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11. It is the case of the Plaintiff, that at all material times the Co-owner Societies have acted on the basis of their joint ownership rights with respect to common plots and the period between 2010-2011, 8 separate notices were issued by the defendant no.17 to defendant nos.1 and 2 under Section 127 (1) of the Maharashtra Regional and Town Planning Act, 1966, by relying upon the Common Plots Conveyance, premised on a assertion that the Co-owners Societies are joint owners of the common plots, calling upon the authorities to take necessary action, to complete the acquisition of the common plots, all of which were reserved for various purposes like library, playground, municipal retail market, D.P. Road, Garden, Recreation Ground etc. Upon purchase notices being issued, acquisition proceedings for the Reserved Common Plots, were commenced by the Additional District Collector by issuing notifications under Section 6 of the Land Acquisition Act, 1894 r/w Section 126 (4) of the MRTP Act, 1966, and presently the acquisition proceedings are pending.

1    (1954)LVI BLR 1080


Ashish/Choulwar





                                   12/77                     Orig.Sum.15-19.doc

Mr. Devitre would submit that after lapse of about 60 years of the date of registered conveyance, the defendant nos.1 to 3 for the first time are attempting an interpretation of some terms of the Common Plot Conveyance to indicate that the common plots did not vest in the Society's, as owner but they are only the 'tenants', as the Common Plots Conveyance has used the terminology "tenants in common", and therefore, on completion of the JVPD scheme, the common plots vested in the MCGM and in the wake of this situation, it was not open for the Bombay Housing Board to convey or transfer them to the 14 Co-owner Societies. Therefore, according to Mr. Devitre, it has become necessary to ascertain whether, on a true and correct construction of the Common Plots Conveyance read with the Individual Plot Conveyances, whether the common plots are conveyed absolutely to the Co-owner Societies as Co- owners and whether MHADA (erstwhile Bombay Housing Board) has any right, title or interest in the common plots, after execution of the registered Common Plots Conveyance.

In addition another important point, which deserve determination is whether, the conveyances granted the lease of common plots, in the wake of the expression "tenants in common" used in this instrument and whether the ownership of the common plots with the title continue to vest in defendant no.3.

14. According to Mr. Devitre, the questions for determination deserve consideration by this Court, in light of the specific terms of the Common Plots Conveyance under which the Bombay Housing Board transferred the ownership rights of the Ashish/Choulwar 13/77 Orig.Sum.15-19.doc common plots to the Housing Societies, by referring to them as "Co-owners" of the Common Plots as "tenants in common" and by focusing upon the recitals in the Common Plots Conveyance. Further he propound, that the question will have to be determined in the backdrop of the factual position, relating to the approvals, sanctions and directions of the State Government and other Authorities for the acquisition by and vesting of the common plots in the Bombay Housing Board for the purposes of the scheme and its transfer to the 14 Co-owner Societies. According to him, the material fact of the Building Plot Conveyances in favour of 14 Co-owner Societies is not in dispute and it is also not disputed that the transfer was with the approval and sanction of the State of Bombay.

Where the Originating Summons is filed in such cases, the Court cannot determine question under Rule 241, as whether such a contract of which performance is sought exist or valid or not. However, the scope of the distinct Rules in the said Chapter differ in its nature and in Rules 243, 244 and 245, there is no restriction in the Court to determine all questions, including questions relating to existence or validity of the deed or instrument of transfer.

Rule 243 deals with instrument of the Transfer of Property Act namely a mortgage and the relief, which may be sought may include relief regarding "Sale, Foreclosure, ...... by the Mortgagor" and "Redemption, re-conveyance ..... by the Mortgagee". This relief necessary involve questions of title and questions relating to existence and validity of instrument. However, the invocation of Rule 245 by the Plaintiff is by a person claiming to be interested under a Deed (Conveyance of 1960) and it is for determination of the questions of construction arising under the said instrument and for declaration of the rights of the Plaintiff, since what is sought to be determined through the Originating Summons is; whether on a true and correct construction of the registered common Ashish/Choulwar 69/77 Orig.Sum.15-19.doc plots conveyance, the common plots are conveyed and transferred absolutely to the co-owner societies; Whether by reason by use of the expression "Tenants in Common", the said instrument granted a lease of common plots to the societies with the title still being retained by the Defendant No.3 and whether it has any right, title or interest in the common plots subsequent to the execution of the registered common plots conveyanced.