Full Text
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.270 OF 2022
Jaywant Industrial Premises Co-
Operative Society Ltd.
.. Appellant
…
Mr.Virag Tulzapurkar, Senior Advocate with Mr.Kashish
Manihar and Ms.Jyoti Pardeshi i/b Wadia Ghandy & Co.for the
Appellant.
Mr.Amogh Singh for the Respondent No.1. ...
JUDGMENT
1. The Appellant is a Co-operative Housing Society Ltd., captioned as ‘Jaywant Industrial Premises Co-Operative Society Ltd.’ and is a defendant in L.C.Suit No.825 of 2019. The Appeal is instituted by the Appellant, being aggrieved by order dated 16/12/2020 passed by the City Civil Court, on an application taken out by the plaintiff in the suit, under Order M.M.Salgaonkar
2. Heard learned Senior Advocate Mr.Virag Tulzapurkar for the Appellant and the learned Advocate Mr.Amogh Singh for respondent No.1(original plaintiff).
3. In order to appreciate the arguments of the learned Senior Advocate, I must refer to the proceedings between the parties. The plaintiff, Sangeeta Kewalramani, owner of the various premises in the building known as ‘Jaywant Industrial Premises Co-Operative Society Ltd.’ amongst other Unit Nos.309, 310 and 311(T), situated at 63, Tardeo Road, Opp. SOBO Central Mall, Mumbai34, instituted a suit under Sections 34, 37 and 38 of the Specifc Relief Act. The cause of action for instituting the suit was apparently, a notice issued by the Corporation under Section 351 of the M.M.C.Act dated 11/12/2018 and the speaking order dated 09/03/2019 in respect of the suit premises, being Unit No.311(T). The society was impleaded as defendant No.3, whereas the Corporation and it’s Offcer were impleaded as defendant Nos.[1] and 2.
4. The plaintiff pleaded her case that Rajan Kewalramani, her deceased husband, became owner of the suit premises vide agreement dated 24/09/1985 alongwith one Behram Darabshah Bhasania, the Chief Promoter of the proposed society, who executed a letter dated 16/02/1993 declaring that Rajan Kewalramani was the bonafde purchaser in respect of the premises, including the suit premises, which is an open terrace on the third foor of the defendant society. The specifc case pleaded by the plaintiff is to the effect that she herself alongwith her family members, known as Kewalramani Group owned various galas/units in the defendant No.3-society and the premises came to their ownership, through various agreements and upon the death of her husand, she alongwith her daughter and son, inherited the right to the suit premises. All other legal heirs executed a release deed in her favour, relinquishing their right, title and interest in favour of the plaintiff and that is how, she became the sole and absolute owner of the suit premises. It is pleaded that the plaintiff enjoyed the peaceful use, occupation and possession of the suit premises, without any inference or obstruction since 1985. It is her specifc case that defendant No.3-society was formed in the year 2001 and from 1985 to 2001, the Chief Promoter executed agreement of ownership in favour of her predecessor and no objection was ever raised about it’s right, title, use, occupation and possession and even after the formation of defendant No.3society, rather her right over the private terrace was recognized for the private use of the family, including gardening. The said premises are pleaded to be adjacent to the other galas belonging to Kewalramani being Nos.309, 310 & 311 and always received a status as a private terrace. Apart, it is pleaded that the society has separate and distinct terrace above the third foor, which has been used as a common terrace and meetings of the society are held on the said common terrace. The specifc case of the plaintiff in the plaint is to the effect that the suit premises was always a private terrace in exclusive use and possession of the plaintiff ever since the building was constructed i.e. since 1985.
5. The plaintiff has made her case good by placing on record several documents, which included the payment of share application money, charge for maintenance of the suit premises since the formation of the society and the maintenance bills for Unit No.311(T), indicating the intention of the society to treat and accept the suit premises as separate and to the exclusive ownership of the plaintiff/her predecessor. Prior to the formation of the society in the year 2001, it is pleaded that the then Chief Promoter had been charging various amounts towards maintenance and the bills to that effect are place on record. Upon a notice issued by the Corporation, at the instance of the society, where the society created record of minutes and represented that the suit premises is a common terrace, the plaintiff was sought to be dispossessed alleging unauthorised construction by a brick masonry wall, opposite the lift and unauthorised covering of terrace, by erecting 2 M.S. collapsible gates admeasuring 2 meters X 1.15 meters each on the third flor, which was indicated in the notice exhibited as Exhibit M. Despite a response being submitted by the plaintiff, a speaking order has been passed by the Corporation on 09/03/2019.
6. Responding to the said notice alleging erection of the wall and 2 collapsible gates, the plaintiff agreed to remove the brick wall and, accordingly, issued a letter to the MCGM showing her willingness to remove the same but insisted upon retaining the collapsible gates, which according to her, were perfectly legal. Pending the aforesaid development, defendant No.3 passed a Resolution to initiate action against the plaintiff for encroachment of common terrace on 27/02/2019, which constrained the plaintiff to institute a suit, challenging the notice under Section 351 of the M.M.C.Act as well as seeking a declaration against defendant No.3-Society, it’s members, servants, agents, representatives or any person from trespassing upon or entering upon the suit premises i.e. Unit No.311(T) of the Co-Operative Housing Society Ltd. Pending the main relief, a temporary order of injunction was also sought against defendant Nos.[1] and 2 from taking any action pursuant to the notice issued under Section 351 and the speaking order passed in respect of the suit premises as well as a restraint order against defendant No.3 from trespassing upon or entering upon the suit premises. In the said suit, Notice of Motion No.1372 of 2019 was taken out, seeking the aforesaid injunction and was supported by an affdavit, making out a case for grant of temporary injunction against the defendants. Defendant No.3-society opposed the Notice of Motion by fling an affdavit-in-reply, raising an issue about the maintainability of the suit, simplicitor for injunction without prayer for declaration, being owner of the suit premises. The suit was also sought to be dismissed for misjoinder of causes of action and also on the ground, that granting the relief at interim stage would amount to fnal relief and allowing the suit itself. On consideration of the rival contentions, including the maintainability of the suit, though the plaintiff was held not having a prima facie case or balance of convenience against the MCGM, but recording that the plaintiff has a prima facie case and balance of convenience against the defendant-Society, the Notice of Motion came to be partly allowed, by making a reference to the agreement executed between the plaintiff and the Chief Promoter of the society in respect of the suit premises, though an unregistered one and even the letter of the Chief Promoter dated 16/02/1993 brought on record, persuaded the learned Judge, to hold a prima facie case in favour of the plaintiff, since the Chief Promoter had given his no-objection for obtaining telephone, water, electricity connections on open terrace on the third foor. Issuance of the maintenance receipts by the society, since a considerably long period of time was held suffcient to derive an inference that the plaintiff is in possession of the said terrace, but the erection of the wall which blocked the fre escape passage was held to be unauthorised one though the collapsible gates were held entitled to stand. It was recorded that the building got occupation certifcate in the year 1992-93 and, therefore, the construction of the wall was held to be not authorised, as not being erected prior to datum line and, therefore, the relief prayed by the plaintiff against defendant Nos.[1] and 2 was rejected and till disposal of the main suit, defendant No.3 -society and it’s members were restrained from disturbing, the long standing possession of the plaintiff over the said terrace, particularly demarcated by the two collapsible gates. On removal of the brick masonry wall, by the MCGM, defendant No.3-society and it’s members were granted liberty to use the said fre escape passage at the time of fre emergency, if any, till the disposal of the suit. It is this order which is the cause for institution of the present Appeal.
7. The learned senior counsel would submit that the claim of the plaintiff is completely baseless as it is found that the agreement is not registered and since the plaintiff’s case rest upon this very agreement, by which it is pleaded that the terrace is sold to her predecessor, Mr.Tulzapurkar would submit that no rights can fow to her or to her predecessor on such an unregistered document. He would submit that the terrace is a common area under the Maharashtra Ownership of Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer) Act, 1963 (for short, “the MOFA”) and such common areas cannot be sold and in support he would rely upon the decision of the Hon’ble Supreme Court in the case of Nahalchand Lallochand Private Limited Vs. Panchali Co-Operative Housing Society Limited [(2010) 9 SCC 536] as well as a decision of the learned Single Judge of this Court in the case of Ramagauri Keshvlal Virani Vs. Walkeshwar Triveni Co-Operative Housing Society Ltd. & Ors. [1999(3)Mh.L.J. 145]. The learned senior counsel would submit that assuming for a moment that the plaintiff enjoyed long possession over the suit premises and the society did not dispute the same, but if the possession is illegal, since the terrace is a common area which cannot be exclusively put to use by the plaintiff, then she cannot take beneft of the long possession and since it is a common area, all the members of the society shall be permitted to put it to use, unlike the present situation where they are restrained from using the common area, which is located on the third foor. The cause of action pleaded, is the action when the gates were locked by the plaintiff and they approached the Corporation because the access to the third foor is only through the common area. Submitting that the mere possession of the plaintiff and paying maintenance do not create any right in her favour and if the terrace is put to common use, the maintenance need not be paid by the plaintiff, as the plaintiff was exclusively putting it to use, she was bearing the expenses. It is argued that mere payment of taxes or maintenance charges do not confer any authorization on a party.
8. Apart, the learned senior counsel would also rely upon the decision of the Hon’ble Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs & Ors. [(2008) 4 SCC 594] to submit that the suit claiming prohibitory injunction simplicitor, relating to immovable property is not maintainable, where the plaintiff’s title is under a cloud and it is imperative to obtain a declaration with consequential injunction. The learned senior counsel would submit that all these aspects have been completely ignored by the learned Judge while granting injunction in favour of the plaintiff. Per contra, the learned counsel Mr.Singh for the original plaintiff would submit that the suit premises, which is a terrace appended to Unit No.311, is a part of the larger property owned by Kewalramani family and he would submit that the family own 10 galas on the third foor and considering the location of distinct industrial galas on the third foor, the predecessor of the plaintiff had purchased the terrace, being exclusive to the suit galas and Mr.Singh would submit that the society is under a misconception that this is a common terrace, since a terrace which is common to the building is on the 4th foor. He would further submit that the society is formed in the year 2001, but the exclusive possession of the predecessor of the plaintiff on the suit premises was prior to the formation of the society and this was made over to the predecessor of the plaintiff, in lieu of his tenancy, by the Chief Promoter of the society. Based on this right, which remained uninterrupted, the plaintiff has paid the maintenance charges till 2018, which is a whopping sum. About the maintainability of the suit for injunction simplicitor, he would submit that merely saying that there is a cloud, would not create cloud upon the title, as the society has never questioned the ownership and possession of the plaintiff or her predecessor over the years, even though the society was formed in the year 2011. Out of the oblique motive, the steps are now being taken by the society to oust the plaintiff and, ultimately, Mr.Singh would submit that the entitlement of the society, would be determined at the end of the proceedings in the suit, where the plaintiff is seeking the relief of a permanent injunction.
9. In the wake of the aforesaid arguments, when the documents in support of the claim of the plaintiff are looked into and, particularly, the agreement dated 24/09/1985 entered into between the Chief Promoter of the ‘Jaywant Co- Operative Housing Society Ltd. (Proposed)’ and the tenants residing and doing their business in the property of Dadarkar Compound, 63, Tardeo Road, which is placed on record, would disclose certain necessary features. The said agreement is executed, as stated above, between the Chief Promoter of the proposed Co-Operative Housing Society on one part and one Rajan Kewalramani, a registered partnership for sole/proprietor frm referred to as the “Tenants”. It was agreed between the Chief Promoter and the other tenants, including Rajan Kewalramani to demolish the existing structure standing on the piece and parcel of land at Tardeo, bearing C.S.No.1/104 and to redevelop the said property by constructing new building on the property, to provide alternate accommodation for the existing tenants. The agreement contain the following recitals:- “(4) The said Behram Darabshaw Bhesania the Chief Promoter, entered into an Agreement dated 8th October, 1981, with M/s. Jayawant Development Corporation and granted the Development rights in respect of the said properties described in the Schedule below to Jayawant Development Corporation upon the terms and conditions contained in the said Agreement. (5) ….. (6) In the scheme of the Development of the said properties as set out in the said Agreement dated 8th October, 1981 and in the scheme of M/s. Jayawant Developers Corporation have offered to the Tenants a premises newly constructure by RCC PUCCA Structure on the said portion of land, popularly known as Ownership basis for the consideration thereinafter provided.” The further enumeration in the deed, reads as under:- “NOW THE INDENTURE WITNESSETH
1. The Chief Promoter agrees to provide and the Tenant agrees to accept accommodation in the New Building containing Industrial premises No.TERRACE (3rd foor) admeasuring about 3,000 Sq.Ft. to be constructed by the said M/s. Jayawant Development Corporation.
2. The Tenants confrms that the area of the premises agreed to be given to the Tenant as hereinabove provided in the New Building is in accordance with the Agreement arrived at by him with the Chief Promoter and neither the Tenant nor the Chief Promoter or Builders shall be entitled to dispute the same, thereafter.
3. Upon delivery of such possession the tenants shall be entitled to the use and occupation of the said premises without hindrance but without any further claim at any time as to the work in the said premises or possession against the Chief Promoter.” It is by this agreement, the terrace (third foor) admeasuring 3000 sq.ft. came in possession of Rajan Kewalramani and subject to other stipulation, the tenant agreed to pay from the date of occupation certifcate in respect of the new building proportionate share as determined by the Chief Promoter concerning all the outgoings in respect of property, including taxes, common light, sanitation, additions and alterations, repairs etc. The tenants also agreed to pay a sum of Rs.1,751/to the Chief Promoter before taking possession of the said premises, which was to be appropriated towards various heads by the Chief Promoter. On 16/02/1993, the Chief Promoter certifed as under:- “TO WHOMSOEVER IT MAY CONCERN This is to certify that Mr.Rajan L. Kewalramani is a bonafde owner of about 3000 sq.ft. builtup area open terrace on 3rd foor at Jaywant Industrial Estate of which I am Chief Promoter and have no objection in their obtaining Telephone, Water and Electrical connection in his name.”
10. Two distinct agreements, in respect of premises Nos.309 and 310 entered into by the Chief Promoter with Smt.Sangeeta
11. The society proposed a redevelopment of the building and convened a special meeting on 20/04/2018 to proceed with the proposal of redevelopment of the society as Service Apartment property, residential property or commercial-cumresidential property and proposed to discuss the topic of proposed redevelopment of the building and at this time, for the very frst time, the society felt intimidated by exclusive possession of the plaintiff, over the terrace on the third foor.
12. The plaintiff has placed on record the receipts issued in the name of her predecessor, in the form of maintenance arrears to the tune of Rs.14,125/- for the period commencing from 01/07/2002 to 30/09/2022, where the society has acknowledged the receipt of the said amount. Another receipt dated 14/10/2013 also acknowledge sum of Rs.12,250/-, as well as the sum of Rs.25,000/- on 31/12/2013. The society has accepted monies towards monthly acceptance and expenses as well as the payment towards municipal taxes, building repair, contribution expenses for the third foor terrace and the share certifcate charges from the Kewalramani Group in reference to Gala Nos.301A(318), 302A(319), 301, 302, 303, 304, 309, 310, 311 and third foor Terrace (Total 10 units) and acknowledge the receipt of Rs.2,49,027/- on 18/09/2001.
13. In the wake of the aforesaid background, the plaintiff specifcally pleaded that from the agreements being entered with the Kewalramani Group from the year 1985, till the date on which the proposal for redevelopment was processed, the possession of the plaintiff over the suit premises was never quizzed and instead, the society continued to accept charges towards the suit premises alongwith other premises which are owned and possessed by the plaintiff, being 10 galas. Apparently, only when the building was going for redevelopment, the society awakened to the use of the terrace on the third foor, by the plaintiff exclusively and the objection came to be raised.
14. The learned senior counsel has placed on record a sketch map of the structure and on it’s perusal, it can be seen that gala Nos.303, 304, which open into a common passage abutting Gala No.311 leads to an open terrace, which has a entry through a collapsible gate and since it can be seen that the 10 galas on the third foor belong to the Kewalramani Group and this position is clearly refected in the agreement entered into with the said Group by the Chief Promoter. In my considered opinion, unless and until the evidence to the contrary is brought on record showing that the plaintiff was never put in exclusive possession of the suit premises, a prima facie case exists in favour of the plaintiff. Merely because the agreement is not registered can be no ground to throw the plaintiff out, at this stage since the said agreements can always be read for collateral purpose. The plaintiff, apparently, is paying amount of maintenance and all other amounts due and payable for use, occupation and possession of the suit premises, which is a terrace and this continue since the year 1985 i.e. prior to the formation of the society. It will ultimately depend upon the outcome of the trial to establish this long drawn possession, but prima facie, it can be recorded that the plaintiff continue to be in exclusive possession of the terrace abutting gala No.311. There cannot be any doubt about the preposition advanced by the learned senior counsel to the effect that common areas and facilities, according to MOFA, would cover stilt parking space and open parking space used as open areas and they are meant for all the fat purchasers. It is ultimately a matter of trial to determine whether the terrace appended to the third foor is a common area, since there is also a terrace on the 4th foor of the building and, therefore, whether the suit premises would fall within the common area is a question to be determined on the evidence being brought before the concerned Court.
15. The learned counsel Mr.Singh has rightly placed reliance upon the decision of the learned Single Judge of this Court in case of Ashok Punjabi & Ors. Vs High Class Developers & Ors. (2012) 4 Bom CR 450 in submitting that the factual aspect that the society was accepting the amount of maintenance and other charges from the occupiers shall be construed as expressed consent. The factum of possession, being not disputed for a considerable length of time, Mr.Singh is justifed in submitting that such a possession would be presumed to be permissible in nature and the plaintiff shall be given an opportunity to prove her permissible possession by establishing the assertion in the plaint, by supporting the claim by evidence being brought on record during the course of the trial. Since, this is a matter of trial, I concur with the learned Judge who has recorded a prima facie case in favour of the plaintiff for the purposes of grant of injunction.
16. Coming to the issue about the maintainability of the suit and the reliance placed by the learned senior counsel on the decision of the Hon’ble Supreme Court in the case of Anathula Sudhakar (supra), the Hon’ble Supreme Court has summarised the position in regards to the prohibitory injunction relating to a immovable property and held that, where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession with or without consequential injunction is a remedy, but where the plaintiff’s title is not in dispute or in a cloud, but he is out of possession, he has to sue for possession with consequential injunction and when there there is mere interference with plaintiff’s lawful possession or threat of dispossession, it is suffcient to sue for injunction simplicitor. The position is clarifed as under:- “(b) As a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the fnding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a fnding thereon, it will not be possible to decide the issue of possession.” The crux of the matter is, therefore, whether it can be said that the title of the party is in dispute or under cloud and the said position is clarifed in the following words by their Lordships of the Hon’ble Supreme Court:- “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 the 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 suffcient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, fles 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 suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to fle a comprehensive suit for declaration and injunction. He may fle 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 the 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 diffculty 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.”
17. In a subsequent decision of the Hon’ble Supreme Court in the case of T.V.Ramakrishna Reddy Vs. M.Mallappa & Anr. (Civil Appeal No.5577 of 2021 decided on 07/09/2021), the observations in Anathula Sudhakar (supra) are reproduced, with a further word of caution in the following words:- “10. In could thus be seen that this Court in unequivocal terms has held that where the plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the fnding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
11. No doubt, this Court has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved in simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction. 12.…. 13.…. 14.….
15. It could thus clearly be seen that this is not a case where the plaintiff-appellant can be said to have a clear title over the suit property or that there is no cloud on plaintiffappellant’s title over the suit property. The question involved is one which requires adjudication after the evidence is led and questions of act and law are decided.” In the wake of the above position emerging from the authoritative pronouncements, ultimately it cannot be said that the title of the plaintiff over the suit premises is free from cloud, but this issue can be decided only after a full-fedged trial, on the basis of the evidence lead by the parties in support of their rival claims, but it is well settled position of law that in each and every case where the defendant disputes the title of the plaintiff, it is not necessary that in all those cases, the plaintiff has to seek relief of declaration. The suit for mere injunction does not lie, only when the defendant raises a genuine dispute with respect to the title and when he raises a cloud over the title of the plaintiff, then the plaintiff cannot maintain a suit for bare injunction. Recording a prima facie case, on account of continuous possession of the plaintiff over the suit terrace, coupled with the fact that the society never objected to such possession and rather expressed it’s implied consent for it’s exclusive use of the plaintiff, by accepting the maintenance charges from the year 1985 till the year 2018, the impugned order passed by the learned Judge cannot be said to be suffering from legal infrmity, while recording a prima facie case and balance of convenience in favour of the plaintiff. Upholding the impugned order, the Appeal is dismissed.
18. In view of the dismissal of the Appeal, interim application does not survive and stands disposed off. ( SMT.
BHARATI DANGRE, J.)