2025:BHC-AS:15210 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 558 OF 2012 Darshan Co-operative Housing Society Limited, ] A Society duly registered under the ] Co-operative Societies Act, at A-2/8, ] Darshan, Gokuldham, ] Gen. Arunkumar Vaidya Marg, ]

Goregaon (East), Mumbai – 400 063. ] ...Appellant.

Versus

1) Municipal Corporation of Greater Mumbai, ]

(Legal Department) A body Corporate ] constituted under the Mumbai Municipal ] Corporation Act and having their Principal ] ofÏce at Mahapalika Bhavan, ] Mahapalika Marg, C.S.T. Fort, ] Mumbai – 400 101. ]

2) The Executive Engineer, ]

Building Proposal, ] R& P Ward, C-Wing, BMC Godown Bldg., ] 90 Feet D.P. road, Kandivali (E), ] Mumbai – 400 101. ]

3) M/s. Estate Investment Company Pvt. Ltd, ]

A company registered under Companies Act, ] 1956 having its registered address at ] Saksaria Chambers, 139, ] Nagindas Master Road, Mumbai – 400 023. ]

4) M/s. Conwood Construction & Developers ]

Pvt. Ltd., ] A company registered under Companies At, ] 1956, A company in which Conwood ] Construction Pvt. Ltd is amalgamated by ] order dt. November, 2007 passed by the ] Hon’ble High Court of Bombay in Co. Petition ] No. 158 of 2007 being Respondent No. 4 and ] having its OfÏce address at Dynamix House, ] Yashodham, Gen. A. K. Vaidya Marg, ] Goregaon (East), Mumbai 400 063. ]

5) The Chief Fire O Mumbai Fire Brigade, ] Byculla, Mumbai 400 008. ]

6) Gokuldham Residents Welfare Association, ]

[Deleted] ]

Sector I having its ofÏce at A-12, Sahyadri Co- ] op. Hsg. Soc., Gokuldham, Goregaon (E), ]

Mumbai 400 063. ] ...Respondents.

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Mr. Sujeet Kurup for the Appellant.

Ms. Pallavi Khale for the Respondent-Corporation.

Mr. Mukthar Khan, Mr. R. Patil, Mr. Yohaan Shah i/b Negandhi Shah &

Himayatullah for the Respondent No. 3.

Mr. Surel S. Shah, Senior Advocate along with Mr. Saaksht Relekar, Mr. Parimal Shroff, Mr. D. V. Deokar & Mr. Parikh i/b P. K. Shroff & Co., for Respondent No. 4.

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Coram : Sharmila U. Deshmukh, J.

Reserved on : March 7, 2025 Pronounced on : April 2, 2025.

Judgment :

1. First Appeal is at the instance of original Plaintiff challenging the judgment dated 7^th January 2012 passed by the City Civil Court allowing the Notice of Motion No.820 of 2010 filed under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 [for short “CPC”

resulting in dismissal of suit.

2. The Plaintiff-Co-operative Housing Society filed S.C Suit No 987 of 2009 inter alia seeking a declaration that the construction being carried out by the Defendant Nos.3 and 4 of Building No 84 on area reserved for Recreation Ground [for short “RG”] is illegal and unauthorised, for mandatory injunction of demolition of construction and cancellation of construction permissions.

3. The plaint pleaded that the Defendant No.3 who is the owner of property bearing Survey No. 34, Hissa No. 2(part) and Survey No. 35 of village Chincholi bearing Survey No. 51, Hissa No. 1(pt) aggregating to 2,64,228.75 square meter, entrusted the development work of the said property to the Defendant No 4. The scheme approved by the Urban Land Ceiling Authority provided for reservation of 15% of plot area as recreation ground as per the planning regulations. As per the sanctioned layout of 1981, Defendant No.4 constructed various buildings on plot bearing CTS No.98A/4 admeasuring 61,331.00 square meters including Plaintiff-Society. As of the year 1988, the balance area available for development was 4409.62 square meters. In response to the Plaintiff’s letter dated 19th July 1990, seeking demarcation of Plaintiff’s plot and reservations, Defendant No.3 provided the plan giving demarcation of Plaintiff’s plot and demarcation of other units as well as RG reserved thereon on CTS No.98A/4. The Plaintiff’s structure is constructed on an area admeasuring 801.13 square meters and the Defendant Nos.3 and 4 have conveyed the plot area along with the building standing thereon in favour of the Plaintiff by a Deed of Indenture