3-SA-425-2003.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SECOND APPEAL NO. 425 OF 2003

Waman Narayan Bhave (deceased)

Through his Legal Heirs

1(a) Meghna Shirish Bhave

Age: 53 years, Occ. Housewife

1(b) Yash Shirish Bhave

Age : 22 years, Occ.Civil Engineer

1(a) & 1(b) both are residing at

Pragati Bungalow, Meenatai Thakare

Nagar, Wada, Taluka Wada

Dist. Palghar …. Appellants

Versus

Dev Bappa Co-operative Housing Society Ltd.

Through its Chairman Shri Sudhakar Jagannath

Hazare, having its registered office at

Dev Bappa Co-operative Housing

Society, Kharkarali, Thane …. Respondent

Mr. Pramod J. Pawar for the Appellants.

Mr. Rupesh Sohoni for the Respondent.

CORAM : GAURI GODSE, J.

RESERVED ON: 29

th

JANUARY 2026

PRONOUNCED ON: 8

th

JUNE 2026

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rrpillai

RAJESHWARI

RAMESH

PILLAI

Digitally signed

by

RAJESHWARI

RAMESH

PILLAI

Date:

2026.06.08

14:09:24 +0530

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JUDGMENT:

BASIC FACTS:

1. This second appeal is preferred by the original defendant

to challenge the concurrent judgments and decrees passed by

the first appellate court decreeing the suit granting specific

performance of a plot of land in favour of the plaintiff-society.

The defendant died during the pendency of the second appeal,

and his heirs and legal representatives have been brought on

record. The trial court decreed the suit, granting a declaration

that the society is the owner of the plot of land and further

directed the defendant, i.e. the owner of the land, to execute a

conveyance deed in favour of the plaintiff-society and its

members. The trial court’s decree directing execution of the

conveyance is in respect of a plot of land on which the building

of the plaintiff society is constructed. The appeal preferred by

the defendant to challenge the trial court’s decree is dismissed.

2. The second appeal was admitted on 20

th

June 2003 on

the substantial questions of law framed in grounds 1 and 3

which read as under :

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“1. The learned District Judge erred in granting

decree for specific performance of the agreement

of sale of the land whereas the suit is filed for the

relief of declaration that the respondent have

become the owners of the property bearing Tikka

No. 5, C.T.S. No. 67-P and 68-P, situated at

Kharkarali, Thane.

3.The learned District Judge failed to appreciate

that the suit simplicitor for declaration which has

been filed in the present case by the respondent-

plaintiff does not lie as per the provisions of

Section 34 of Specific Relief Act.”

3. The society filed a suit solely for a declaration that the

society is the owner of the plot of land admeasuring 1166 square

yards out of the land bearing Tikka No. 5, City Survey Nos. 67

(part) and 68 (part) along with the building structures, standing

thereon. The defendant is the owner of the said plot. The plaintiff

society relied upon a photocopy of one of the agreements

executed in favour of a member of the society in respect of one

of the flats in the building constructed on the said plot. The

Society had relied upon an agreement dated 20

th

January 1977

to contend that the deceased appellant had agreed to sell the

land in favour of the Society.

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4. The defendant denied the plaintiff-society’s claim on the

ground that, in the absence of any title, the plaintiff-society

would not be entitled to seek a declaration of ownership of the

land based on the agreements executed in favour of the

individual members in respect of their individual flats. The

defendant denied the suit claim for a declaration of ownership.

The defendant denied execution of any agreement in favour of

the society to convey the building. He contended that it was

agreed to sell the land subject to the agreements to sell the flats

to the members; however, most of the members of the society

had failed to perform their part and did not make payments

towards their respective flats; hence, there was no question of

conveying any title in the land or the building.

5. The trial court decreed the suit by holding that, based on

the agreements executed in favour of the members of the

plaintiff society under the provisions of The Maharashtra

Ownership Flats Act, 1963 (“MOFA”), the society was entitled to

a conveyance document in respect of the plot of land on which

the building was constructed. Based on the agreements

executed in favour of the members, the trial court held that the

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plaintiff proved its ownership of the land. Thus, the trial court

accepted the plaintiff society’s ownership of the land and

granted a declaration that the society was the owner of the land

and also directed the defendant, i.e. the owner of the land, to

execute a conveyance in favour of the society and its members

in respect of the land along with the building standing thereon.

The society had filed an application to amend the plaint to seek

a prayer for conveyance; however, the said application was

rejected.

6. The first appellate court confirmed the trial court’s findings

on the ground that the society would be entitled to a decree of

conveyance as the agreements were executed by the defendant

in favour of the members under the provisions of MOFA. In the

appeal before the District Court, the society had again filed an

application to amend the plaint to add the prayer for

conveyance. The said application was allowed. The deceased

appellant had challenged the said order in this court by filing

Civil Revision Application No. 1022 of 200. Thereafter, the

society applied in the said revision application for leave to

withdraw the application for amendment. In view of the

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withdrawal of the application, the civil revision application filed

by the deceased appellant was disposed of on 11

th

July 2001.

7. The society had filed a separate suit, being Special Civil

Suit No. 8 of 1981, against the defendant for recovery of

Rs.1,99,570/-. The said suit was partly decreed, and the

deceased appellant was directed to pay Rs. 93,316/- with

interest to the society. Civil Appeal No. 252 of 2000 was filed to

challenge the decree passed in the said suit. Both appeals were

decided by the district court by a common judgment. Civil

Appeal No. 252 of 2000 is allowed, and the suit for recovery of

amount filed by the society is dismissed for want of any cogent

evidence to prove the claim for recovery on the ground that the

society had spent the amount in completing the construction.

Nothing has been shown before this court that the said dismissal

of the suit was further challenged by the society.

SUBMISSIONS ON BEHALF OF THE APPELLANTS:

8. Learned counsel for the appellants submits that,

admittedly, there is no title document in favour of the plaintiff in

respect of the plot of land. Even according to the society, the

document produced at Exhibit-35 is an agreement to sell the

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land in favour of the society. However, the society never prayed

for specific performance of the contract. Thus, in the absence of

any title document, the society was not entitled to any

declaration of title. Since there was no prayer for specific

performance of the contract, there was no question of granting a

decree for specific performance to convey the title of the land in

favour of the society. He further submits that there is no dispute

regarding the defendant's title to the suit property, i.e. the plot of

land. Though individual agreements are executed in respect of

the flats occupied by the members of the society, even if the

said documents are accepted as documents under the

provisions of MOFA, the said agreements would not confer any

title to the society over the suit land. In the absence of any

pleadings and proof that the terms and conditions of the

agreement in respect of the individual flats have been complied

with and that the payments have been made, the title to the flats

would also not stand transferred in favour of the members.

Consequently, there would also be no question of transferring

ownership of the building in favour of the society.

9. In the absence of any prayer for specific performance and

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conveyance, both courts erred in granting a decree for specific

performance by referring to and relying upon the provisions of

MOFA. Hence, both the questions of law must be answered in

favour of the appellants, and the impugned judgments and

decrees must be set aside.

SUBMISSIONS ON BEHALF OF THE RESPONDENT:

10. Learned counsel for the society supported the impugned

judgments and decrees. He submitted that the document at

Exhibit-38 was one of the agreements executed in favour of the

members of the society. Similar agreements under the

provisions of MOFA were executed in favour of all the members

of the society. Hence, in view of Section 4A of MOFA, the

society has the right to have the title to the land conveyed in its

favour. The document at Exhibit-35 was an agreement executed

by the defendant in favour of the society, conveying title to the

society. However, the defendant failed to complete the contract,

although the society had paid Rs. 93,316/- to complete the

construction. Hence, based on the individual agreements in

favour of the members of the society, both the courts have

rightly directed the defendant to execute conveyance in favour

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of the society in view of the provisions of MOFA. There is no

dispute that society has paid the cost of constructing the

building. Hence, in view of the agreement in favour of the

society and in view of the individual agreements in favour of the

members, the plaintiff-society is entitled to get the title of the

land conveyed in favour of the society.

11. Learned counsel for the society submits that sufficient

evidence was produced on record to show that the defendant

could not complete the construction of the building; hence, the

society was required to complete construction at its own cost.

Hence, in view of Section 34 of the Specific Relief Act, 1963, the

society is entitled to a decree for conveyance of the title of the

land. Since the members of the society are occupying their

individual flats based on the individual agreements executed

under MOFA, the plaintiff-society was formed by the members

based on their individual agreements. Hence, the society is

entitled to conveyance under the provisions of MOFA. The

questions of law, therefore, would not arise in the second

appeal. The impugned judgments and decrees for conveyance

in favour of the society be therefore confirmed.

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ANALYSIS AND CONCLUSIONS:

12. I have perused the impugned judgments, pleadings and

evidence from the record and proceedings. The society filed the

suit only with the following prayers :

“(a)

The Plaintiff’s suit against the defendant be

decreed.

(b) It be declared that the plaintiff is the owner of

the plot of land admeasuring 1166 sq. yards out of

the land bearing Tikka No. 5, City Survey Nos.

67(P) 68(P) situate, lying and being at Kharkar Ali,

Thane alongwith the building structures standing

thereon.”

13. A perusal of the entire plaint does not reveal any pleadings

or cause of action to seek conveyance under the provisions of

MOFA. The plaint is filed on the ground that the society is the

owner of the land and therefore for the prayer that the society be

declared as the owner of the land on which the building of the

society has been constructed. The society relied upon an

agreement dated 20

th

January 1997, executed between the

Chief Promoter of the proposed society and the owner of the

land. According to the plaint, the agreement was executed for a

total consideration of Rs. 2,30,000/-. According to the society,

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although the defendant received Rs.500/- at the time of

execution of the agreement, he had no intention of completing

the contract, and the agreement was executed only as a bogus

agreement. Hence, the members of the proposed society

ultimately completed its formation. Since the construction was

left incomplete, the members completed the construction.

Therefore, the society sought a declaration of the title to the land

on which the building is constructed. Hence, the suit is solely for

a declaration of ownership. The society contended that the

defendant failed to hand over possession of the flats; therefore,

the members took possession and occupied the flats. Hence,

the society is the owner of the building and the land.

14. There is no dispute that the defendant is the owner of the

land on which the society building is constructed. The members

of the society claim rights in respect of the flats they occupy

based on their respective unregistered documents. There is no

pleading in the plaint for seeking conveyance in terms of the

document executed under MOFA in favour of the members of

the society. The trial court misinterpreted the document in

respect of a flat in favour of one of the members, as a document

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evidencing the society's entitlement to conveyance under the

provisions of MOFA. The trial court has recorded findings in

favour of the society by referring to the society’s entitlement to

conveyance under the provisions of MOFA, on the ground that

the members are occupying their flats pursuant to agreements

executed under MOFA.

15. Thus, in a suit for declaration of title, the trial court

recorded findings regarding the society’s entitlement to

conveyance under the provisions of MOFA. The trial court first

granted a declaration that the plaintiff-society is the owner of the

plot of land. Simultaneously, the trial court ordered that the

defendant, i.e., the owner of the land, must execute a

conveyance deed in favour of the society and its members, by

accepting the amount deposited by the plaintiff-society pursuant

to the agreement executed by the defendant in favour of the

proposed society.

16. The first appellate court has considered the provisions of

MOFA and held that the defendant, i.e. the owner, was a

contractor and promoter and, in the capacity of promoter, had

executed various agreements in favour of the members of the

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society. It is further held that the society had incurred the

construction costs and thus completed the building. Thus, the

first appellate court held that the defendant, i.e. the owner of the

plot, was under the obligation to convey the land in favour of the

society, as the flats in the building constructed by the society

were occupied by the members based on the agreements

executed by the defendant in their favour under the provisions of

MOFA.

17. The reasons recorded by the first appellate court are

entirely based on the society’s entitlement to seek conveyance

of the land under the provisions of MOFA. However, admittedly,

no such prayer for conveyance under the provisions of MOFA

was ever made by the society. Both courts have therefore erred

in granting a decree for specific performance of the contract in

the absence of any such prayer. There is neither any pleading

nor prayer for seeking specific performance of any agreement in

favour of the society.

18. It is held that the defendant is the promoter as defined

under Section 2(c) of the MOFA; hence, though the relief of

conveyance is not prayed, in view of the facts and evidence on

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record and the legal principles regarding the statutory

obligations under provisions of the MOFA, the society is entitled

to the relief of conveyance. The discretion of the court as to the

declaration of status or right is governed under the provisions of

Section 34 of the Specific Relief Act, which reads as under:

“ 34. Discretion of court as to declaration of status or

right.- Any person entitled to any legal character, or to

any right as to any property, may institute a suit against

any person denying, or interested to deny, his title to

such character or right and the court may in its

discretion make therein a declaration that he is so

entitled, and the plaintiff need not in such suit ask for

any further relief:

Provided that no court shall make any such declaration

where the plaintiff, being able to seek further relief than

a mere declaration of title, omits to do so.

Explanation.- A trustee of property is a “person

interested to deny” a title adverse to the title of some

one who is not in existence, and whom, if in existence,

he would be a trustee.”

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19. It is pertinent to note that the society’s application to

amend the plaint to add a prayer for grant of conveyance was

rejected by the trial court. In the appeal before the District Court,

an application to amend the plaint was allowed to add a prayer

for the grant of conveyance; however, the defendant challenged

it before this court by filing a revision application. In the said

revision application before this court, the society withdrew the

application for amendment. The society has therefore

abandoned its prayer to seek conveyance of the land along with

the structure standing thereon. Once such a prayer is

abandoned by society, the first appellate court could not have

granted a decree for declaration of title and simultaneously also

a decree for conveyance. Therefore, in view of the proviso to

Section 34 of the Specific Relief Act, the discretion exercised by

both courts in favour of the society is not sustainable.

20. The suit is solely for a declaration that the society is the

owner of the land, on the ground that the members are

occupying the building under their individual MOFA agreements.

Hence, in a suit solely for a declaration of title, there was no

question of granting any decree for specific performance. In the

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absence of any valid title, the society is also not entitled to a

decree declaring title in its favour. The findings recorded by both

the courts are therefore perverse and beyond the pleadings and

prayers in the suit. Both the questions of law, therefore, are

answered in favour of the appellants.

21. Hence, the impugned judgments and decrees are not

sustainable in law. Accordingly, the second appeal is allowed by

passing the following order :

(i) The Judgment and Decree dated 4

th

December 2002

passed by the II Additional District Judge, Thane, in Civil

Appeal No. 299 of 1990 and the Judgment and Decree

dated 31

st

August 1989 passed by the II

nd

Joint Civil

Judge, S. D. Thane, in Regular Civil Suit No. 9 of 1981 are

quashed and set aside. Civil Appeal No. 299 of 1990 is

accordingly allowed.

(ii) Regular Civil Suit No. 9 of 1981 is dismissed.

(iii) There shall be no order as to costs.

[GAURI GODSE, J.]

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