[Cites 4, Cited by 0]
Bombay High Court
Bombay Taximens Co-Operative Housing ... vs Pashah Begum Busheri And Ors. on 16 April, 2026
2026:BHC-OS:9465
IA.3827.2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.3827 OF 2024
IN
SUIT NO.326 OF 2023
Bombay Taximens CHS Ltd. ....Applicant
Versus
Pashah Begum Busheri & Ors. ....Defendants
Mr. Chetan Kapadia, Senior Advocate for Applicant in IA/3827/2024.
Mr. Karl Tamboly a/w. Zahan Setalvad, Angel Carneiro, Smith Colaco,
Tushar Cooper i/b. Mulla & Mulla & Craigle Blunt & Caroe, for Plaintiff
in S/126/2023 and for Defendants in IA/3827/2024.
Ms Jigisha Vadodaria a/w. Ms Masira Lulania & Hasan Mushabber
i/b. Negandhi, Shah & Himayatullah, for Defendant No.2.
CORAM : SOMASEKHAR SUNDARESAN, J.
DATE : APRIL 16, 2026
JUDGEMENT:
Context and Factual Background:
1. Interim Application No. 3827 of 2024 is an application under Order VII,
Rule 11 of the Code of Civil Procedure, 1908, filed by Defendant No. 1, Bombay
Taximen's Co-operative Housing Society Ltd. (" Applicant") seeking rejection
of the Plaint in Suit No. 326 of 2023 (" Suit") on the premise that it is
hopelessly barred by limitation and that clever drafting has led to
April 16, 2026
Aarti Palkar
AARTI GAJANAN
GAJANAN Date:
PALKAR 2026.04.16
18:01:55
+0530
IA.3827.2024.doc
characterising a suit for declaratory relief as a suit for recovery of possession
in order to mask this foundational defect.
2. The Applicant contends that the Application is founded on the premise
that the Suit primarily seeks a declaration that the Plaintiffs are the owners of
the land as described, admeasuring approximately 5,038.50 square metres
("Suit Property") and that a Deed of Conveyance executed between the
Plaintiffs' predecessors in title and the Applicant on April 17, 1972 is valid and
subsisting. The Applicant contends that the Plaintiffs' primary contention is
that two buildings of the Applicant encroach on the Plaintiffs' land, which is
otherwise in the free and vacant possession of the Plaintiffs, and that the
Plaintiffs apprehend that the Defendants would encroach upon and usurp
their land.
3. The Applicant submits that the Plaint is founded on the premise that the
Plaintiffs are in juridical possession of the Suit Property, which is purportedly
owned by them. Apart from the declaration that the Suit Property belongs to
the Plaintiffs, the Suit seeks a permanent injunction to restrain the Defendants
from claiming any right, title or interest in the Suit Property.
4. Another prayer is for vacation and demolition of the two buildings if the
Court were to hold a view that the Plaintiffs are not in possession of the Suit
Property. The Applicant would contend that the entire Plaint being premised
April 16, 2026
Aarti Palkar
IA.3827.2024.doc
on the Plaintiffs being in juridical possession of the Suit Property, there is no
pleading in the Plaint to support such a prayer. Therefore, it is contended that
this prayer has been added merely to indicate that the Suit is for possession
and not for declaratory relief.
5. Therefore, the Applicant contends, the Plaintiffs have indulged in clever
drafting to bring the Suit within the ambit of Article 65 of the Limitation Act,
1963 ("Limitation Act") and thereby avail of a limitation period of 12 years,
when the Suit is actually one for declaratory relief, thereby falling within the
ambit of Article 58 of the Limitation Act, which stipulates a limitation period
of only three years.
6. The Plaintiffs having contended that during a visit to the Suit Property
in August 2022, they discovered that the Applicant had encroached on the Suit
Property by constructing illegal structures on it. It is contended that prior to
such visit and "private survey", the Plaintiffs disclaim knowledge of the
Applicant's buildings encroaching on their land. These buildings have been
standing since 1982; the Applicant's name was entered in the revenue records
in 1978; and even according to the Plaintiffs, this was to their knowledge in
January 2013.
7. That apart, the Applicant would refer to a notice dated June 22, 2018
issued to the Applicant calling upon it to remove itself from the Suit Property;
April 16, 2026
Aarti Palkar
IA.3827.2024.doc
and another notice dated July 13, 2018 issued by the Plaintiffs' lawyers to
various municipal authorities asserting the Plaintiffs' rights to the Suit
Property and calling upon them not to grant any approvals for development
and to withdraw any approvals that may have been given. By reference to
these two documents, the Applicant would contend that to the Plaintiffs'
knowledge, the assertions in the Plaint are false, inasmuch as the Plaint
asserts that it was only a visit in August 2022 that led to the discovery of the
encroachment.
8. The prayer seeking possession being only an alternate prayer, the
Applicant would submit that the averment about discovery in August 2022 is
evidently false, hoping to reset the limitation clock.
9. The Plaintiffs' right to seek declaratory relief arose in January 2013,
according to the Applicant, because the Plaintiffs themselves have pleaded
that they came across a public notice dated January 15, 2013 and even
responded with their own public notice dated January 18, 2013. At that time,
the Plaintiffs ought to have filed a declaratory suit and instead chose to pursue
proceedings before the Revenue Authorities, seeking rectification of the land
records. Therefore, the Applicant contends that the Suit is liable to be
dismissed as being barred by limitation, since the primary character of the Suit
is one seeking declaratory relief, with the relief of possession only being an
April 16, 2026
Aarti Palkar
IA.3827.2024.doc
alternate, apart from the prayer seeking possession not being backed by any
pleading at all.
10. Pursuit of rectification of revenue records is hardly meaningful, the
Applicant contends, since it is trite law that mutation entries do not determine
title. The Plaintiffs purport to be inheritors of the Suit Property, and not
acquirers of the Suit Property, the onus of proving title is primarily on the
Plaintiffs and therefore, it is claimed that the prayer for declaration is the
primary prayer and all other reliefs are "subservient" to that prayer.
11. The Plaintiffs submit that in 1947 a larger tract of land had been
acquired by the Plaintiffs' predecessors in title from one Mohanlal Umedmal
("Original Seller"). Such land covered Survey No. 297/1; Survey No. 306/1;
and Survey No. 307/1 ("Larger Property"), from which the Original Seller had
also illegally sold a portion to his own father in May 1962. The Plaintiffs
contend that Survey 297/1 is part of the Suit Property, and other land in
Survey No. 298/1 that is not part of the Suit Property was also sold in this
manner. In August 1965, this land including the portion of Survey No.297/1
was purportedly sold onward through an Articles of Agreement but no
conveyance deed was executed.
12. Suit No.451 of 1967 had been filed by the Plaintiffs' predecessors while
Suit No. 862 of 1968 was filed by the purported purchaser (from the Original
April 16, 2026
Aarti Palkar
IA.3827.2024.doc
Seller's father), seeking specific performance. In Suit No. 862 of 1968, the
Plaintiffs' predecessors were made parties. The Plaintiffs contend that upon
the demise of the Plaintiffs' predecessor, on April 17, 1972, a portion of the
land so acquired was sold to the Applicant with the Plaintiffs retaining the Suit
Property and the Conveyance Deed explicitly recorded that the Suit Property
had been retained. An English Mortgage created on the same date also
recorded the same.
13. Consent Terms dated February 22, 1974 in Suit No.451 of 1967
contained a declaration that the Original Seller's father had no right, title or
interest in the Suit Property. Likewise, Consent Terms filed in Suit No. 862 of
1968 also recorded that the Original Seller's father had no interest in the Suit
Property. The counterparty too acknowledged this position in the Consent
Terms. In 1978, Suit No. 531 of 1978 was filed seeking recovery of the balance
consideration due from the Applicant (for this amount an English Mortgage
too had been recorded).
14. However, the City Survey Officer had erroneously entered the name of
the Applicant alone in the revenue records, and the Plaintiffs have pleaded
that this came to their knowledge only in January 2013. The Plaintiffs submit
that neither in the Written Statement in Suit No. 531 of 1978 nor in the
Consent Terms dated August 9, 1999 has the Applicant ever denied the
April 16, 2026
Aarti Palkar
IA.3827.2024.doc
Plaintiffs' interest in the Suit Property. It was in January 2013 that upon a
public notice being issued asserting the Applicant's ownership of the Suit
Property, the Plaintiffs state they got to know that this wider claim was being
made - this was never the position of the Applicant throughout even the past
litigation.
15. The Plaintiffs issued their own public notice in three days pointing out
their ownership interests in the Suit Property. The Plaintiffs followed upon
their notice; took up proceedings for correction of the revenue records; and in
fact succeeded in getting an order dated August 31, 2013, directing that the
land records be rectified. The Applicant appealed that order and claimed to
have acquired interests through the purchasers from the Original Seller's
father. The Applicant's appeal against the order correcting the land records
was also dismissed on August 2, 2014. In a further appeal before the Revenue
Minister, the Plaintiffs would submit, the Applicant, for the first time, claimed
adverse possession (earlier the Applicant had claimed through the purchaser
of property from the Original Seller's father).
16. This led to the aforesaid two letters alluded to by the Applicant -notices
dated June 22, 2018 and July 13, 2018. On September 15, 2020, the mutation
entry was corrected to enter the Plaintiffs' predecessors' names and was
further modified on July 23, 2021 to record the Plaintiffs' names in the land
April 16, 2026
Aarti Palkar
IA.3827.2024.doc
records. Yet, on May 9, 2022, the Applicant entered into a Development
Agreement to redevelop, among others, the Suit Property, which is what
purportedly led to the "private survey" in August 2022 and eventually led to
the filing of the Suit.
Analysis and Findings:
17. Against this backdrop, I have heard Mr. Chetan Kapadia, Learned
Senior Advocate on behalf of the Applicant and Mr. Karl Tamboly, Learned
Advocate on behalf of the Plaintiffs. With their assistance, I have examined
the record and the case law pressed into service by them. It is well settled that
when considering an application under Order VII, Rule 11, it is the pleadings
in the Plaint and the annexures to it that would form the parameters of what is
to be examined to consider if the Suit deserves to be dismissed. The Court
cannot conduct a mini-trial at this stage nor embark upon an exercise of
making a value judgement on the potential for success or truthfulness with an
objective of looking to dismiss the Suit.
18. Against this backdrop, I am afraid the Applicant has not made out a case
for the drastic step of dismissing the Suit at the threshold. Mr. Kapadia has
waded into the domain of a mini-trial when he desires to have the Court
adjudicate whether the Plaintiffs knew all along about the Applicant's interest
April 16, 2026
Aarti Palkar
IA.3827.2024.doc
in the Suit Property and slept over their rights and that the Plaintiffs should be
shut out at the threshold.
19. To begin with, the Plaintiffs as dominus litis are entitled to fashion the
Suit in the manner they choose. Indeed, the Suit claims ownership of the Suit
Property and resists the Applicant's attempt at asserting adverse possession,
which position was adopted by the Applicant in 2014. If this was the
Applicant's position, the Suit having been filed in February 2023, seeking,
among others, possession, is filed well within 12 years and towards this end, is
indeed to be examined in the light of Article 65 and cannot be said to be
barred by limitation.
20. As regards the applicability of Article 58 and the three-year limitation
period for a declaratory suit, one would have to examine when the right to sue
first accrued. This is necessarily a mixed question of fact and law and evidence
would need to be led to determine this question with any finality. It could well
be an argument and contention that the Applicant would take in the trial, but
one cannot hold at the threshold that the right to sue accrued in January 2013.
On this count too, it is well settled that the right to sue cannot be said to have
accrued with every assertion of right by any other party. There has to be an
actual, direct and subsisting threat coupled with adverse action. The threat
perception for the right to sue having to accrue, has to be perceived from the
April 16, 2026
Aarti Palkar
IA.3827.2024.doc
lens of the Plaintiffs and whether their perception is a reasonable one. This is
clearly a matter of evidence and cannot be the subject matter of a summary
determination at the threshold, merely because the Applicant chooses to
characterise what according to the Applicant, is the "real" character of the
Suit. In this case, the Applicant chooses to paint the Suit as "primarily" being
aimed at declaratory relief.
21. The Applicant had all along pointed to any interest it had, if at all, to
rights purportedly coming through the purchaser from the Original Seller's
father, and suddenly changed it to a contention of adverse possession. There
have been at least three Suits preceding these proceedings and in none of
these, is there an evident and inexorable concrete threat to the perception of
entitlement of the Plaintiffs. Suffice it to say that when there is a trial on
merits, it shall always be open to the parties to have this issue adjudicated, but
where the question of limitation is necessarily and evidently a mixed question
of fact and law and where the factual matrix entails a chequered history of
litigation with competing positions having been adopted through that journey.
In my opinion, the case does not lend itself for an outright rejection of the
Plaint on the ground of the Suit being barred by the law of limitation.
22. Whether the Plaintiffs can comprehensively show that the threat
perception that the Applicant would have liked the Plaintiffs to have had in
April 16, 2026
Aarti Palkar
IA.3827.2024.doc
2013 is of a nature such that the right to sue accrued, is a matter of trial. The
test would be to see what a reasonable person would conclude based on the
evidence. Whether the Plaintiffs were sanguine in their belief that the threat
was not concrete enough to seek declaratory relief is a matter of evidence.
23. Therefore, in my opinion, at the threshold stage, the Applicant has not
made out a case for rejection of the Suit. Whether the Plaintiffs are truthful
about having conducted a private survey in August 2022 is itself a matter of
evidence and trial. The pleadings have to be taken at face value and in the
course of the trial, the Applicant would have the right to rebut the Plaintiffs'
contentions. At this threshold stage, it is not for this Court to conduct a mini-
trial, ignore the Plaintiffs' rights as dominus litis to set up the case in the
manner they choose, and inexorably hold that the Plaintiffs have indulged in
"clever drafting".
24. Likewise, while a mutation entry in the revenue records is not a
conclusive determinant of title, the fact that the Plaintiffs pursued their
entitlements and successfully had the mutation entries corrected would show
that the Plaintiffs did not sleep over their rights. The Plaintiffs' threat
perception from the Applicant has to be a reasonable and informed one and
when the right to sue accrued itself would need to be examined with evidence
being led by the Applicant to prove when according to the Applicant, the right
April 16, 2026
Aarti Palkar
IA.3827.2024.doc
to sue accrued for purposes of Article 58. Therefore, in my opinion, even if
one were to accept the contention that the resort to a relief of possession is a
contrivance to overcome Article 58, there is no basis to inexorably conclude at
this very stage, the Plaintiffs can be non-suited in terms of Article 58.
25. I must also state that I am unable to find that there is no pleading at all
by the Plaintiffs about the relief of possession. Indeed, the Plaintiffs have
pleaded that the Applicant sought to claim adverse possession for the first
time in the revenue proceedings before the Revenue Minister. Therefore, it
cannot be fairly and reasonably contended by the Applicant that there is no
pleading relating to the relief for possession in the Plaint. So also, there is
nothing to indicate that the declaratory relief and the relief of possession are
mutually self-destructive; rather, they fall within the ambit of alternatives
among the reliefs that one may legitimately pursue. In the stage of trial, the
Court can ascertain if there is an encroachment, the extent of encroachment,
and grant the reliefs that are sought.
26. In sum, a plain reading of the Plaint and the documents relied upon and
annexed to the Plaint point to a reasonable narrative that lends itself to be
subjected to trial. There is nothing so inexplicable and illogical that the case is
so meritless on the ground of limitation that the Suit should be thrown out
without trial.
April 16, 2026
Aarti Palkar
IA.3827.2024.doc
27. Both sides have cited case law in support of their respective positions.
Suffice it to say, the well-known principles gleaned from them are
unexceptionable. What has to be seen in proceedings under Order VII, Rule 11
of the CPC is whether, the factual matrix lends itself to these principles being
applied for rejection of the Plaint. I have explained my reasons on facts as to
why the captioned Interim Application must fail. To avoid prolixity, I am
refraining from extracting from the case law cited. Suffice it to say, the
situation at hand requires evidence to be examined to deal with the very
contentions of the Applicant that have been articulated above.
28. In the result, the Interim Application No. 3827 of 2024 in Suit No. 326
of 2023 is dismissed. Costs would ordinarily follow the event, but
consideration of costs for this round of litigation is deferred for consideration
at a subsequent stage of the proceedings.
29. All actions required to be taken pursuant to this order, shall be taken
upon receipt of a downloaded copy as available on this Court's website.
[SOMASEKHAR SUNDARESAN J.]
April 16, 2026
Aarti Palkar
