[Cites 6, Cited by 0]
Bombay High Court
Lt.General Yash Malhotra Avsm ... vs Urban Horse Property Developers ... on 5 May, 2026
Author: N. J. Jamadar
Bench: N. J. Jamadar
2026:BHC-AS:21312
-SA-647-2025.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 647 OF 2025
WITH
INTERIM APPLICATION NO. 38781 OF 2025
WITH
INTERIM APPLICATION NO. 38780 OF 2025
Lt General Yash Malhotra, Avsm, (Retired) ..Appellants
(Since Deceased through His Heirs/Legal
Representatives)
1(A) Neelam Yash Malhotra and Ors
Versus
Urban Horse Property Developers Pvt Ltd ...Respondents
(Originally known as Tanna Pune Land
Development Pvt Ltd) and Ors
Mr. Amit Shroff, with Vijay Mulchandani, i/b Harish Shroff and Co,
for the Appellants.
Mr. Shanay Shah, with Harshil Parekh and Dhyan Shah, i/b
Purnanand & Co, for Respondent Nos. 2 and 2A.
ARUN
Mr. Girish Godbole, Senior Advocate, with Vidisha Rohira, Divyang
RAMCHANDRA
SANKPAL Shukla, i/b LJ Law, for Respondent Nos. 3 to 6.
Digitally signed by
ARUN
RAMCHANDRA
SANKPAL
Date: 2026.05.05
CORAM : N. J. JAMADAR, J.
19:19:58 +0530
RESERVED ON : 29th APRIL 2026
PRONOUNCED ON : 5th MAY 2026
JUDGMENT:
1. This Second Appeal is directed against a judgment and order
dated 21st November 2025 passed by the learned District Judge in RCA
-SA-647-2025.DOC
No. 158 of 2025, whereby the said Appeal preferred by the Appellants-
Plaintiffs, against a judgment and decree passed by the Trial Court in
RCS No. 720 of 2015, thereby dismissing the said Suit instituted by the
Appellants-Plaintiffs, came to be dismissed.
2. Respondent No.1/Defendant No.1 company was the owner of a
larger property. Defendant No.1 promoted a scheme; "Urban Horse
Enclave" on one of the plots situated at Survey No. 66/B Hissa No. 4/1
("the subject plot"). The Defendant No.1-company constructed three
blocks consisting of the apartments. The Plaintiffs have acquired right,
title and interest in the respective apartments on the basis of the
Agreements executed by Defendant Nos. 1 and 2. The Plaintiffs claimed
that a layout plan was shown to the Plaintiffs of the adjoining plot,
Survey No. 66/B/5 . A representation was made that the said Plot
Survey No. 66/B/5 will have a certain kind of layout including open
spaces. Eventually, the access to plot No. 64/B/4 was carved out of Plot
Survey No. 66/B/5 by erecting a compound wall abutting the open
space.
3. It was the grievance of Plaintiffs that after Defendant No.3
acquired the ad-joining Plot Survey No. 66/B/5, the Defendants
threatened to reduce the width of their access road by demolishing the
old two feet wall. The Defendants have no right to carry out any
development in Plot Survey No. 66/B/5 jeopardizing the easementary
-SA-647-2025.DOC
rights of the Plaintiffs. The Plaintiffs thus instituted the suit to restrain
the Defendants from demolishing the existing two feet compound wall
adjoining the access road to the Plaintiffs blocks and from constructing a
new compound wall.
4. The Defendants resisted the suit.
5. After appraisal of the evidence, by a judgment and decree dated
5th May 2025, the learned Civil Judge was persuaded to dismiss the suit
opining inter alia that the Plaintiffs failed to establish that they had
acquired any easementary right by prescription or otherwise. In the
original plan the width of the approach way for the Plaintiffs was 7.5
meters. In the revised sanctioned plan the width of the way was
increased to 9 meters and it was not the case of the Plaintiffs that the
width was not adequate or sufficient for approaching the Plaintiffs
blocks located in Survey No. 66/B/4.
6. Being aggrieved, the Plaintiffs filed an Appeal before the District
Court. By the impugned judgment, the learned District Judge dismissed
the Appeal finding no fault with the judgment delivered by the Trial
Court. It was noted, inter alia, that the Plaintiffs had not clearly pleaded
that they had right to use the open plot situated in Survey No. 66/B/5.
Nor the Plaintiffs succeeded in establishing that they had any
easementary right, and the Defendants threatened to commit breach of
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obligations on their part in regard to such easementary right. Thus, the
Plaintiffs were not entitled to seek injunctive reliefs.
7. Being further aggrieved, the Plaintiffs are in Second Appeal.
8. I have heard Mr. Amit Shroff, the learned Counsel for the
Appellants, Mr. Girish Godbole, the learned Senior Advocate for
Respondent Nos. 3 to 6, and Mr. Shanay Shah, the learned Counsel for
Respondent Nos. 2 and 2A. With the assistance of the learned Counsel
for the parties, I have perused the material on record, including the
impugned judgments.
9. Mr. Shroff, the learned Counsel for the Appellants, strenuously
submitted that the Trial Court as well as the District Court have
approached the controversy from a completely wrong perspective. The
Courts below committed a grave error in law in not correctly
appreciating that the Plaintiffs were essentially espousing their rights,
under the Maharashtra Ownership Flats (Regulation of The Promotion of
Construction, Sale, Management And Transfer) Act, 1963 ("the MOFA")
and in the absence of the informed consent the Promoter had no right to
make any changes in the layout plan and erect structures to the
prejudice of the Plaintiffs.
10. Mr. Shroff would urge that, from the perusal of the documents
including the brochure which were tendered before the Appellate Court,
it becomes abundantly clear that representations were made to the
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Plaintiffs that the layout of adjoining plot Survey No. 66/B/5 would
remain unaltered. It is on the basis of the said representation, the price
of the apartments constructed on Plot Survey No.66/B/4 was
determined. The Defendants thus have no right to alter the said layout
and erect multi storied tower on the adjoining plot by substantially
reducing the open space and the width of the approach road.
11. To lend support to these submissions, Mr. Shroff placed reliance
on a judgment of the learned Single Judge of this Court in the case of
Eternia Cooperative Housing Society Ltd & Ors Vs Lakeview Developers
& Ors1 and a judgment of the Supreme Court in the case of Anjuman E
Shiate Ali And Anr Vs Gulmohar Area Societies Welfare Group and Ors. 2
12. Mr. Shroff would, thus, urge that, a substantial question of law,
whether the right of the occupants of the apartments in the blocks
situated on Survey No. 66/B/4 is merely an easementary right or it also
amounts to representation under MOFA and can the apartment owners
in those blocks restrain the promoter from reducing the open space area
in the adjoining plot, when the original promoter had specifically
demarcated boundaries on the open access part of the adjoining plot,
arises for consideration.
13. Mr. Girish Godbole, the learned Senior Advocate, for Respondent
Nos. 3 to 6 submitted that in the Second Appeal, a party cannot be heard
1 2015 (5) Bom CR 680.
2 (2020) 20 SCC 698.
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to urge a case which was not pleaded before the Court of first instance.
Mr. Godbole would urge an entirely new case was sought to be
canvassed before this Court in the Second Appeal. Taking the Court
through the averments in the Plaint, Mr. Godbole would urge, at best,
the Plaintiffs had pleaded easementary rights over the access provided to
the Plaintiffs. The case of violation of the rights of the apartment owners
under Section 7 and 7A of MOFA was not at all pleaded, much less
proved. Even otherwise, Mr. Godbole would urge, in the facts of the case
the restrictions in the matter of alternation in the layout and the
development of the remaining plots forming part of the larger property,
are not at all attracted.
14. Mr. Godbole banked upon the Agreements executed between the
owners and the apartment purchasers which clearly indicate that the
project, then developed by Defendant Nos. 1 and 2, was confined to
Survey No. 66/B/4.
15. Mr. Shanay Shah, the learned Counsel for Respondent Nos. 2 and
2A supplemented the submissions of Mr. Godbole. Mr. Shah laid
emphasis on the fact that before the Trial Court, the controversy
revolved around the alleged infringement of the easementary rights of
the Plaintiffs.
16. First and foremost, it is imperative to note the case setup by the
Plaintiffs in the Plaint. From a meaningful reading of the averments in
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the Plaint as a whole, it becomes explicitly clear that the Plaintiffs had
asserted easementary rights of access through Survey No. 66/B/5. It was
nowhere the case of the Plaintiffs that they had a right to use the open
space which forms part of Survey No. 66/B/5, the adjoining plot. On the
contrary, it appears that, initially Survey No. 66/B/4, over which the
Plaintiffs blocks stand, had a direct access to the public road and,
subsequently, the access was provided by the Defendants through Survey
No. 66/B/5.
17. A specific case that the Plaintiffs had right to use the open space
and amenities which form part of Survey No. 66/B/5 was not at all
pleaded by the Plaintiffs. It was in that context, the Plaintiffs had sought
the reliefs of perpetual injunction simplicitor in the nature of restraining
the Defendants from demolishing the existing two feet compound wall
adjoining the access to Plaintiffs buildings and from constructing new
compound wall. And the Plaintiffs singularly failed to establish their
easementary rights qua Survey No. 66/B/5.
18. Mr. Shroff, attempted to salvage the position by banking upon the
layout of Urban Horse Enclave, and brochure of Urban Horse Enclave
which was allegedly shown to the purchasers when they purchased
apartments in the blocks constructed over Survey No. 66/B/4. The later
document was not placed before the Trial Court. The learned District
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Judge, declined to admit the said document under the provisions of
Order 41 Rule 27 of the Code of Civil Procedure, 1908 ("the Code").
19. Even if the case of the Plaintiffs that a layout of Survey No.
66/B/5 was shown to the prospective apartment purchasers is taken at
par, yet, that does not advance the cause of the submission of the
Plaintiffs. It was nowhere pleaded by the Plaintiffs that they had a right
to use the open space and amenities in Survey No. 66/B/5.
20. In substance, the necessary nexus between the Survey Nos.
66/B/4 and 66/B/5 so as to cause an obligation upon the Promoter not
to alter the plan and specifications without obtaining the consent of the
purchasers of the apartments in the buildings situated on Survey No.
66/B/4 under Section 7 of the MOFA could not be established.
Therefore, the reliance placed by Mr. Shroff on the judgments in the
cases of Eaternia Cooperative Housing Society Ltd & Ors (Supra) and
Anjuman E Shiate Ali and Anr (Supra) is completely inapposite. To put it
in other words, the facts of the case at hand, do not present a situation
which would be governed by the aforesaid legal regime and the
pronouncements.
21. The conspectus of the aforesaid consideration is that, the question
of law, sought to be formulated and pressed into service by Mr. Shroff,
does not present itself for consideration in this Appeal.
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22. The concurrent finding of facts cannot be said to have been
arrived at by misreading of evidence and misconstruction of documents.
Thus, this Court does not find any legal infirmity in the impugned
judgments.
23. Resultantly, the Appeal deserves to be dismissed.
24. Hence, the following order;
:ORDER:
(i) The Second Appeal stands dismissed.
(ii) In view of the dismissal of Appeal, Interim Application No.38781
of 2025 and Interim Application No. 38780 of 2025 also stand disposed.
[N. J. JAMADAR, J.]
