Document Fragment View

Matching Fragments

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 FA-464-2017 (final).odt above the building and not abutting Flat No. 24.

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. 

Sairaj/Shubham                    37 of 43





                                                           FA-464-2017 (final).odt

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.

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.