:1:

IN

THE

HIGH

COURT

OF

JUDICATURE

AT

BOMBAY

APPELLATE

JURISDICTION

FIRST

APPEAL

NO.

2182

OF

2007

Nahalchand Laloochand Pvt. Ltd.

..Appellant

Vs.

Panchali

Co-Operative

Housing

Society Limited.

..Respondent

Mr.

F.

E.

Devitre,

Senior

Advocate

with

Ms.

Rajani

Iyer,

Senior

Advocate

with

Mr.

Venkatesh

Dhond,

Mr.

Vineet B. Naik i/by M/s. Prakash and Company for

appellant.

Mr. G.N. Salunke with Mr. S.R. Sharma for

respondent.

CORAM:

CORAM:

CORAM: B.H. MARLAPALLE,J.

B.H. MARLAPALLE,J.

B.H. MARLAPALLE,J.

Reserved

Reserved

Reserved on : February 13, 2008.

on : February 13, 2008.

on : February 13, 2008.

Pronounced

Pronounced

Pronounced on :

on :

on : April 25, 2008.

April 25, 2008.

April 25, 2008.

JUDGMENT:

JUDGMENT:

JUDGMENT:

1.

This appeal is directed against the Judgment

and

Decree

passed

by

the

learned

Judge

of

the

City

Civil

Court,

Greater

Mumbai

on

4/4/2007

in

S.C.

Suit

No. 1767 of 2004. The said suit was dismissed with

costs.

2.

The suit was filed by the appellant-company

:2:

for the following substantial relief:

"That

the

defendants,

office

bearers,

committee

members,

members,

servants,

agents

or

any

other

person

claiming

through

them

be

restrained

by

an

order

of

permanent

injunction

of

this

Hon’ble

Court

from

encroaching

upon/

trespassing

on

the

suit

premises

and/or

in

any

manner

disturbing/

obstructing

/interfering

with

the

possession

of

the

plaintiffs

in

respect

of

the

suit

premises

i.e.

25

number

of

parking

spaces

in

the

stilt

portion

of

the

building

by

name

Panchali,

as

more

particularly

shown

in

the

plan

annexed

at

Exhibit

"A"

hereto,

situated

at

Indraprasta

Enclave,

N.L.

Complex,

Anand

Nagar,

Dahisar

(East),

Mumbai

400

068."

3.

The plaintiff is a Private Limited Company,

representing

itself

as

a

developer/builder/promoter

as

defined

under

the

Maharashtra

Ownership

Flats

(Regulation

of

the

promotion

of

construction,

sale,

management

and

transfer)

Act,

1963

(for

short

the

MOFA).

It

had

purchased

from

the

original

owners,

:3:

namely,

Anjani

Krishna

Boritkar

and

others

land

bearing

CTS

Nos.1458

(Pt),

1459

(Pt),

1472

(Pt),

1474

(Pt),

1475

(Pt),

1476

(Pt),

1478

(Pt)

and

1482

(Pt)

situated

in

village

Dahisar,

Taluka

Borivali,

Mumbai

Suburban

District

and

which

was

declared

as

excess

vacant

land

by

the

Additional

Collector

and

Competent

Authority

(Urban

Land

Ceiling),

Greater

Mumbai.

The

appellant

then

decided

to

construct

seven

multi

storeyed

buildings

and

shopping

complex

on

the

said

land

in

accordance

with

the

building

plans

and

specification

duly

approved

by

the

Mumbai

Municipal

Corporation

(the

Corporation

for

short).

One

of

the

said

seven

multi

storeyed

buildings

is

by

name

"Panchali"

which

has

stilt

plus

seven

upper

floors

having

two

wings,

"A"

and

"B"

with

56

flats

(the

Building

for

short).

The

building

has

enclosed

parking

area

below

the

stilt.

There

are

in

all

28

stilt

parking

spaces

as

per

the

plans

approved

by

the

Corporation.

Between

February

2001

to

August

2003,

on

the

basis

of

the

agreements

signed

between

the

promoter

and

the

individual

flat

purchasers,

the

plaintiff-promoter

sold

each

of

the

56

flats

and

the

construction

was

completed

some

times

in

mid

2002.

On

19/8/2002

the

Corporation

issued

the

occupation

:4:

certificate.

The

flat

purchasers

formed

a

Co-operative

Society,

which

was

registered

on

or

about

8/10/2003

and

it

was

named

as

"Panchali

Co-operative

Housing

Society".

Before

the

society

was

registered,

three

parking

spaces

were

sold

and

remaining

25

were

purportedly

in

the

possession

of

the

plaintiff.

It

is

alleged

that

on

22/2/2004

the

committee

members

of

the

society

tried

to