Bombay High Court
Sewri Nilgiri Udyog Bhavan Co-Op. ... vs M/S. M.B. Development Corporation, ... on 20 August, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:33635
5-IA-17703-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.17703 OF 2022
IN
FIRST APPEAL (ST) NO.17417 OF 2022
Sewri Nilgiri Udyog Bhavan
Co-Op. Society Limited ...Applicant
In the matter between
Ashwin C. Negandhi And Ors. ...Appellants
Versus
M/S. M.B. Development Corporation,
Mumbai And Ors. ...Respondents
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Adv. Siddhesh Bhole, Yakshay Chheda, Ashwin Pimpale i/b SSB Legal &
Advisory for the Appellants in FA/ST/17417/2022.
Adv. A. R. Patil, AGP for the State.
Adv. Pallavi Khare for the Respondent Corporation.
Adv. Devrajan i/b Kavita A. Shah for Respondent No. 2 in FA/397/2024 & for
the Appellant in FA/106/2003.
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Coram : Sharmila U. Deshmukh, J.
Date : August 20, 2024.
P. C. :
1. Heard.
2. By this interim application, the Applicant seeks leave to file the captioned first appeal. The Appeal challenges the Judgment and decree dated 31st January, 2022 passed in LC Suit No.4416 of 1993 by which the City Civil Court has partly decreed the suit filed by the original Plaintiffs who were carrying on business from premises located at Sewree Nilgiri Udyog Bhavan Estate Ltd. The Applicant Society comprises of the members carrying on business at Sewree Nilgiri Udyog Bhavan Estate Ltd. L.C. Suit No. 4416 of 1992 was Harish 1 of 4 5-IA-17703-2022.doc instituted by certain individual owners of the said Society which was formerly known as Nilgiri Industrial Estate.
3. Vide the said suit, the original Plaintiffs sought a declaration that the disputed property i.e. C.S No. 841 is a public road and that the Defendant Nos. 1 and 2 have no right to obstruct the Plaintiffs and members of public from using the disputed property as an access road and for perpetual and mandatory injunction. The Plaintiffs claimed that the only means of access to the suit plot is the public road.
4. The City Civil Court by the impugned judgment, partly decreed the suit, however negated the issue as regards the ownership of the State and thus rejected the contention that City Survey No. 841 is a public road. Being aggrieved thereof, the Applicant Society which is stated to have been formed subsequently is before this Court seeking leave to file an appeal.
5. Learned counsel appearing for the applicant would submit that the applicant is aggrieved by the impugned judgment as the impugned judgment holds that the plaintiffs therein had failed to prove that the disputed plot is public road. He submits that the suit was instituted by the owners of the galas in their individual capacity and subsequently the Society has been formed. For the purpose of access to the suit plot, the public road is the only access and the ownership of State having been negated, the rights of the Applicant Society has been affected as the said road was used by the members of the applicant Society.
6. Per contra, learned counsel for the respondent would submit that the issue as far as title is concerned is between the State and the respondent. He would further submit that the rights of the members of the applicant Society are protected as their right of ingress and Harish 2 of 4 5-IA-17703-2022.doc egress has been protected by partly decreeing the suit. He would further submit that the road which is claimed by the plaintiffs in fact is owned by the respondent and therefore, the issue is only between the respondent and the State Government. As far as title is concerned, he submits that the applicants being a stranger to the title, does not have any right to challenge the same.
7. Considered the submissions and perused the record.
8. L.C. Suit No. 4416 of 1993 against which the present appeal is sought to be filed, was instituted by the owners of the galas in their individual capacity. The Applicant Society has filed L.C Suit No. 2889 of 2014 against the Municipal Corporation of Greater Mumbai and the Respondent Nos. 1 and 5 are herein seeking mandatory injunction to remove the blockage and overflowing of drainage lines situated on the said land. By the impugned judgment dated 31 st January, 2002, the Trial Court has only granted right of ingress and egress to the members of the Applicant Society. Negating the issue of State ownership of the disputed plot will result in the Applicant being restricted from claiming any further relief in respect of the disputed plot. The rights of the Applicant Society are therefore impacted to the extent of the Trial Court denying the disputed plot as public road.
Although the members of the Applicant Society are protected, the only protection granted is the right of access and nothing further.
9. The prayers in the suit would indicate that the relief sought was qua the rights of the Plaintiffs to use the road as public road and not by way of an easementary right. The City Civil Court by the impugned judgment negated the issue as ownership of the State and has therefore accepted the title of the respondent in respect of disputed plot i.e. City Survey No. 841. As the rights of the members of the Harish 3 of 4 5-IA-17703-2022.doc applicant Society are prejudiced by the impugned judgment, as they claimed that the City Survey No.841 is a public road, the Applicant which is the Society formed of the members which are using the disputed plot as public road are entitled to leave to file the appeal.
10. In light of the above, the application stands allowed in terms of prayer clause (A).
[Sharmila U. Deshmukh, J.]
Harish 4 of 4
Signed by: Harish V. Chaudhari
Designation: PA To Honourable Judge
Date: 22/08/2024 14:58:35