24 SA-64-2021.doc

BDP-SPS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.64 OF 2021

ALONGWITH

INTERIM APPLICATION NO 3662 OF 2020

IN

SECOND APPEAL NO.64 OF 2021

Smt. Chandan P. Gupta

….. Appellant.

V/s

Smt. Sitaradevi Rajkumar Kanojiya

and Anr.

….. Respondents.

Mr. Vikram N. Walawalkar i/b Gajanan Shinde for the Appellant.

Mr. R.D. Suryawanshi i/b Mr. Suraj Naik for the Respondents.

CORAM: NITIN W. SAMBRE, J.

DATE : OCTOBER 03, 2022

P.C.:

1]

This Second Appeal is by Defendant No.1 to Regular Civil Suit

No.826 of 2012, which was dismissed on 30/09/2013. Claim in the

suit was for declaration of ownership, recovery of possession, damages

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BHARAT

DASHARATH

PANDIT

Digitally signed

by BHARAT

DASHARATH

PANDIT

Date:

2022.10.14

11:33:24 +0530

24 SA-64-2021.doc

and perpetual injunction.

2]

Plaintiff i.e. Respondent No.1 preferred an Appeal being Regular

Civil Appeal No.213 of 2013 which came to be allowed vide impugned

judgment dated 12/3/2020 passed by the Principal District Judge,

Thane. As such, this Second Appeal.

3]

Facts necessary for deciding the present Second Appeal are as

under:-

4]

Respondent No.2 i.e. Defendant No.2 was the owner of the suit

property which he has purchased under the provisions of Maharashtra

Ownership of Flats Act (hereinafter shall be referred to for the sake of

brevity as “MOFA”). Defendant No.1, present Appellant, was a

licencee.

5]

Defendant Nos. 1 and 2 entered into Memorandum of

Understanding (“MOU”) for purchase of the suit propety which

consists of shop block vide document at Exhibit-69 dated 18/8/2006.

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6]

Plaintiff i.e Respondent No.1 herein appears to have got

executed Conveyance Deed-Exhibit-41 on 03/08/2006 in relation to

the very same property.

7]

Based on the aforesaid Conveyance Deed-Exhbit-41 aforesaid

suit came to be initiated which was originally dismissed. However, in

appeal suit came to be decreed.

8]

Contentions of Counsel for the Appellant/original Defendant

No.1 are, suit itself was not maintainable as document-Exhibit-41 does

not confer any title in favour of the Plaintiff. In addition, his

contentions are, once the Plaintiff has admitted status of the

Appellant/Defendant No.1 as that of tenant, remedy for

eviction/possession is somewhere else i.e. under the Maharashtra Rent

Control Act and not by present proceedings. Further contention is

lower Appellate Court has committed an error in decreeing the suit by

taking recourse to the provisions of MOFA, as it was nobody’s claim

that conveyance in pursuance to provisions of MOFA confers absolute

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title in favour of the original Plaintiff i.e. Respondent No.1. By

inviting my attention to the provisions of Section 54 of the Transfer of

Property Act which defines ‘sale’, claim put forth by Counsel for the

Appellant is, document MOU-Exhibit-69 does not stand to the scrutiny

of the said provisions and transaction under the said document cannot

be held to be ‘sale’ and that being so, suit ought to have been

dismissed. His further contentions are, lower Appellate Court, before

taking recourse to the provisions of MOFA, ought to have followed the

procedure contemplated under Order 41 Rule 25 by framing an

additional issue by calling findings from the Trial Court, so that

Appellant would have got an appropriate opportunity to establish her

case.

9]

So as to substantiate aforesaid claim, Counsel for the Appellant

has drawn support from the judgment of the Apex Court in the matter

of Vishwanatha Achari vs Kanakasabapathy reported in (2005) 6 SCC

56 so as to buttress his aforesaid argument of seeking remand or

calling findings from the Trial Court on the issue of applicability of

MOFA. He has also relied on the provisions of Section 107 of the Civil

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Procedure Code. In addition to above, reliance is als