/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1034 OF 2007 IN SUIT NO. 774 OF 2007 Chandrika Bipinbhai Mehta & Anr. ...Plaintiffs Versus Kum Kum Kavita Co-operative Housing Society Limited and Ors. ...Defendants --- Mr. Rajiv Narula i/b. M/s. Jhangiani Narula & Associates for Plaintiffs Mr. R.S. Ghadge for Defendant no.2 Mr.A.S. Desai for Defendant Nos.1 and 3 CORAM: V.M. KANADE J. DATED JULY 22, 2008 P.C. 1. Heard the Learned Counsel appearing on behalf of the Plaintiffs and Counsel for the Defendants. This is a suit filed by the Plaintiff under section 6 of the Specific Relief Act, claiming the possession in respect of an area admeasuring 620 sq.ft. situated on the ground floor and which is stilt / garage bearing No.2 in the building known as 'Kavita' belonging to the Defendants. It is the case of the Plaintiff that the suit premises originally was a flat No.2 on the ground floor and was owned by one Harshadrai Surviya. The society had issued share certificate in respect of 5 fully paid up shares bearing Nos.6 to 10 in favour of the said Surviya. It is the case of the Plaintiff that one M/s. M.D. Enterprises was permitted to develop part of the property. Pursuant to the development right , which was given by the society to M/s. / 2 / M.D. Enterprises, the suit flat on the ground floor being flat no.2 was demolished and the said Surviya was given an alternate accommodation by the developer on the 6th floor. It is the case of the Plaintiff that M/s. M.D. Enterprises by an agreement of sale, sold the said premises to the Plaintiff. It is submitted that the Plaintiff was parking his car from 2003 onwards and thereafter, he was dispossessed by the Society and, therefore, the present suit has been filed. The Learned Counsel appearing on behalf of the Plaintiff has referred to the said agreement executed by the Plaintiff and the said M.D. Enterprises as also the development agreement, which was executed between M.D. Enterprises and the Defendant Society. He submits that, in any case if the suit is filed under section 6 of the Specific Relief Act, it is not material whether the Plaintiff is the owner of the suit property or not and it has to be established that he is in possession of the said premises. It is submitted that there is sufficient material on record to indicate that the Plaintiff was in possession of the suit premises and that he was dispossessed by the society. 2. Shri Desai, the learned Counsel appearing on behalf of the society, on the other hand submits that on a cojoint reading of the agreement executed by the Plaintiff and the said M.D. Enterprises and the agreement / 3 / between the soiety and M.D. Enterprises, the Plaintiff had no right to occupy the said premises. 3. In my view, at this stage it will not be possible to pass an order of ad-interim injunction in favour of the Plaintiff. It is no doubt true that in the suit under section 6 of the Specific Relief Act the question of title of the Plaintiff in respect of the suit premises is not a relevant factor for considering the question of grant of interim relief. However, the fact remains that from the sanctioned plan, which is on record indicates that the alleged garage is in fact the stilt area of a building and as such the question of granting possession of the stilt area exclusively in favour of the Plaintiff does not arise at this stage. The Defendants, however, are restrained by an order of injunction creating any third party claim in respect of the stilt area or carrying on construction in the said stilt area. 4. The Notice of Motion is accordingly disposed of in the above terms. Ad-interim relief is granted in terms of prayer clause (b). Notice of Motion is made absolute. Hearing of the suit is expedited. The Defendants should file their written statement within two weeks from today. Suit is expedited. / 4 / V.M. KANADE J.