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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.172 OF 2021

ALONG WITH

INTERIM APPLICATION NO.1080 OF 2021

ALONG WITH

SECOND APPEAL NO.171 OF 2021

ALONG WITH

INTERIM APPLICATION NO.1079 OF 2021

Kisansingh Devisingh Bora

]

… Appellant

Vs.

Late Suresh Appaji Shirke

(since deceased) Through LRs Smita

Suresh Shirke & Ors.

]

]

]

… Respondents

…

Mr. Sandesh Patil i/b Mr. Chintan Shah for the appellant/applicant.

Mr. I.R. Kulkarni a/w Mr. Rashikant Thorve for the respondents.

…

CORAM

: SMT. BHARATI DANGRE, J.

DATED

: 11^TH APRIL, 2022.

P.C. :-

1.

These two appeals arise out of a common judgment

delivered by the appellate court on 04/02/2021, in two distinct

AJN

JAYARAJAN

ANJAKULATH

NAIR

Digitally signed by

JAYARAJAN

ANJAKULATH NAIR

Date: 2022.04.25

13:23:52 +0530

2/12 35 SA-172.21 (O).odt

appeals and since the issues involved are common and overlapping

and even the trial court has passed a common judgment in the two

distinct suits, the appeals are clubbed and the respective counsel

are permitted to advance their submissions in the two appeals.

2.

Special Civil Suit No.390 of 2001 came to be filed by the

plaintiff, Suresh Appaji Shirke, seeking declaration and injunction

against Kisansingh Devsingh Bora.

3.

The plaintiff pleaded that he himself along with 18 others

came together and approached the Maharashtra Housing and Area

Development Authority (for short, “MHADA”) for a plot of land

situated at Thane, to develop a Co-operative Housing Society. In

furtherance to the allotment letter dated 10/02/1994, the proposed

Society was registered and the agreement of lease was executed

between MHADA and the said Society. The plaintiff became the

Chief Promoter of the Co-operative Society and the development

on the said piece of land resulted in construction of ground plus

four storied building.

4.

The plaintiff was allotted Flat No.403 (for short, “the suit

flat”) admeasuring 645 sq. ft. along with a terrace on the 4^th floor

of Sai Sudama Co-operative Housing Society for a consideration

of Rs.5,50,000/-. He even obtained financial assistance from a

third party, a Finance Corporation and, upon payment of entire

consideration in respect of the suit flat, he pleaded that he was put

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in physical, vacant, peaceful and legal possession of the suit flat as

the absolute owner. He also became a member of the Society.

5.

The defendant also purchased a flat bearing Flat No.003 on

the Ground floor of the Society and, on account of cordial

relationship shared between them, in the year 1995, the defendant

requested the plaintiff to allow him to use the suit flat for himself,

his wife and daughter. The request was acceded to by the plaintiff

with an assurance that the defendant shall arrange another suitable

accommodation for himself and his family members whenever the

plaintiff requires his flat for his own purpose. The defendant

agreed to pay a sum of Rs.3668/- as charges for occupying the suit

flat to the plaintiff and, since the plaintiff was to pay the

instalment to the financer, he readily accepted to the offer.

However, the case of the plaintiff is that the defendant failed to

abide by his promise and from May, 1998, stopped paying the

compensation amount and also did not accede to the request of the

plaintiff to vacate the premises and kept on buying time on one

pretext or the other.

6.

In the month of February, 2000, when the plaintiff gained

knowledge that the defendant has agreed to sell and dispose off his

Flat No.003 for valuable consideration, he requested the

defendants to vacate his flat and deliver the possession, but he

failed to do so. Instead, the defendant filed Regular Civil Suit

No.1528 of 2001 before the Civil Judge, Junior Division, Thane,

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seeking a relief of declaration and injunction against the plaintiff,

who was sought