SHRI. ROHIT S. THAKKAR ,THE SECRETARY AND ANOTHERversusSUNIL OMPRAKASH AGARWAL

                      Sumedh                                        925-AO-440-2024-J.doc

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION
                                    APPEAL FROM ORDER NO.440 OF 2024
                                                  WITH
                                   INTERIM APPLICATION NO.9436 OF 2024

                      1.   Shri Rohit S Thakkar                 ]
                      The Secretary of Mulund Sejal             ]
                      Co-operative Housing Society Ltd.         ]
                           And
                      Smt. Kokila M Joshi                       ]
                      The Chairman of Mulund Sejal              ]
                      Cooperative Housing Society Ltd.          ]
                      Having it’s of9ce at Plot no.1084         ]
                      Devidayal Road, Mulund (West)             ]
                      Mumbai 400 080.                           ]

                      2.    Mulund Sejal Cooperative Housing    ]
                      Society Ltd.                              ]
                      A Society registered under the            ]
                      Provisions of Maharashtra Coop.           ]
                      Societies Act under the Registration      ]
                      No.BOM/GEN/855 of 1975 and                ]
                      Having it’s of9ce at Plot No.1084         ]
                      Devidayal Road, Mulund (West)             ]
                      Mumbai 400 080.                           ]...Appellants.

                                 V/s

                      Sunil Omprakash Agarwal of                ]
                      Mumbai. Indian Inhabitant                 ]
                      Residing at Flat No.6-A Premkutir         ]
                      177 Marine Drive, Mumbai 400 020.         ]     ...Respondent


                      Mr. Rajesh Kachare, a/w Adv. Amol Mhatre and Adv. Sonal
                      Dabholkar for the Appellants.

                      Mr. Arvind A. Taral for the Respondent.


                                               CORAM    : KAMAL KHATA, J.
                                           RESERVED ON : 23rd January, 2026.
                                          PRONOUNCED ON : 28th January 2026.
         Digitally
         signed by
         SUMEDH
SUMEDH   NAMDEO                                                                   1/5
NAMDEO   SONAWANE
SONAWANE Date:
         2026.01.28
         18:11:45
         +0530
Sumedh                                               925-AO-440-2024-J.doc

JUDGMENT:

1.      This appeal arises from the judgement and order dated 1 st

March 2024 passed by the Hon’ble City Civil Court, Bombay, whereby

the learned Judge was pleased to allow the Notice of Motion 9led by

the Respondent No.1 (original Plaintiff) restraining the Appellant -

society from interfering with the possession of Respondent No.1.

2.      Mr. Rajesh Kachare, learned Advocate for the Appellant,

invites my attention to paragraph xviii at page 26 of the Plaint,

which reads as under:


        “(xviii)   The Plaintiff say that on the suit land there
        was a kaccha structure which was in occupation and
        possession of Plaintiff and the Defendants Nos.1 & 2
        have demolished the same to take undue advantage
        thereof.”


3.      A plain reading of the aforesaid paragraph indicates that no

structure existed in the society compound on the date of 9ling of the

suit.

4.      He next draws my attention to the Prayer clause (d) at page 29

which reads as under:


         “(d) That in the event of the Defendants nos.1 and 2
        claim possession of the suit land described at Sr. No.2 in
        Exhibit A to the Plaint the Defendants Nos.1 & 2 be
        directed to vacate and hand over the vacant possession
        thereof to the Plaintiff (e). That the Defendants Nos.1

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Sumedh                                                925-AO-440-2024-J.doc


      and 2 jointly and severally be ordered decreed and
      directed by the Hon’ble to pay to the Plaintiff
      Rs.6,00,000/- being the compensation for claims and
      depriving Plaintiff of its rights to the suit land till date of
      the suit with further sum of Rs.1,50,000/- or such
      amount as this Hon’ble Court may 9x till the Defendants
      Nos.1& 2 give up their claim on the suit plot as per
      Exhibit “H” to Plaint.”


5.    He then refers to paragraphs 8 to 13 of the impugned order and

submits that the reasoning therein is contrary to the pleadings and

the record. It is submitted that the Plaintiff had no subsisting right or

ground to seek relief, since possession of the society dates back to

1976 – almost 45 years prior to the suit. Hence, by no stretch of

imagination, after a passage of 45 years can the Respondent-Plaintiff

claim to be in possession of a structure demolished decades ago. The

order of deemed conveyance was passed in favour of the Appellant in

2016; the suit was instituted only in 2020 is therefore, hopelessly

barred by limitation and suffers from gross delay and laches,

disentitling the Respondent - Plaintiff to any relief.

6.    It is further submitted that the Respondent has neither shown

the existence of any structure in his possession nor produced

photographs evidencing its demolition. The Trial Court, therefore,

has clearly erred in granting relief to the Respondent. No

proceedings were ever 9led by the Plaintiff since 1976, when the


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Sumedh                                             925-AO-440-2024-J.doc

building was constructed and possession was handed over. It is

inconceivable that such construction could have taken place without

the Respondent- Plaintiff’s knowledge. Although several other

grounds are urged in the appeal memo, the Appellant submits that

even on these grounds alone, the impugned order deserves to be set

aside.

7.       Mr. Taral, learned Advocate for the Respondent No.1, tenders a

compilation of photographs in support of his submissions and the

impugned order.

8.       Upon examining the photographs, a pointed query was put to

Mr. Taral as to which structure, if any, the Trial Court has protected

and which is said to be in the Plaintiff’s possession. The photographs

reveal no existing structure whatsoever and do not establish

possession as claimed. Neither the pleadings nor the impugned order

discloses when the alleged structure was demolished or when the

Plaintiff was dispossessed. When confronted with this, Mr. Taral

maintained a stoic silence and was unable to point out any document

in support of the contention.

9.       In this backdrop, I 9nd no reason to sustain the impugned

order. Moreover, an Af9davit dated 16th October 2025 has been 9led

by the Appellant -Society undertaking to safeguard the Respondent’s

interest. Since the Resolution earlier placed on record did not


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Sumedh                                             925-AO-440-2024-J.doc

adequately reKect the intent stated in the Af9davit, the society has

subsequently passed a fresh resolution dated 18th January 2026,

whereby it has expressly resolved to not to utilize the area

admeasuring 64 square meters area and its proportionate FSI which

forms the subject matter of dispute in this Appeal. The Respondent’s

concern, therefore, stands suf9ciently protected by the said

undertaking.

10.   Prima facie, on both counts – 9rst, that the Respondent –

Plaintiff has failed to establish the possession of any existing

structure, and second, that the suit is ex-facie barred by limitation

and therefore, the impugned order cannot be sustained as it is

contrary to both facts and law.

11.   The resolution passed by the Appellant – Society dated 18 th

January 2026 is accepted not to utilize the 64 square meters area

and its proportionate FSI is accepted as an undertaking to the Court.

12.   Accordingly, the Appeal is allowed.

13.   Interim Application, if any, also stands disposed of.

14.   The impugned order dated 1 st March 2024 passed by the Trial

Court is set aside.

15.   There shall be no order as to costs.



                                               (KAMAL KHATA, J.)

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