1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. APPEAL NO.2 OF 2009 IN NOTICE OF MOTION NO.3922 OF 2007 IN SUIT NO.2904 OF 2007 Smt. Mira Balu @ Balya Lakhan and others ..Appellants. Vs. M/s. M.G. Builders and others ..Respondents. ... Mr. A.V. Anturkar with Mr. S.B. Deshmukh for the Appellants. Mr. P.K. Samdani, Senior Advocate with Mr. D.D. Mehta i/b J. Narula & Associates for Respondent No.1. Mr. A.S. Ramesan for Respondents 3 to 5. .... CORAM: SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J. 17th March, 2009. JUDGMENT (PER DR. D.Y.CHANDRACHUD , J.) : 1. The Appeal is directed against a judgment of a Learned Single Judge dated 14th November, 2008 by which a Motion for interim relief came to be dismissed. Appellant Nos.1 and 2 are the sisters of the Fifth Defendant while the Second, Third and Fourth Respondents are the heirs of a predeceased brother. The Third and 2 Fourth Appellants are developers with whom the First and Second Appellants entered into development agreements. The property which forms the subject matter of the suit consists of land bearing CTS 610A/1/A/1/3E admeasuring 1456.4 sq. mtrs of Revenue Village Malad (E), Taluka Borivali, Mumbai Suburban District. The Appellants seek a declaration of their co-ownership in respect of a half undivided share, partitioned by meets and bounds and an injunction against construction activities thereon. The land belonged to the father of the 1st and 2nd Appellants. The area of the land was recorded to admeasure 6627 sq. mtrs. equivalent to 7926 sq. yds. in the record of rights. According to the Appellants, the actual area in possession, however, admeasured 8020 sq. mtrs. 2. The 1st and 2nd Appellants instituted a prior suit, Suit No. 4589 of 2000 on the Original Side of this Court. The dispute in the earlier suit came to be resolved by Consent Terms dated 7th February, 2003. The contention of the Plaintiffs in the subsequent suit out of which the present proceedings arise is that the Consent Terms in the earlier suit related only to an area admeasuring 6627 sq. mtrs. which 3 was reflected in the record of rights and that the balance admeasuring 1456.64 sq. mtrs. which was in the actual possession of the father did not form a part of the Consent Terms. 3. The Learned Single Judge dismissed the Notice of Motion and while doing so declined to accept the contention of the Appellants. The Learned Judge noted that in Suit No.4589 of 2000 which is instituted by the First and Second Plaintiffs, the description of the property in paragraph 1 of the Plaint showed both the area reflected in the record of rights as well as the actual area. The suit was for a declaration that the First and Second Plaintiffs are joint owners together with their mother and two brothers and prayer clause (a) of the Plaint showed the area certified in the record of rights and the actual area of the suit property. The Consent Terms record that an amount of Rs. 4 lacs was being paid to the First and Second Plaintiffs “in full and final settlement of the Plaintiffs' claim in the above suit”. The suit property included the property reflected in the record of rights as well as the property on actual measurement. In this background the Learned Single Judge cannot be regarded as 4 being in error in holding that the description of the property in paragraph 1 of Suit No.4589 of 2000 makes it abundantly clear that what was the Plaintiffs' claim and what was the suit propriety was the entirety of it. There was no reason for the Plaintiffs not to claim joint ownership rights over a portion of the property merely because it was not shown in the record of rights, after specifically describing the two parts in paragraph 1 of the Plaint. The reasoning of the Learned Single Judge is based on a correct interpretation of the pleadings in the earlier suit and the Consent Terms that were recorded therein. 4. That apart, in the affidavit filed in reply to the Notice of Motion by the First Respondent it has been disclosed that the First and Second Plaintiffs executed a general power of attorney dated 10th March, 2003 after the Consent Terms in the earlier suit and the schedule annexed thereto describes the property as being CTS No.610 Part admeasuriong 8020 sq. mtrs. It has also been stated in the affidavit that the construction work has progressed up to the 11th slab and out of 40 flats in the building, 35 flats have already been sold to prospective purchasers. 5 5. In these circumstances, the judgment and order of the Learned Single Judge declining to grant relief in the Notice of Motion cannot be faulted. There is no merit in the Appeal which shall accordingly stand dismissed. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.