Bombay High Court
The Chairman Secretary Of Andheri Dhake ... vs Smt. Suman Trimbak Dhake And Anr on 19 March, 2025
2025:BHC-AS:12851
FA-464-2017 (final).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 464 OF 2017.
1) The Chairman Secretary of Andheri Dhake ]
Colony CHS Ltd., having its office at Andheri ]
Dhake Colony CHS Ltd., J. P. Road, Andheri ]
(West), Mumbai ] ... Appellant.
Versus
1) Smt. Suman Trimbak Dhake ]
(Since Deceased, through LRs.) ]
Indian Inhabitant, R/o. 4/24, Andheri Dhake ]
Colony CHS Ltd., J. P. Road, Andheri (West), ]
Mumbai ]
1A. Pradeep Trimbak Dhake (son) ]
Age-69 Yrs. Occ. Business ]
Residing at : 4/24, Andheri Dhake Colony ]
C.H.S.L., J. P. Road, Andheri (West), Mumbai- ]
400 053. ]
1B. Shekhar Trimbak Dhake (Son) ]
Age. 67 Yrs. Occ. Business ]
Residing At: 401, Dheeraj Apartments, ]
Natwar Nagar, Road No. 1, Jogeshwari East, ]
Mumbai - 400 076. ]
1C. Dhananjay Trimbak Dhake (Son) ]
Age: 68 Years Occ. Business ]
Residing at: C-101/102, Lake Florence, Lake ]
Homes, Powar, Mumbai- 400 076 ]
1D. Ranjana Sidramappa Abdulpurkar ]
(Daughter) ]
Age: 71 Years Occ: Nil ]
Residing at: 295/96, West Mangalwar, ]
Solapur City, Solapur, Maharashtra.
1E. Sarita Balasaheb Ghongade ]
(Deceased Daughter through her L.rs. ]
1E.(i) Manish Ghongade ]
(Son of predeceased i.e., Sarita B. ]
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Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
1E.(ii) Harish Ghongade ]
(Son of predeceased i.e., Sarita B. ]
Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
1E.(iii) Rishikesh Ghongade ]
(Son of predeceased i.e., Sarita B. ]
Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
2. The Estate Manager - II, ]
Maharashtra Housing & Area Development ]
Board, Griha Nirman Bhavan, Bandra (E) ]
Mumbai - 400 051. ] ...Respondents.
WITH
FIRST APPEAL No. 466 OF 2017.
1) The Chairman Secretary of Andheri Dhake ]
Colony CHS Ltd., having its office at Andheri ]
Dhake Colony CHS Ltd., J. P. Road, Andheri ]
(West), Mumbai ] ... Appellant.
Versus
1) Smt. Suman Trimbak Dhake ]
(Since Deceased Through Lrs.) ]
Indian Inhabitant, R/o. 4/24, Andheri Dhake ]
Colony CHS Ltd., J. P. Road, Andheri (West), ]
Mumbai ]
1A. Pradeep Trimbak Dhake (son) ]
Age-69 Yrs. Occ. Business ]
Residing at : 4/24, Andheri Dhake Colony ]
C.H.S.L., J. P. Road, Andheri (West), Mumbai- ]
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400 053. ]
1B. Shekhar Trimbak Dhake (Son) ]
Age. 67 Yrs. Occ. Business ]
Residing At: 401, Dheeraj Apartments, ]
Natwar Nagar, Road No. 1, Jogeshwari East, ]
Mumbai - 400 076. ]
1C. Dhananjay Trimbak Dhake (Son) ]
Age: 68 Years Occ. Business ]
Residing at: C-101/102, Lake Florence, Lake ]
Homes, Powar, Mumbai- 400 076 ]
1D. Ranjana Sidramappa Abdulpurkar ]
(Daughter) ]
Age: 71 Years Occ: Nil ]
Residing at: 295/96, West Mangalwar, ]
Solapur City, Solapur, Maharashtra.
1E. Sarita Balasaheb Ghongade ]
(Deceased Daughter through her L.rs. ]
1E. (i) Manish Ghongade ]
(Son of predeceased i.e., Sarita B. ]
Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
1E. (ii) Harish Ghongade ]
(Son of predeceased i.e., Sarita B. ]
Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
1E.(iii) Rishikesh Ghongade ]
(Son of predeceased i.e., Sarita B. ]
Ghongade) ]
Age: Adult Occ. Nil ]
Residing at : Bhimashankar, Bhavani Peth, ]
Solapur City, Solapur Maharashtra.
2. The Estate Manager - II, ]
Maharashtra Housing & Area Development ]
Board, Griha Nirman Bhavan, Bandra (E) ]
Mumbai - 400 051. ] ...Respondents.
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Mr. Abhijit P. Kulkarni, Mr. Abhishek Roy, Ms. Sweta Shah, Mr. Shreyas Zarkar
and Mr. Gourav Shahane for the Appellant.
Mr. Akshay Kolse-Patil for the Respondent No. 1.
Mr. S. P. Dighe for the Respondent No. 2-MHADA.
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Coram : Sharmila U. Deshmukh, J.
Reserved on: 13th January, 2025.
Pronounced on : 19th March, 2025.
JUDGMENT :
1. Both the Appeals are at the instance of original Defendant No. 2 and arise out of common Judgment and decree dated 18 th February, 2015 passed in S. C. Suit No. 793 of 2011 and S. C. Suit No. 425 of 2013 partly decreeing the suit. Common submissions were advanced and both the Appeals are decided by this common Judgment and order. For sake of convenience, parties are referred to by their status before the Trial Court.
PLEADINGS IN S.C. SUIT NO. 793 OF 2011 :
2. As in the facts of the case, the description of the suit premises assumes significance, the exact words used in both the plaints are being reproduced. The plaint pleads that the Plaintiff was the Tenant of Maharashtra Housing and Area Development Authority since 1960 of Flat No. 4/24 along with the back portion terrace in Andheri Dhake Colony Co-operative Housing Society Limited and used to pay compensation of the flat as well as back portion terrace from 1960 till Sairaj/Shubham 4 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt today. The building was owned by Plaintiff and her family members and in 1960 MHADA acquired the building along with the land from the Plaintiff's husband and was collecting rent from the occupants of the building. The Plaintiff was tenant of the suit premises along with terrace floor admeasuring 1058 sq. ft. compound of the Defendant No. 1 and Defendant No. 1 was issuing the rent receipt in favor of the Plaintiff for the room along with terrace floor which is a suit premises before this Hon'ble Court and admeasuring 1058 sq. ft. compound. The occupants of the building are tenants of MHADA prior to 1991 and converted to ownership of the said tenement portion by MHADA.
3. In 2001, the Plaintiff paid ownership charges to Defendant No. 1 and got share certificate of Society in 2001 for premises bearing No. 4/24 of Defendant No. 2. The terrace was granted by MHADA to the tenant on tenancy basis and MHADA collected the charges towards the terrace floor from the Plaintiff but Defendant No. 2 did not issue any receipt for sum of Rs. 581/-. In 2010, without conveyance from MHADA, Defendant No. 2 was interested to develop the property and was not ready to consider the terrace floor ownership of Plaintiff for which Notice was sent to Defendant No. 1-MHADA. The plaint pleads about the further correspondence between the parties. As there was no response, the suit came to be filed initially seeking the following prayer clause 'a' which reads as under:
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"a. The Hon'ble Court pleased to restrain the
defendant No. 1 not to enter any kinds of agreement or conveyance in favour of the Defendant No. 2 or their representative agents or any person/s claiming through them without providing terrace floor applicable FSI to the plaintiff at the place of terrace floor of the Andheri Dhake Colony CHS Ltd, J. P. Road, Andheri (W), Mumbai - 400 053.
4. It appears that subsequently, the suit came to be amended and it was pleaded that the Defendant No. 1 MHADA is proposing to execute lease of area of 2485.31 sq. metres in favor of Defendant No. 2 though predecessor of Plaintiff conveyed land and five buildings admeasuring 3777.70 sq. metres. However, the Defendants have not joined the area of terrace floor though in Conveyance Deed of 8 th July, 1960 the Plaintiff is shown as tenant of Building No. 4 of her flat at Sr. No. 14 of list of tenants with back portion terrace and the rent was fixed at Rs 140/ per month. The Defendants are not ready to give floor space index of the back portion terrace of plaintiff along with the flat of Plaintiff. The prayer clause was also amended to incorporate the following relief:
"(aa) That the Hon'ble Court please declare that the Plaintiff is the owner of the flat alongwith back portion terrace floor in the building known as ANDHERI DHAKE COLONY CHS Ltd, J.P. Road, Andheri (W), Mumbai 400 053 and she have right to claim FSI of the back portion terrace floor alongwith her flat situated abovesaid address."
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WRITTEN STATEMENT OF DEFENDANT NO. 1- MHADA :
5. MHADA contended that the Plaintiff is tenant of Room No. 24 in Building No. 4. There are 53 members of the Society and the entire terrace of the said building belongs to the Society and Plaintiff has no right to claim the terrace of the Society. During the pendency of the suit the Plaintiff has filed another Suit No. 425 of 2013 for the same relief. It was contended that MHADA and Defendant No. 2 has already executed conveyance deed and suit building has been conveyed to the Society and Society is the owner of the building. The Plaintiff is residing in Room No. 24 in Building No. 4 and the room has been regularized in pursuance of policy of MHADA on 28 th February, 1991. In the communication of 15th January, 2003 the Plaintiff has mentioned that the Plaintiff is owner of Room No. 24 in Building No. 4 and there is no mention of area of terrace in the said letter and during redevelopment, the Plaintiff on 19 th January, 2011 sent letter to MHADA mentioning that she is owner of back portion with terrace.
MHADA has transferred only Room No. 24 in Building No. 4 in the name of Plaintiff and there is no mention of terrace i.e. back portion. The back portion of terrace which has been mentioned by the Plaintiff can be unauthorized terrace erected by the Plaintiff and there is no question to regularize the said unauthorized terrace. For a period of 12 years, the Plaintiff has not intimated MHADA to regularise the terrace Sairaj/Shubham 7 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt and no notice has been given during the said period. As per the policy decision MHADA has regularized Room No. 24 in Building No. 4 in name of Plaintiff and at that time there is no terrace attached to Room No. 24 and now there is no question to regularize the terrace.
6. Although written statement was filed on behalf of the Defendant No. 2-Society, the Defendant No. 2 failed to lead any evidence and chose not to participate in the proceedings.
7. On 15th February, 2015 the Trial Court framed the following issues which came to be answered by the impugned judgment as under:
Sr. Issues in Suit No. 793/2011 Findings No.
1. Whether Plaintiff proves that she is the owner At present owner of terrace alongwith Flat No. 4/24 adm. 1058 of flat sq.ft. At Dhake Colony, now Andheri Dhake Colony CHS Ltd., J.P. Road, Andheri (W), Mumbai-400 053 ?
2. Whether Defendant Nos. 1 and 2 right to No. create third party right in the terrace ?
3. Whether Plaintiff is entitled for declaration as To some extent prayed for ?
4. Whether Plaintiff is entitled for perpetual To some extent injunction as prayed for ?
5. What order and decree ? As per final order PLEADINGS IN S. C. SUIT NO. 425 OF 2013 :
8. The Plaintiff pleaded that the predecessor of Plaintiff was the Sairaj/Shubham 8 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt owner of Survey No. 133 and CTS No. 811 to 815 (part) prior to 1960 and had constructed five buildings on the plot of land which was let out on rental basis to several occupants in and around 1952/1953. The land and structures were acquired by Bombay Housing Board by virtue of an agreement entered into with the Plaintiffs predecessor. In the list handed over to the Bombay Housing Board along with rent, it is clearly shown that Plaintiff is tenant of Building No. 4 along with back portion terrace and paying rent of Rs. 140/- and subsequently rent was paid to the Bombay Housing Board. As per registered deed of declaration dated 30th March, 1960 filed by the Plaintiff's husband regarding sale of five buildings on the second page, it is stated that the Plaintiff is tenant of flat on second floor with terrace in building on Plot No. 4 and on completion of sale he will attorn tenant to Bombay Housing Board. After referring to various documents it was pleaded that the compensation paid to Bombay Housing Board was for back portion with terrace and also the letter of allotment dated 1 st April, 1960 mentioned back portion with terrace. After acquisition, the Bombay Housing Board was collecting rent as per the list provided by the predecessor from the tenants including the Plaintiff. The Defendant No. 2 was inclined to develop the property without any conveyance from Defendant No. 1 which was brought to the Notice of the Defendant No. 1 by the Plaintiff. After receiving copy of sale deed Sairaj/Shubham 9 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt from Defendant No. 1 the Plaintiff came to know that the lease deed is not properly prepared in favor of Defendant No. 2 and it is wrongly stated that the Defendant No. 1 constructed the building on the piece of land. It was further pleaded that the Defendant No. 2 on the strength of the lease deed started meeting with the developers and was not ready to provide flat along with terrace floor area to the Plaintiff on the basis of fake and bogus documents. Thus the suit is being filed for restraining the developers not to redevelop the said building and not to use FSI of the Plaintiff. The substantive relief sought in the said suit reads as under:-
"a. The Hon'ble Court pleased to declare the documents prepared by the defendant No. 1 in favour of the defendant No. 2 Null and Void and on the strength the said documents defendant No. 2 have No right to enter into redevelopment purpose with any builders or developers without providing FSI of the flats and terrace floors and others to the plaintiff."
WRITTEN STATEMENTS:
9. The Defendant No. 1-MHADA filed the written statement identical to the one filed in S. C. Suit No. 793 of 2011. The Defendant No. 2 did not file written statement and no evidence was led.
10. The Trial Court framed and answered the issues as under:-
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Sr. Issues In Suit No. 425 of 2013 Findings
No.
1. Whether the Sale Deed executed by Defendant No. No
1 in favour of Defendant No. 2 dated 20.09.2012 is null and void ?
2. Whether Defendant No. 2 has no right on the basis Yes of said Sale Deed to enter into redevelopment with any builder or developer without providing the FSI of the terrace to the Plaintiff ?
3. Whether Plaintiff is entitled for declaration as To some extent prayed for ?
4. Whether Plaintiff is entitled for perpetual To some extent injunction as prayed for ?
5. What order and decree ? As per final order EVIDENCE:
11. The parties filed pursis adopting the evidence led in S.C Suit No. 793 of 2011 be treated as evidence in S.C Suit No. 425 of 2013. On behalf of the Plaintiff, the constituted attorney and son of Plaintiff entered into witness box and deposed as to the contents of the plaint.
He produced the General Power of Attorney Exhibit 11, Rent Receipt Exhibit 12, Allotment Letter Exhibit 13, correspondence with MHADA Exhibit 14, Declaration of landlord alongwith list of tenants Exhibit 15, and Legal Notice-Exhibit 16.
12. In cross-examination by MHADA, he admits that Flat No. 14 was converted into ownership basis in the year 2000. He admits that he has paid Rs. 25,924/- towards conversion of the flat on ownership basis. He was confronted with letters dated 19 th January, 2011 which was the Sairaj/Shubham 11 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt legal notice issued to the Defendant No. 1, and 15 th January, 2003 which was addressed by the Plaintiff to MHADA and same were marked as Exhibit 17 and 18 respectively.
13. On behalf of the Defendant No. 1, the Estate Manager was examined who deposed as to the contents of his written statement. He produced the Sale Deed and Lease Agreement dated 20 th September, 2012 Exhibit 22, MHADA policy for sale of tenements on ownership basis dated 28th February, 1991 Exhibit 25, MHADA receipt for cost of conversion paid by Plaintiff Exhibit 23, List of tenements Exhibit 24.
14. In cross-examination he has stated that the room of Plaintiff is No. 24 in building No. 4 and the area is 1057.93 sq. ft. He has admitted that MHADA had acquired the building from Trimbak Dhake. He has admitted that he is not aware that on the second floor of Building No. 4 there is only on Flat No. 24 and he is not aware that there is only terrace above Flat No. 24 and not flat. He has admitted that in the year 1991, MHADA had transferred the ownership of gala in favor of Plaintiff.
15. The Trial Court assessed the documentary evidence produced on record broadly as under:
a) The rent receipt dated 28.11.1962 and allotment letter issued by MHADA mentions about the Tenement in building No. 4 having back Sairaj/Shubham 12 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt portion with terrace.
b) By Letter dated 14th March, 1991- Exhibit-14 issued by Plaintiff to MHADA, the Plaintiff had mentioned about her tenement having terrace in Building No. 4.
c) In the letter of 28.02.1991 issued by MHADA for conversion of tenements on ownership basis, there is no mention about the terrace in question which is part and parcel of tenement of Plaintiff as per original rent receipt and the Plaintiff had promptly put her grievance but MHADA did not respond.
d) The deed of declaration of Trimbak Dhake dated 30.03.1960 categorically mentioned that the Plaintiff is tenant of flat on second floor with terrace in Building No. 4.
e) In the memo of 07.04.1960 issued by Assistant Housing Commissioner to Bombay Housing Board, the copy of list of Tenants is annexed which includes the name of Plaintiff at Serial No. 14 and shows her tenement with back portion terrace.
f) The area and rent of the present Plaintiff is highest than other tenants in Building No. 3 to 6 and 8. The area of the flat of the Plaintiff is shown as 1057.93 sq. ft. and the cost of construction in respect of other Tenement is shown from Rs. 3,627/- up to Rs. 23,359/- and cost of Plaintiff's tenement is shown as Rs. 25,924/-.
16. Based on documentary evidence, the Trial Court arrived at a Sairaj/Shubham 13 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt finding that the original owner had specifically disclosed that Plaintiff is tenant of Flat No. 24 coupled with terrace and rent receipt was issued, which later on stopped referring to terrace. While transferring flat No. 24 in favor of the Plaintiff on ownership basis ,Defendant No. 1 did not utter single word in regard to "attached terrace" but there is documentary evidence to say that terrace in question was attached to Flat No. 24 which was in possession of the Plaintiff. It is not pleaded or made clear by MHADA why the terrace in question was separate from Flat No. 24. The Trial Court further held that the area of terrace is not mentioned, however, the terrace in question is just abutting to Flat No. 24 of Plaintiff and part and parcel of tenement. MHADA made a mistake in converting only flat on ownership basis in name of Plaintiff.
17. On aspect of Plaintiff's legal right, the Trial Court came to a conclusion that the terrace was and is Plaintiff's possession as tenant. The area of terrace is not clear. While accepting the purchase price MHADA did not include price of terrace but as per letter dated 28 th February, 1991, MHADA ought to have considered the area of terrace. The said terrace in question was part and parcel of Flat No. 24 and Plaintiff is entitled to get the same on ownership basis. The Defendant No. 2 is the owner of the property and it is duty of Defendant No. 2 to show the area of terrace in question in the tenement of Plaintiff by imposing requisite charges prevailing in the year 1991.
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18. The Trial Court held that the deed between the MHADA and the Society cannot be declared null and void in the absence of other documents on record however the legal right of the Plaintiff to the terrace in question would not be hampered as Defendant No. 2-Society is owner.
19. The Trial Court partly decreed the suit as under:-
ORDER "1. Suit No. 793/2011 and Suit No. 425/2013 are hereby partly decreed as under:-
(i) It is hereby declared that the terrace in question was and is a part and parcel of tenement of Plaintiff vide No. 24 in Building No. 4.
(ii) Defendant No.2/Society is hereby asked to recover requisite charges/price amount of terrace as per the rate prevailed in the year-1991 from the Plaintiff.
(iii) After depositing the aforesaid charges by the Plaintiff, Defendant No.2./Society should show the terrace as belongs to the Plaintiff in their record.
(iv) Terrace in question would be considered as it belongs to the Plaintiff while redevelopment of said property.
(v) Defendant No. 2/Society would have a liberty to get the said property redeveloped through the developer on compliance of aforesaid directions.
(vi) Rest of the claim of the Plaintiff is hereby dismissed.
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(vii) Considering the facts and circumstances, Defendant No. 1/MHADA does bear the costs of the Plaintiff.
SUBMISSIONS :
20. Mr. Kulkarni, learned counsel appearing for the Appellant has pointed out the pleadings in S. C. Suit No. 793 of 2011 to demonstrate that the suit property is shown as premises along with terrace floor admeasuring 1058 sq. ft. He submits that decree declares that the terrace in question is part and parcel of the tenement of Plaintiff vide No. 24 in Building No. 4 and directs Defendant No. 2 to show terrace as owned by Plaintiff, which cannot be granted. He submits that by granting such a decree the Trial Court has granted specific performance of the policy of MHADA without any prayer. He submits that the challenge to the conveyance has failed and there is no policy of MHADA to show that the terrace above the building can be conveyed. He submits that the suit was barred by limitation as per the period from 2003 till 2011, no steps were taken for seeking ownership rights in respect of the premises from MHADA. He submits that the rent receipt of the year 1991 does not make any reference to the terrace and only Flat No. 24 was converted to ownership. He submits that MHADA has specifically denied the tenancy of the plaintiff in respect of the terrace. He submits that by communication of 15 th Sairaj/Shubham 16 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt January, 2003 the Plaintiff has informed MHADA that she has paid the premium for conversion of flat to ownership and has become member of the Co-operative Society in which there is no reference about back portion terrace. He submits that in response to the letter of 28 th February, 1991 the Plaintiff had written to MHADA that the tenement is having terrace and requested that the entry of the back portion of the receipt be corrected as tenement along with terrace and despite thereof there was no proceedings initiated for seeking ownership of the terrace. He submits that therefore it is implied that MHADA has rejected the tenancy rights in respect of the terrace and after period of 20 years when the Society decided to go for redevelopment the suit was filed seeking additional FSI.
21. He submits that there is no declaration of ownership of terrace sought by the Plaintiff. He would further submit that the impugned Judgment proceeds on the basis that the terrace in question is attached to the tenement and therefore the right of ownership has been granted by the Trial Court. He submits that the Trial Court was under an impression that there is abutting flat in view of the description given in the plaint. He submits that the decree does not grant the FSI which was claimed by the Plaintiff and the Respondent No. 2 cannot convey the ownership of the terrace which is common terrace. He submits that it is admitted that the terrace in question if Sairaj/Shubham 17 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt above the building and not abutting Flat No. 24.
22. He submits that the Constituted Attorney had stepped in the witness box who had no personal knowledge about the acts deposed. He submits that the evidence refers to the documents of 1960-1961 and the witness does not depose that he has any personal knowledge about the transaction of the year 1960-1961. In support he relies upon the following decisions:
Manisha Mahendra Gala vs. Shalini Bhagwan Avatramani1 Ramagauri Keshvlal Virani vs. Walkeshwar Triveni Co- operative Housing Society Ltd.,2 Trojan And Company vs. RM. N.N. Nagappa Chettiyar3 Om Prakash vs. Ram Kumar4 Janki Vashdeo Bhojwani vs. Indusind Bank Ltd., 5
23. Per contra, Mr. Kolse-Patil, learned Counsel appearing for the Respondent No. 1 would submit that the decision of Ramagauri Keshvlal Virani vs. Walkeshwar Triveni Co-operative Housing Society Ltd.,(supra) is inapplicable as transaction is of the year 1960. On the aspect of deposition by the Constituted Attorney, he submits that no objection was taken at the relevant time and the documents came to be marked as exhibit and therefore could be read in evidence. 1 (2024) 6 Supreme Court Cases 130.
2 1999 (3) Mh.L.J. 145.
3 (1953) 1 Supreme Court Cases 456.
4 (1991) 1 Supreme Court Cases 441.
5 (2005) 2 Supreme Court Cases 217.
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24. He submits that the declaratory relief has been rightly granted as in suit for injunction the issue of title can be gone into. He submits that there is no dispute about possession of terrace and specific issue is about title of Plaintiff which was framed and thus all parties were at notice and led evidence accordingly in the first suit. He submits that the evidence proves that the Plaintiff has been allotted Flat No. 24 along with terrace way back in April, 1960. He submits that the communication of 7th April, 1960 Exhibit-15 includes statement which shows the Plaintiff as the tenant of tenement No. 24 and back portion with terrace. He submits that the rent receipt produced on record at exhibit-12 shows tenancy also in respect of back portion in terrace. He submits that as Plaintiff in both suits prayed for grant of FSI of terrace, the Trial Court has rightly moulded the reliefs. He submits that the area of the terrace has been described in the plaint as 1058 sqr. ft. which has been admitted by the Society in the written statement. He submits that the flat is at the back portion of the building and the terrace is above the flat. He submits that the first suit came to be filed in view of the anticipation of the agreement being executed and the second suit came to be filed after the development agreement was executed. He submits that the suit is not barred by limitation and no objection to limitation was raised. He submits that as per Section 190 of Maharashtra Housing and Area Development Act, 1976, the Sairaj/Shubham 19 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt provisions of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 does not apply while conversion from tenancy to ownership therefore, the judgment of Ramagauri Keshvlal Virani vs. Walkeshwar Triveni Co-operative Housing Society Ltd.,(supra) is inapplicable. In support he relies upon following decisions:
Anathula Sudhakar vs. P. Buchi Reddy (dead) By Lrs.6 Laxman Bisan Uke vs. Ashok Ishwar Shinde.7 Satish Chand Makhan vs. Govardhan Das Byas8 U.P. State Brassware Corporation Ltd. vs. Uday Narain Pandey9 Bhagirath s/o Ramprasad Charkha vs. Ramprasad s/o Chunilal10
25. Mr. Dighe, learned counsel appearing for MHADA would submit that the terrace was not part of the tenement and no tenancy right or ownership right accrued to the plaintiff during acquisition of premises by MHADA or during conversion. He submits that the document of 28 th February, 1991 makes it clear that 53 tenements have been handed over on as is where as basis. He has taken this Court through the Maharashtra Housing and Area Development (Estate Management, Sale, Transfer and Exchange of Tenements) Regulations, 1981 [for 6 (2008) 4 Supreme Court Cases 594 7 2018 (4) Mh.L.J. 151.
8 (1984) 1 Supreme Court Cases 369.
9 (2006) 1 Supreme Court Cases 479.
10 2010 (6) Mh.L.J. 169.
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short, "Regulations of 1981"] and would submit that Regulation 2 (za) defines the tenement which will exclude terrace. He further submits that the Clause-12 of Allotment Letter specifically refers to the applicability of the Regulations.
26. He submits that the MHADA's decision to convert only tenement in ownership basis has not been challenged and there is no prayer for direction to MHADA to convert tenancy rights into ownership in respect of terrace. He submits that there were no steps taken right from 2003 till 2011 and therefore the suit is barred by limitation. He submits that the area of terrace has not been identified and 1/ 3 rd of the terrace is covered by water tank.
27. In rejoinder, Mr. Kolse-Patil, would submit that the definition of tenement in Regulation 2 (za) is not exhaustive. He submits that after receipt of the letter in February-1991 the Plaintiff had replied to the same and therefore, it cannot be said that there is no dispute. He submits that there is no question of limitation as the possession of the Plaintiff was not threatened and it is only when the process of redevelopment started without granting the FSI of the terrace to the Plaintiff that the right to sue accrued.
28. The following points would arise for determination :-
(i) Whether the conclusion of the Trial Court that the terrace in question is part and parcel of the tenement and MHADA erroneously Sairaj/Shubham 21 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt converted only flat into ownership is sustainable?
(ii) Whether the Plaintiff proves that she was tenant of Flat No. 4/24 along with part of the terrace above the Building No. 4 and the tenancy in respect of the flat as well as the terrace was attorned to MHADA ?
(iii) Whether the Plaintiff proves that MHADA has converted the tenancy rights into ownership rights in respect of the Flat alongwith the part of the terrace above the Building No. 4 in favor of the Plaintiff?
(iv) Whether the statutory regulations permit the grant of ownership rights in respect of portion of terrace located above a building in favour of one member of the Society?
(v) Whether the Trial Court was right in partly decreeing the suit after holding that the Plaintiff has only proved ownership of flat and in absence of any relief of mandatory injunction directing the Defendants to grant ownership of portion of terrace ?
(vi) Whether the Constituted Attorney could have been examined on behalf of and in place of the Plaintiff?
AS TO POINT NO. (i) :-
29. S.C Suit No. 793 of 2011 was initially filed only for seeking injunction restraining MHADA from entering into an agreement of conveyance with Defendant No. 2 without providing terrace floor Sairaj/Shubham 22 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt applicable FSI to Plaintiff. As the conveyance came to be executed during pendency of suit, the relief became redundant and suit came to be amended to incorporate pleadings to support the amended prayer for a declaration that the Plaintiff is owner of the flat along with "back portion terrace floor" in Defendant No. 2-building.
30. Considering the language of the plaint, I have extracted the exact words used in various paragraphs in Plaint :-
"2. The plaintiff further state that the plaintiff was the tenant of MHADA since around 1960, the Flat No. 4/24 along with the back portion terrace in the Andheri Dhake Colony CHS Ltd., and use to pay compensation to the concerned office of Defendant No. 1 of the flat as well as back portion terrace from 1960 to till today. The plaintiff crave leave to referred to rely upon the receipt issued by the Maharashtra Hsg. Board in favor of the plaintiff hereto annexed and marked as Exhibit "A" collectively.
3. The plaintiff say that in the beginning, the plaintiff and her family members were owner of the said building, but somewhere in 1960, the abovenamed Defendant No. 1 acquired the said building along with land from the husband of the plaintiff and started collecting rent from all the occupants of the said building and plaintiff is also one tenant of the suit premises along with terrace floor admeasuring 1058 sq. fit compound of the defendant No. 1 and the defendant No. 1 issuing the rent receipt in favour of the plaintiff of the room and along with terrace floor, which is Sairaj/Shubham 23 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt a suit premises before this Hon'ble Court, and admeasuring 1058 sq. fit. compound. The plaintiff further state that the plaintiff has several correspondence along with the defendant No. 1. The plaintiff crave leave to refer to and rely upon the copy of the correspondence. Hereto annexed and marked as Exhibit "B".
4. ....However the terrace granted by MHADA to the tenant on the tenancy basis and the MHADA collected the charges of towards of the terrace floor from the plaintiff, but defendant No. 2 not issued any receipt for the same of Rs 581/-
5A......the Plaintiff further say that in the above area defendant No. 1 and 2 are not joined the area of the terrace floor through in the conveyance deed of dated 8.7.1960 it is very clear that the Plaintiff abovenamed is a tenant of the building No. 4 of her flat at Sr No. 14 of list of the tenants back portion with terrace and rent fixed Rs 140/ per month, bu the abovenamed defendants not ready to give the FSI of the back portion of the terrace of the defendant no. 1 already collected rent of the said back portion plaintff and the terrace alongwith flat from the plaintiff....
7A. The Plaintiff further state that after filing of the present suit, the abovenamed defendant No. 2 without permission interested to take the less area from the defendant No. 1 by way of lease and not ready to provide FSI of the back portion of the terrace floor to the plaintiff....
8.....The Plaintiff further state the plaintiff is lawful occupier of flat No. 4/24, along with the back portion of the terrace floor, the plaintiff Sairaj/Shubham 24 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt further say that the plaintiff have several documentary evidence to prove it that plaintiff is lawful occupant of the said flat along with the back portion of the terrace."
(emphasis supplied).
31. In paragraph 2 of the subsequent S. C. Suit No. 425 of 2013 filed by the Plaintiff, it is pleaded that in the list of tenants which is handed over by her predecessor to the Bombay Housing Board along with rent, it is very clearly shown that she is tenant of Building No. 4 along with the back portion terrace and paying the rent at the rate of Rs. 140/- to the predecessors. Thus both the plaints describe the subject premises as flat along with back portion terrace.
32. From the pleadings reproduced above, it is clear that the subject premises is described as Flat along with back portion of terrace floor. The said description would commonly describe a flat which has an abutting or adjacent terrace to the flat in question. In his deposition, the Constituted Attorney has deposed that he is in use, occupation and possession of terrace floor in the backside portion of Dhake Colony, Building No. 4 above Flat No. 4/24, which was not noticed by the Trial Court.
33. The incorrect description of the subject premises has led to the suit being partly decreed and direction being issued to grant ownership of the terrace in question. The inquiry would have been different if the terrace portion would have been accurately described as part of the Sairaj/Shubham 25 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt terrace which is situated above Building No. 4. As the subject premises was not correctly described, there was no inquiry into the question whether the part of terrace located above the building and a common amenity for all the occupants of the building could have been directed to be converted into exclusive ownership of one single member.
34. As declaration was sought in respect of immovable property, it was necessary for the plaint to contain the description sufficient to identify it. Order VII, Rule 3 of Code of Civil Procedure, 1908, clearly provides that where the subject-matter of the suit is immovable property, the plaint shall contain a description of property sufficient to identify it. Considering the pleadings, the plaint was defective as it did not describe the suit property sufficient to identify the same.
35. Apart from the defective description of the suit premises, the area of the terrace in question is nowhere mentioned in the pleadings. As relief of declaration of ownership of flat and terrace was sought, the pleadings must be specific so that the specific relief can be granted. The Plaint describes the area of the Flat along with the terrace floor admeasuring 1058 sq. ft. It is therefore, not clear as to whether the carpet area of Flat is 1058 sq. ft. or the area of 1058 sq. ft. includes the area of flat along with terrace floor.
36. Based on the pleadings in the plaint, the impression which the Trial Court carried when it partly decreed the suit in favor of the Sairaj/Shubham 26 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt Plaintiff is revealed from its findings as under :
(a) MHADA while transferring Flat No. 24 has not mentioned attached terrace and there is documentary evidence to say that terrace in question was attached to Flat No. 24 which was in possession of Plaintiff;
(b) The terrace in question is just abutting to Flat No. 24 and is part and parcel of tenement but while converting to ownership only Flat was converted;
(c) As the said terrace in question is part and parcel of the Flat No. 24, she is entitled to get the same on ownership basis by paying requisite price prevailing in the year 1991.
37. In light of the discussion above, the conclusion arrived at by the Trial Court in respect of the terrace in question is clearly unsustainable. Point No. (i) is answered accordingly against the Plaintiff. AS TO POINT NOS. (ii), (iii) AND (iv) :
38. These three points pertain to tenancy rights and conversion of tenancy rights into ownership rights by MHADA and are taken together for discussion.
39. I shall firstly consider whether the Plaintiff has established that her tenancy was in respect of Flat No. 24 along with part of terrace located above the building and that the same was attorned to MHADA. The dispute is confined only to the tenancy and ownership of part of terrace located above the building. The undisputed position is that plaintiff is the widow of Trimbak Dhake who had constructed five Sairaj/Shubham 27 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt buildings which was occupied by tenants and in the year 1960, he had sold the land and buildings to MHADA and attorned the tenancies to MHADA. Subsequently, MHADA started collecting rent from occupants of the buildings and in the year 1991, MHADA converted the flats in those buildings in favor of occupants on ownership basis after payment of certain amount. The Defendant No. 2-Society thereafter, issued Share Certificate to all the occupants. In the year 2010, when the Society intended to go for redevelopment, the plaintiff claimed tenancy of Flat No. 4 /24 along with terrace floor admeasuring 1058 sq. ft.
40. In the Written Statement, it is specific case of MHADA that plaintiff is tenant of Flat No. 4/24, and not of the terrace floor. As the terrace portion was inaccurately described, the Written Statement of MHADA proceeds on the basis that the back portion of terrace stated in the Plaint is adjacent to Flat No. 4. MHADA contends in the Written Statement, that back portion of terrace mentioned by Plaintiff is unauthorized terrace erected by the Plaintiff and there is no question of regularizing the unauthorized terrace which is subsequent erection by the plaintiff.
41. To establish her case of being tenant in respect of the terrace in question, the Constituted Attorney has deposed as to contents of the Plaint of S.C Suit No. 793 of 2011 and thereby incorrectly deposing to Sairaj/Shubham 28 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt the location of the terrace as back portion terrace floor. As to the documentary evidence produced, the document first in point of time is the Affidavit of declaration dated 30th March, 1960 , which is a unilateral declaration by the original landlord- Exhibit 15 which appears to have been executed at the time of sale of the properties to Bombay Housing Board. In clause 4 of the Unilateral declaration by Trimbak Dhake, it is stated that his wife is a tenant of a flat on second floor with a terrace in building on Plot No. 4 at a rent of Rs. 140/- (Rs. 130/- for the flat and Rs. 10/- for the terrace) and on completion of the sale, her tenancy will be attorned to Bombay Housing Board. Along with Deed of Declaration, the list of tenants is annexed and as far as Building No. 4 is concerned, the name of the plaintiff appears at Serial No. 14 and the description of tenanted premises is 'back portion with terrace' and there is no details of area.
42. The description in the unilateral Deed of Declaration was carried forward by MHADA in the rent receipt and the rent receipt by Office of the Estate Manager, MHADA - Exhibit 12 describes the Plaintiff as tenant and Tenement Number is written as 'back portion with terrace' without any mention of Flat No. 24. The statement of arrears produced on record also refers to tenement as back portion with terrace and there is no reference to Flat No. 24. If the rent receipts are to be accepted as proof of Plaintiff's tenancy, the same would mean Sairaj/Shubham 29 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt that the plaintiff's tenancy is only in respect of "back portion with terrace" and thus no tenancy rights were established by plaintiff based on the rent receipts.
43. For being entitled to ownership rights from either MHADA or Defendant No. 2 in respect of part of the terrace, the Plaintiff had to prove her tenancy rights since the year 1960 in respect of the terrace and the continuation of the tenancy after attornment, upon the property being conveyed to Bombay Housing Board. It was necessary for the plaintiff to adduce cogent evidence to establish that the portion of the terrace was tenanted to her in respect of which rent was paid to Trimbak Dhake. There is no document produced to establish this position prior to the sale to Bombay Housing Board.
44. On 7th April, 1960, the Assistant Housing Commissioner addressed letter to Estate Manager in which the list of tenants was annexed and name of Plaintiff appears in respect of Building No. 4 mentioning only "back portion with terrace" with rent of Rs 140/-. The Deed of Declaration is a unilateral document executed by the Plaintiff's husband and there is not a single rent receipt produced prior to the sale of the property to Bombay Housing Board to show tenancy in respect of portion of terrace above the Building No. 4. The rent receipts, which are produced on record are rent receipts issued by the Estate Manager of MHADA which does not correctly describe the Sairaj/Shubham 30 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt tenanted premises and cannot be accepted as proof of attornment of tenancy rights of part of terrace. In addition, MHADA has deposed that plaintiff was not tenant of terrace. In the communication dated 14 th March, 1991- Exhibit 14, addressed by the Plaintiff to MHADA, it is specifically stated that the subsequent rent receipt after November, 1962, does not mention "back portion with terrace" which means that after November, 1962 there is not even the rent receipt to substantiate the plaintiff's claim of tenancy. The plaintiff seeks to rely on tenancy receipt of 1960-1962 to prove continued tenancy till 2011, which cannot be accepted. There was no reply to the letter of March, 1991 and no steps were taken by the Plaintiff to seek declaration of tenancy in respect of the part of terrace.
45. The evidence adduced by the Plaintiff fails to prove that the Plaintiff was tenant in respect of the terrace in question and the tenancy of the terrace was attorned to Bombay Housing Board after execution of conveyance of the land and the building. Further, DW-1 has produced the list of authorized tenants at Exh. 24 which shows that the Plaintiff was tenant only in respect of Flat No. 4. The said list was prepared for calculating the cost to be paid by the Occupants while converting tenancy into ownership basis. Hence, at all times, MHADA has accepted the Plaintiff's tenancy only in respect of the flat. Despite the said evident position, Plaintiff has not sought an Sairaj/Shubham 31 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt appropriate relief of tenancy rights in respect of portion of terrace.
46. Coming to issue of conversion of tenancy rights to ownership rights, the tenancy rights were converted into ownership rights pursuant to policy decision of MHADA. A communication dated 28 th February, 1991- Exhibit 23 was issued by MHADA to the Plaintiff extending the scheme for conversion of tenancy rights to ownership. The offer given by MHADA was for conversion of Flat No. 4/24 and makes specific reference to "gala". The purchase price based on the area of the residential tenement was calculated at Rs. 25,924/- and the Plaintiff was directed to make the payment along with arrears of rent. The document establishes that what was offered on ownership basis was Flat No. 4/24. In response to said letter, the plaintiff addressed the communication at 'Exhibit-14' dated 14th March, 1991, stating that since the conversion into ownership is being done, it is important that rent receipt also mentions the words "with terrace". She has specifically admitted that in the subsequent rent receipt, the words "back portion with terrace" is not mentioned and that in future rent receipts, the word "with terrace" be mentioned.
47. Once the offer has been made for converting only the flat into ownership from the tenancy, communication dated 14 th March, 1991 is clearly misconceived as upon the payments of requisite payment for converting tenancy rights to ownership in favor of plaintiff there was Sairaj/Shubham 32 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt no question of future rent receipt being issued. It is also pertinent to note that along with communication of 28 th February, 1991, the terms and conditions of the conversion from the tenancy to ownership basis dated 25th February, 1991 was enclosed, which provided that sale is under the provisions of rules and regulations framed under the Maharashtra Housing and Area Development Act, 1976. The provisions of Regulations of 1981 defines the term "tenement" in Section 2(za) as under:-
"(za) "tenement" means a part of a property intended for independent use including one or more rooms or enclosed space located on one or more floors (on part or parts thereof), in a building constructed under any housing scheme [or any scheme for a Commercial Centre and intended to be used principally for residence, or for a commercial purpose] or such other use as the Board may permit in this behalf with a direct exit to any public street, road or highway or to a common area leading to such street, road or highway, and includes an apartment within the meaning of the Apartment Act"
48. The definition of the 'tenement' makes it clear what can be allotted under the said regulation is an enclosed space located on one or more floors, which answers the description of a flat. The Regulations do not permit the authorities to allot on ownership basis a portion of Sairaj/Shubham 33 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt terrace which would be common amenity to be enjoyed by all the occupants of the said building. In his affidavit of evidence, the Estate Manager of MHADA has clearly deposed that the entire terrace of the said building belongs to the Society and Plaintiff has no right to claim the terrace of the Society.
49. PW-1 has specifically deposed in the year 1990, the Defendant No. 1 handed over the said flat along with terrace floor to Defendant No. 2 and Defendant No. 2 stopped collecting maintenance of terrace floor from Plaintiff. The same makes it expressly evident that only flat was converted into ownership and not the terrace portion.
50. It is therefore, clear that what was converted into ownership was only the flat, which was accepted by the Plaintiff and no steps were taken to seek conversion of the terrace portion into ownership based on previous claim of tenancy rights. The Share Certificate issued by the Society in the year 2001 was only in respect of Flat No. 24, which was not objected by the Plaintiff. By communication dated 15 th January, 2003-'Exhibit-18', the plaintiff had written to Estate Manager-II that she was tenant of Flat No. 24 till November, 1991 and that she had paid premium of Rs. 25,924/- on 11th November, 1991 for conversion of her flat to ownership to the Housing Board and thereafter, had became the member of the Co-operative Society and as she was no longer tenant of the Housing Board, she has been advised to pay to Housing Board Sairaj/Shubham 34 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt Rs. 58/- per month towards the Housing Board charges. The communication makes it clear that the tenancy as well as the ownership was only in respect of Flat No. 24 and not in respect of portion of terrace and no objection was taken by the plaintiff upon the Flat No. 24 being converted on ownership basis.
51. It is only in the year 2011, when redevelopment of Society was taking place that claim had been made in respect of tenancy and ownership rights of the flat as well as portion of terrace. The evidence on record establishes that only ownership of the flat was transferred to the plaintiff and not ownership of portion of terrace. Point Nos. (ii),
(iii) and (iv) are accordingly answered against the Plaintiff. AS TO POINT NO. (v):
52. The Trial Court has held that the Plaintiff has proved only ownership of the flat. The Plaintiff had come with a case that she is entitled to declaration of ownership of the flat and portion of the terrace as she was tenant of the flat and portion of terrace and the Defendant No. 2 in re-development was not ready to provide FSI of the back portion of the terrace floor to the Plaintiff. The plaint sought declaration of ownership of flat and back portion terrace floor and therefore right to claim FSI of the back portion terrace floor along with her flat. The Plaintiff having failed to establish that she was tenant in respect of the portion of terrace and that the terrace portion was Sairaj/Shubham 35 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt converted by MHADA into ownership, no declaration of ownership or right to claim FSI qua the terrace portion could have been granted. The suit ought to have been dismissed qua the claim for ownership portion of terrace.
53. There is nothing produced on record to show that even after the conversion of ownership rights of the flat in the year 1991, the Plaintiff was paying rent to MHADA in respect of portion of terrace. The sale deed and lease deed were executed by MHADA in favor of the Defendant No. 2 Society in the year 2012 and Defendant No. 2 became owner of the building and lessee of the land.
54. As MHADA had not converted the purported tenancy rights of portion of terrace into ownership, it was necessary to seek the appropriate relief of declaration of tenancy rights and for mandatory injunction directing MHADA or Defendant No. 2 to grant ownership rights of portion of terrace, which was not prayed. It also needs to be noted that the conversion of tenancy rights to ownership took place in the year 1991 and suit for declaration of ownership was filed in the year 2011. In event the relief of conversion of tenancy rights of portion of terrace to ownership was prayed, different considerations would arise as regards the entitlement of Plaintiff to the ownership rights, the policy decision of MHADA, the permissibility under the statutory regulations, the vested rights of Defendant No. 2-Society, the issue of Sairaj/Shubham 36 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt limitation etc.
55. Although it is sought to be contended by Mr. Kolse-Patil that the relief can be appropriately moulded, to apply the said principle, on the basis of evidence and pleadings, the same should be possible. In facts of present case, the relief could not have been moulded as the core issue of entitlement of Plaintiff who was a member of the Defendant No. 2-Society to exclusive ownership of portion of common terrace located above the building was not dealt with. The Trial Court proceeded on an erroneous footing that the terrace was adjacent to the flat, which is attributable solely to the incorrect pleadings in the plaint, to reach a conclusion about the Plaintiff being entitled to ownership rights of the terrace portion.
56. Mr. Kolse-Patil would rely on decision of Anathulsa Sudhakar vs. P. Buchi Reddy (Dead) By LRs (supra), Laxman Bisan Uke vs. Ashok Ishwar Shinde (supra) and Ramrao Tukaramji Dindalkar through L.R.'s11 to contend that as there was specific issue framed with respect to title of Respondent No. 1 and mere absence of seeking declaratory relief of ownership would not come in the way of decreeing the suit when the civil court has power to mould the reliefs. Mr. Kolse-Patil would submit that there was no denial of occupation by Respondent No. 1 and there was no serious dispute that Respondent No. 1 was 11 2023 SCC Online Bom 2833.
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tenant of the terrace since before 1960 and therefore, entitled to become owner of the same. The submission of Mr. Kolse-Patil is based on erroneous assumption of converse situation that the relief of direction to Defendants to grant ownership of portion of terrace is sought without seeking declaratory relief of ownership.
57. The Plaintiff has failed to lead cogent evidence to prove that she was tenant of portion of the terrace. There was no conversion of ownership of portion of terrace. In any event, the statutory Regulations permit grant of ownership of tenements and not common amenities. The land as well as the buildings stood transferred and conveyed in favor of the Defendant No. 2 Society in the year 2012. There can be no interference in the common right of all the occupants to the common terrace of the building. As the Trial Court had held that the Plaintiff has failed to prove her ownership of portion of terrace, it could not have directed Defendant No. 2 to grant ownership of portion of terrace by accepting prevailing price of the year 1991 in absence of such relief. The facts of the case do not permit the grant of such relief against the Defendant No. 2 in respect of common property of the Society.
58. Apart from the fact that there was no appropriate reliefs sought, the direction of the Trial Court to Defendant No. 2 to grant ownership rights of terrace cannot be sustained, as the findings of the Trial Court Sairaj/Shubham 38 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt to support the direction, stems from the fact that due to incorrect description of suit premises in the plaint, MHADA as well as the Trial Court carried an impression that the declaration sought by the plaintiff was in respect of terrace, which was adjacent and abutting to Flat No.
24. Therefore, the Trial Court had held that terrace is part and parcel of Flat No. 24 and there is no reason to grant ownership of only flat and not the terrace in question. Based on an incorrect finding that the terrace is part and parcel of the tenement abutting Flat No. 24, the direction has been given to the Society to recover the price as per the rate prevailing in the year 1991 from the plaintiff and to show the same in the ownership of plaintiff. This finding of the Trial Court is in itself in sufficient to set aside the decree of the Trial Court.
59. The Trial Court had held that MHADA had transferred the tenement in the name of plaintiff on ownership basis by showing carpet area of 1057 sq. ft. and that if area of terrace was comprising of carpet area of 1057.93 sq. ft. then grievance of plaintiff would have been different. The plaintiff has not described the area of terrace and had merely referred to the suit premises as Flat No.24 in Building No. 4 along with back portion admeasuring 1058 sq. ft. The Trial Court has not given much importance to the area of terrace as it was under an erroneous assumption that the terrace was adjacent to the flat. As the admitted position is that the terrace is located above the building and Sairaj/Shubham 39 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt rights are claimed in portion of the terrace, specific pleading and specific prayer in that respect was mandated.
60. The Trial Court has considered the unilateral deed of declaration and the rent receipts which states "back portion terrace" at rent of Rs. 140/- to hold that plaintiff's rent is highest than other tenants in the buildings. Based on the same, the Trial Court holds that terrace in question was in possession of the plaintiff in the capacity of tenant. The Trial Court failed to notice that rent receipt only mentions "back portion of terrace" which was carried forward from the list of tenants, annexed to the Memo dated 7 th April, 1960 issued by the Assistant Housing Commissioner, Bombay addressed to the Estate Manager, Bombay Housing Board. The Trial Court erred in partly decreeing the suit as the plaintiff failed to bring any evidence on record to establish her tenancy rights and ownership rights in respect of portion of terrace located above the building. The finding of the Trial Court is vitiated for the reason that the Trial Court accepts the claim of tenancy on an inference that the terrace in question is abutting Flat No. 24 and was part and parcel of tenement.
61. The Trial Court after accepting the findings on the aspect of tenancy has misconstrued the communication dated 14 th March, 1991 as readinesss and willingness of the plaintiff to pay requisite charges in respect of the terrace in question. The finding is unsustainable as the Sairaj/Shubham 40 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt letter of 14th March, 1991 does not make any claim of tenancy rights of portion of terrace or seeks conversion from the ownership of terrace, but only request was made for the future rent receipts to include the word 'terrace' in the rent receipts. The Trial Court had erred in holding that there is documentary evidence to show that terrace in question was attached to Flat No. 24, which was in possession of plaintiff and MHADA had failed to plead or establish whether the documents in question was for Flat No. 24.
62. The Trial Court based on erroneous finding that terrace is adjacent to Flat No. 24 had directed the Defendant No. 2 Society to recover the amount of terrace from the plaintiff as per the rate of 1991. Admittedly, the terrace is common to all occupants of the building considering that it is located on top of Building No. 4 and is part of common amenities. There was therefore, no question of sale of portion of common terrace to the plaintiff. The findings of the Trial Court are therefore unsustainable. Point No. (v) is answered against the Plaintiff.
AS TO POINT NO. (vi ):
63. On behalf of Plaintiff, evidence was led by her Constituted Attorney, who is her son and had deposed on her behalf. He had also produced documents, which were duly marked as Exhibits. It is not discerned that any objection was taken to the Power of Attorney Sairaj/Shubham 41 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt holder deposing on behalf of the plaintiff. In the case of Manisha Mahendra Gala vs. Shalini Bhagwan Avatramani (supra), the Apex Court has held that general power of attorney holder cannot be witness on behalf of party represented by him. The Apex Court had considered the decision in Janki Vashdev Bhojwani vs. Indusind Bank Ltd (supra), in which it was held that Power of Attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. The Power of Attorney Holder who has no knowledge regarding the transaction cannot be examined as witness. In the present case, the Constituted Attorney has not deposed that he is giving evidence on behalf of Plaintiff in respect of facts which are personal to his knowledge and the deposition indicates that he has deposed in his individual capacity. The deposition was in respect of facts not personal to his knowledge.
64. It is well-settled that Power of Attorney holder can depose and verify on oath before the Court, but he must come as an agent and Power of Attorney holder having no personal knowledge cannot be examined for and on behalf of the principal as to facts personal to the knowledge of the principal. The Trial Court failed to note the settled position in law and had accepted the evidence led by the constituted attorney by holding that he is well-acquainted with the facts of the case.
65. To overcome this obstruction, Mr. Kolse-Patil would submit that Sairaj/Shubham 42 of 43 ::: Uploaded on - 19/03/2025 ::: Downloaded on - 19/03/2025 22:28:38 ::: FA-464-2017 (final).odt the documents filed by the Constituted Attorney were exhibited without objection and those can be read in evidence. The submission overlooks the settled position in law that mere marking of documents as exhibit does not dispense the requirement of proof of document. For proving the documents, the person who can vouchsafe as to the truth and contents of the documents has to step into the box. As the Constituted Attorney has not deposed that he is deposing in respect of facts which are personal to his knowledge, the mere marking of documents as exhibit cannot assist the case of Plaintiff. The Power of Attorney holder could not have deposed and produced the documents as he was neither the author of the document nor had personal knowledge about the same. Point No. (vi) is accordingly answered against the Plaintiff.
66. In light of the above, First Appeals are allowed. The impugned judgment dated 18th February, 2015 is hereby quashed and set aside. Though the Trial Court had dismissed the claim of plaintiff as regards the declaration of conveyance as well as the redevelopment being null and void, there is no challenge by the plaintiff to the same. Resultantly, both suits stand dismissed.
67. In view of above, nothing survives for consideration in pending Interim/Civil Applications, if any, and the same stand disposed of.
[Sharmila U. Deshmukh, J.]
Sairaj/Shubham 43 of 43
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