1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.3922 of 2007 In Suit No.2904 of 2007 Smt.Mira Balu @ Balya Lakhan & ors. ..Plaintiffs v/s. M/s.M.G. Builders & ors. ..Defendants Mr.A.V. Anturkar with Mr.R.B. Singh and Mr.D.R. Singh for Plaintiffs. Mr.P.K. Samdhani with Mr.Chirag Balsara i/by M/s.J. Narula & Associates for Deft.No.1 . Mr.Lokesh Kumar i/by Mr.A.S.Ramesan for Deft.Nos.3 to 5. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 14 th November 2008 P.C. : 1. The Suit is in respect of a part of the property initially owned by the father of Plaintiffs 1 and 2 in which Plaintiffs 1 and 2 claim half undivided share. The remainder of the property is the property of the father shown in the revenue records. 2. It is an admitted position that the entire property owned by the father of Plaintiffs 1 and 2 was not shown in the revenue records. The property to the extent of 6627 sq. meters equivalent to 7926 sq. yards was shown in the revenue 2 records. The entire property was 8020 sq. meters equivalent to 9610 sq. yards. 3. The Plaintiffs as the two daughters of the father claim their share upon inheritance. The Plaintiffs have two brothers. After the death of the father their mother Tulsibai and the four children claimed rights in the entire property. 4. The property was sought to be developed by the Defendants under a Development Agreement executed by the Defendants. There have been certain previous litigations between the builders and the heirs of the father of Plaintiffs 1 and 2. A Suit came to be filed initially by the builders against the mother and the brothers of Plaintiffs 1 and 2 being Suit No.1351 of 1992. In that Suit, Consent Terms came to be filed between the parties on 15.9.1995. In the said Consent Terms the fact that a lesser area was shown in the records of rights was specifically set out. The builders settled with the mother and brothers of Plaintiffs 1 and 2 for a total consideration of Rs.7 Lakhs. Rs.1 Lakh was paid before the execution of the Consent Terms. Rs.6 Lakhs were payable thereafter. The builders deposited Rs.2.5 Lakhs with the Advocate of the mother and the brothers of Plaintiffs 1 and 2. The builders were allowed to get the record corrected for incorporating the actual area of the property in 3 the records of rights. It was agreed that if the correction was ordered, the entire amount agreed would be paid to the mother and the brothers of Plaintiffs 1 and 2. If the correction was not ordered, only Rs.2.5 Lakhs, which were deposited with the Advocate of the mother and the brothers of Plaintiffs 1 and 2, would be treated as full and final consideration payable to them. The Consent Terms further recorded that it will operate as a conveyance and if the correction was ordered the entire area would be included in the records of rights without payment of any additional consideration. 5. Hence it is seen that it was present to the mind of all the parties that the entire area of the property was not in the records of rights. The extent of that area was also known to the parties. The parties agreed to undertake the exercise of getting the area included in the records of rights. The parties settled specifically on two different amounts to be payable. Rs.2.5 Lakhs were the agreed consideration for the area already in the records of rights and if no further area is included therein, Rs.7 Lakhs were to be the entire consideration for the entire area of the actual property if it would be included in the records of rights also. There was nothing further payable to the mother and the brothers of Plaintiffs 1 and 2. 4 6. It appears that Plaintiffs 1 and 2, though having a legal right, were excluded. Hence Plaintiffs 1 and 2 sued the Defendants and others under Suit No.4589 of 2000. In that Suit, the description of the property is given in paragraph 1. It shows the area shown in the records of rights as well as the actual area, part of which was shown in the records of rights. It refers to the schedule and a sketch shown as Exhibits A and B respectively to that Plaint. A copy of the Plaint is shown to Court. Copies of Exhibits A and B are not shown. Nevertheless, the Advocate for Plaintiffs 1 and 2 has shown that in this Plaint the schedule shown in the previous Plaint has been reproduced at paragraph 7. That Suit was for a declaration that Plaintiffs 1 and 2 are the joint owners of the entire property with their mother and two brothers. This entire property is specifically set out in prayer (a) of the Plaint. Prayer (a) shows the area certified in the records of rights and the actual area of the suit property. Hence the Plaintiffs claim to be the joint owners of the entire property left by their father, whether or not it was shown in the records of rights. In that Suit, the builders settled with Plaintiffs 1 and 2 under the Consent Terms dated 7th February 2003 which is marked as Exhibit- F to the present Notice of Motion. In Clause (1) of the Consent Terms, the Plaintiffs settled the dispute which included the claim of 5 joint ownership of the entire property shown in the records of rights for Rs.4 Lakhs in full and final settlement of the Plaintiffs' claim in that Suit . In Clause- 2 of the Consent Terms Plaintiffs 1 and 2 herein (who were the Plaintiffs in the Suit) declared that they had no right, title, interest or claim of any nature whatsoever upon the suit property. 7. The suit property included, as aforesaid the property shown in the records of rights as well as the property on actual measurement. However, in Clause- 2 of the Consent Terms only the property shown in the records of rights is shown as the suit property with a specific rider that this was as more particularly described in the schedule annexed to the Plaint therein. 8. In paragraph 7 of this Plaint, the Plaintiffs have averred that the subject- matter of their earlier Suit No.4589 of 2000 was the land recorded in the records of rights and not the additional excess area in occupation of the Plaintiffs' father not so recorded. They relied upon the schedule of the property which they have reproduced in paragraph 7. The schedule shows the property marked as A, B, C and D, which were included in the records of rights. Hence the Plaintiffs contend that the Consent Terms entered into by them with the Defendants under which they settled their 6 entire claim in that Suit in full and final settlement was only for a declaration of the specific property shown in the records of rights and not the actual area of the property which was in excess thereof. The description of the property in paragraph 1 of Suit No.4590 of 2000 makes it abundantly clear that what the Plaintiffs claimed and what was the suit property was the entire of it. There was no reason for the Plaintiffs not to claim the joint ownership rights for a part of the property merely because it was not shown in the records of rights after specifically describing the two parts in paragraph 1 of the Plaint. 9. The Plaintiffs claim only the remainder of the property not previously shown in the records of rights admeasuring 1456.4 sq. meters as the suit property. The Plaintiffs claim to be the co-owners and having half undivided share with their two brothers in such property. Consequently, the Plaintiffs also claim a relief against the developer of not carrying out any construction in such excess area which is now the suit property in this Suit. 10. It is seen that the Plaintiffs' claim is misconceived. All the parties including Plaintiffs 1 and 2 had knowledge about the excess land. It was so described in the earlier Plaint. That resulted in Consent Terms in full and final settlement of the 7 “Plaintiffs' claim in the above Suit”. That includes the suit property. The Plaintiffs cannot have any further reliefs after they have settled their claim in respect of the entire property which includes the suit property in this Suit. 11. The Plaintiffs having made out no prima facie case of their further half undivided share in the suit property in this Suit, the Plaintiffs are not entitled to any reliefs. 12. Notice of Motion is dismissed with costs. 13. Copy of the Plaint in Suit No.4589 of 2000 without Annexures tendered by Mr.Anturkar is kept on record. (SMT.ROSHAN DALVI, J.)