:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.832 OF 2008 WITH CIVIL APPLICATION NO.2093 OF 2008 Sheetal Sameer Co.op. Hsg. Society Ltd. ....Appellant. Vs. Dinesh P. Hingoo. ....Respondent. Mr.V.T. Lulia for the Appellant. Mr.S.D.Mogre with J.J.Shah for the Respondent. CORAM: R.S. MOHITE, J. DATE : 25th June,2008 P.C. P.C. P.C. 1. Heard both sides. 2. This is a first appeal filed by the original defendant No.1 which is a co-operative society. The predecessor in title of the plaintiff by name Navbharat Nirmata had purchased a plot of land out of survey No.35 of Village Kandivali. This purchase was done by Deed of Indenture dated 10.9.1973. This land was subsequently sold to the original plaintiff by conveyance dated 28.9.2001 which is at Exh.6 on record. Adarsha Kala Kendra sold certain plots to several individuals. All these plots were sold from Survey No.36 Hissa no.5. On behalf of the defendant one such agreement was produced and counsel submits that all other agreements are similar. It is not in dispute that none of these agreements indicate any :2: sale from survey No.35 which is an adjoining property. 3. The plaintiff who had purchased rights under conveyance dated 28.9.2001 filed a suit against the society which had been formed by the purchasers of the plots from Survey No.36 and registered in 1989. The said suit sought permanent injunction against the defendant No.1 from erecting a wire fencing from eastern, southern and western side of CTS No.861B. The defendant No.1 admits in his written statement that in the survey record the land is shown as CTS No.869 that is a mistake and the said land No.869 is really CTS No.861B. The matter however, clearly indicates that CTS No.861B which is part and parcel of Survey No.35 was never purchased by the defendant No.1 society. No doubt, the defendant No.1 claims that the society and its members have been holding some functions on this land but nothing was produced on record to indicate any title or even temporary licence granted to defendant No.1 society in respect of the said land. It is in this background, the trial court granted injunction which restrained the defendant No.1 society from obstructing the erection of the fencing. I find that cogent reasons have been given and that there is no document in favour of the defendant no.1 Society or any of its members which indicates that they had a right on the suit :3: property or any part thereof bearing Survey No.35. By referring document of the year 1995 i.e. agreement executed in favour of one of the member of the society, it was sought to be contended that one of the amenity which was mentioned in the said agreement was a garden but on reading of that agreement, it is clear that the said amenity was a garden which was to be developed within the land which was sold to the members. The agreement nowhere mentions that the said garden is to be on the suit property or any part of survey No.35. 4. It was sought to be contended that the suit of the plaintiff was bad for want of notice U/s.164 of the Maharashtra Co.op. Societies Act. It is clear that the notice is required to be given in case the suit is in respect of any act touching the business of the society. In the present case, it has been held by the trail court and correctly so that the suit plot did not belong to the society at all. Any activities on the said plot therefore, cannot be said to be touching the business of the society. In this background, it has been correctly held that the notice U/s.164 was not necessary. 5. In the net result, I find that there is no substance in the first appeal and the same is rejected. :4: 6. The Advocate for the appellant states that pending disposal of the appeal a statement had been made that they will not construct the fencing as permitted by the decree. The Advocate for the respondent states that they will not erect the fencing for further period of four weeks. Statement is accepted. 7. Certified copy expedited. CIVIL APPLICATION NO.2093 OF 2008 1. As the main appeal is dismissed, civil application does not survive and the same is also dismissed. (R.S. MOHITE, J.)