IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.270 OF 2022 WITH INTERIM APPLICATION NO.1943 OF 2022 Jaywant Industrial Premises Co- .. Appellant Operative Society Ltd.

Versus Sangeeta Kewalramani & Ors. .. Respondents …

Mr.Virag Tulzapurkar, Senior Advocate with Mr.Kashish Manihar and Ms.Jyoti Pardeshi i/b Wadia Ghandy & Co.for the Appellant.

Mr.Amogh Singh for the Respondent No.1.

...

CORAM: BHARATI DANGRE, J.

DATED : 21st APRIL, 2022 JUDGMENT:-

1. The Appellant is a Co-operative Housing Society Ltd., captioned as ‘Jaywant Industrial Premises Co-Operative Society Ltd.’ and is a defendant in L.C.Suit No.825 of 2019. The Appeal is instituted by the Appellant, being aggrieved by order dated 16/12/2020 passed by the City Civil Court, on an application taken out by the plaintiff in the suit, under Order

39 Rule 1 & 2 of the C.P.C., which came to be allowed and an injunction order has been stormed against the defendants.

2. Heard learned Senior Advocate Mr.Virag Tulzapurkar for the Appellant and the learned Advocate Mr.Amogh Singh for respondent No.1(original plaintiff).

3. In order to appreciate the arguments of the learned Senior Advocate, I must refer to the proceedings between the parties.

The plaintiff, Sangeeta Kewalramani, owner of the various premises in the building known as ‘Jaywant Industrial Premises Co-Operative Society Ltd.’ amongst other Unit Nos.309, 310 and 311(T), situated at 63, Tardeo Road, Opp. SOBO Central Mall, Mumbai34, instituted a suit under Sections 34, 37 and 38 of the Specifc Relief Act. The cause of action for instituting the suit was apparently, a notice issued by the Corporation under Section 351 of the M.M.C.Act dated 11/12/2018 and the speaking order dated 09/03/2019 in respect of the suit premises, being Unit No.311(T). The society was impleaded as defendant No.3, whereas the Corporation and it’s Offcer were impleaded as defendant Nos.1 and 2.

4. The plaintiff pleaded her case that Rajan Kewalramani, her deceased husband, became owner of the suit premises vide agreement dated 24/09/1985 alongwith one Behram Darabshah Bhasania, the Chief Promoter of the proposed society, who executed a letter dated 16/02/1993 declaring that Rajan Kewalramani was the bonafde purchaser in respect of the premises, including the suit premises, which is an open terrace on the third foor of the defendant society. The specifc case pleaded by the plaintiff is to the effect that she herself alongwith her family members, known as Kewalramani Group owned various galas/units in the defendant No.3-society and the premises came to their ownership, through various agreements and upon the death of her husand, she alongwith her daughter and son, inherited the right to the suit premises. All other legal heirs executed a release deed in her favour, relinquishing their right, title and interest in favour of the plaintiff and that is how, she became the sole and absolute owner of the suit premises.

It is pleaded that the plaintiff enjoyed the peaceful use, occupation and possession of the suit premises, without any inference or obstruction since 1985. It is her specifc case that defendant No.3-society was formed in the year 2001 and from 1985 to 2001, the Chief Promoter executed agreement of ownership in favour of her predecessor and no objection was ever raised about it’s right, title, use, occupation and possession and even after the formation of defendant No.3- society, rather her right over the private terrace was recognized for the private use of the family, including gardening. The said premises are pleaded to be adjacent to the other galas belonging to Kewalramani being Nos.309, 310 & 311 and always received a status as a private terrace. Apart, it is pleaded that the society has separate and distinct terrace above the third foor, which has been used as a common terrace and meetings of the society are held on the said common terrace.

The specifc case of the plaintiff in the plaint is to the effec