Disputed flat title claims lacking documentary proof (sale deed only for original flat, no division permission) cannot be entertained in writ jurisdiction; must be pursued in cooperative forums.

JUDGMENT :

AARTI SATHE, J.

1. This Letters Patent Appeal is directed against the judgment and order dated 13^th June 2011 (hereinafter referred to as the impugned order) passed by Learned Single Judge in Writ Petition No. 1461 of 2011 disposing of the Petition filed by Appellant No. 1 on the ground that the order which was under challenge in the said Petition in no way prejudices Appellant No. 1, and hence the said Petition was not entertained with the findings made therein (which are reproduced later at the relevant paras). By the impugned order, Appellant No. 1 was directed to pursue his rights in respect of the flats in dispute, in the appropriate/competent forum and raise all contentions therein regarding his rights, title, and interest in the said flats.

2. This is a classic case where the rights of the legitimate/rightful owner of the flat/premises have been grabbed on account of the perpetration of illegalities on the part of Appellant No.1, which has caused extreme hardship and grave prejudice to Respondent No. 5. Respondent No. 5, who is a government employee and was rightfully entitled to Flat No. 702, and had spent his entire life savings to purchase the same has been dragged into this unfortunate litigation for the last several years only on account of the illegal and mischievous means adopted by Appellant No.1, who does not have any legal right insofar as the said flat is concerned. This to our mind is a very unfortunate situation and an abuse of the machinery of Courts which has been adopted by Appellant No.1.

3. Briefly the facts of the case are as follows:

i. Appellant No. 1 is a citizen of India and claims to be the owner of flats bearing numbers 701 and 702, (jointly admeasuring 1500 sq. ft.) on the seventh floor of the Respondent Society. Appellant No. 2 is a person of Indian origin holding British citizenship and PIO card and is a licensee of Flat No. 702, which Appellant No. 1 claims to be the owner of since 5th November 2009.

ii. Respondent No. 2 is the registered Society (hereinafter referred to as the “Respondent Society”), namely Suyog Darshan Co-operative Housing Society Limited, (registration number BOM/WK/W/HSG/TC 7028 of 1992-93), where the aforesaid flats bearing numbers 701 and 702 are situated. These flats have been allocated to the aforesaid Respondent Society by the Collector of Mumbai, Suburban District, Government of Maharashtra. Respondent No. 3 is the Honorary Secretary of the Respondent Society. Respondent No. 4 is the Court Receiver appointed by Respondent No.1 in Appeal No. 34/2009, vide order dated 30^th November, 2010. Respondent No. 5 who was earlier allotted Flat No. 402 in the Respondent Society and to whom Flat No. 702 has been allocated is the person who claims to be entitled to the said flat. Respondent No. 6 is the previous owner of Flat No. 701 from whom Appellant No. 1 had purchased the aforesaid flat which Appellant No. 1 claims measured 1500 sq. ft.

iii. On 17^th August 2001, Respondent No. 6, the previous owner i.e. Mrs. Snehalata Jaiswal was allotted Flat No. 701 in the Respondent Society. On 23^rd August 2001, an NOC was issued in favour of Respondent No. 6 i.e. Mrs. Jaiswal, whereby she was allowed permission to obtain loan from the Corporation Bank, Mahim Branch by mortgaging Flat No. 701.

iv. On 2^nd March 2004, the Respondent Society had issued a letter and two receipts confirming receipt of all the outstanding dues from Respondent No. 6 and directed the site in charge at the Society premises to hand over keys and possession of Flat No. 701 to Respondent No. 6.

v. It