- (1.) THE appellants, who are the original plaintiffs in a suit instituted before the City Civil Court, impugned in the suit a notice dated 7th March, 1998 issued under section 351 of the Bombay Municipal Corporation Act, 1888 and an order dated 25th June, 1998, passed by the Deputy Municipal Commissioner. Besides praying for declaration that the notice and the order of the Deputy Municipal Commissioner are contrary to the law, the appellant sought an injunction restraining the respondents from enforcing the notice and the order in or open the suit premises described as consisting of "garage and the so called upon space approximately 680 sq. ft. area, made up of B. M. walls and A. C. Sheet roof together with the loft".
(2.) BRIEFLY stated, the appellants case is that from 25th February, 1988, they are carrying on business as partners in an unregistered firm from the premises in question, which consist of garage No. 1 situated in the precincts of a plot belonging to the Kalamandir (Khar) Co-operative Housing Society Limited, situated at 635, P. D. Hinduja Marg, Mumbai 400 052. The plot of land in question is Final Plot No. 635 of Town Planning Scheme III, Bandra and admeasures 618. 70 sq. mtrs. The original owner of the plot was one U. Krishna Rao Anant Shenoy and the averment in para 2 of the plaint that he had construed thereon about 38 years ago a building consisting of ground and two under floors and two garages. Shenoy died on 3rd January, 1982. According to the appellants one Yusuf Allaudin Nagori was inducted as a tenant by Shenoy in respect of one garage and an open space in front of it on a monthly rent of Rs. 125/- in respect of the open space. According to the plaintiffs Shenoy had during his life time granted permission to Nagori to build a structure abutting the garage and "the total area of the structure including the garage and the so called open space was approximately 680 sq. ft. " In para 3 of the plaint, the plaintiffs describe the suit premises as consisting of "said area made up of B. M. Walls and A. C. sheet roof together with the loft".
(3.) BY an agreement of sale, dated 16th October, 1992 which was followed by a registered deed of conveyance, dated 17th June, 1993, the heirs of the land owner conveyed the entire area of the plot of land to the second defendant which is a registered Co-operative Housing Society formed by the occupants of the building constructed on the plot of land. In the agreement to sell, dated 16th October, 1992 (Exhibit A to the plaint) there is a list of tenants appended in annexure "a" to the agreement. The list of tenants together with the premises in their occupation shows that there are two garages. The rent of both the garages is Rs. 90. 60 per month. In addition, in so far as the garage which was let out to Yusuf Allaudin Nagori was concerned, annexure "a" provides that he is also a tenant of the open space in front of the garage on rental basis at a rent of Rs. 125/per month. The registered deed of conveyance dated 17th June, 1993 provides that the structure which was the subject matter of the conveyance, consists of ground and two upper floors, a small structure on the terrace and two garages standing at the site. What is thus conveyed to the second respondent was a plot of land bearing final plot No. 635, admeasuring 618. 70 sq. metres together with a building consisting of a ground floor and two upper floors, a small structure on the terrace and two garages as also other structures. The plaintiffs, the appellants herein claim to have purchased the premises which form the subject matter of the suit Yusuf Allaudin Nagori alongwith the tenancy rights in respect of the open space.;