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19. Mr. Darius J. Khambata, the learned Senior Counsel appearing for the Khans has submitted that the prayers in the Suit filed by the Creados are limited and restricted to Khans right to enter upon Plot No. A and do not concern Khans right to the other areas of internal roads / spaces within the Silver Beach Estate. Whereas the prayers sought for in the Khans suit are in respect of the Khans right of ownership / co-user / easement by grant / layout and in the alternative for an easement by prescription over parts of the entire Silver Beach Estate layout. Thus the subject matter of the Khans Suit is a much wider right claimed over the entire Silver Beach Estate layout. He has submitted that though the Khans plot No.2 was notionally delineated, it was admittedly part of the larger layout of Silver Beach Estate. The layout plans in respect of Silver Beach Estate which had been submitted to the authorities from time to time clearly show the internal layout roads / ways/ passages existing on the layout of the Silver Beach Estate and are incorporated in the Conveyance dated 31st March, 1971 executed between the Khans and the Creados. The layout plan dated 14th May, 1970 submitted by the Creados clearly NMS-1599-10-3614-11-1.DOC reflects the internal access roads. Further, the layout plan annexed to the conveyance clearly shows internal access roads which are referred to as "access roads". This plan has been signed by the Creados and the Khans. The plan was submitted for registration and is bearing the same serial number as the conveyance itself i.e. Serial No.R-2181 of 1971 and was registered on the same date. The conveyance and the plan both were registered on 4th September, 1974. The layout plan submitted by the Creados to the MCGM was drawn on 24th May, 1974 and revised thereafter on 24th July, 1975 and eventually sanctioned on 28th February, 1978 shows existence of internal roads, referred to therein as "means of access". The MCGM had pursuant to the order of this Court dated 16th January, 2019 visited the Silver Beach Estate on 6th February, 2019 and prepared the sketch plan which shows the internal access roads virtually going upto the Khans Plot No.505/2. He has submitted that the Creados have relied upon a city survey plan to allege that there were no roads within the layout. This is completely misplaced since the city survey plan is admittedly not upto date and shows only structures on the layout without reference to the ways/passages/roads therein. He has relied upon the photographs which have been submitted by the Court Receiver to this Court NMS-1599-10-3614-11-1.DOC taken during the site visit which evidenced the said internal roads / passages.

22. He has submitted that although in the plans annexed to the Conveyance it can be seen that the access road to the rear of plot No.2 does not touch the rear door / gate of Plot No.2, the Khans have been granted easementary right to use the layout through their rear door / gate under the Conveyance itself since the conveyance clearly provides for easements, appurtenance, ways, passages etc. to, into and out of the said premises of the Khans being conveyed to them. This would include the internal access roads in the layout and the access over the layout to the beach including the 'S' shaped path from the Khans rear door / gate.

NMS-1599-10-3614-11-1.DOC

24. He has submitted that the internal access roads, within the Silver Beach Estate layout was at all times required to be kept open and the Creados could not have been granted rights in respect of the plot A to develop / construct upon the internal access roads which was meant for the use of co-owners of the plots in the layout. He has relied upon a decision of this Court in Pashmina Co-Op. Housing Society Ltd. Vs. Subhash A. Gandhi 3 where this Court held that land which is designated as a road in the layout plan cannot be permitted to be sold as this would be against the interest of the residents in the layout. Once the areas are designated as a road, the same has to be retained and used as such. In the present case, Creados had claimed to own the internal roads as per the layout plans. He has submitted that the fact that the internal roads and access from the rear door/ gate was available to the Khans is inter alia evident from the various documents addressed by the MCGM to the Creados wherein the MCGM had directed the Creados to remove the barricades placed by them on the internal roads and on the open areas which prevented the access to the beach and keep the access open as per the sanctioned layout plans. The notices from the MCGM to the Creados dated 3rd March, 2010 clearly stated that the 3 Notice of Motion No.224 of 1998 in Suit No.234 of 1998.

39. In the layout plans which have been submitted by the Creados including the layout plan submitted along with the conveyance, the internal access roads / ways / passages are clearly shown to exist on the layout of the Silver Beach Estate. The layout plan which was referred to in the conveyance showed the internal access roads which are referred to "as access road". This plan has been signed by the Creados and Khans was submitted for registration on the same serial number as the conveyance itself and registered on the same date. Thus, the internal access roads are a part of the conveyance and the easements which have been referred to in the conveyance would NMS-1599-10-3614-11-1.DOC be applicable to these internal access roads. Accordingly, there has been a grant of an easementary right to the internal access roads by the said conveyance. The Supreme Court in the recent decision of Dr. Kumar (Supra), had considered a similar case wherein the Plaintiff claimed exclusive rights over a path under the sale deed and an injunction restraining the Defendants from using the path way, a relief similar to that sought by the Creados against Khans in the Creados Suit. In that case, a specific mention was made of easementary rights reserved in the recitals of the sale deed in favour of the Defendants and the wordings used in that conveyance was more or less similar to the wordings which have been used in the said conveyance which have been extracted above. The Supreme Court held that the Defendants had expressly granted an easementary right to use the passage in the sale deed. In paragraph 13 of that decision, the Supreme Court held this: