1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1816 OF 2008 IN SUIT NO.654 OF 2007 SARTHAK CO-OPERATIVE HOUSING SOCIETY LTD. ..PLAINTIFFS VS. LAXMIBAI SHANKAR MUNGEKAR & ORS ..DEFENDANTS AND MUNILAL RAMKHILAVAN MAURYA ..APPLICANT Mr.S.C.Naidu i/b C.R.Naidu & Co. for the Plaintiffs Mr. Y.R.Naik with Mr.S.D.Patil for Applicant Mr.S.K.Dubey for Defendants No.1 to 6 CORAM: Smt ROSHAN DALVI, J. DATED: 4th March, 2009 P.C.: 1. The Applicant in this Chamber Summons are the occupants of a tenement / chawl on the suit property. They desire to be joined as a party Defendants to the suit as the land below their structure is the suit land. 2. The suit is filed for declaration that a Deed of 2 Conveyance executed by the owners of the land Defendant Nos.1 to 6 with the Developers, Defendant No.7 to 10 is void. 3. The Plaintiff is a society whose building has been constructed on a plot of land sold by Defendants No.1 to 6 to them. That plot of land is required to be conveyed to the Plaintiffs u/s 11 of Maharashtra Ownership Flats Act, 1963 (MOFA). Since the conveyance is not executed a suit has been filed in the Bombay City Civil Court for that purpose. 4. After agreeing to convey the suit plot of land to the Plaintiff the Defendants No.1 to 6 is said to have conveyed a part of that plot alongwith adjoining plot to Defendants No.7 to 10 under the conveyance dated 06.09.2005. Hence that conveyance has been challenged. 5. The Applicant is the occupant of a structure on that disputed portion of the land which is claimed by the Plaintiff as well as Defendants No.7 to 10. The occupants rights would follow the orders passed upon the determination of whether the Defendants No.1 to 6 rightly or erroneously conveyed that portion of the land 3 to Defendants No.7 to 10. The determination of the issue in the suit have no bearing upon who occupies a structure on that land. If the Plaintiff has to be conveyed that portion of land it would be conveyed alongwith the structure thereon. If the Plaintiff does not make out the case for conveyance of that land that structure would remain outside the land of the Plaintiff society. Accordingly if the Plaintiff succeeds in showing that Defendants No.1 to 6 have wrongly conveyed the portion of their land to Defendants No. 7 to 10, the Plaintiff would be granted the reliefs in this suit. The fact that on that land there are some occupants occupying the structure is of no consequence. It would follow as the matter of corollary, if the structure exists on the land and the occupants occupy that structure. 6. The Plaintiff has prayed for the direction of constructing the boundary wall on suit plot of land such that the portion claimed by the Plaintiff would fall within the Plaintiff's boundary. If such relief is granted on merits, the structure , if any, on such land would also fall within the boundary of the plaintiff's plot. The grant or refusal to grant the relief is not dependent upon whether the structure is occupied or not. It is not for the occupants to show the court whether the agreement between the 4 Plaintiff and Defendants No.1 to 6 included the land below their structure. That is the only essential aspect of the suit. That can be determined upon hearing the case of the Plaintiff and the Defendants. Hence the occupants of the structure are not necessary or property parties for determination of the issue with regard to the land below the structure. 7. In any event the structure has now been demolished. The Applicant no longer occupies the structure and all the occupants have been given transit accommodation or otherwise settled under the Agreement / conveyance between Defendants No.1 to 6 and Defendants No.7 to 10. The grant of permanent alternate accommodation to the occupants would be dependent upon that agreement and/or conveyance. The Plaintiff's suit has nothing to do with the grant of permanent accommodation which follows the grant of transit accommodation. 8. The Applicant's contention that he is a proper party to the suit because the land below his structure is the suit land is misconceived. If that was so in all agreements and contracts with regard to the land below any building or structure all the occupants could have to be made party Defendants. 5 9. The occupants are neither proper nor necessary parties to this suit. Chamber Summons is dismissed. (Smt. Roshan Dalvi, J)