1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.765 OF 2009 IN NOTICE OF MOTION NO.781 OF 2009 IN L.C.SUIT NO.969 OF 2009 Mohammed Shafique Haji Abdul Majid Qureshi & Anr. ..Appellants V/s. Maharashtra Housing & Area Development Authority & Anr. ..Respondents. ---- Mr. A.Y.Sakhare, Senior Counsel with Mr.Nusrat Shah @ Ms.Pervin D.Contractor, Mr.A.K.Gupta, Ms.Ema Almeida, Mr.Sayed Zia, & Mr.Harish Marohria i/by D.R.Shah for the appellants. Mrs.K.K.Soraan for the respondent/BMC. ---- Coram : R.S.MOHITE,J Date : 6th August, 2009. PC 1 This Appeal from Order is filed by the original plaintiff against an impugned order dated 2.7.2009 dismissing a Notice of Motion filed by the plaintiff. The plaintiff no.1 claims to be the owner of the suit property which is a plot of land bearing CTS No.1766 of Byculla division, Mumbai-400 008. The plaintiff no.2 is a developer of the said property who has obtained development rights from plaintiff no.1. It appears that MHADA has sanctioned a scheme of the regularisation under Section 33(7) of the Development Control Regulations Rules 1991. 2 2 It also appears that the B.M.C. Granted IOD for construction of building and later on granted commencement certificate up to the plinth level. However, when the commencement certificate for further construction was asked for, the same was not granted and this compelled the plaintiff to file the present suit for a mandatory injunction against the Corporation to grant further commencement certificate and further permissions in accordance with law. It appears to be the stand of the Corporation that in the record of rights the property stand in the name of one Kasam Bilal. It appears to be the case of the plaintiff that Kasam Bilal migrated to Pakistan prior to independence and thereafter family belonging to Sindhi community by name Attumal Parvani was in possession and collected the rent till 1990. It appears to be the case of the plaintiff that he has purchased the property from Attumal Parvani by registered sale deed dated 18.5.1990. It however, appears that this history given by the plaintiff in the plaint is not reflected in the sale deed. Learned Advocate for the plaintiff states that there is collateral evidence to support this history. It is an admitted position that the plaintiff has applied to the Superintendent of Land record for mutation of his name. Since the plaintiff’s name is not on the record of rights, the action of the B.M.C cannot be faulted. The Court would not grant any certificate of title specially at an interim stage. The grant of such mandatory relief at this stage would virtually amount to decreeing the suit. Advocate for the B.M.C states that if Superintendent of Land record decides in favour of the plaintiff and accordingly the record of rights is mutated then the B.M.C will have no objection to accept the title of the plaintiff to the suit land and grant further commencement certificate in accordance with law. This statement is accepted. Advocate for the B.M.C states that she has made this statement on taking instructions from Shri Vajpayee, Sub Engineer, Building Proposal Department City, 3 Byculla Division, Mumbai, who is present in the Court today. In view of the acceptance of the statement, Counsel appearing for the appellant states that he would not press this Appeal from Order. Appeal from Order is therefore, disposed off as not pressed. It is expected that Superintendent of land record will decide the application within a reasonable time. (R.S.MOHITE,J) 4