The main legal point established in the judgment is that a suit for perpetual injunction may be maintainable even without a specific prayer for recovery of possession if there is interference with lawful possession or a threat of dispossession.

JUDGMENT

N. J. Jamadar, J. - These appeals are directed against the judgment and decree dated 28th april, 2010 in SC Suit No.7239/1998, passed by the learned Judge, City Civil Court, Greater Bombay, Borivali Division, whereby the suit preferred by the appellants in appeal No.296 of 2011 came to be dismissed.

2. Shorn of unnecessary details the background facts leading to these appeals can be stated as under:

(a) The plaintiffs appellants in First appeal No.296 of 2011 are the trustees of Shri Laxmi Hardevi Tejbhan Grover Manavkosh, a charitable trust. The trust is the owner of the property bearing Survey No.257 Hissa No.1 of Danda, Bandra (W), andheri, under City Survey No.1336, admeasuring 635 Sq. Yards. equivalent to 531.5 Sq. Mtrs., more particularly described in the Schedule (Exhibit-B) annexed to the plaint. The defendant is a Cooperative Housing Society registered under the Maharashtra Cooperative Societies act, 1960 ('the act, 1960').

(b) Pursuant to the Deed of Gift dated 2nd april, 1975, executed by the partners of M/s. Navneet Builders, the plaintiff, acquired ownership over the suit property. The defendant is a Co-operative Housing Society of allottees of flats in a building known as Somerset apartment standing on the property bearing City Survey No.3165, 3166, 3167 and 3168 of Bandra (W), adjoining and lying to the South of the suit property.

(c) The plaintiffs claimed that at the beginning of the year 1996, the plaintiffs noticed that the defendant - society had encroached over eastern corner of the suit property and carried out fillings and constructed a wall and allowed some of the members of the defendant - society to park their vehicles over the suit property. The plaintiffs addressed a notice on 24th February, 1996 calling upon the defendant - society and its members to refrain from trespassing over the suit property and/ or parking any vehicles thereon or any part thereof. In response thereto vide letter dated 15th april, 1996, the defendant, whilst falsely denying the contents of the notice, contended that the defendant had instituted a suit being Suit No.3197 of 1998 in the Bombay High Court against the builders and others.

(d) The plaintiffs took inspection of the papers and proceedings in the said suit. It transpired that the defendant had prayed for a declaration against ambit Corporation, R. L. Ramchandani and C. T. Ramchandani that the defendant has become owner of the building known as Somerset apartment and the land admeasuring 5,078 sq. yards on which the said apartment stood. The plaintiffs averred that subject matter of Suit No.3191 of 1988 was totally distinct and the said suit did not relate to the suit property.

(e) as the defendant did not refrain from the unlawful act of trespassing over the suit property and infringing the rights of the plaintiffs, a pre-suit notice under Section 164 of the act, 1960 was addressed on 16th May, 1997. after the expiry of the stipulated period, the plaintiffs instituted the suit with the assertions that the acts of the defendant and its members in carrying out filling at the suit property site, constructing wall and parking vehicles on a portion of the suit property constitute trespass on the suit property. The defendants have thus invaded and threatened to invade ownership and possessory right of the plaintiffs over the suit property. Hence, the suit for perpetual injunction restraining the defendant and its members, their servants and agents from entering upon the suit property and/or parking any vehicles thereon or any part thereof.

(f) The defendant resisted the suit by filing a written statement. at the threshold, the jurisdiction of the City Civil Court to entertain and try the suit was called in question as the value of the suit property far exceeded the then limit of the pecuniary jurisdiction of the City Civil Court. The defendant further contended that since the defendant had been in use, occupation and possession of the suit property since the year 1983-198