IMPORTANT POINT
In first appeal, High Court cannot travel beyond the decree under challenge.

Headnote:Code of Civil Procedure, 1908 – Section 96 – First appeal – Practice and procedure – High Court passing order on “Note for speaking to the Minutes” in the first appeal – “Note for speaking to the Minutes” cannot be considered at par with a review application or with an application for clarification/modification of an order – Order passed by High Court on “Note for speaking to the Minutes” as if on an application for clarification/modification, held beyond jurisdiction. (Para 12)
       Code of Civil Procedure, 1908 – Section 96 – First appeal – Judicial propriety – Appeal against decree for conveyance of 1009.70 sq. meters – High Court directing conveyance of 2700 sq. meters – Held beyond jurisdiction – High Court could have approved or dismiss the appeal but not travelled beyond the decree. (Para 12)
       2012 SCC Online Gujarat 4339; 2015 SCC Online Bombay 39 – Referred
       Administration of justice – Judicial propriety – Total plot area 2593.70 sq. meters – Building A1 on the land admeasuring 1009.70 sq. meters – High Court directing conveyance of 2700 sq. meters – Not sustainable. (Para 12)
       Facts of the case:
       Under a duly registered Conveyance dated 30.10.1974, the Trust acquired 9797 sq. meters of land with a charitable object of providing Housing to weaker sections of the Society which included the Plot bearing CTS No. 97/A5/2 of Village Chinchavli, Malad (East), Mumbai admeasuring 2593.70 sq. meters. Between 1975-78, the Trust constructed building A1 comprising of 20 Flats each admeasuring builtup area of 588 sq. ft. and the purchasers took possession of the respective flat. About 26 years after they took possession, the Purchasers-Respondents herein the original Plaintiffs filed Suit No. 4111 of 2004, inter alia, for directing the Trust and others to execute the Conveyance of Plot No. A/1 claiming that they were entitled to the Plot area of around 1205 sq. yards (1009.70 sq.meters).
       It was the case on behalf of the original Plaintiffs that the Plaintiffs have paid full purchase price for purchase of their respective flats in the said building A1, constructed by the original Defendant No. 1, Trust. That, though the Trust handed over the possession of the flats to the respective flat owners and they are put in possession and occupation of the respective flats, the Trust have failed to obtain occupation certificate of the said building in terms of the IOD and CC issued by the Corporation. Though the Trust collected from each of the flat purchasers an amount of Rs. 351/- towards membership fee and share money, they did not form a Cooperative Society. The building occupied by the plaintiffs are consisting of ground plus four storeys and the total builtup area is around 1205 sq. meters. As no action was taken by the Corporation for illegal and unauthorized construction on the plot adjacent to building A1, the original Plaintiffs instituted the aforesaid Suit.
       Trial Court decreed the Suit.
       The original Defendants (except for Defendant No. 2 Corporation) preferred the First Appeal No. 466 of 2010 before the High Court.
       During the pendency of the Suit, the Society of the flat purchasers was registered in the name of Agrasen Cooperative Housing Society Ltd. under the provisions of the Maharashtra Cooperative Societies Act, 1960. Thereafter, during the First Appeal preferred by the original Defendants, in the year 2014, the Society initiated proceedings before Divisional Registrar, Cooperative Societies for execution of Conveyance Deed. The High Court dismissed the Appeal No. 466 of 2010. The High Court specifically held that a Deed of Conveyance of the land to the extent of the building to be executed within nine months.
       On the basis of the order dated 23.12.2014 passed by the High Court directing to execute the Conveyance of the land to the extent of the building i.e. 2700 sq. meters, the Divisional Registrar passed an order granting deemed Conveyance of the area admeasuring 2593.70 sq. meters.
       The Appellant - Trust filed Civil Application No. 1698 of 2015 in F.A. No. 466 of 2010, praying for modification of the direction to execute the deed of Conveyance to the extent of 2700 sq. meters. Simultaneously, the Petitioner also filed Writ Petition No. 992 of 2015, challenging the order passed by the Divisional Registrar granting the deemed Conveyance.
       The High Court has dismissed the Civil Application No. 1698 of 2015 in First Appeal No. 466 of 2010. However, by dismissing the Civil Application, the High Court has further clarified that the appellants shall be entitled to consume the balance FSI of plot of the land. The High Court has also dismissed the Writ Petition No. 992 of 2015 and has confirmed the order of deemed Conveyance for the area admeasuring 2593.70 sq. meters.
       Finding of the Court:
       Impugned order of High Court is beyond jurisdiction.
       Result: Appeals allowed.

JUDGMENT :

M.R. Shah, J.

1. Leave granted in all the Special Leave Petitions.

2. As all these appeals are interconnected between the same parties and with respect to the same properties, these are being disposed of by this common judgment.

3. Feeling aggrieved and dissatisfied with the impugned order dated 23.12.2014 in F. A. No. 466 of 2010 and the order dated 04.07.2015 in Civil Application No. 1698 of 2015 in F.A.No.466 of 2016 passed by the High Court of Judicature at Bombay (hereinafter referred to as the ‘High Court’), the original Defendants have preferred the present appeals.

3.1 Feeling aggrieved and dissatisfied with the impugned final order dated 10.09.2015 passed by the High Court in Writ Petition No. 992 of 2015 the original Petitioners of the aforesaid Writ Petition have preferred the present appeals.

4. The facts leading to the present appeals in nutshell are as under:

That Appellant No. 1 Trust Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh (hereinafter referred to as the ‘Trust’) was, registered under Bombay Public Trusts Act, 1950. According to the Trust, under a duly registered Conveyance dated 30.10.1974, the Trust acquired 9797 sq. meters of land with a charitable object of providing Housing to weaker sections of the Society. That the said area of 9797 sq. meters included the Plot bearing CTS No. 97/A5/2 of Village Chinchavli, Malad (East), Mumbai admeasuring 2593.70 sq. meters. According to the Trust, the Mumbai Municipal Corporation sanctioned the plan of the Trust in the year 1974-75 for construction of building A1 to be constructed on subplot carved out of CTS No. 97/A5/2 (the disputed property). That the building A1 was to consume the area of 1009.70 meters equivalent to 1205 sq. yards. That, between 1975-78, the Trust constructed building A1 comprising of 20 Flats each admeasuring builtup area of 588 sq. ft. and the purchasers took possession of the respective flat. Thereafter, about 26 years after they took possession, the Purchasers-Respondents herein the original Plaintiffs filed Suit No. 4111 of 2004, inter alia, for directing the Trust and others to execute the Conveyance of Plot No. A/1 claiming that they were entitled to the Plot area of around 1205 sq. yards (1009.70 sq.meters). That the original Plaintiffs prayed for the following reliefs in the Suit:-
a. That it is declared that the Defendant No. 1 is bound and liable:
i. To complete the said building A/1 in accordance with the building plans sanctioned by and in terms of the conditions of IOD and CC issued by the Defendant No. 2 in respect thereof.
ii. To obtained Occupation Certificate for the said building No. A/1.
iii. To provide supply of municipal water to the said building A/1.
iv. To obtain building Completion Certificate for the said building A/1.
v. To form cooperative housing society of the Plaintiffs.
vi. To convey the said building A/1 together with the plot of land J/1.
b. That this Hon’ble Court may be pleased to pass permanent order directing:
i. Defendant No. 1 to obtain occupation certificate and municipal water connection to the said building A/1.
ii. Defendant No. 1 to form cooperative housing society of the plaintiffs.
iii. Defendant No. 1 to convey the said building together with plot J/1 to the Cooperative Housing Society of the Plaintiffs.
iv. Defendant No. 1 not to carry out any construction upon the said plot J.
v. Defendant No. 2 to cancel the permission given to the Defendant No. 1 to carry out construction on the said plot “J”.
vi. Defendant No. 2 not to give any further permission to Defendant No. 1 to carry out any construction on the said plot “J”.
vii. Defendant No. 2 to take necessary actions against Defendant No. 1 for carrying out construction of unauthorized hutments.
viii. Defendant No. 2 to take necessary actions against Defendant No. 1 for cutting of trees.
4.1 It was the case on behalf of the original Plaintiffs that the Plaintiffs have paid full purchase price for purchase of their respective flats in the said building A1

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2018 Supreme(SC) 1260

IMPORTANT POINTIn first appeal, High Court cannot travel beyond the decree under challenge.

Cases Referred (2)

IMPORTANT POINT
In first appeal, High Court cannot travel beyond the decree under challenge.