Appeal No. 126 of 2010 in Chamber Summons No. 378 of 2009 in Suit No. 1526 of 2005 with Notice of Motion No. 615 of 2010. Case: Aruna Vimalkumar Garg and Sheela Trijuginath Gupta Vs Dani Sadan Co-op Housing Society Ltd., Earth Builders and Brihan Mumbai Mahanagarpalika. High Court of Bombay (India)
| Case Number | Appeal No. 126 of 2010 in Chamber Summons No. 378 of 2009 in Suit No. 1526 of 2005 with Notice of Motion No. 615 of 2010 |
| Counsel | For Appellant: P.K. Dhakephalkar, Sr. Adv. with Sanjay Udeshi i/b. Udeshi and Co. and For Respondent: P.K. Samdani, Sr. Adv. i/b. Kishore Thakerdas and Co. and Tushad Cooper with Hemed Kadiani i/b. ALMT Legal |
| Judges | Mohit S. Shah, Chief Justice and D.Y. Chandrachud, J. |
| Issue | Code of Civil Procedure, 1908 - Order 1 Rule 10; Maharashtra Rent Control Act; Bombay Presidency Small Causes Court Act |
| Judgement Date | September 27, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
D.Y. Chandrachud, J.
-
This appeal arises out of an order of a Learned Single Judge, declining to grant impleadment under Order 1 Rule 10 of the Code of Civil Procedure, 1908. The Applicants to whom reliefs were declined, are in appeal.
-
The suit has been instituted by the First Respondent against the Second and Third Respondents. The Plaintiffs are a Cooperative Housing Society, registered under the Maharashtra Cooperative Societies Act 1960 and are lessees of a plot of land bearing C.S.No.1/280 of Malabar Hill Division. A building consisting of a ground floor and eight storeys has been constructed on the land. The Plaintiffs claim under an Indenture of Lease executed on 2 July 1963 in their favour in respect of C.S.No.1/280. The First Appellant is one of the lessors, who had executed the lease in favour of the Plaintiffs. An agreement to sell was executed by the owners in favour of the First Defendant on 3 March 1994 in respect of land admeasuring 772 sq.yards, equivalent to 645.45 sq.mtrs. This was followed by a Deed of Conveyance dated 6 September 1994 in respect of the said plot bearing C.S.No.280. The Conveyance was subject to the lease dated 2 July 1963. According to the Plaintiffs, although the Lease Deed refers to an area of 1500 sq. yards as being leased, the area actually leased was demarcated on a Plan annexed to the document which took into account a gradient on the land. Thus, according to the Plaintiffs, the area mentioned in the document would not prevail over the exact boundary indicated in the Plan annexed to the Lease Deed and, the Plan has to be treated as forming part of the document. According to the Plaintiffs, the owners of the property while granting the lease to them, were conscious of the fact that there was a gradient with a drop of about twentyeight feet making a portion of the land unusable by the Plaintiffs and this was taken into account while demarcating the land demised under the Lease Deed dated 2 July 1963. The case of the Plaintiffs is that since the Lease Deed in their favour is for a term of 999 years, the lessors of the Plaintiffs who were the vendors, who sold the property to the First Defendant were estopped from dealing with the portion of the land which has already been leased out to the Plaintiffs. Hence, according to the Plaintiffs, while both the Lease Deed in their favour and the Conveyance in favour of the First Defendant are registered, the Deed of Lease in favour of the...
To continue reading
Request your trial