the Defendant No. 6 derived
his interest in the subject matter of the Suit and the said statements
were made by the Defendant Nos. 1 to 5 while they had subsisting
interest in the Suit premises, are satisfied. The aforesaid letters
(Exhibits "P-1/18" and "P-1/19") were duly proved in evidence of
Satyen Vaishnawa (PW-7), the partner of N. N. Vaishnawa and Co, who
had addressed the said communication on behalf of Defendant Nos. 1
to 5.
124. If the aforesaid statements of Defendant Nos. 1 to 5 are
considered as admissions, and which this Court is persuaded to so
consider, then they must command the evidentiary value. The facts that
the Defendant Nos. 1 to 5 did not appear before this Court and were
not summoned as witness, in the circumstances of the case, do not
dilute their evidentiary value. Admissions are substantive evidence in
themselves. Though they are not conclusive proof of the matters
admitted and can be explained away or shown to be incorrect.
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125. In the case of Bharat Singh and Ors Vs Mst Bhagirathi,11
the evidentiary value of admissions was illuminatingly postulated by he
Supreme Court as under :
"19. Admissions have to be clear if they are to be used
against the persons making them. Admissions are
substantive evidence by themselves in view of Ss. 17 and
21 of the Indian Evidence Act, though they are not
conclusive proof of the matters admitted. We are of
opinion that the admissions duly proved are admissible
evidence irrespective of whether the party making them
appeared in witness box or not and whether that party
when appearing as witnesses was confronted with those
statements in case it made a statement contrary to those
admissions. The purpose of contradicting the witness
under S. 145 of the Evidence Act is very much different
from the purpose of proving the admission. Admission is
substantive evidence of the fact admitted while a previous
statement used to contradict a witness does not become
substantive evidence and merely serves the purpose of
throwing doubt on the veracity of the witness. What
weight is to be attached to an admission made by a party
is a matter different from its use as admissible evidence."
(emphasis supplied)
126. Following the aforesaid pronouncement in the case of
Biswanath Prasad & Ors Vs Dwarka Prasad & Ors, 12 the Supreme Court
clarified that "there is a cardinal distinction between a party who is the
11 AIR 1966 SC 405.
12 AIR 1974 SC 117.
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author of a prior statement and a witness who is examined and is
sought to be discredited by use of his prior statement. In the former
case an admission by a party is substantive evidence if it fulfills the
requirements of Section 21 of the Evidence Act; in the latter case a
prior statement is used to discredit the credibility of the witness and
does not become substantive evidence. In the former there is no
necessary requirement of the statement containing the admission
having to be put to the party because it is evidence proprio vigore"; in
the latter case the Court cannot be invited to disbelieve a witness on
the strength of a prior contradictory statement unless it has been put to
him, as required by Section 145 of the Evidence Act.
127. The aforesaid being the position in law, in my considered
view, the Defendant No.6 cannot be permitted to wriggle out of the
admissions made by Defendant Nos.1 to 5 as to their title over the
open space/garden and those admission bind the Defendant No. 6. The
fact that the Defendant Nos. 1 to 5 took a consistent stand as regards
their title over open space/garden and under Deed of Conveyance
dated 30th May 2007(Exhibit "D-59") professed to sell the Suit
premises excluding the open space/garden, establishes it beyond the
pale of controversy that the Defendant No. 6 did not acquire title to the
open space/garden under the Deed of Conveyance (Exhibit "D59").
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128. It would be contextually relevant to note that the stand of
Defendant Nos. 1 to 5 was that under the Agreement for Sale dated 5 th
December 1972, executed by Mrs. Sayeeda Rauf, itself the open
space/garden was not sold to them. There was a controversy between
the Defendant Nos. 1 to 5 and the Defendant No. 6 over the delivery of
photostat copy of the said Agreement for Sale; the Defendant No. 5
asserted that they did deliver, and the Defendant No. 6 controverted
the said fact. The copy of the instrument between Mrs. Sayeeda Rauf,
the first allottee, and Sitabai Bhatia, the predecessor-in-title of the
Defendant Nos. 1 to 5 did not see the light of the day.
THE AGREEMENT FOR SALE DATED 18th JULY 1961 :
129. The Defendant No. 6 attempted to bolster up his defence,
despite unavailability of the instrument in favour of his predecessor-in-
title, by banking upon the Agreement for Sale executed by NHC, in
favour of Mrs. Sayeeda Rauf. A photostat copy of the said Agreement
for Sale (Exhibit "D/104") came to be introduced along with the
Written Statement of the Defendant Nos. 6 and 7.
130. The thrust of the submissions of Mr. Bhandari was that the
said Agreement for Sale (Exhibit "D/104") has been duly proved in
evidence of the Defendant No.6 (DW-1) and Mushtaq Rauf (DW-2).
The latter has not only identified the signature and initials of his
mother Mrs. Sayeeda Rauf, on the said Agreement for Sale but also
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proved the contents thereof, submitted Mr. Bhandari. The case of the
Plaintiff that the said Agreement for Sale is forged and fabricated is
disproved by the evidence of Anmol Mathur (DW-3) and Hiral Mehta
(DW-9), the handwriting experts examined by Defendant No.6, and by
demonstrating that the evidence of Aarti Kamble, (PW-6), the
handwriting expert examined by the Plaintiff, is unworthy of credence.
131. Mr. Bhandari would urge, failure of Plaintiff to produce
the agreement executed by NHC in favour of Mrs. Sayeeda Rauf,
despite having admitted the custody of the said document, warrants
the admission in evidence of the copy of the Agreement for Sale
(Exh.D-104) as and by way of secondary evidence.
132. The circumstances in which Agreement for Sale (Exh.D-
104), sprung into existence are of critical salience. The custody from
which the document is forthcoming has a significant bearing on both
the admissibility and veracity of the document.
133. Evidently, Agreement for Sale (Exh.D-104) has not come
from the custody of person with whom it was expected to be. The
document is neither coming from the custody of NHC, the vendor, Mrs.
Sayeeda Rauf or any of her family members, Defendant Nos.1 to 5, the
transferee of Mrs.Sayeeda Rauf, or the Defendant No.6, who is the
subsequent transferee. Nor the said Agreement has been procured
from the authorities with whom the Plaintiff was expected to lodge the
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same. How the Defendant No.6 claimed to have obtained the custody
of the Agreement for Sale (Exh.D-104) is interesting.
134. Defendant No.6 (DW1) affirmed that in the month of
January 2017, an unidentified gentleman came to the door of his flat
when he and his family members were not at home and handed over
the photostat copy of the said Agreement to his maid with instructions
that the same should be handed over to Defendant No.6. The only
identification of the said person, deposed to by Mr. Agarwal (DW1),
was that the said person had represented that he was from the
building.
135. Whether the Agreement for Sale (Exh.D-104) can be said
to have come from proper custody ? The time and the circumstances in
which the custody of the copy of the Agreement for Sale was allegedly
obtained by Defendant No.6 does not inspire confidence. The copy of
the Agreement for Sale was allegedly received in the year 2017; almost
9 years after the dispute between the Plaintiff and Defendant No.6 and
7 arose. Secondly, the claim of Mr. Agarwal (DW1) is such that it shuts
out all inquiry as to veracity and reliability of the said claim. The
identity of the person who allegedly delivered the copy of the
Agreement for Sale (Exh.D-104) remains a mystery. Thus, no evidence
could be adduced either in proof or disproof of the said claim. The
specious manner in which the custody of the copy of the Agreement for
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Sale was allegedly obtained, suits the convenience of the defence of
Defendant Nos.6 and 7.
136. Mr.Bhandari would urge, if the Plaintiff wanted to assail
the genuineness of the copy of the Agreement for Sale (Exh.D-104),
the Plaintiff ought to have produced the copy of the said Agreement. It
was submitted that, non-production of the copy of the Agreement for
Sale between NHC and Mrs. Sayeeda Rauf, despite the admissions
about the existence of the said Agreement with the Society, warrants
drawing of an adverse inference against the Plaintiff.
137. Attention of the Court was invited to the averments in
paragraph No.3(i) of the plaint and the manner in which Sunil Lulla
(P.W.1) stood the test of cross-examination. In paragraph No.3(i) of
the plaint, it was asserted that the Plaintiff had been supplied a copy of
the form submitted by NHC, wherein he had given details of the area
of the flats sold and occupied by every members of the society along
with the copies of the agreements for Sale with individual flat
purchasers which was also provided for the purpose of registration of
the Plaintiff's Society.
138. The aforesaid assertion, in my view, does not imply that
the Plaintiff Society had been supplied with the copies of all the
individual flat purchase agreements by the Registrar. What the
Plaintiff has claimed is that the copy of the application form submitted
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by NHC was supplied to it. It is true, in the cross-examination, Mr.
Sunil Lulla (PW1) conceded that the first purchaser agreement of the
flat would have been filed with the Registrar of Co-operative Societies,
the Society does maintain a separate file for each flat and at the time of
the registration of the Society, copies of the Agreements from all the
flat owners were filed by the society with the Registrar. He went on to
concede that the Society had the first agreement between the builder
and Mrs. Sayeeda Rauf. Yet, despite the notice to produce, the Plaintiff
did not produce copy of the agreement dated 8 July 1961 on the
ground that the society did not have the same.
139. The aforesaid submission is required to be appreciated in
the light of the fact that Defendant Nos.1 to 5 - vendor of Defendant
No.6, categorically claimed and expressly professed to sale Flat No.1,
excluding open space/ garden. Defendant Nos.1 to 5 claimed that they
had no title over the open space / garden. Defendant No.6 insisted to
the contrary.
140. In this backdrop, where the Society is called upon to
produce the first purchase agreement after more than 50 years, the
claim that it did not possess the copy of the first purchase agreement
cannot be discarded as unreliable. The onus shifted on Defendant
Nos.6 and 7 to show that, despite existence of the conveyance in favour
of Defendant No.6, which does not profess to transfer open space /
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garden, the predecessor-in-title of Defendant No.6, in fact, had title
over the open space / garden. Thus, the submission that the adverse
inference was required to be drawn against the Plaintiff, cannot be
readily acceded to.
INTRINSIC EVIDENCE OF THE AGREEMENT DATED 18TH JULY
1961 BETWEEN NHC AND MRS. SAYEEDA RAUF :
141. The recitals in the Agreement indicate that Mrs.Sayeeda
Rauf had agreed to acquire from NHC Flat No.1. The description of the
said Flat No.1, agreed to be sold by NHC, does not find mention
separately in the form of a schedule. The description of the Flat No.1
was given in the body of the Agreement, and that is at the heart of the
controversy. The Flat No.1 was described as, "Flat No.1 with rear
garden & 2 rear rooms on the 1st floor" and Garage Nos. 12 and 13
(combined)".
142. The italicized portion is hand written. In addition the
words, "with rear garden & 2 rear rooms", appear to have been written
in between the preceding line and the line containing the afore-
extracted portion. For the sake of convenience and to retain emphasis
the relevant part of the description of the flat is scanned and copied
below :
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143. On the docket of the Agreement, the description of the
document is as under :
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144. The controversy between the parties revolves around the
question whether the words, "with rear garden & 2 rear rooms" formed
part of the original Agreement and, consequently, whether NHC had
agreed to sell Flat No. 1 along with, "with rear garden & 2 rear rooms".
145. It is imperative to note that after the aforesaid description
of Flat No.1, the property agreed to be sold has thereafter been
described in the said Agreement as, "the said Flat and Garage". At no
other place in the said Agreement there is reference to the garden and
rear rooms. In contrast, at multiple places, the property agreed to be
sold is described as the said Flat and Garage, including a covenant to
the effect that the possession of the said Flat and Garage would be
delivered on its completion and upon payment of consideration.
146. From a reading of the Agreement as a whole, it could be
urged, the parties, having taken care to specifically incorporate the
Garage Nos. 12 and 13, could not have missed to adequately and
sufficiently describe the garden and two rear rooms with which Flat
No.1 was allegedly agreed to be sold.
147. Mr. Bhandari would submit that the insertion of figure "1"
on the far left side of the blank space after the words, "Flat No"
indicates that the author intended to write something more. Therefore,
the words, "with rear garden and 2 rear rooms" can only be said to
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have been inserted by the executors of the said Agreement. I am afraid
to draw such an inference on the basis of positioning of the figure "1".
148. A correct reading of the recitals in the Agreement
describing the property (copied above) leads to an inference that the
said words (with rear garden and 2 rear rooms) do not finely
assimilate in syntax. The said words can be read in two ways. First,
"after the Flat No.1" and second, "after the word combined". In either
case the construction of the sentence sounds a little dissonant.
149. In the first way, the description would read, "Flat No.1 with
rear garden & 2 rear rooms on the 1 st floor and Garage No. 12 and 13
(combined)." In the second way, the description would read " Flat No.1
on the 1st floor and Garage No. 12 and 13 (combined) with rear
garden and 2 rear rooms."
150. In the covenant No.2, extracted above, the words "rear
garden & 2 rear rooms" appear after the word "1st". If the said words
are to be read after the word "1st" the description again sounds a little
incoherent, as it would read, "Flat No.1 on the 1 st floor with rear garden
& 2 rear rooms and Garage Nos. 12 and 13."
151. Covenant No. 6 of the said Agreement is also of critical
salience. It provides that nothing contained in the said Agreement shall
be construed as demise, assignment or conveyance in law of the said
land or any part thereof or of the said building constructed thereon or
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any portion thereof and such demise, assignment or conveyance shall
take place upon transfer by formal conveyance or assignment to a
cooperative housing society/limited company or an incorporated body.
If the intent of the parties was to convey Flat No.1 along with the
garden, the parties would have carved out and reserved the area
covered by the garden from the area to be conveyed to the society.
152. Lastly, on the docket of the said Agreement, though the
Agreement has been described as one for purchase of Flat No.1 with
rear garden and rear 2 rooms, the Garage numbers are conspicuous by
their absence. It is pertinent to note that the parties had specifically
inserted the Garage Numbers in the Agreement at multiple places and
the Garage were referred as the part of the property agreed to be
conveyed. It seems, the parties, in such a situation, would not have
missed to incorporate the number of Garages on the docket of the said
Agreement. That bears upon the probabilities of the case.
153. The evidence of handwriting expert Mr. Amol Mathur
(DW3) and Hiren Mehta (DW9), banked upon by Mr. Bhandari to bring
home the point that the disputed writings and initials on the Agreement
for Sale (Exh.D-104), were indeed that of the persons who executed
and signed the same, and how the evidence of Ms. Aarti Kambli (PW6),
handwriting expert examined by the Plaintiff is not worthy of credence,
need not be delved into in detail.
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154. Where the very genuineness and identity of the document
is in the arena of contest, in the absence of evidence to firmly establish
that the copy of the Agreement for Sale (Exh.D-104), is that of the
Agreement for Sale executed by NHC in favour of Mrs. Sayeeda Rauf,
the opinion evidence that too in respect of additions and interpolations
in a photostat copy of the document is not of much evidentiary value. In
the case at hand, the primary fact that the agreement for sale (Exh.D-
104) with the additions of the words "with rear garden and 2 rear
rooms" is the copy of the agreement executed by NHC in favour of Mrs.
Sayeeda Rauf cannot be said to have been established.
Tenability of the suit on title without a prayer for declaration of
title :
155. Mr. Bhandari would urge that the suit in the present form
was clearly untenable. It was submitted that since there has been a
cloud on the title of the Plaintiff right from the inception of the dispute,
it was incumbent upon the Plaintiff to seek declaration of title. The
necessity of seeking such declaration became even more poignant after
the Defendants placed on record the copy of the Agreement for Sale
dated 18 July 1961 in favour of Mrs. Sayeeda Rauf, which indicated
that the open space / garden was also agreed to be sold thereunder to
Mrs. Sayeeda Rauf. Though the plaint was amended on multiple
occasions, the Plaintiff failed to challenge the said Agreement for Sale
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by seeking necessary declaration. This fatal omission to pray for
declaration of title and qua Agreement for Sale (Exh.D-104) renders the
suit wholly untenable.
156. To buttress the aforesaid submission, Mr. Bhandari placed a
very strong reliance on the judgments of the Supreme Court in the case
of Anathula Sudhakar (supra) and Kayalulla Parambath Moidu Haji
(supra). In the case of Anathula Sudhakar (supra), the Supreme Court
elaborately considered the scope of the suit for prohibitory injunction in
different situations. The observations of the Supreme Court in
paragraph Nos.13 to 16 are instructive, and, hence, extracted below :
"13. The general principles as to when a mere suit for
permanent injunction will lie, and when it is necessary to
file a suit for declaration and/or possession with injunction
as a consequential relief, are well settled. We may refer to
them briefly.
13.1 Where a plaintiff is in lawful or peaceful
possession of a property and such possession is interfered
or threatened by the defendant, a suit for an injunction
simpliciter will lie. A person has a right to protect his
possession against any person who does not prove a better
title by seeking a prohibitory injunction. But a person in
wrongful possession is not entitled to an injunction against
the rightful owner.
13.2 Where the title of the plaintiff is not disputed, but
he is not in possession, his remedy is to file a suit for
possession and seek in addition, if necessary, an injunction.
A person out of possession, cannot seek the relief of
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injunction simpliciter, without claiming the relief of
possession.
13.3 Where the plaintiff is in possession, but his title to
the property is in dispute, or under a cloud, or where the
defendant asserts title thereto and there is also a threat of
dispossession from defendant, the plaintiff will have to sue
for declaration of title and the consequential relief of
injunction. Where the title of plaintiff is under a cloud or in
dispute and he is not in possession or not able to establish
possession, necessarily the plaintiff will have to file a suit
for declaration, possession and injunction.
14. We may however clarify that a prayer for
declaration will be necessary only if the denial of title by
the defendant or challenge to plaintiff's title raises a cloud
on the title of plaintiff to the property. A cloud is said to
raise over a person's title, when some apparent defect in
his title to a property, or when some prima facie right of a
third party over it, is made out or shown. An action for
declaration, is the remedy to remove the cloud on the title
to the property. On the other hand, where the plaintiff has
clear title supported by documents, if a trespasser without
any claim to title or an interloper without any apparent
title, merely denies the plaintiff's title, it does not amount
to raising a cloud over the title of the plaintiff and it will
not be necessary for the plaintiff to sue for declaration and
a suit for injunction may be sufficient. Where the plaintiff,
believing that defendant is only a trespasser or a wrongful
claimant without title, files a mere suit for injunction, and
in such a suit, the defendant discloses in his defence the
details of the right or title claimed by him, which raises a
serious dispute or cloud over plaintiff's title, then there is a
need for the plaintiff, to amend the plaint and convert the
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suit into one for declaration. Alternatively, he may
withdraw the suit for bare injunction, with permission of
the court to file a comprehensive suit for declaration and
injunction. He may file the suit for declaration with
consequential relief, even after the suit for injunction is
dismissed, where the suit raised only the issue of
possession and not any issue of title.
15. In a suit for permanent injunction to restrain the
defendant from interfering with plaintiff's possession, the
plaintiff will have to establish that as on the date of the suit
he was in lawful possession of the suit property and
defendant tried to interfere or disturb such lawful
possession. Where the property is a building or building
with appurtenant land, there may not be much difficulty in
establishing possession. The plaintiff may prove physical or
lawful possession, either of himself or by him through his
family members or agents or lessees/licensees. Even in
respect of a land without structures, as for example an
agricultural land, possession may be established with
reference to the actual use and cultivation. The question of
title is not in issue in such a suit, though it may arise
incidentally or collaterally.
16. But what if the property is a vacant site, which is
not physically possessed, used or enjoyed? In such cases
the principle is that possession follows title. If two persons
claim to be in possession of a vacant site, one who is able
to establish title thereto will be considered to be in
possession, as against the person who is not able to
establish title. This means that even though a suit relating
to a vacant site is for a mere injunction and the issue is one
of possession, it will be necessary to examine and
determine the title as a prelude for deciding the de jure
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possession. In such a situation, where the title is clear and
simple, the court may venture a decision on the issue of
title, so as to decide the question of de jure possession even
though the suit is for a mere injunction. But where the
issue of title involves complicated or complex questions of
fact and law, or where court feels that parties had not
proceeded on the basis that title was at issue, the court
should not decide the issue of title in a suit for injunction.
The proper course is to relegate the plaintiff to the remedy
of a full-fledged suit for declaration and consequential
reliefs."
157. In the case of Kayalulla Parambath Moidu Haji (supra), the
Supreme Court followed and further explained the ratio in the case of
Anathula Sudhakar (Supra).
158. While appreciating the ratio in the aforesaid decisions, it
has to be kept in view that the Supreme Court was primarily dealing
with the position in regard to suits for prohibitory injunction relating to
immovable property. In the case at hand, the Plaintiff seeks possession
of the suit premises on the basis of title. A mere denial of title of the
Plaintiff by the Defendants would not compel the Plaintiff to seek
declaration as to title. In the case of Anathula Sudhakar (supra), the
Supreme Court clarified that a cloud is said to arise over a person's title,
when some apparent defect in his title to a property, or when some
prima facie right of a third party over it, is made out or shown. An
action for declaration, is the remedy to remove the cloud on the title to
the property. On the other hand, where the plaintiff has clear title
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supported by documents, if a trespasser without any claim to title or an
interloper without any apparent title, merely denies the plaintiff's title,
it does not amount to raising a cloud over the title of the plaintiff and it
will not be necessary for the plaintiff to sue for declaration and a suit
for injunction may be sufficient.
159. In the case at hand, the nature of the interest of Defendant
No.6 which flowed from Defendant Nos.1 to 5 assumes importance. As
noted above, Defendant Nos.1 to 5 never professed to sale the open
space / garden to the Defendant No.6. Nay they never asserted title
over the open space / garden. Defendant No.6, therefore, cannot have
better title than what Defendant Nos.1 to 5 had. In such a situation, the
Plaintiff was not required to seek a declaration as regards the legality
and validity of the Agreement for Sale (D-104) when the society was
armed with the conveyance executed by the developer (NHC) in its
favour, conveying thereunder the entire property and the Plaintiff
sought a declaration as regards the legality and validity of the Deed of
Conveyance dated 30 May 2007 (Exh D-59) executed by Defendant
Nos.1 to 5 in favour of Defendant No.6 with a further declaration that
Defendant Nos.6 and 7 are rank trespassers in respect of the open space
/ garden (prayer clauses (a) and (b) of the plaint). Implicit in the
prayer clauses (a) and (b) is the prayer for the declaration of title of the
Plaintiff over the open space / garden.
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160. The conspectus of aforesaid discussions and reasoning is
that the Plaintiff has succeeded in establishing its title over the open
space / garden. The Plaintiff, however, failed to establish that the
Plaintiff is the owner of the annex block. On the contrary, the
ownership of the annex block vests with Defendant No.6. Conversely,
the claim of ownership of Defendant No.6 over the open space / garden
is not sustainable. Resultantly, issue No.2 is required to be answered in
the affirmative to the extent of the open space / garden, and, in the
negative in respect of the annex block consisting of three three parking
lots and small bathroom. As a necessary corollary, the Sale Deed dated
30 May 2007 does not bind the Plaintiff to the extent of the open
space / garden. Issue Nos.2 and 5 are, therefore, required to be
answered accordingly.
Issue No.9 :
161. In view of the aforesaid considerations and findings on the
issues discussed above, the Plaintiff's claim for clear, vacant and
peaceful possession of the annex block, marked in yellow in the plaint
(Exh.A to the Plaint), deserved to be negatived.
162. That leaves the question of the entitlement of the Plaintiff
for the possession of the open space / garden. Mr. Shah forcefully
submitted that once the ownership of the Plaintiff over the open
space / garden is established, Defendant Nos.6 and 7 cannot resist the
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claim for possession of open space / garden, howsoever long the
possession of Defendant No.6 and his predecessor in title over the open
space / garden might have been. Defendant Nos.6 and 7, though
entitled to protect their possession against the world at large must
yield to the incident of the ownership of the Plaintiff.
163. To this end, Mr. Shah placed reliance on the decisions in
the cases of Poona Ram V/s. Moti Ram (dead) through LRs and Ors. 13,
Nair Service Society Ltd. V/s. K.C.Alexander and Ors.14 and Somnath
Burman V/s. Dr. S.P.Raju and Anr.15.
164. Per contra, Mr. Bhandari submitted with tenacity that the
Plaintiff has lost the remedy to recover the possession of open space /
garden as well. It was submitted that when the Agreement dated 18 th
July 1961 (Exh.D-104) was executed by NHC in favour of Mrs.Sayeeda
Rauf, the then regime under MOFA did not mandate the registration of
the Agreement for Sale under Section 4 of the MOFA, as it now
warrants. Since the said Agreement dated 18 th July 1961 (Exh.D-104)
was coupled with the delivery of possession by NHC to Mrs. Sayeeda
Rauf, the provisions contained in Section 53-A of the Transfer of
Property Act, 1882 were attracted. All the conditions to claim
protection of possession on the basis of the doctrine of part
performance were made out. Therefore, the Plaintiff cannot seek to
13 (2019) 11 SCC 309
14 AIR 1968 SC 1165
15 1969(3) SCC 129
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recover possession of the open space / garden. The subsequent
conveyance in favour of the Society by the Promoter (Exh.P-1/29) does
not destroy the rights which stood vested in Mrs. Sayeeda Rauf under
the Agreement for Sale dated 18 th July 1961 (Exh.D-104) coupled with
the delivery of possession. Therefore, the Plaintiff cannot bank upon
the Deed of Conveyance dated 26 th May 1965 to claim ownership over
the property agreed to be conveyed under the Agreement for Sale
dated 18th July 1961 (Exh.D-104).
165. Mr. Bhandari would urge, Section 53-A imposes a
statutory bar on the transferor to seek possession of the immovable
property from the transferee in possession. To bolster up this
submission, Mr. Bhandari placed reliance on the Full Bench Judgment
of this Court in the case of Sadashiv Chander Bhamgare V/s. Eknath
Pandharinath Nangude16.
166. In the said case, the Full Bench of this Court, followed the
judgment of the Supreme Court in the case of Patel Natwarlal Rupji
V/s. Kondh Group Kheti Vishayak and Anr.17, wherein it was enunciated
that Section 53-A confers a right on the transferee to the extent that it
imposes a bar on the transferor, to protect the transferee's right to
retain possession of the property under the contract. The Full Bench
enunciated the law, as under :
16 2004(3) Mh.L.J. 1131
17 (1996) 7 SCC 690
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"It is clear from the observations of the Supreme Court
quoted above that Section 53-A of the Act imposes a
statutory bar on the transferor to seek possession of the
immovable property from the transferee in possession. In
other words, therefore, it disentitles the transferor from
seeking possession from the proposed transferee in
possession. Therefore, if the transferor, though he has
been denied that right by Section 53-A, tries to take
possession forcibly, the proposed transferee in possession
would be entitled to institute a suit to enforce the bar of
Section 53-A against the transferor. In such a situation,
when the proposed transferee in possession comes to the
Court seeking a decree of perpetual injunction
restraining the transferor from disturbing his possession,
he does not come to the Court for enforcement of any
rights conferred on him, but he comes to the Court for
enforcement of the bar created by Section 53-A against
the transferor. If the proposed transferee in possession is
denied the right to institute a suit for enforcing the bar
against the transferor enacted by Section 53-A so as to
protect his possession, then the proposed transferee in
possession would be rendered remedyless. In our opinion
from the observations of the Supreme Court quoted
above it is clear that when it is said that the proposed
transferee in possession can use Section 53-A as a shield,
but not as a sword, it means that he can use Section 53-
A either as a plaintiff or as a defendant to protect his
possession, but he cannot use Section 53-A either for
getting title or for getting possession if he is not actually
in possession. To put it in other words, when the
transferee in possession comes to the Court as a plaintiff
seeking a decree of perpetual injunction against the
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transferor he is using Section 53-A as a shield to protect
his possession. It is thus clear that the proposed
transferee in possession cannot use Section 53-A to sue
the transferor for a declaration of title, but he can avail
of benefits of Section 53-A as a shield to retain his
possession." (emphasis supplied)
167. There can be no quarrel with the aforesaid proposition of
law. However, the aforesaid proposition of law is not attracted in the
facts of the case at hand. As noted above, no separate consideration
was paid by Mrs. Sayeeda Rauf to NHC. Therefore, a prime condition
of Mrs. Sayeeda Rauf having been come in possession of the open
space / garden for consideration pursuant to the contract in writing
cannot be said to have fulfilled. Secondly, the very fact that Mrs.
Sayeeda Rauf was put in possession of the open space / garden
pursuant to a contract to transfer the said portion of the land cannot be
said to have been proved. What has, in fact, been established is the
exclusive possession of Mrs. Sayeeda Rauf and the Bhatia's, the
predecessor in title of Defendant No.6 over the open space / garden.
168. That brings to the fore the question of the character of
possession of Mrs. Sayeeda Rauf and Bhatias ? Mr. Shah was justified
in assiduously canvassing a submission that the predecessor in title of
Defendant No.6 never asserted that their possession over the open
space / garden became adverse to that of the Plaintiff Society. This
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fact becomes evident from the admissions in the correspondence
addressed on behalf of Defendant Nos.1 to 5 (Exh.P-1/18 and P-1/19).
Classical test of adverse possession expressed in the maxim nec vi, nec
clam and nec precario cannot be said to have been fulfilled as
Defendant Nos.1 to 5 categorically conceded that they were not the
owners of the open space / garden and the mere fact that they had
been in exclusive use and occupation of the open space / garden did
not confer any title on them.
169. Animus to hold open space / garden adverse to the
Plaintiff and as owner thereof, was clearly missing. The position which
thus emerges is that the predecessor in title of Defendant No.6 neither
claimed any proprietary title over the open space / garden, nor
asserted claim of acquisition of title by way of adverse possession.
170. In the facts of the case, the protection of the provisions
contained in section 53-A of the Act, 1882 was also not available to the
predecessor in title of Defendant No.6. If the evidence is appreciated in
the light of indisputable position that the open space / garden was
used by Mrs. Sayeeda Rauf and her family for the reason that her sister,
who was then a famous actress, required privacy and security, an
inference becomes deducible that the possession of open space /
garden by Mrs. Sayeeda Rauf was essentially permissive in nature. In
the absence of proof of title in Mrs. Sayeeda Rauf and her transferee,
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and assertion of a claim of acquisition of title by prescription, the only
legitimate inference that can be drawn from the evidence and material
on record is that the possession of the open space / garden, though
exclusive, was only permissive in nature.
171. It is imperative to note that apart from the contention that
NHC had sold flat No.1 along with the open space / garden, no other
jural relationship between the occupant of Flat No.1 and the Society
qua the open space / garden was sought to be established. The
Defendant No.6 failed to establish that NHC had sold flat No.1 to
Sayeeda Raut, along with open space / garden.
172. From the aforesaid standpoint, the submission of Mr. Shah
that Defendant No.6 is not entitled to protect his possession over the
open space / garden appears justifiable. At best, Defendant No.6 has a
possessory title. Possessory title is good title as against everybody
except the true owner. Therefore, the Plaintiff Society is entitled to
possession of the open space / garden, though its claim for possession
of annex block fails.
173. At this stage, the landscape of the suit premises is required
to be taken into account. The evidence indicates that Defendant No.6
and his predecessor-in-title have been in continuous, uninterrupted and
exclusive possession of the open space / garden and the access to the
annex block from Flat No.1 passes through the open space / garden.
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The doors of Flat No.1 open into the open space / garden. The
occupants of Flat No.1 would not be able to access the annex block if
they are restrained from entering into the open space / garden.
Moreover, the occupants of flat No.1 have been enjoying uninterrupted
right to passage of light and air from the open space / garden
continuously since inception.
174. In these circumstances, if the Defendant No.6 is ordered to
handover the possession of the entire open space / garden, his right to
access the annex block as well as the right to receive air and light to
Flat No.1 would be jeopardised. To protect these rights, in the
considered view of this Court, a portion of the open space / garden
which abuts the outer wall of the Flat No.1 is required to be allowed to
be exclusively used by the Defendant No.6. The area falling within the
radius of 5 ft. from the edge of the wall of Flat No.1 on the eastern and
northern side would provide sufficient space for Defendant No.6 to
have the access to the annex block and receive the air and light to Flat
No.1.
175. I am, therefore, inclined to direct Defendant Nos.6 and 7
to handover possession of open space / garden, excluding the area
falling within the radius of 5 ft. from the edge of the wall of Flat No.1
on the eastern and northern side. Defendant Nos.6 and 7 would be
entitled to use and occupy the said area exclusively. Conversely,
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Defendant Nos.6 and 7 would not have the right to exclusively use and
occupy the balance portion of the open space / garden. Issue No.9 is
answered in the aforesaid terms.
Issue No.10 :
176. As this Court is persuaded to hold that the predecessor in
title of Defendant No.6 have been in permissive possession of the open
space / garden and the Plaintiff is entitled to recover possession of the
open space / garden only, the date of the institution of the suit would
be considered as date on which the permissive possession became
unlawful. Since the possession of Defendant No.6 over the open
space / garden is not referable to any statutory protection, it would be
appropriate to direct that an inquiry be held under the provisions of
Order XX Rule 12 for ascertaining mesne profit from the date of the
institution of the suit till the delivery of possession of the open space /
garden to the extent indicated in the operative order. Issue No.10 is
answered accordingly.
177. In Suit No. 196 of 2021, while it was subjudice before the
Co-operative Court by way of an amendment in terms of the order
dated 19th October 2015, passed by the Cooperative Court, all the
substantive prayers were deleted, save and except a direction to the
Defendants to handover quite, vacant and peaceful possession of Flat
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No.1.
178. Mr. Shah, the learned Counsel for the Plaintiff fairly
submitted that in view of the order passed by the Registrar, Cooperative
Societies, admitting the Defendant No. 6 as a member of the Plaintiff-
society, which has attained finality, the surviving prayer clause (b) in
Suit No. 196 of 2021, cannot be granted.
179. Resultantly, nothing survives in Suit No. 196 of 2021. Thus,
Suit No. 196 of 2021 deserves to be dismissed with costs.
CONTEMPT PETITION (L) NO. 119 OF 2010 :
180. This Contempt Petition was taken out by the Defendant
No.6 with a prayer to initiate action for the contempt allegedly
committed by the office bearers of the Plaintiff-Society by deliberately
making, verifying and affirming Plaint and other proceedings in the Suit
no. 1894 of 2010, containing ex-facie false and misleading statements
on oath.
181. In view of the determination of the Suit No. 1894 of 2010,
nothing survives in the Contempt Petition and the same also deserves to
be dismissed.
182. Hence, the following order :
ORDER
(A)(i) Suit No.1894 of 2010 stands partly decreed with costs.
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(ii) It is declared that the Plaintiff is the owner of the open
space / garden shown in the red colour in the map (Exh.A) and the
Agreement for Sale dated 30 May 2007 does not bind the Plaintiff qua
the open space / garden.
(iii) The Suit in regard to the annex block stands dismissed.
(iv) It is declared that Defendant Nos.6 and 7 have no right to
exclusively use and occupy the open space / garden, excluding the
area falling within the radius of 5 ft. from the edge of the eastern and
northern side wall of Flat No.1.
(v) Defendant Nos.6 and 7 shall deliver the possession of the
open space / garden, excluding the area falling within the radius of 5
ft. from the edge of the the eastern and northern side wall of Flat No.1,
to the Plaintiff Society within a period of two months.
(vi) Defendant Nos.6 and 7 shall be entitled to use and occupy
the area falling within the radius of 5 ft. from the edge of the eastern
and northern side wall of Flat No.1, exclusively.
(vii) Decree be drawn accordingly.
(viii) An inquiry under Order 20 Rule 12 of the Code, as to the
mesne profits in regard to the open space / garden, excluding the area
falling within the radius of 5 ft. from the edge of the eastern and
northern side wall of Flat No.1, be held.
(B) Suit No.196 of 2021 stands dismissed with costs.
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(C) Contempt Petition (L) No.119 of 2010 stands disposed.
[N. J. JAMADAR, J.]
At this stage, Mr. Bhandari, the learned Counsel for the Defendant
Nos. 6 and 7 seeks stay to the execution, operation and implementation
of the decree.
As the status-quo has been in operation during the pendency of
the Suit and having regard to the long standing possession of the
Defendant No. 6 and his predecessor-in-title, the execution, operation
and implementation of the decree stands stayed for a period of 12
weeks.
[N. J. JAMADAR, J.]
Designation: PS To Honourable Judge
Date: 15/10/2025 23:03:07
