Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3045-2019 in SU 2354-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3045 OF 2019
IN
SUIT NO.2354 OF 2019
CNR NO.: MHCC01-008311-2019
Tirumala Developers … Plaintiff
Vs.
Sukruti Apartment Co-operative Hsg.
Soc. Ltd. & Ors.
… Defendants
Appearances:
Ld. Adv Dalal for the plaintiff.
Ld. Adv Marathe for defendant No.1.
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
(C.R.NO.12)
DATE : 07th APRIL 2021
ORDER
The plaintiff has taken out this notice of motion under
Order XXXIX Rule 1 of the Code of Civil Procedure, 1908.
2. Admittedly, the plaintiff had purchased Plot No.2, Survey
No.161, C.T.S. No.526, 526/1 to 9, Lokmanya Tilak Road, Mulund East,
Mumbai 400 081 admeasuring about 1203.9 square metres together
with the structure thereon known as “Bhavanishankar Bungalow”
situated at Lokmanya Tilak Road, Mulund (East), Mumbai from Ms
Urmila K. Madeka, Mr Jitesh D. Madeka, Mr Kamlesh D. Madeka, Mr
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Daulatram L. Madeka and Mr Bhartendu K. Madeka by the Conveyance
Deed dated 31.12.1979 (hereinafter referred to as
“the suit property”).
It is also admitted fact that defendant No.3 had constructed a building
known as Sukruti Apartment comprising of ground plus seven floors on
the part of the suit property.
3. The flat purchasers of Sukruti Apartment have formed a
Co-operative Housing Society in the name and style Sukruti Apartment
Co-operative Housing Society Limited (defendant No.1).
4. The agreement dated 15.08.1981 entered into between
defendant No.3 and Mr Suresh Bhikajee Tulsankar shows that the area
of Sukruti Apartment and land appurtenant thereto is about 668 square
metres out of the suit property and defendant No.1 or its members have
no right, title or interest in the remaining portion of the suit property
and the existing structure thereon. Defendant No.1 has reserved the
right to use, enjoy, possess, develop or otherwise deal with the
remaining portion of the suit property and structure thereon as the
owner thereof. It further goes to show that the land under Sukruti
Apartment was given on lease for a term of 98 years at the rent of
Rs.150/- per annum.
5. In para 10 of the affidavit filed in reply, defendant No.1 has
taken a stand that the floor area of all the floors of Sukruti Apartment is
about 951.13 square metres and not 668 square metres as mentioned in
the individual agreement of the flat purchasers. Whereas in para 21 of
the reply, it is mentioned that Sukruti Apartment and its main gate, exit
gate, underground water tank, drainage line and other pipelines, etc are
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on 970 square metres of area out of the suit property. In the same para,
it is asserted that defendant No.1 has been paying property tax for the
entire area of the suit property.
6. Defendant No.1 has, thus, taken inconsistent stands about
the area in its possession. Nothing is placed on record to show that
defendant No.1 or its members have taken steps for getting the alleged
mistake in the area mentioned in the individual agreement of the flat
purchasers of Sanskriti Apartment corrected.
7. Admittedly, the agreement dated 15.08.1981 is the
registered agreement. The Sub-Registrar's endorsement made under
section 60 of the Registration Act, 1908 is a relevant piece of evidence
for proving facts mentioned therein. The bare reading of Sections 58,
59 and 60 of the Registration Act, 1908 leads to the conclusion that
registration of a document is a solemn act to be performed in the
presence of a competent officer, whose function is to ensure that proper
persons are before him and are identified to his satisfaction and further
all things done before him in his official capacity and verified by his
signature will be presumed to be in order and duly done. (vide
Sanjeeva Row's Registration Act, the 18th Edition) So also, there is a
presumption under Section 114(e) of the Indian Evidence Act, 1872
that the official acts done by the Sub-Registrar have been regularly
performed.
8. Indeed, the presumptions under Section 60 of the
Registration Act, 1908 and under Section 114(e) of the Indian Evidence
Act, 1872 are rebuttable, but the plaintiff has failed to rebut that
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presumption. So, I do not see any good reason to hold that the recitals
in the registered agreement dated 15.08.1981 about the area of
belonging to defendant No.1 are incorrect.
9. From the copy of the Conveyance Deed dated 29.12.2014,
it
prima facie appears that defendant No.3 had sold, conveyed and
transferred the area admeasuring 234.67 square metres out of the suit
property along with building/structure thereon to defendant No.4.
10. From the pleadings of the plaint and the copy of the
Cancellation Deed dated 17.10.2015, it appears that as the sub-division
of the area purchased by defendant No.4 from defendant No.3 under
Conveyance Deed dated 29.12.2014 was not permissible, the said Deed
was cancelled vide the Cancellation Deed dated 17.10.2015.
11. From the copy of the Conveyance Deed dated 17.10.2015,
it appears that defendant No.3 had sold the suit property excluding 668
square metres of area and other benefits therewith granted by the
Corporation to defendant No.1 under the sanctioned plan bearing
No.CE/2124/B.P.E.S./At, to defendant No.4.
12. From the copy of the Conveyance Deed dated 31.03.2016,
it appears that defendant No.4 has sold, conveyed and transferred the
suit property excluding 668 square metres of area of defendant No.1 to
the plaintiff.
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13. From the documents placed on record, it
prima facie
appears that the plaintiff is the owner in possession of the suit property
excluding 668 square metres of area belonging to defendant No.1.
14. As stated
supra, the land under Sukruti Apartment was
given on a lease for a term of 98 years. However, in the application
filed under sub-section (3) of Section 11 of the Maharashtra Ownership
Flats Act, 1963 (in short “MOFA”) for the issuance of a certificate for a
unilateral deemed conveyance, defendant No.1 had misrepresented that
defendant No.3 failed to execute a conveyance of the suit property in
its favour as agreed, and therefore, defendant No.1 is entitled to a
unilateral deemed conveyance of the entire area of the suit property
under Section 11 of the MOFA Act. Accordingly, the Competent
Authority under the MOFA Act by the order dated 31.05.2016 in
Application No. DC11001777/2015 granted a deemed conveyance of
the entire area of the suit property in favour of defendant No.1.
15. Defendant No.1 has not placed on record anything to show
that the land under Sukruti Apartment or any other portion of the suit
property has been conveyed to it under a registered document. On the
contrary, the record shows that the land under Sukruti Apartment was
given on lease and the plaintiff has purchased the remaining portion out
of the suit property under the registered Conveyance Deed. Thus, the
order dated 31.05.2016 in Application No. DC11001777/2015
prima
facie appears to be illegal.
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16. Defendant No.1 has heavily relied upon the reply filed by
defendant No.4 in Application No. DC 11001777/ 2015 to fulcrum its
claim over the entire area of the suit property.
17. Indeed, in the above reply, defendant No.4 had given No
objection for grant of a deemed conveyance in respect of 969.23 square
metres of area out of the suit property in favour of defendant No.1 but
as stated
supra, the plaintiff has purchased the suit property excluding
668 square metres of area out of the suit property from defendant No.4
under the registered Conveyance Deed dated 31.03.2016. So, no
weight can be attached to the reply filed by defendant No.4 in
Application No.DC 11001777/2015.
18. The plaintiff has thus made out a
prima facie case. The
balance of convenience also lies in its favour. Under these
circumstances, if the order dated 31.05.2016 of the Competent
Authority granting deemed conveyance of the suit property in favour of
the defendant No.1 is not stayed pending the hearing and final disposal
of the present suit, the possibility of defendant No.1 creating a third
party interest in the suit property cannot be ruled out safely. So, in
order to preserve the subject matter of the suit in status quo and to
avoid multiplicity of the proceedings, to my mind, it is necessary to
restrain defendant No.1 from creating a third party interest in the suit
property until the final disposal of the suit. So, I hold that the notice of
motion deserves to be allowed in terms of prayer clauses (a) to (c).
Accordingly, I proceed to pass the following order:
ORDER
1. Notice of Motion No.3045 of 2019 is made
absolute in terms of prayer clauses (a) to (c).
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2. Costs shall be costs in the cause.
3. Notice of Motion No.3045 of 2019 is accordingly
disposed of.
Sd/-
R. S. PAVASKAR
Judge,
Date : 07/04/2021 City Civil Court, Gr. Bombay
Dictated on : 07/04/2021
Transcribed on : 07/04/2021
HHJ signed on : 07/04/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
09.04.2021 12.03 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Shri. R.S. PAVASKAR (CR 12)
Date of Pronouncement of
JUDGEMENT /ORDER
07.04.2021
JUDGEMENT /ORDER signed by
P.O. on
07.04.2021
JUDGEMENT /ORDER uploaded
on
09.04.2021
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