The central legal point established in the judgment is the entitlement of the plaintiff society to the conveyance of the entire property as per the statutory mandate under MOFA, and the restriction on the defendants from developing or constructing beyond a specified area on the suit plot of land.

1. The building of the suit property upon which the building of the plaintiff society has been constructed by defendant No.3 initially belonged to defendant No.1. Under a development agreement the plot of land of defendant No.1 came to be developed and the plaintiff's building came to be constructed. A small part of the development/construction remained. The parties had agreed to develop it later. Defendant No.1, the initial owner was to convey the entire property to the plaintiff society as per the statutory mandate. That has not been done and a litigation in that behalf is pending before the property authority.

2. Defendant No.1 has instead sought to convey the property to defendant No. 2. The defendant No. 2 seeks to construct upon the old remaining structures which were not demolished or constructed upon utilising the FSI of the entire plot of land including of that of the plaintiff society building upon the conveyance in its favour. Defendant Nos. 1 and 2 are essentially the same firm. However the partnership firm of defendant No.1 stood dissolved and it is represented by another partner.

3. The plaintiff has sued for declaration that the conveyance deed of defendant No.1 in favour of defendant No.2 is illegal and void and for its cancellation, for a consequent declaration that a certain lease to be made in favour of defendant No.1 has stood forfeited, for the execution of the deed of conveyance in favour of the plaintiff society as per the statutory mandate contained in the Maharashtra Ownership Flats Act, 1963 (MOFA) and for an injunction against development and construction by defendant No.2.

4. The notice of motion is for the prohibitory reliefs of injunction against development and construction.

5. It is the case of the plaintiff that upon the development agreement executed between defendant No.1 and defendant No.3. The provisions of MOFA came to be applied to the suit plot of land. The plaintiff's building was constructed. The members of the plaintiff society were the flat purchasers in whose favour the flat purchase agreements were executed. The society has been registered. The entire plot of land had to be conveyed to the plaintiff. The plaintiff was to give lease of a part of the property to defendant No.1. That was in respect of two structures called outhouses which were tenanted by defendant No.1 and which was not allowed to be developed by those tenants at the time the other part of the property of defendant No.1 came to be developed and the plaintiff's society building came to be constructed and the plaintiff came to be registered as a Co-operative Society. Defendant No.2 contends that defendant No.1 was given the right to construct upon those outhouses as per law. At the time of such agreement the extent of the FSI available was different and the concept of TDR was absent. Defendant Nos.1 and 2 would be entitled to the FSI and TDR of the suit plot of land for construction upon the land on the space where the two outhouses stood or as determined by the BMC as the building authority.

6. It is not necessarily the place but the extent of construction which is the question of contest in the suit. Whereas the plaintiff contends that the construction would be of the FSI of the outhouses which is of a specified dimension, defendant No.2 contends that the extent of construction would be of the FSI of the outhouse and the additional FSI that it is capable of having, additional FSI of the plaintiff's building and additional FSI in respect of the suit structure and the TDR that may be loaded upon the new construction.

7. It would have to be seen from the admitted documents executed by the parties as to which of those diametrically different conditions is correct.

8. On 26th April, 1982 defendant No.1 and defendant No.3 entered into an agreement for development of the suit property, Exhibit-C to the plaint as vendors and purchasers respectively. The agreement recites that there were five tenants in the main bu