1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4332 OF 2006 IN SUIT NO. 1090 OF 2007 Shalini ramesh Parab ...Plaintiff Vs. Suresh Appa Parab & Ors. ...Defendants Mr. Kevic Setalvad i/b. Vimla & Co., for Plaintiff Mr. Milind More for Defendants 1 to 4 Mr. Atul Rajadhayksha i/b. M/s. Utangale & Co., for Defendants No.5 CORAM: SMT.ROSHAN DALVI, J. DATED: 10 TH OCTOBER, 2008 P.C. 1. The Plaintiff has sued for specific performance of an agreement dated 23 rd August, 2000 which is the agreement to develop the property of the predecessor in title of the Plaintiff and Defendants 1 to 4, one Jankibai. The execution of the agreement is admitted by all the parties to the suit. The rights of the parties are, therefore, governed by the agreement made between the builder, Defendant No.5 and the said Jankibai. 2. Clause 5 of the development agreement annexed as 2 Exhibit- E to the plaint shows that the existing structures on the suit property (shops) are to be completely demolished and reconstructed in accordance with plans to be approved by the BMC and those structures would always be owned and retained by the owners i.e. Jankibai and thereafter her heirs. 3. The agreement dated 23 rd August, 2000 is admittedly between the legal heirs of the said Jankibai and Defendant No.5 as the developer. 4. Under clause 9 of the agreement the developer agreed to construct the building as per the rules of the BMC. The clause shows the existing area of the shops to be 2145 sq. ft. This was to be constructed and retained by the owners. 5. Page 5 of this agreement containing inter alia clause 9 forms a part of the development agreement. This page is inserted in the agreement twice. One page 5 shows the extent of the existing area of the shops to be 2145 sq. ft., the other page shows a blank area. Both the pages are admittedly initialed by all the parties. It appears that the extent of the area of the shops which the owner claimed was actually not measured when the agreement was first drafted and accordingly page 5 was reinserted with the area which 3 page also came to be signed by each of the signatories to the agreement as in all the pages. 6. That area must, therefore, be accepted as a correct area which upon the measurement taken at that time was called the existing area of the shops. 7. This area would comprise the actual area of the shops being the authorised area, which would have been found its place in the original plan of the building, as also unauthorised constructions and extensions which could have been put up thereupon. 8. Clause 5 (i) shows that the development and construction of the shops was to be by demolition and reconstruction in accordance with the plans to be approved by the developers and those structures would then be owned and retained by the owners. Hence, it is clear that the structures ultimately to be owned and retained by the owners in the developed and newly constructed property would have to be in accordance with the plans approved by the BMC. Plans cannot be approved in respect of unauthorised constructions or extensions. Hence from the existing area of the shops which was 2145 sq. ft. whatever area which could be reconstructed after demolition would be 4 the one for which plans could be approved and would be the one which can be owned and retained by the owners. 9. It may be mentioned that the aforesaid 2 clauses 5 and 9 which are in respect of the demolition and construction of the shops on the ground floor of the property, relate to 2 different aspects. Clause 5 (i) shows the obligation of the developer to construct in accordance with sanctioned plans and the entitlement of the owners to the structures so constructed in accordance with such plans. It may hardly be mentioned that there can be no entitlement for structures which could not be developed i.e., the structures which are unauthorised. Clause 9 of the agreement shows the then existing area which may consist of authorised as well as unauthorised structures. 10. The Plaintiff claims reliefs in respect of 680 sq. ft. of area or in the alternate 1/4 th of 2145 sq. ft., of area. Her claim, therefore, disregards the difference between the then existing area which was to be demolished and the reconstructed area which was to be as per sanctioned plans, which alone could be owned and retained by the owners. 11. It must, therefore, be appreciated that whatever be the difference in the 2 areas, must be considered whilst granting 5 reliefs to the Plaintiff in respect of her 1/4 th share in the estate of Jankibai. It, therefore, cannot be 1/4 th of 2145 sq. ft. but 1/4 th of the area of shops reconstructed in accordance with sanctioned plans of the BMC. 12. The Plaintiff claims 680 sq. ft. of area. This is on the basis of an earlier agreement entered into by the owners with an earlier developer one M/s. Bal Enterprises dated 28th March, 1986. The Plaintiff has relied upon Schedule II showing the structures to be retained in the said agreement. Schedule II shows inter alia shop No.4, which was in occupation of the Plaintiff's husband. It consists of 4 separate portions called Ganesh Farsan, big passage, room no.2 and room no.3. Defendant No.5 is not a party to that agreement. It is inconceivable how the plaintiff can be granted any reliefs against the Defendant No.5 under an agreement not entered into with Defendant No.5 at all. At best that agreement can be looked into to see what was the area which was actually in occupation of the Plaintiff's husband under Shop No.4. 13. The Plaintiff has also relied upon 4 other agreement annexed as F-1, F-2, F-3 and F-4 to the plaint of the year 2000 which are entered into with the Defendant No.5. These agreements do not show the date of execution (except the 6 year 2000). They do not also show the shop number which is claimed by all the owners and the Plaintiff shown as the tenant. They do not show the rent paid by the Plaintiff as the tenant also. The agreements are much in the nature of drafts. They however, do show the area occupied by the Plaintiff. Hence these 4 agreements together constituting 680 sq. ft. of space can at best be looked into to see the total area of the actual occupation of the Plaintiff as tenant. These agreements cannot constitute an enforceable right of the Plaintiff to obtain precisely that area of construction in the newly developed property. 14. Upon the specific agreement between the parties showing their entitlement to the shops as per the approved plans, the Defendant No.5 has been called upon to produce the approved plan. 15. The Counsel on behalf of the Plaintiff argued that this plan was not shown to them until 2 months ago. A copy of the plan given to the Plaintiff shows shops being sanctioned for construction of the carpet area of 135.42 sq. mtrs. Its 1/4 th of this area being 44 sq. mtrs., which the plaintiff is entitled to as a heir of Jankibai claiming through her husband who was one of the sons of Jankibai and one of the signatories to the agreement dated 23.8.2000. 7 16. The ad- interim order of injunction dated 16th October, 2006 in this suit shows the reliefs upon the approved plan by the Defendant No.5. 17. Under the ad- interim order Defendant No.5 was injuncted from handing over premises on the ground floor without the leave of the Court. It is now seen that 44 sq.ft., of area is the Plaintiff's entitlement. 18. The Plaintiff claims through her husband who was one of the 4 heirs of the deceased Jankibai. This claim is in her capacity as one of the present owners of the suit property. This claim is, therefore, subject to her obligations as such to the occupants /tenants who may come to her share. Such right would not be to vacant and exclusive possession which the Plaintiff has claimed from Defendant No.5. The Defendant No.5 as the developer would be obliged to give vacant possession of the shops taken from the occupants /tenants to them. Plaintiff cannot be given vacant possession of suit premises which would have to be handed over to the occupants /tenants from whom the possession was taken. 19. The Plaintiff has disputed the rights of the 8 occupants /tenants on the ground that the agreements with those occupants /tenants are not registered. Consequently the right claimed by the plaintiff to her 1/4 th share would have to be determined at the trial taking into account the actual occupation in respect of the premises that would come to her 1/4 th share. 20. The Plaintiff also claims in her capacity as tenant. The Plaintiff has not shown any registered agreement with her as such occupant /tenant. Upon the Plaintiff raising dispute with regard to the other occupants /tenants, her claim to vacant possession in her capacity as occupant /tenant of the original shop No.4 which was in occupation of her husband cannot be handed over to her pending the suit. 21. In view of the disputes created by the Plaintiff herself the vacant possession of the premises that she would obtain would have to be adjudicated upon the suit considering also the right of the occupant /tenant which would come to her share. 22. Under the ad- interim order dated 6th October, 2006 the Defendant No.5 was restrained from handing over any of the shops on the ground floor to any other person without the leave of the Court. Defendants 1 to 4 state that even they 9 have not been handed over their share under their entitlement in view of the ad- interim order of injunction. The Defendants 1 to 4 claim the right and entitlement to vacant possession of 1223 sq. ft of area. This would be a part of their 3/4 th share as owners. The share claimed by the Defendants is even less than the Plaintiff's share. That takes into account the rights and title of occupants /tenants on the premises that would come to their share. It is seen that there are 4 owners, but 7 occupants of shops. There are 7 shops constructed. 23. Equal 1/4 th share of the Plaintiff is with regard to her right of ownership. The vacant possession claimed by her (as also the other occupants /tenants) is for the original shop premises authorisedly constructed which was in her possession/occupation. This would exclude all the unauthorised constructions or extensions. 24. The affidavit of Defendant No.5 filed pursuant to the ad- interim order of injunction shows the names of 7 occupants /tenants entitled to the 7 shops constructed as per plans of the BMC. It also shows the agreements entered into with each of them. The Plaintiff has disputed those agreements though one such agreement is entered with her also. This affidavit shows the existing area of the occupants. 10 The existing area would also include unauthorised extensions or constructions if any. There is a discrepancy shown between the existing area of the Plaintiff and the area in her agreement. Similar discrepancies are shown with regard to the other occupants /tenants. 25. The precise share of the Plaintiff in the 7 shops being her 1/4 th share as one of the owners would have to be determined taking into account 4 owners and 7 shops. Thereafter the Plaintiff's entitlement to the vacant possession of the share which was in her actual occupation would have to be seen alongside the share of the occupants /tenants who would come to her 1/4 th share. It would only be after determining the precise vacant premises required to be handed over to such occupants /tenants, that the Plaintiff can be handed over vacant possession of any portion of her share. 26. The Defendants 1 to 4 fairly concede the rights of the occupants /tenants that would come to their 3/4 th share. They claim only the net area of 1223 sq.ft., which would come to them as and by way of vacant possession – the remainder being the area to be handed over to the occupants /tenants. Consequently the Plaintiff is entitled to reliefs in respect of the admitted 3/4 th share of the 11 Defendants which would include the occupants /tenants that would come to their share. 27. Mr. Setalvad on behalf of the Plaintiff states that the Plaintiff be given vacant possession of 252 sq. ft. of premises which is shown as a existing premises against the name of the Plaintiff in the affidavit filed by the Defendant No.5 pursuant to the directions contained in the ad- interim order dated 16 th October 1985. 28. The Plaintiff's case is most inconsistent. Though she has claimed specific performance of the agreement dated 23rd August 2000, in the suit she has claimed 680 sq. ft.of area based upon the earlier agreement with the earlier builder. This 680 sq. ft of area is seen to include a big passage, and certain unauthorised construction/ extensions the extent of which is not specified. The Plaintiff has claimed in the alternate 1/4 th of 2175 sq. ft of premises as per clause 9 of the agreement dated 23 rd August 2000. This is in terms of her ownership rights pursuant to her 1/4 th share in the estate of Jankibai. This includes the area in the occupation of other occupants /tenants which the Plaintiff has not specified and in fact suppressed. The Defendants 1 to 4 have fairly conceded that the owners would be entitled to 1223 sq.. ft. of area and this is seen to be under shop 12 Nos.4,8 and 10 as shown in Schedule- II to the earlier agreement. Hence, the Defendants 1 to 4 do not claim the area in the occupation of the other occupants /tenants. The Plaintiff has not specified the vacant area to be handed over to any occupants /tenants. In fact though she claims the vacant area as per her existing area and her agreement with the developer/Defendant No.5, it is in her capacity as a tenant and not a owner, she does not accept the vacant area to be given to the occupants /tenants who are entitled from her 1/4 th share. It is not known how much precise area would have to be given to the occupants /tenants from her 1/4 th share. Hence, without considering that aspect and without hearing all the occupants /tenants the Plaintiff cannot be handed over vacant possession of any premises. That would constitute final adjudication of her claim to that extent. In view of the aforesaid circumstances the Plaintiff's right or claim can only be protected and secured pending the suit and pending evidence being led in respect of the precise vacant share of the owners in their occupation as also the other occupants /tenants. 29. Defendants 1 to 4 sought to refer the dispute in this suit to arbitration. Defendant No.5 agreed to go to arbitration along with the Plaintiff and Defendants 1 to 4, but the Plaintiff opposed that application. It is now seen that the 13 Plaintiff's share cannot be determined at the stage of the Notice of Motion and without considering the vacant possession that would have to be given to the occupants /tenants. The best recourse for the parties in this suit is to refer their dispute to Mediation, which would take into account the vacant premises which would come to the share of Plaintiff as also to the occupants /tenants in her 1/4 th share and creates options for settlement along with the claims of the occupants /tenants of the 7 shops. 30. Hence the following order. 1. The Defendant No.5 shall set apart the area of 44 sq. mtrs., in the shops actually constructed as per the sanctioned plan of the BMC dated 24 th June, 2005. 2. This area would be kept secured for the Plaintiff pending the suit towards her 1/4 th share as one of the owners of the suit property being an heir of the said Jankibai claiming through her husband. 3. This would be subject to the right of whoever is the tenant who would be entitled to vacant possession of the shop premises which was earlier in their possession and who has not been handed over such possession from the 3/4 th share of the Defendants as the other owners of the suit property. 14 4. However, the Plaintiff shall be given vacant possession of 252 sq. ft. of premises by the Defendant No.5 as per the statement made in his affidavit filed pursuant to the ad- interim order of injunction upon the Plaintiff accepting such area in full and final settlement of her 1/4 th share; the remainder being given to the occupants /tenants who would be entitled to such premises therefrom. 5. Ad-interim order shall continue till 14 th November, 2008. (SMT. ROSHAN DALVI, J.)