1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.930 OF 2009 AND NOTICE OF MOTION NO.10 OF 2008 IN SUIT NO.3652 OF 2007 VERSHI MALSHI NANDU & ANR. ..PLAINTIFFS VS. NAGESH K. FOVKAR & ANR. ..DEFENDANTS Mr. T.G.Vora i/b Tamhane & Co., for the Plaintiffs Mr. V.S.Kapse for Defendants No.1 & 2 CORAM: Smt. ROSHAN DALVI, J. DATED: 31ST March, 2009 P.C.: 1. The Plaintiffs suit as well as the above Notice of Motion are essentially for the protection of the possession of the Plaintiffs in suit flat which is stated to be flat No.5 on the 2nd floor of The Kamala Co-op Housing Sty in Saubhagya building on plot No.356 TPS, IV, S.K.Bole Road, Dadar (W), Mumbai. The Plaintiffs have purchased from Defendant No.1 the suit flat. The Plaintiffs have been issued the share certificate for the suit flat No.1 bearing shares of distinctive No.1 to 5. The Plaintiffs flat is on the 2nd floor of the suit building. There are two flats on each floor. The Plaintiffs flat is of 800 sq.ft. in area. I am told that all the flats in the 2 building are of 800 sq.ft. in area. 2. It is the Plaintiffs' case that though there are only 8 flats from ground to the third floor of the suit building, for the purpose of registration of the society two of these flats being flat No.3 & 5 are bifurcated and shown as flat No.3 & 3(a) and Flat No.5 & 5(a). It is an admitted possession that despite such bifurcation there are only two flats on each floor and that the Plaintiff's flat Number is flat No.5. 3. Though the Defendants have filed their Affidavit in reply as well as the written statement denying the Plaintiffs claim and claiming that they are not seeking to disturb the Plaintiff's possession, Mr. Kapse on behalf of the Plaintiffs makes a statement that the Defendants are not interested in and that the Defendants shall not in any manner dispute the Plaintiffs' possession in the suit flat No.5 admeasuring 800 sq.ft. on the 2 nd floor of Saubhagya Building in The Kamala Co-op Hsg Sty at Dadar. Mr. Kapse states that both the Defendants were transferred the share certificate in respect of Flat No.7 on the 3rd floor of the suit building from one Mr. Gudal. The Defendants claim their rights in respect of the said flat No.7 on the 3 rd floor of the suit building. Mr. Kapse has shown the court the share certificate bearing No.2 showing 5 shares bearing distinctive No.6 to 10 standing in 3 the name of Hari Gudal which has been transferred to the name of Defendant No.2 on 17.05.2001. 4. The Plaintiffs have claimed in the suit that the Defendants seek to disturb the Plaintiffs' possession on the ground that the Plaintiffs' flat is reflected in the share certificate of the Defendants bearing distinctive No.6 to 10 claimed by the Defendants to be flat NO.5(a) which is part of Flat No.5 in the suit building. The Plaintiffs claim that there are only two flats on each floor and that only flat No.5 & 6 are on the 2nd floor of the suit building. There is no flat No.5A anywhere in the suit building. 5. Consequently after hearing the Plaintiff's Advocate , the Plaintiff was directed to bring the photographs of the suit building as well as the floor on which the Plaintiff's flat is. The Plaintiffs have produced the photographs. The photographs show the 2 flats on each floor of the suit building. The board of the members shows the names of two members on each floor. The Photographs of the main door on the 2nd floor show two main doors adjacent to one another. The door to the right is the door of the Plaintiff's flat. Mr. Kapse has fairly conceded that is the correct position. 6. The BMC record of assessment showing the inspection 4 extract of the suit property also similarly shows 2 flat on each floor of the suit building from the ground floor to the 3rd floor. The areas of each of the 8 flats is 59 sq.mt. There is no question of any flat on the 2nd floor of the suit building being flat No.5(a) or having the distinctive share Nos.6 to 10. Rightly therefore the Defendants do not claim their rights in respect of any flat on the 2nd floor of the suit building. 7. Mr. Kapse states that the Defendants are claiming their right in respect of Flat No.7 on the 3rd floor of the suit building under the share certificate No.2 showing shares of distinctive No.6 to 10. 8. Based upon the aforesaid statement made by Advocate on behalf of the Defendants, it is seen that there is no lis, dispute or issue between the parties which remain to adjudicated. Under the provisions of order 15 Rule 1 of the CPC the court is required to at once pronounce judgment. 9. Defendant No.3 is the society which would act only upon the Application made by Defendants No.1 & 2. Defendant No.3 society has been served the above Notices of Motion as well as the writ of summons in the suit. They are, therefore, bound by the order passed in the suit as well as any interim applications. 5 10. Hence the following order: The statements made by Mr. Kapse on behalf of Defendants No.1 & 2 as shown above are accepted. Consequently Defendants No.1 & 2 shall not claim any rights in or disturb the possession of the Plaintiffs in the suit premises being flat No.5 admeasuring 800 sq.ft in area on the 2nd floor of Saubhagya Building in The Kamala Co-op Hsg Sty Ltd. reflected in share certificate No.1 bearing shares of distinctive No.1 to 5 either directly or through Defendant No.3 society. Three photographs of the suit building showing interalia the suit flat signed by the Advocate of the Plaintiffs are taken on record. Copy of the inspection extract issued by the BMC on 24.01.2005 in respect of 8 flats in the suit building is also taken on record. The suit as well as Notice of Motion disposed of accordingly. No order as to costs. (Smt. Roshan Dalvi, J)