Final Order 2

Order Details: Notice of Motion
Pdf Text: MHCC010044442020 Presented on : 14.10.2020
Registered on : 14.10.2020
Decided on : 21.08.2026
Duration : 05 10 07
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
NOTICE OF MOTION NO. 1461/2020
(CNR NO. MHCC010044442020)
IN
SHORT CAUSE SUIT NO. 1163/2020
Satnam Palace Co-operative Housing Society
Limited … Plaintiff
Versus
Roshni Co-operative Housing Society … Defendant
CORAM : R. V. BHAKTA, JUDGE,
: COURT ROOM NO. 61.
DATE : 21.08.2026
Appearances: -
Adv. P. D. Gandhy along with Adv. Panchal for plaintiff.
Adv. Suraj Kudalkar for the defendant.
ORAL ORDER
(Dictated and pronounced in open Court)
This Notice of Motion is taken out by the plaintiff
restraining the defendant from obstructing ingress and egress of
common internal road which is a subject matter of this suit.
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2. From the pleadings of both sides, the following points arose
for my determination and I have recorded my findings subject to the
reasons mentioned hereinafter.
Sr.
No. Points Findings
1. Whether the plaintiff is entitled for injunction as
prayed?
In the
negative.
2. Whether the plaintiff has succeeded in proving
that it will suffer greater hardship if the injunction
is not granted in its favour?
In the
negative.
3. What order? As per final
order.
R E A S O N S
AS TO POINTS NO.1 TO 2:
3. According to the plaintiff, it is a Co-operative Housing
Society registered under the Maharashtra Co-operative Societies Act,
1960, known as “Satnam Palace”, which is situated adjacent to the
defendant-Society, namely, “Roshni Co-operative Housing Society”. It is
the case of the plaintiff that, pursuant to the Agreement dated
27.10.1926 executed between P. R. Edwin James, the Lord Bishop of
Bombay, as the Lessor and Rev. William Hazen and Lestor Hayn Beals,
as the Lessees and then Trustees of the American Marathi Mission,
leasehold rights were created in respect of the subject property. On the
basis of the said grant/Indenture of Lease dated 27.10.1926, the
plaintiff claims an easementary right over the suit road.
4. Thereafter, by virtue of the Agreement dated 28.09.1961,
Mr. Dara Jehangir Cama and Mehboob Valimoahmed Sonawala agreed
to sell a portion of the said land, admeasuring 845 square yards or
706.53 square metres, subject to the terms and conditions of the
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Indenture of Lease dated 27.10.1926, to M/s. H. G. Construction
Company, a partnership firm. The said partnership firm was
subsequently dissolved and a new partnership firm, namely, M/s. Hind
Rajasthan Construction Company, came into existence. The plaintiff's
building was thereafter constructed as a part of the said land.
5. It is further the case of the plaintiff that the building of the
defendant-Society was constructed prior to the construction of the
plaintiff's building, i.e., in the year 1958-59. According to the plaintiff,
the easementary right created under the Agreement/Indenture of Lease
dated 27.10.1926 was subsequently assigned and transferred and
continued in favour of the plaintiff-Society by virtue of the subsequent
transactions. The plaintiff contends that the said easementary right is
expressly recorded in the parent Lease Deed dated 27.10.1926, which
stipulates that an open space measuring 12½ feet was required to be
maintained along the southern and eastern boundaries of the larger plot
without erecting any structure thereon.
6. According to the plaintiff, its Society and its members have
been peacefully using and enjoying the suit road, without any
interruption, for more than 55 years. However, in June 2020, the
members of the defendant-Society allegedly obstructed the plaintiff's
aforesaid easementary right by parking their vehicles on the suit road.
The plaintiff requested the defendant-Society to remove the said
obstruction; however, despite such request, the obstruction was not
removed. Hence, the plaintiff has taken out the present Notice of
Motion.
7.
Per contra, the defendant-Society has specifically denied
the averments made by the plaintiff regarding the alleged easementary
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right. It is the contention of the defendant-Society that it is the owner of
a plot admeasuring 469.90 square metres bearing C.S. No. 1497.
According to the defendant, its building is situated behind the petrol
pump standing on C.S. No. 1497, which was owned by its predecessor-
in-title. Since the defendant's building is situated behind the petrol
pump, the predecessor-in-title of the defendant-Society had kept the
suit road for the exclusive use and access of the defendant-Society, the
said road passing through the petrol pump area.
8. It is further contended by the defendant that the plaintiff-
Society has an alternative access road. Despite having such alternative
access, the plaintiff has instituted the present proceedings with a mala
fide intention to obtain access over the suit road, which, according to
the defendant, is meant exclusively for the use of the defendant-Society.
9. It is further the contention of the defendant that the
plaintiff is claiming an easementary right on the basis of the Lease
Agreement dated 27.10.1926 and certain subsequent agreements of the
years 1963 and 1973. However, according to the defendant, none of the
said documents contains any provision granting the plaintiff-Society or
its predecessor-in-title any right of access through the defendant-
Society's premises or over the suit road. The defendant further contends
that it is an admitted position on record that the defendant-Society's
building was constructed prior to the construction of the plaintiff-
Society's building. Therefore, according to the defendant, no
easementary right could have accrued in favour of the plaintiff-Society
in the manner claimed.
10. According to the defendant, all the buildings surrounding
the suit road, including the plaintiff's building, Piccadilly Society and
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Oxford Chamber Society, have their respective internal access roads
measuring 12½ feet, which provide access to the main road. Similarly,
the defendant-Society has its own access road through an internal
passage leading to the main road.
11. It is further contended that the plaintiff-Society has
installed a suction tank near the main entrance of its building and has
subsequently created a new entrance gate directly opposite the internal
access road of the defendant-Society, with a view to claiming an
easementary right over the defendant-Society's access road. According
to the defendant, the predecessors-in-title of the respective Societies
had maintained a 12½-foot open space for the use of their respective
members. The defendant alleges that the plaintiff has suppressed these
material facts and has taken out the present Notice of Motion on false
and frivolous grounds, with a mala fide intention to obtain an
additional access through the defendant-Society's premises. On these
grounds, the defendant has prayed for rejection of the Notice of Motion.
12. I have perused the Notice of Motion, the Affidavit in
Support thereof, the say filed by the defendant, and the documents and
photographs annexed thereto. I have also heard the learned Advocates
appearing for both sides at length.
13. It is to be noted that, in the present Notice of Motion, in
order to establish its case, the plaintiff principally relies upon the Lease
Agreement dated 27.10.1926 and certain subsequent agreements of the
years 1963 and 1973. From the material presently placed before the
Court, the plaintiff relies upon a stipulation requiring that an open
space measuring 12½ feet be maintained along the southern and
eastern boundaries of the larger plot without erecting any structure
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thereon.
14. At this interlocutory stage, the said stipulation cannot,
without further evidence and proper construction of the complete
documents and subsequent instruments, be treated as an unequivocal
grant of a right of passage in favour of the plaintiff. There is a material
distinction between a covenant requiring the maintenance of an open
space and an express grant of a right of way.
15. Whether the intention of the parties under the 1926
instrument, as well as the subsequent instruments, was merely to
preserve an open space or whether it was intended to confer a right of
passage upon a particular dominant heritage is a matter that would
require examination of the evidence pertaining to the title, precise
boundaries, identity of the dominant and servient heritages, subsequent
transfers and surrounding circumstances. At this juncture, the plaintiff
has, prima-facie, not been able to demonstrate from the material
available that the Lease Deed of 1926 and the subsequent documents
constitute an unequivocal grant of the particular right of way claimed
over the defendant's property.
16. Furthermore, in order to claim an easementary right by
prescription, the plaintiff must satisfy the statutory requirements,
including that the enjoyment was peaceful, open, as of right and
without interruption for the prescribed period. Thus, mere long-
standing use is not synonymous with acquisition of an easement by
prescription. The character of the user is material. The plaintiff must
ultimately establish that such use was not merely permissive, casual, by
sufferance or referable to some other arrangement, but was exercised as
of right against the servient owner.
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17. As stated hereinabove, it is the case of the plaintiff that its
members and their families have been using the road in question for
more than 55 years. However, in June 2020, the members of the
defendant-Society allegedly obstructed the plaintiff's aforesaid
easementary right by parking their vehicles on the suit road.
18. The defendant has specifically disputed the very existence
of the alleged easement and has asserted that the suit road is
maintained and kept exclusively for the use of the defendant-Society.
These facts give rise to a substantial controversy regarding the
character, extent, and legal basis of the alleged user.
19. Whether the plaintiff has been using the suit road for the
last 55 years and that too as of right; whether the defendant or its
predecessors had knowledge of such claim; whether there was
uninterrupted user for the requisite statutory period and whether such
user was permissive or adverse, are matters that cannot, prima facie, be
decided at this stage without affording the parties an opportunity to
lead evidence on these issues.
20. As a result, it cannot be said that the plaintiff has
succeeded in establishing a prima-facie case in its favour.
21. So far as the aspect of balance of convenience is concerned,
the defendant’s claim independent ownership rights over the road in
question, whereas the dispute pertains to the plaintiff's alleged right to
use the said road as an easement by grant. In these circumstances, the
grant of an injunction, which is in the nature of a mandatory injunction
in favour of the plaintiff, would, in substance, permit the plaintiff and
its members to exercise a right over the defendant's property before the
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plaintiff establishes the legal foundation of such right. Hence, the
balance of convenience also does not lie in favour of the plaintiff. If, at
this stage, a mandatory injunction is granted in favour of the plaintiff,
the defendant would suffer greater hardship than the plaintiff.
Accordingly, Point Nos. 1 to 2 are answered in the negative. Hence, the
following order:
ORDER
1. Notice of Motion No.1461/2020 is rejected and disposed of.
2. Costs in the main cause.
DATE: - 21.08.2026 (R. V. BHAKTA),
JUDGE,
C. R. NO.61,
CITY CIVIL COURT,
GR. MUMBAI.
Typed on : 21.08.2026
Checked on : 24.08.2026
Signed on : 24.08.2026
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER"
DATE: 24.08.2026, AT 05.53 P. M. Siddhesh S. Shirke
Stenographer (Grade-I)
Upload Date and Time Name of Stenographer
Name of the Judge (with Court no.) : R. V. Bhakta, (C. R. No. 61)
Date of pronouncement of
Judgment/Order : 21.08.2026
Judgment/Order signed by the P. O.
on : 24.08.2026
Judgment/Order uploaded on : 24.08.2026
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