S.C. Dharmadhikari, J.

Admit. Respondents waive service. By consent of parties heard forthwith.

2. This appeal under clause 15 of the Letters Patent challenges the order of the learned Single Judge passed in the above Notice of Motion. By the order under challenge delivered on 16th April, 2009, the learned Single Judge has dismissed the appellants’ Notice of Motion.

3. The appellants before us are the original plaintiffs whereas the respondents are the original defendants.

3. The appellants filed a suit in this court being Suit No.2314 of 2008 against the original defendants for a declaration that the Deed of Conveyance dated 25th October, 2004 executed between the original defendant No.1 and original defendant No.3 in respect of a plot of land No.442, TPS IV, Mahim Division, Mumbai is illegal, bad in law and not binding on the plaintiffs. The original defendant Nos.1 to 3 are respondent Nos.1 to 3 to this appeal.

4. The further relief that the plaintiffs claim is a permanent injunction restraining the defendants, their servants or anybody claiming through them from utilizing the FSI available on the plot in respect of the portion of the building viz. Building No.2, Pethe Building, Baburao Parulekar Road, Off. Bhavani Shankar Road, Dada (West), Mumbai400 028. It is the case of the plaintiffs that they have occupied this building.

5. The other final relief claimed is a direction to the defendants to convey the said plot to the Cooperative Housing Society formed by the plaintiffs viz. Space Cooperative Housing Society Limited.

6. It would be convenient to refer to the parties by their original description.

7. Final Plot No.442 TPS IV, Mahim Division admeasures about 1998 sq. yards. It was owned by Hindu Undivided Family of the defendant No.1. A portion of the plot admeasuring about 900 sq. yards together with the structures standing thereon was acquired by the respondent No.4 (original defendant No.4) Municipal Corporation of Greater Bombay under a Town Planning Scheme. Compensation was awarded to defendant No.1. Remaining portion of the final plot No.442 admeasuring about 1098 sq. yards viz. 918 square meters is the subject/suit plot. It is alleged in the plaint that the first defendant by an agreement for sale dated 11th April, 1966 in his capacity as Karta of Hindu Undivided Family consisting of his wife and minor son sold the plot to M/s. Pethe Engineering and Construction Company i.e. original defendant No.2.

8. The original defendant No.1 also in his capacity as Karta executed an agreement of Leave and Licence dated 16th April, 1966 with the original defendant No.2 for entering upon the said plot and constructing building thereon and also to sell the flats constructed therein.

9. Then it is alleged that there was an oral partition in or about 1968 between the defendant No.1 and his family in respect of the properties of the Joint Hindu Family. The oral partition was then put in writing in the form of Registered Deed of partition dated 26th April, 1968. Pursuant to the arrangement between defendant Nos.1 and 2, the defendant No.2 undertook construction of two buildings on the plot. Defendant No.2 constructed a building on the area admeasuring 590 sq. mts. of the said plot consisting of stilt plus four upper floors being Building No.2, Pethe Building, Baburao Parulekar Road, Off. Bhavani Shankar Road, Dadar (West), Mumbai-400 028. However, second defendant partly constructed building No.1 on an area admeasuring 328 sq.mts. of the said plot but it was not completed by defendant No.2.

10. Reference is then made to a certificate issued by the Architect in this behalf (Annexure `C' to the Plaint) to support the allegation of incomplete construction.

11. It is alleged thereafter that by registered agreement for sale dated 10th October, 1968, plaintiff No.1 purchased flat being Flat No.7 on the 3rd floor with parking space in the said building No.2 from M/s. Pethe Engineering and Construction Company viz. defendant