1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1066 OF 2009 WITH CIVIL APPLICATION NO.1313 OF 2009 Keshav Shristi Co-op. HSG. Society ..Appellant V/s M/s.Grover Forgings & Ors. ..Respondents ---- W I T H APPEAL FROM ORDER NO.1067 OF 2009 WITH APPEAL FROM ORDER NO.1077 OF 2009 WITH CIVIL APPLICATION NO.1314 OF 2009 WITH CIVIL APPLICATION NO.1325 OF 2009 Keshav Shristi Co-op. HSG. Society ..Appellant V/s. Nector Prints Private Limited & Ors. ..Respondents W I T H APPEAL FROM ORDER NO.1078 OF 2009 WITH CIVIL APPLICATION NO.1326 OF 2009 M/s.MurlimalShrikrishnadas & Co. (India) Pvt. Ltd., & Ors. ..Appellant V/s. M/s.Nector Prints Private Limited & Ors. ..Respondents 2 Mr.Raj Patel i/by Mohan Patel for the appellants. Mr.Hegde for the respondents. Mrs. K.K.Soraan for the respondent/BMC. Mr.P.S.Dani @ Mr.Suresh Rajeshwar for the respondent no.1. Mr.Kishor Tembe for the appellants in AO 1077/2009 & AO 1078/2009. ---- Coram : R.S.MOHITE,J Date : 15th October, 2009. PC 1 Since the point involved in these Appeal from Orders are same, they are being disposed off by a common order. 2 Leave to amend to make the BMC as a party. Amendment to be carried out forthwith. A copy has been served on the Advocate for the BMC in Court today. Heard Advocates. 3 Appeal from Order No.1066 of 2009 is filed by the original defendant no.1 in L.C.Suit No.1852 of 2009 and Appeal from Order No.1067 of 2009 is filed by the original defendant nos.1 & 8 in L.C. Suit No.1879 of 2009. The plaintiffs have filed the suit for a declaration that the area admeasuring 1331.52 sq. mtrs. being a plot of land bearing CTS Nos.407, 407(1 to 4), 462, 562 (1 to 11) of village Kanjur, Bhandup (West), South Ward, LBS Marg, Mumbai-400 078, as shown in green colour to the plan at Exhibit-A to the plaint is a common amenity space used by the plaintiffs including other apartment owners of 3 “Accord Condominium” for the purpose of loading and unloading of raw materials, finished goods, semi finished goods, machineries etc. By a Notice of Motion filed in the suit, the plaintiffs sought interim injunction in the aforesaid terms. By the impugned order the Notice of Motion has been made absolute and the defendants have been directed to remove the fencing and maintain the status-quo ante as it was before the plantation and fencing. On perusing the record, I find that regards the disputed suit property the owner, the owner in a declaration under Section 2 had reserved this property exclusively for the use of the owners/occupants of the factory building. It is now contended by the owners that this exclusive right was surrendered by the unit holders of the factory building by an agreement dated 12.6.2003. On perusal of that agreement, I find that vide clause-2, the unit holders have consented for extension of the plinth as shown in the hatch area annexed to the agreement. Clause-3 of the said agreement was in the following terms :- “(3)It is hereby agreed and declared that the said Common Amenity Space shown by Green Colour wash on plan annexed as Annexure `A’ hereto (excluding the portion shown by hatched lines) thereon shall continue to be unbuilt and open to sky as a common area for the said Larger Property for thebenefits of the Purchasers/Tenants of units in the said Factory Building and inthe proposed building as also the Vendors herein.” 4 In my view, though the said owners permited the suit property to be commonly used by all occupants of the larger area and granted of concession to that extent, that by itself cannot permit the area to be planted or fenced. It was contended on behalf of the 4 appellant that residents of the society would suffer. The society has obtained title later in the year 2006 with open eyes and alive to the fact that there were existing and running factory units. If any such fencing or garden is allowed then this will affect the running of units. Advocate for the original owners states that separate access could be provided from the new development plan road. The offer is only recorded but it is for the parties to decide whether it should be accepted. 5 In this view of the matter, A.O. No.1066/2009 and A.O. 1067/2009 are rejected with a clarification that the suit property can be commonly used in accordance with the clause-3 of the agreement dated 12.6.2003 and thus can also be used by the members of the society. 6 In view of the order passed in above Appeals, and for the reasons which are mentioned in the aforesaid Appeals, Appeal No.1077 of 2009 and Appeal No.1078 of 2009 filed by the owner also cannot be entertained and the same stand disposed off. 7 At this stage the Advocate for the appellants seek stay of this order for a period of four weeks as they wish to approach the Apex Court. In my view, no irreparable damage would be caused if stay is not granted. Therefore, stay is refused. 8. In view of disposal of all the Appeals, all Civil Applications do not survive and stand disposed off accordingly. (R.S.MOHITE,J) 5