pvr 1 APP4-11 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.4 OF 2011 IN NOTICE OF MOTION NO.2629 OF 2010 IN SUIT NO.2534 OF 2010 1.Mr.Madanlal Gupta & Ors. ...Appellants vs. 1.Mr.S.R.Patel & Ors. ...Respondents --- Mr.Aspi Chinoy, Sr. Advocate with Ms.Aparna Wagle i/b. Law Charter, for Appellants. Mr.Shailesh Shah i/b. Niranjan Jagtap & Co., for Respondents. --- CORAM: D.K.DESHMUKH & ANOOP V.MOHTA, JJ. DATED: 16th March,2011 P.C.: 1. Admit. Heard finally by consent of parties. 2. By this appeal, the appellants challenge order dated 26.10.2010 passed in Notice of Motion pvr 2 APP4-11 no.2629 of 2010 in Suit no.2534 of 2010 by learned Single Judge of this Court. The appellants are original defendant nos.1 to 3. A suit has been filed by respondent nos.1 to 9 challenging the construction that the appellants are making on the ground that the plaintiffs are owners of that land and therefore, the appellants are not entitled to raise construction on that land. The plaintiffs are the owners of flats in the building Vikas Villa . The land under that building was admittedly owned by the appellants. The land was transferred to the plaintiffs by the appellants by a declaration made under the Maharashtra Ownership Flats Act. It is an admitted position that when that declaration was made by the appellants dated 5.3.1998, on a portion of the land owned by the appellants, British Airways were the lessees. A lease had been granted by the appellants in favour of British Airways for a period of 99 years from 1.11.1994. In the declaration it was stated that in relation to that piece of land which was in pvr 3 APP4-11 possession of British Airways as lessee, the appellants will continue to be grantor. However, while describing the common facilities a recitals has to be found in Declaration that the entire plot including the area in possession of British Airways at that time was conveyed to the flat owners. It appears that thereafter, the appellants initiated proceedings against the British Airways for termination of the lease and they were successful in getting possession of that property from British Airways. After getting possession of the property from the British Airways, the appellants started taking steps to construct on that land. Admittedly, the construction that the appellants are making on the land is to the same extent which the construction of British Airways was. The building plan of the appellants has also been sanctioned by the Corporation. The plaintiffs filed a suit claiming declaration that the plaintiffs are the owners of the land which was on lease with the British Airways and that the appellants have no pvr 4 APP4-11 rights in relation to that land and they are not entitled to carry on construction thereon. The defence of the appellants was that though the entire plot was transferred to the flat owners i.e. the plaintiffs, the area with the British Airways was not transferred and the appellants continued to be the owners of that portion and therefore, they continued to recover rent from the British Airways and they took steps to take possession of the land from the British Airways and as they are owners of that land they are entitled to be in possession of that land and they are also entitled to raise construction which is permissible to be raised on the land in accordance with law. A notice of motion was taken out for an interim order restraining the present appellants from going on with the construction on the land. That notice of motion has been decided by the learned Single Judge by his order dated 26.10.2010. The learned Single Judge has granted interim order in terms of prayer clause (b) and (di) which prohibits the appellants from carrying pvr 5 APP4-11 on any construction on the land which was in possession of the British Airways. 3. We have heard the learned Counsel appearing for appellants and the original plaintiffs. The following portion from the Declaration makes reference to that part of the land which was in possession of the British Airways:- FIRST: That the Grantor owns or is otherwise well and sufficiently entitled to all those pieces or parcels of land or ground situate lying and being at Village Juhu in X West Ward of Municipal Corporation of Greater Mumbai, Mumbai-400049 and more particularly described in the Schedule hereunder written. THE SCHEDULE ABOVE REFERRED TO All those pieces or parcels of land bearing CTS no.567/15, 16, 17, 19 of Village Juhu in X West Ward of Municipal Corporation of Greater pvr 6 APP4-11 Mumbai, together admeasuring 1513.27 sq.yds equivalent to 1265.28 sq.mtrs and situate lying and being at Village Juhu within the Registration District and Sub-District of Mumbai City and Mumbai Suburban and hereafter referred to as THE SAID PROPERTY. The Grantor doth hereby declare that one British Airways was a Lessee of the Grantor in respect of plot no.10 bearing CTS No.567/19 admeasuring 497.90 sq.metres and the structure standing thereon. By an under an Indenture of Lease dated 28th October,1994 8.10.94 entered into between the Grantor and the said British Airways and registered at the office of the Sub-Registrar of Assurances at Mumbai under Sr.No.BBJ-2401/94 on 19th December, 1994, the Grantor granted lease to the said British Airways in respect of 335 sq.mtrs of the open area with the structure thereon and without any right to increase further FSI. The balance FSI of the plot area of 335 sq.mtrs has already been used in the building being constructed next door pvr 7 APP4-11 by the Lessors. The Grantor further declares that in view of the said Indenture of Lease the British Airways are and they shall be Lessees of the Grantor in respect of the said portion of the land and also of the structure standing thereon for a period of 99 years commencing from 1 st November,1994 on the terms and conditions and for the consideration set out in the said Indenture of Lease. (emphasis supplied) The above quoted portion shows that in so far as the area in possession of the British Airways is concerned, the appellants continued to be Grantor and the lease in favour of the British Airways was for a period of 99 years from 1.11.1994. Perusal of recitals under the Heading The Common Area and Facilities however shows that the entire piece of land including the land in possession of the British Airways was transferred to the flat owners. It is, thus, clear from the document of Declaration that the claim of both the sides in relation to the pvr 8 APP4-11 ownership of the land which was with British Airways is not free from doubt. Therefore, in our opinion, the conduct of the parties subsequent to the declaration and also at the time of making the Declaration would be relevant to find out what was the real transaction between the parties. In our opinion, therefore, the conduct of the appellants of continuing to recover rent from the British Airways and of instituting proceedings against the British Airways for eviction of the British Airways is relevant, as also the conduct of the plaintiffs of not raising any objection to the appellant recovering rent from the British Airways & instituting the proceedings against them for their eviction and receiving possession of the property from the British Airways, is also relevant. In our opinion, this conduct of the two sides, prima facies shows that the plaintiffs had no objection to the British Airways continuing on the land at least for a period of 99 years from 1.11.1994 and the appellants pvr 9 APP4-11 exercising right of ownership in relation to that in so far as recovery of lease rent from the British Airways is concerned. In our opinion, therefore, if according to the plaintiffs, the appellants were entitled to exercise their right of ownership in relation to the land which was with the British Airways on lease for a period of 99 years from 1.11.1994, prima facie the plaintiffs cannot prevent the appellants from being in possession of the land on surrender of tenancy by the British Airways. If the appellants are entitled to be in possession of the said land at least for a period of 99 years from 1.11.1994, in our opinion, they will also be entitled to raise construction on the land which they are entitled to do in accordance with law, subject to the right of the plaintiffs to challenge the sanction to the building plan if it infringes any of their rights as owners and occupiers of the adjoining plot. It is common ground that the building plans have been sanctioned by the Corporation and the construction that is being pvr 10 APP4-11 raised by the appellants is in consonance with those building plans. We have not been shown that the sanction to the building plan given by the Corporation is illegal on any count. The only objection appears to be on the ground that the plaintiffs are the owners of the land. In these circumstances, in our opinion, the following order would meet the ends of justice:- The order impugned in the appeal is set aside. Notice of Motion no.2629 of 2010 is disposed of. However, it is directed that if any construction is raised on the land which is subject matter of the suit during the pendency of the suit, it shall be subject to the result of the suit and the appellants shall not be entitled to claim any equities on the basis of that construction at the final disposal of the suit. If, according to the plaintiffs, the sanction of the building plans in favour of the appellants is contrary to any law, the plaintiffs shall be pvr 11 APP4-11 entitled to challenge the same in accordance with law. The appeal is disposed of. At this stage a request is made on behalf of the original plaintiffs for stay of operation of this order for a period of four weeks. It is common ground that the building that was standing on the land has already been demolished and the construction of new building has not made much of a progress. In our opinion, therefore, granting stay of operation of this order for a period of four weeks as sought by the learned Advocate appearing for plaintiffs will not serve any useful purpose because it is impossible for the appellants to complete the construction within that period. The request is, therefore, rejected. As the appeal itself is disposed of in view of the aforesaid order, Notice of motion no. 393 of 2011 does not survive for consideration. Hence, it is disposed of. (D.K.DESHMUKH,J.) (ANOOP V.MOHTA,J.)