1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.773 OF 1994 Madhav Waman Rajopadhye. ..Applicant. V/s. Khushal Ramchandra Jawale & Ors. ..Respondents. Mr.S.S.Patwardhan for applicant. Mr.P.B.Shah for respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JULY 17, 2006. DATE : JULY 17, 2006. DATE : JULY 17, 2006. P.C. : P.C. : P.C. : 1. Heard counsel for the parties. Perused the relevant documents on record. 2. This revision application takes exception to the Judgment and Order passed by the II Joint Civil Judge, S.D., Pune dated July 20, 1994 below Exh. 36 in Special Darkhast No.157 of 1991. 3. Briefly stated, the respondent No.1/ plaintiff filed suit for specific performance against the defendants including the applicant herein who was defendant No.5 in relation to the agreement executed between the applicant and the respondent no.1. regarding flat No.5 situated in building at plot 2 No.44A House No.116/A Mudgal Kripa, Prabha Road, Pune-4 which is constructed on ownership basis. The trial Court decreed the suit by the Judgment and decree dated August 23, 1990 in the following terms: ORDER 1. Suit of plaintiff is decreed against defendants. 2. Directing defendants to execute sale deed of suit flat in favour of plaintiff and to get it registered bearing 1/2 expenses equally by plaintiff and defendant. 3. Failing to execute sale deed and registered it by defendants in favour of plaintiff, in event sale deed shall be executed through Court. 4. Directing defendants to pay Rs.1075/- borne by plaintiff as registration charges. 5. Relief claim in sub clause (C) of prayer stand dismissed. 6. Directing parties to bear their own costs. 7. Decree be drawn up accordingly." 4. It is not in dispute that this decree has become final. The respondent No.1/plaintiff accordingly, proceeded with the execution of the decree in question. In the said execution petition, the applicant original defendant No.5 filed application contending that the decree was inexecutable having regard to the provisions of 3 Maharashtra Ownership and Flats Act. It is the case of the applicant defendant No.5 who was the owner and promoter that individual sale deed in favour of the flat purchaser i.e. the decree holder is not contemplated. As the decree holder was seeking individual sale deed as regards this flat, same was not permissible in law. Instead the sale deed is required to be made in favour of the organisation of flat takers. This submission was advanced essentially having regard to the language of section 11 of Maharashtra Ownership and Flats Act 1963. 5. The trial Court by the impugned Judgment and Order considered the objection and rejected the same. The lower Court has held that there was no impediment in proceeding with the execution of the decree in relation to the suit flat No.5 in terms of the decree passed by the trial Court. This Judgment has been challenged before this Court. . Essentially two arguments have been advanced before me. The first argument pressed into service is that the provisions of Act of 1963 do not envisage individual flat agreement but the obligation of owner and promoter is to transfer complete title and convey the same in favour of the organisation of persons. 4 Any other transaction undertaken by the builder/owner will result in criminal action under section 13 of the Act. It is contended that the in suit filed by the other flat purchaser in the same building decree passed by the trial Court is subject matter of challenge before this court and this court in turn has stayed the operation of the impugned order for the aforesaid two reasons. It was contended that the objection recorded by the applicant regarding inexecutable decree will have to be accepted. 6. Having considered rival submissions, I have no hesitation in taking the view that the objection taken on behalf of the applicants is devoid of merits. In so far as first objection is concerned, there is no provision in the Act of 1963, which prohibits the builder/owner to enter into separate agreement regarding flats in the proposed building to be constructed. Reliance placed on section 11 and Section 4 of the Act are without any substance. Section 2(a) of the Act defines the term flat. In my opinion, this provision is of no avail to the applicant to substantiate their objection. Reliance was placed on section 4 of the Act of 1963. Once again this provision does not prohibit the builder/owner to enter into agreement with regard to 5 the individual flats; on the contrary on plain reading of this provision it is obvious that the builder/owner can enter into such agreement-provided the requirements specified in section 4 are observed, only then said transaction is valid in law. Reliance is then placed on section 11 of the Act especially on the expression that Promoter shall take all necessary steps to transfer and convey its title to the organisation of persons. It was contended that this provision clearly indicates that the promoter has to transfer the title and convey the same to the organisation of the persons and not individual flat purchaser. This submission clearly overlooks the decree passed against the applicant is in respect of individual flat on the basis of agreement to sale said flat which was executed between the parties. The decree is not to convey the title of the plot of the land and the structures standing thereon as such. It is well established position that there can be dual ownership. Ownership of land will be independent right than the ownership of the portion of the structure owned and occupied by the flat purchaser. Once again there is nothing in section 11 to remotely indicate that it is not open to the promoter to enter into individual agreements with regard to the flats in the proposed building. As 6 observed earlier, in fact, the scope of the act would permit the promoter to enter into such agreement provided the rigours provided in section 4 were to be observed. In my opinion, as there is no inhibition against the applicant to execute sale deed in respect of the flat No.5; In law, the question of prosecuting the owner for any offence under section 13 of the Act as stated by the applicant is devoid of merits. . Counsel for the applicant would then contend that the decrees passed in favour of the other flat purchasers in the same building are subject matter of challenge in this Hon’ble court and operation whereof has been stayed by this court. That makes no difference to the decree which is subject matter of present proceedings. It is not in dispute that the decree in the present proceeding is independent. The claim of the other flat owners is related to some other flats and not flat No.5 as such. If it is so, there can be no impediment in execution of the decree which is a subject matter of the present application. . Hence this Revision Application should fail. The same is dismissed with no order as to costs.