- (1.) APPELLANT-ORIGINAL defendant No. 26, by name `the Mohatta Nagar Co-operative Housing Society Ltd. , Vikroli, Bombay-79, has by this appeal challenged the judgment and decree passed by the Judge, City Civil Court, Bombay on 29th April, 1988 in Suit No. 3204 of 1970, filed by respondent No. 1 M/s. Vishram Khimji and Sons.
(2.) THE undisputed facts giving rise to the present appeal, may be stated thus :plaintiff is a partnership firm registered under the Indian Partnership Act. In 1962, in pursuance of an Agreement of Sale, plaintiffs entered into possession of a plot of land, bearing Survey No. 27/a, Hissa No. 1 (pt) and S. No. 90, H. No. 23 (pt), totally admeasuring 2,351 square yards, at Vikroli, Greater Bombay, for the purpose of developing the same by constructing flats and selling such flats to prospective buyers on ownership basis. At a later stage, on 22nd December, 1963, plaintiffs by a Deed of Conveyance, purchased the said plot from the owner Smt. Sushila. Between 1962 and 1966, certain flats were sold. Defendant Nos. 1 to 21, who had originally joined as parties, were such purchasers of flats constructed by plaintiffs on the said land. Original defendant Nos. 22 to 25, according to plaintiffs, were in wrongful possession of the flats in their possession in the said building. According to plaintiffs, after purchasing said plot of land, plaintiffs submitted to the Bombay Municipal Corporation, Greater Bombay, a plan for construction of one Building, consisting of ground and three upper storeys on the eastern side of the said plot and thereafter, another plan of a building which was proposed to be constructed in the rear portion i. e. to the west of the said plot consisting of ground and two upper floors. It was further case of the plaintiffs, that in the meantime, they made a proposal for sub-division of the said plot into two plots, one of 1,140 square yards and other of 1,250 square yards approximately. Said proposal were granted in 1967. So far as eastern portion of the said plot is concerned, according to plaintiffs, construction of the building of ground and three upper storeys, was complete, and those flats were sold under several Agreements executed between plaintiffs on one hand and defendant Nos. 1 to 21, severally and individually, on the other hand. According to plaintiffs, some of the defendants, have signed the Agreements when the said plot was undivided while the remaining defendants have signed such Agreements, after the said plot was sub-divided. However, it is contention of plaintiffs that whatever may be the variations in the form of two Agreements, plaintiffs right to construct on the entire plot to the full extent including raising further storeys was implicitly reserved. According to plaintiffs, under the Agreement entered into with the flat owners, it is the right and duty of the plaintiffs to promote and form a co-operative society or all Ltd. Company of the acquirers of the flats and after the plaintiffs, complete the entire construction, on the said plot, and all the flats have been sold and consideration recovered, that such a society or limited society was to be formed. Plaintiff has alleged that defendants had no right to form a co-operative society by themselves as they had done, so as to in any manner, prejudice the rights of other flat holders coming to occupy flats in other building proposed to be constructed by the plaintiff on the rear building. Therefore, it is contention of plaintiff that defendant Nos. 1 to 25, have wrongfully formed the society defendant No. 26, without reference and without concurrence of the plaintiffs. It is alleged by the plaintiffs that before filing of the suit, defendants had unauthorisedly started excavations to the rear of the building which, they had no right to do. According to plaintiffs, defendants have no right to the use of any part of the ground to the rear of the building for any purpose whatsoever, and the ground of the front building, save and except for ingress and agress, to and from, said building, in which they reside. According to plaintiffs, they had not handed over possession of the said building or any portion of the plot of land to the defendants or the said society, nor the plaintiffs had executed any Conveyance in favour of any society or corporate body nor they have become liable to do so on the facts stated earlier. It is in these circumstances, plaintiffs filed a suit in April, 1970, claiming relief : (a)for a permanent injunction against the defendants and each of them restraining the defendants, their servants and agents from interfering with the possession of the plaintiffs in respect of the said building known as `mohatta Nagar and/or of the said plot bearing Survey No. 27-A Hissa No. 1 (Plot) and Survey No. 90, Hissa No. 23 (part) at Vikroli, Greater Bombay and more particularly, described in Exhibit A hereto, save and except by due process of law. (b)for a pormanent injunction against the defendants and each of them restraining the defendants, their servants and agents from carrying out any digging or construction work or any other work of any nature whatsoever and from entering upon or remaining upon the said plot of land referred to in prayer (a) above ; or any part thereof save and except the purpose of effecting ingress and egress to and from the said building known as `mohatta Nagar. (c)for a permanent injunction against the defendants and each of them restraining the defendants, their servants and agents from preventing or obstructing the plaintiffs, their servants and agents in carrying out further construction and doing all acts incidental thereto on the said plot of land referred to in prayer (a) above, and for interim and ad-interim orders in terms of prayers (a), (b) and (c) above.
(3.) DEFENDANTS, by their Written Statement, contended inter-alia that the suit was totally misconceived and not maintainable in view of the provisions of Maharashtra Ownership Flats Act, 1963. The suit was bad, for misjoinder of causes of action. City Civil Court had no jurisdiction to try and entertain such a suit. Defendants, were in settled possession of the suit plot and as such, suit was liable to be dismissed. It was contended that defendants, were in possession for the last more than six years, before filing of the suit and plaintiffs were never in possession, either juridical possession or physical possession of the suit plot. According to defendants, plaintiffs in part performance of the contract, have put the defendants in possession of the entire plot, and as such, they have been in continuous and uninterrupted enjoyment of the said plot since then. An objection was also raised on the ground that the suit was beyond the pecuniary jurisdiction of the Bombay City Civil Court. They denied that defendants Nos. 22 to 26 were in wrongful possession of the flats in their possession or that defendants have wrongfully promoted society-defendant No. 26. According to defendants, plaintiffs have made a representation that flats were available on ownership basis by means of advertisements, in a building to be constructed in the suit plot and that suit plot would be conveyed to the society that will be formed by the flat owners. According to defendants, on the basis of the said representations, they purchased flats in the said building, under several agreements executed by different defendants. According to defendants, in pursuance of different agreements executed by them, they were put in possession of the building as well as suit plot and as such, were in enjoyment of the same in part performance of their part of the agreement, as from 1964 or thereabout. Defendants contended that plaintiffs however, did not complete the building in its entirety, deliberately and intentionally nor, bothered to get electric supply to the building or water connection as promised by them. Therefore, a criminal complaint was filed against the plaintiffs under section 420 and 114 of the Indian Penal Code. Said complaint was compounded between the parties on certain terms and conditions. According to defendants, plaintiffs tried to dispose of part of the land, by concealing the said fact from them. Defendants therefore, informed the purchaser that they were the owner of the entire suit plot admeasuring 2,350 sq. yards and plaintiffs were not entitled to transfer to anyone else. Defendants contended that they had put barbed wire fencing and had also caused work of levelling of the adjoining plot to enable flat owners to make proper use of the same. According to them, they have been using open space on the said plot as a badminton Court. It is contention of defendants that since the original agreement between the plaintiffs and defendants was to construct a single building on the suit plot and hand over possession of the building, as well as plot, plaintiffs had no right in or over the remaining part of the open plot. They have denied that under the Agreements executed by them, any right to construct is implicitly reserved. Defendants have dontended that plaintiffs have not deliberately and intentionally carried out their part of the undertaking given to the Honble Presidency Magistrate Court, Mulund, Bombay in a criminal case by not getting the society registered within a reasonable time, although defendants had carried out their part of the undertaking and agreements. According to defendants, it was in these circumstances, they got the society registered. It is further contention of the defendants, that in equity, they are owners of the entire plot and are in possession in part performance of the contract in their favour. It is in these circumstances, they have prayed that suit of the plaintiffs be dismissed.;