KUMAR PARISAR CO-OP.HO.SOC.LTD. THR. URMILA S.KULKARNI AND PRASHANT K.BANKARversusGOKHALE MILESTONE LLP THR ITS PARTNER MR VISHAL VASANT GOKHALE

                                                                 902 - AO-711-2026.DOC



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION
                    APPEAL FROM ORDER NO. 711 OF 2026
                                  WITH
                   INTERIM APPLICATION NO. 6757 OF 2026

Kumar Parisar Co-
Op.Ho.Soc.Ltd. Thr. Urmila
S.Kulkarni and Prashant K.Bankar                                        Appellant

          versus

Gokhale Milestone Llp Thr Its
Partner Mr Vishal Vasant Gokhale                                      Respondent

_________________________________________________________________
Mr. Pradeep Thorat a/w Mr. Harshad Sathe a/w Mr. Siddhesh Bane a/w Ms.
Sanskruti Otari a/w Mr. Darshan Gaikwad a/w Ms. Harshada Shrikhande,
Advocates, for the Appellant.
Mr. Nischal S. Anand, Advocate for Respondent No. 1.
Mr. Vishal Kanade a/w Ms. Janhavi Joshi i/b J. M. Joshi, Advocates for Respondent
No. 2.
Mr. Abhinav Chandrachud a/w Ms. Himani Narula a/w Ms. Riya Patil, Advocates
i/by Pariman Law Associates for Respondent No. 3.
Mr. Nitin P. Deshpande a/w Ms. Rachana Harpale, Advocates, for Respondent
No. 4.
 _________________________________________________________________

                           CORAM:       AARTI SATHE, J.

                           DATE:        24th SEPTEMBER 2026

P.C.

1. This Appeal from Order has been filed under the Order XLIII Rule 1(r) read

with Section 104 of the Code of Civil Procedure, 1908 (CPC) taking exception to

the order dated 30th May 2026 (hereinafter referred to as the “impugned order”),



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passed below Exhibit-5 by the learned 3 rd Joint Civil Judge, Senior Division, Pune

(hereinafter referred to as the “Trial Court”) in Special Civil Suit No. 487 of 2024

inter alia rejecting the relief of the temporary injunction under Order XXXIX,

Rules 1 and 2 sought by the Appellant. By way of the aforesaid impugned order,

the Trial Court has held that the Appellant had prima facie failed to prove their

right and title beyond the side margins of the area conveyed to them being the

portion admeasuring 6511.23 sq. meters lying on the south-west together with 3

Residential Building Nos. B1, B3, and C3 and 1 Commercial Building No. E1

together with Floor Space Index (FSI) to the extent of 11057.96 sq. meters, out of

the larger amalgamated pieces of land bearing Survey Nos. 59/2/1, 59/2/3/4/5/6

(old 59/2/2 to 6), 60/2/1, 60/2/2A/3/4/5/6 (old 60/2/2 to 6), 61/2A/3/4/5/6 (old

61/2A/2 to 6) and 61/3/2 to 6, corresponding to City Survey Nos. 1799, 1800,

1801 and 1802, situated at village Kothrud of City of Pune, Taluka Haveli, District

Pune, together with proportionate undivided share in the open space of the

sanctioned layout and common rights of ingress and ingress to and fro the internal

roads including approach to the club house (hereinafter referred to as the “suit

property”), and considering the aforesaid, if the injunction was granted to the

Appellant, the Respondents would suffer irreparable loss which could not be

measured in terms of money.

2.         Briefly, the facts are as follows:-

i.         The original landlords, i.e., the Mutha and Korde families, executed a

registered Development Agreement and power of attorney in respect of the land




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admeasuring 6 Hectares and 7 Ares, of which 32,318 sq. meters. is covered by a

common layout. The suit property is a part of the said undivided layout.

ii.        On 26th November 1997, Respondent No. 2 executed 5 separate

Memorandums of Understanding (MOUs) with Respondent No. 4 for sale of FSI

in respect of the land admeasuring 4,085 sq. meters comprising plots for Buildings

I and J, as per the layout prepared by the Respondent No. 2 in the year 1998.

Respondent No. 2 conveyed the said land and FSI admeasuring 4,085 sq. meters

with all rights, privileges, easements, hereditaments, liberties and appurtenances

thereto along with the proportionate rights, title and interests in the roads and open

spaces in the said layout. The said MOUs refer to the land admeasuring 4085 sq.

meters together with the FSI.

iii.       On 4th March 1998, the Pune Municipal Corporation sanctioned the

first layout of undivided land admeasuring 32,318 sq. meters, wherein the layout

indicated 30-meter-wide D.P. road, open space and 12 plinths. These 12 plinths

were included in the plan and plots for Buildings I and J were also shown in the

said layout. In the year 1999, Respondent No. 2 handed over the possession of the

land admeasuring 4,085 sq. meters after the 30-meter-wide D.P. road was

demarcated on the site by the Pune Municipal Corporation.

iv.        Thereafter, Respondent No. 4 filed Special Civil Suit No. 1145 of 2000

before the Civil Judge, Senior Division, Pune against Respondent No. 2 and 33

other Defendants for specific performance of MOUs dated 26 th November 1997

on account of disputes arising between Respondent No. 2 and Respondent No. 4.

Respondent No. 3 in the present proceedings, was also party in the said suit. On



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12th January 2001, Respondent No. 4 registered lis pendens with regard to the

above suit. It is Respondent No. 4’s contention that the Appellant’s predecessor

was also party to the said suit.

v.            On 5th October 2001, the Civil Judge, Senior Division, Pune dismissed

the application filed by Respondent No. 4 below Exhibit-5 in Special Civil Suit

No. 1145 of 2000, pursuant to which, Respondent No. 4 preferred Appeal from

Order No. 837 of 2001, challenging the order dated 5th October 2001.

vi.           On 30th October 2001, the Respondent No. 3 filed an undertaking in

Appeal from Order No. 837 of 2001, submitting that pursuant to the MOU dated

2nd July 2001 with Respondent No. 2 for assignment of 32,318 sq. meters of land,

they would not alter the location of Buildings I and J and would keep vacant land

admeasuring 907.80 sq. meters where the aforesaid building would be after

construction and, and that Respondent No. 3 would leave FSI of 4085 sq. meters

unutilized.

vii.          On 28th November 2001, the application of Respondent No. 4 for

temporary injunction was rejected in Appeal from Order No. 837 of 2001 by this

Court, and a statement was recorded in the said order to the effect that the FSI of

4085 sq. meters and the location of the land corresponding to Buildings I and J

having ground coverage to 907.80 sq. meters would be reserved, and it was

clarified that the said area was plinth area. This Court therefore restrained the

Respondents from dealing with, disposing of, encumbering, or creating any third-

party rights, title and/or interest in, to, and upon the said two plots and the FSI of

4085 sq. meters.



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viii.          On 3rd June 2002, Respondent No. 2 executed a Deed of Assignment

in favor of Respondent No. 3 with respect to the area admeasuring 32,318 sq.

meters, as described in Schedule-B of the said Deed of Assignment. The

Assignment was primarily in respect of the development rights with respect to

15,000 sq. meters of land in favor of Respondent No. 3. In the said Deed of

Assignment, there was a specific reference to the order dated 28 th November 2001

passed in Appeal from Order No. 837 of 2001, wherein it was clear that what was

conveyed to Respondent No. 3 was physical area of land approximately 15000 sq.

meters from Schedule-B, and also that the FSI of 4085 sq. meters reserved was to

remain unutilized. This Deed of Assignment also specifically kept portions of

Buildings I and J intact, and further indicated that in case the said location of

Buildings I and J was changed by this Court, then to that extent there would be

variation in Schedule-B of the Deed of Assignment.

ix.        In the year 2002, Respondent Nos. 2 and 3 measured the land and put

a wire meshed steel angle compound in such a manner so as to specify the property

marked “I” belonging to Respondent No. 4, as well as the property allotted to

Respondent No. 3 at the site. It is Respondent No. 4’s contention that therefore

the possession of Respondent No. 4 on the plots of Buildings I and J was

reconfirmed.

x.         In November 2003, Respondent No. 3 got the sanctioned revised layout

plans from the Pune Municipal Corporation, which also earmarked the plot of area

of the plots of Buildings I and J in the area table. In the said layout, the land which




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was earmarked for the FSI of 4085 sq. meters was of the same amount, i.e., 4085

sq. meters, because the prevailing FSI at that time was 1:1.

xi.        In the year 2003, Respondent No. 3 constructed four buildings on the

assigned property as per the sanctioned plan VDCC No. 1052/2003 dated 19 th

December 2003 and Occupancy Certificate dated 19 th May 2005. On 18th October

2004, the MOUs executed by Respondent No. 2 in favor of Respondent No. 4,

which were the subject matter of Civil Suit No. 1145 of 2000 were registered.

Thereafter, on 28th March 2005, Special Civil Suit No. 1145 of 2000 was decreed,

and in the said judgment and decree it was directed that Defendant Nos. 1 and 2

therein (Respondent No. 2 and their Director in the present Appeal from Order)

would execute conveyance of the FSI of 4085 sq. meters in respect of plots for

Buildings I and J as per sanctioned plan dated 4 th March 1998 in favor of

Respondent No.4.

xii.          On 19th September 2005, in Civil Application No. 2326 of 2005 in

First Appeal No. 1074 of 2005, wherein Respondent No. 2 had challenged the

judgment and decree dated 28th March 2005, this Court continued the

arrangements dated 28th November 2001, recording the statement that Respondent

No. 4 would not execute the decree on the condition that the order dated 28 th

November 2001 passed in Appeal from Order No. 837 of 2001 would operate as

an interim arrangement.

xiii.         On 7th June 2010, Respondent No. 3 got the earlier revised layout of

2007 revised once again. This was done as Pune Municipal Corporation could

increase the permissible ground coverage for buildings as per the then prevailing



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DC rules. Respondent No. 3 paid the required premium and got a 50% increase in

the permissible ground coverage with respect to 15353.20 sq. metres.

xiv.       On 2nd December 2013, Respondent No. 3 executed a Conveyance

Deed in favour of the Appellant for the suit property. The said Conveyance Deed

recorded that the revised sanctioned layout of 2003 was part of the said deed. In

the said Conveyance Deed also, the land admeasuring 4085 sq. metres along with

FSI of 4085 sq. metres was kept reserved for Respondent No. 4.

xv.        Thereafter, Respondent No. 4 filed Civil Application No. 1653 of 2012

in F.A. 1074 of 2005 seeking leave to fence the property described in the Schedule

of the Civil Application, and consent for the same was given by Respondent No.

2 ,and hence this Court by order dated 10 th February 2023 permitted Respondent

No. 4 to fence the portion admeasuring 4085 sq. metres. by corrugated steel sheets.

xvi.         Thereafter, on 10th September 2023, the Appellant sent notice to

Respondent No. 4 raising objection with regard to erection of the tin sheets and

various other issues. On 20th March 2023, Pune Municipal Corporation objected

to the Appellant's tin sheets placed on Property "I" and issued notices for

removal/demolition of the same.

xvii.        On 31st October 2023, Respondent No. 2 applied for revision of

layout which was sanctioned by the Pune Municipal Corporation. The aforesaid

revision became necessary in view of the Unified Development Control and

Promotion Regulations (UDCPR), 2020 and the ground coverage restrictions were

removed and the developer was bound to keep side margins proportionate to the




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height of the building. Accordingly, instead of 7 ½ meters, a side margin of 12

meters was left.

xviii.     On 12th January 2024, Respondent Nos. 2 and 4 conveyed plots for

Buildings I and J together with all rights in favor of Respondent No. 1 in respect of

4085 sq. meters undivided land along with the equivalent FSI. Thereafter. on 27 th

February 2024, Interim Application No. 191 of 2024 in First Appeal No. 1074 of

2005 was allowed, and Respondent No. 4 was permitted to erect fencing on plots

for Buildings I and J as per the sanctioned layout to the extent of a height of 25

feet.

xix.       Thereafter, on 1st March 2024, Appellant filed Special Civil Suit No.

487 of 2024 for declaration of their title and a permanent injunction restraining

the Respondents from disturbing possession of the Appellant over the suit

property. The Appellant sought declaration of ownership of area admeasuring

6511.23 sq. meters and the claims, right and portion of the suit property on the

basis of Conveyance Deed dated 2 nd December 2013 executed in its favor by

Respondent No. 3. It is the Appellant’s contention that Respondent No. 1 forcibly

removed the tin sheet erected around the suit property. Respondent Nos. 1 to 4

filed their Written Statements in Special Civil Suit No. 487 of 2024, and the

Appellant filed an application below Exhibit-5 seeking temporary injunction.

xx.        On 19th July 2025, a Division Bench of this Court in Interim

Application (Stamp) No. 12257 of 2024 in First Appeal No. 1074 of 2005 filed by

Respondent No. 2 permitted Respondent No. 4 to erect tin sheets as per the

revised sanctioned layout of 2023 and the order dated 28 th November 2001 in



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Appeal From Order No. 837 of 2001 (and continued through the order dated 19 th

September 2005) was modified to that extent.

xxi.       Various pleadings were filed by the Respondents in the application

below Exhibit-5 in Special Civil Suit No. 487 of 2024, and by the impugned order

dated 30th May 2026, the Trial Court rejected the aforesaid application. It is

against this order that the present Appeal from Order arises.

3.         Learned counsel Mr. Pradeep Thorat, along with Mr. Harshad Sathe,

Mr. Siddhesh Bane, Ms. Sanskruti Otari, Mr. Darshan Gaikwad, and Ms. Harshada

Shrikhande, appeared on behalf of the Appellant. Learned counsel Mr. Nischal S.

Anand, appeared on behalf of Respondent No. 1, Mr. Vishal Kanade, along with

Ms. Janhavi Joshi, instructed by J. M. Joshi, appeared on behalf of Respondent No.

2, Dr. Abhinav Chandrachud, along with Ms. Himani Narula, Ms. Riya Patil,

instructed by Parinam Law Associates appeared on behalf of Respondent No. 3,

and Mr. Nitin P. Deshpande, along with Ms. Rachana Harpale appeared on behalf

of Respondent No. 4.

4.         Learned counsel Mr. Thorat, on behalf of Appellant submitted that the

impugned order suffers from non-consideration of relevant facts and further does

not take into consideration the registered Conveyance Deed dated 2 nd December

2013, whereby the property admeasuring 6511.23 sq. meters with constructed

buildings B1, B2, C3, and E1 and appurtenant rights were conveyed to the

Appellant. He further submitted that considering the chequered history of this

present litigation initiated by Respondent No. 4 in respect of the MOUs dated 26 th

November 1997 entered into between Respondent No. 2 and Respondent No. 4,



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this Court by an order dated 28 th November 2001 had categorically recorded a

statement that plinth area admeasuring 970.80 sq. meters and FSI of 4085 sq.

meters for the plot for Buildings I and J would be kept unused.

5.         He further submitted that in respect of the MOU dated 2 nd July 2001,

which was entered into between Respondent Nos. 2 and 3 agreeing to assign the

property admeasuring 32318 sq. meters in favor of Respondent No. 3, in Appeal

from Order No. 837 of 2001 filed by Respondent No. 4, Respondent No. 3 had

filed an undertaking submitting that they would not make any change in the

location of the plots for Buildings I and J, and that Respondent No. 3 would keep

vacant land admeasuring 907.80 sq. meters. where the aforesaid buildings were to

be constructed and also keep FSI of 4085 sq. meters unused. He submitted that

even in the subsequent Deed of Assignment dated 3 rd June 2002, entered into

between Respondent Nos. 2 and 3, FSI of 4085 sq. meters was kept unutilized,

and the said position was continued by the judgment and decree dated 28 th March

2005 passed in Special Civil Suit No. 1145 of 2000, wherein Respondent No. 2

and their director were directed to execute conveyance of FSI of 4085 sq. meters of

the plots for Buildings I and J to Respondent No. 4 as per the sanctioned plan

dated 4th March 1998. In that order too, the plinth area of the plot for Buildings I

and J was 970.80 sq. meters. and FSI of 4085 sq. meters was to be utilized in such

plinth area. Even in the subsequent litigation, this plinth area and FSI remained

undisturbed.

6.         He further submitted that Respondent Nos. 2 and 3 had executed the

Conveyance Deed in favor of the Appellant on 2 nd December 2013, conveying the



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suit property to the Appellant. According to learned counsel on behalf of the

Appellant, by virtue of the aforesaid Conveyance Deed, the Appellant was put in

possession of the suit property, and the learned Trial Court has not taken into

consideration that the Appellant had a registered Conveyance Deed in its favour.

Learned counsel on behalf of the Appellant also submitted that none of the

Respondents have challenged the Conveyance Deed dated 2 nd December 2013

executed in favor of the Appellant by Respondent No. 3 till date. In the absence of

any challenge to the title of the Appellant in the suit property, it was submitted that

the Respondents would not be permitted to contend that the Appellant had no

right in respect of the same.

7.         Further, learned counsel on behalf of the Appellant submitted that in

the layout plans which were available in the years 2001, 2003 and 2010, the plinth

area of the buildings was about 453.90 sq. meters. However, in the 2023 layout

plan, the said plinth area had increased to 863.76 sq. meters, and the said change in

the plinth area happened without consent of the Appellant, with the intention of

encroaching on the suit property which was sold to the Appellant society. He

further submitted that the learned Trial Court by dismissing the application for

temporary injunction had erroneously held that the FSI is not a separate corporeal

property detached from land, and has further erred in holding that the arrangement

to keep the FSI of 4085 sq. meters by the order dated 28 th November 2001 was

modified by the order dated 19 th July 2024, without appreciating that the

arrangements arrived at between Respondent Nos. 2 and 4 were not inter se

binding upon the Appellant, more so when Respondent Nos. 2 and 4 had already



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transferred their right, title and interest in favor of Respondent No. 1 on 12 th

January 2024, which was before the order dated 19th July 2024.

8.         He further submitted that the Trial Court had erred in holding that the

suit property is an undivided portion of amalgamated land, and that no one can

claim exclusive right over the said undivided land. He submitted that the learned

Trial Court had failed to appreciate that the Appellant was claiming the rights on

the suit property on the basis of a registered Conveyance Deed dated 2 nd December

2013, which remains unchallenged. He further submitted that the learned Trial

Court had failed to consider that this Court had never approved the layout of

2023, and that the order dated 19 th July 2024 is an order passed in view of the

consent between the parties and was therefore not an adjudication on merits.

9.         He therefore submitted that considering that Respondent Nos. 2 and 3

are promoters with regard to the Appellant, they are bound to convey the title of

suit property in favor of the Appellant, and any encroachment on the suit property

by Respondent No. 1 ought to be protected, and hence, the learned Trial Court has

failed to exercise its powers under Order XXXIX Rules 1 and 2 of CPC while

denying the injunction to the Appellant. It was submitted by learned counsel on

behalf of the Appellant that once the Appellant’s title to the suit property has been

established and remained uncontroverted, the Respondents could not be permitted

to disturb the possession of the Appellant, and in view thereof, the impugned order

ought to be set aside.

10.        Per contra, learned counsel on behalf of Respondent Nos. 1, 2 and 4

submitted that the impugned order has been rightly passed by the learned Trial



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Court and requires no interference. Learned counsel on behalf of Respondent No.

1 has submitted that Respondent No. 3 acquired the property admeasuring

approximately 15000 sq. meters subject to the undertaking given by Respondent

No. 3 of preservation of the location for Buildings I and J, and the non-utilization

of FSI of 4085 sq. meters. The order dated 28 th November 2001 of this Court

whereby the FSI of 4085 sq. meters, and corresponding locations of buildings I and

J were reserved also finds mention in the Deed of Assignment which was executed

in favor of Respondent No. 3, and in fact, in the revised sanctioned layout of 19 th

December 2003, an area of 4085 sq. meters was deducted from 19438.20 sq.

meters, leaving 15353.20 sq. meters for the balance layout. It was submitted that

this layout plan was in consonance with this Court’s order, wherein the 4085 sq.

meters of FSI and the stated ground coverage for buildings I and J were to be kept

unused. He submitted that considering that the FSI was at 1:1 ratio, and the land

coverage was of 4085 sq. meters, it would be equivalent to FSI of 4085 sq. meters

to be unused. He further submitted that the revised sanctioned layout also

continued to show the reservations for the plot for Buildings I and J separately

from the development undertaken by Respondent No. 3. He therefore submitted

that even in respect of the Conveyance Deed dated 2 nd December 2013 which was

executed between Respondent No. 3 and the Appellant, the same expressly

referred to this Court’s proceedings and the exclusion of the reserved 4085 sq.

meters FSI. He further submitted that considering that at all times the portion

admeasuring 4085 sq. meters was kept out of the assignment of the property to

Respondent No. 3, only the remaining portion was assigned to Respondent No. 3.



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He therefore submitted that Respondent No. 3 had completed the development by

constructing ten buildings and forming five societies, of which the Appellant was a

part. He submitted that the entitlement of the five societies to the land could not

exceed 15000 sq. meters assigned to Respondent No. 3. He submitted that the

Appellant’s portion admeasuring 6511.23 sq. meters forms part of this 15000 sq.

meters portion, and that at all times 4085 sq. meters was kept reserved pursuant to

the order of this Court.

11.        He further submitted that the FSI of 4085 sq. meters was kept

untouched, and the architect certificate dated 31st July 2004 also specifically stated

that FSI of 4085 sq. meters was kept unused out of the total permissible FSI of the

suit property, pursuant to the order dated 28 th November 2001. He further

submitted that considering that the Appellant’s entitlement was part of an

undivided amalgamated land, the Appellant could not seek the declaration of

ownership and possession over a separately marked portion and seek an injunction

preventing the Respondents from using that portion even as a marginal open space

for Building I. He also submitted that this Court in its order dated 28 th November

2001 had specifically recorded that the area of 970.80 sq. meters referred to the

plinth area of the proposed buildings and did not represent the entire land

entitlement supporting those buildings. He submitted that the portion of 4085 sq.

meters had all times been kept out of the larger land and the said has been proved

in the layout plans. He submitted that the Appellant’s own Conveyance Deed

dated 2nd December 2013 also records the fact that the portion of 4085 sq. meters

of land has been kept untouched. He submitted that at the time of entering the



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aforesaid Conveyance Deed, the Appellant was aware of this exclusion of 4085 sq.

meters and therefore, all these events which had happened prior to the execution of

the conveyance could not be used by the Appellant to restrain any of the

Respondents from exercising their lawful rights on the suit property. He submitted

that the Trial Court had specifically considered Schedule-C in the Deed of

Assignment in favor of Respondent No. 3, the exclusions in the Appellant’s own

Conveyance Deed dated 2nd December 2013, the sanctioned area statements and

orders of this Court to refuse the grant of protective injunction to the Appellant.

He submitted that the portion of 6511.23 sq. meters of the Appellant has remained

protected, and the Appellant now cannot claim rights over the disputed portion at

Building I or in respect of 4085 sq. meters which have been categorically excluded

and remained untouched on account of various orders of this Court. He therefore

submitted that the present Appeal from Order deserved to be dismissed.

12.        Learned counsel on behalf of Respondent No. 2 has submitted that the

Appellant themselves in the plaint filed before the Trial Court have submitted that

the suit property forms part of an undivided and amalgamated land, and hence, it

in no way indicates the exact area which has been encroached by any of the

Respondents, and further does not even make out a case of any encroachment. He

further submitted that the Appellant has been unable to prima facie demonstrate

that in an amalgamated layout, how the Appellant can claim his entitlement. He

submitted that from a reading of the plaint itself it can be seen that the Appellant

has been unable to make out a case of encroachment or ascertainment of exact

location and area of the entitlement of the Appellant. He also submitted that on a



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reading of the plaint it was clear that there was existence of tin sheet fencing from

the commencement of construction of the building which indicated that even

before the Appellant could be forced, a tin sheet existed fencing on the northern

side of the Property between the said property and proposed Building I.

13.        He further submitted that the Conveyance Deed executed in favor of

the Appellant itself specifically mentioned that the Appellant was conveyed land

admeasuring 6511.23 sq. meters, and it clearly excluded portion admeasuring 4085

sq. meters, which made a mention in the judgment and decree passed in Special

Civil Suit No. 1145 of 2000, the order in First Appeal No. 1074 of 2005, and also

the order in Appeal from Order No. 837 of 2001. He further submitted that the

contention of the Appellant that only a plot area of 970.80 sq. meters was reserved,

and not 4085 sq. meters is a fallacious contention, in as much as in the Conveyance

Deed dated 2nd December 2013 itself, the approved plan has been annexed, which

itself shows that the land admeasuring 4085 sq. meters was reduced from the total

area of 19438 sq. meters, and the so called 970.80 sq. meters was only the plinth

area of the building and not the measurement of the land parcel. He therefore

submitted that the learned Trial Court had rightly come to the conclusion that the

FSI is not the separate corporeal property detached from the land, and that it is the

benefit arising out the land. He further submitted that the contention if accepted,

would be contrary to the order passed by this Court dated 19 th July 2024, wherein

it has been expressly recorded that the land admeasuring 4085 sq. meters is to be

kept reserved/unused. The said order has not been challenged, and neither has the

layout of 2023 been challenged, wherein the area of Building ‘I’ plinth and the FSI



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is demarcated in the sanctioned plan, and which is at 12 meters side margin

distance from the building ‘B1’ of the Appellant. He therefore submitted that in

view of the order dated 19th July 2024, the area of plot for Building ‘I’ for the

purpose of FSI under the layout of 2023 stands confirmed. He therefore submitted

that the aforesaid Appeal from Order requires to be dismissed.

14.             Learned counsel on behalf of Respondent No. 3 has submitted that

the crux of the present dispute, lies precisely in Respondent Nos. l, 2, and 4 now

attempting to construe the said FSI of 4085 sq. meters as area of land instead of

4085 sq. meters, which is actually FSI and not physical area of land. He submitted

that such attempt on the part of Respondent Nos. l, 2, and 4 is contrary to the

order dated 28th November 2001 in Appeal from Order No. 837 of 2001 and the

judgment and decree dated 28th March 2005 in Special Civil Suit No. 1145 of

2000, as if it were 4085 sq. meters of vacant, subdivided land, so as to wrongfully

claim and obtain the increase in the plinth area of Buildings I and J, which is more

than the reserved plinth area of 970.80 sq. meters as mentioned in the order dated

28th November 2001in an illegal attempt to avail of the consumption of the

additional construction which has now become permissible under the UDCPR,

2023, which permits additional FSI that was not available under the earlier DC

Rules as applicable in the year 2001. He submitted that this clearly demonstrates

collusion between the Appellant and Respondent No. 2, who are now erroneously

interpreting the 4085 sq. meters of FSI as being the land parcel of land.

15.       He further submitted that it is an agreed position that 4085 sq. meters is

the FSI that is applicable on 970.80 sq. meters of plinth area, and that this has



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been constantly reiterated time and again in agreements entered into and executed

between the parties. The same is evident from and elucidated by the Deed of

Assignment dated 3rd June 2002 between Respondent No. 2 and Respondent No.

3 as well as the Conveyance Deed dated 2 nd December 2013 between the

Appellant and Respondent No. 3, which clearly state that 4085 sq. meters to be

the FSI and not the parcel of land. He submitted that this position is further

entailed in the order dated 28 th November 2001, which confirms that what stood

conveyed, and what remains unutilized to date, is the FSI of 4085 sq. meters

relatable to Buildings I and J, having a total ground coverage of 907.80 sq. meters.

16.       He further submitted that the layout plan sanctioned in the year 2003,

being one that reflects a position that has been uniformly accepted and acted upon

not merely by Respondent No. 3, but by the Appellant, Respondent No. 2, and,

by their conduct and silence for over two decades, by Respondent No. 4 as well.

The location of Buildings I and J, the plinth area of 970.80 sq. meters, and the FSI

of 4085 sq. meters relatable thereto, as reflected in the 2003 layout plan, form the

very basis of the registered Conveyance Deed dated 2 nd December 2013 executed

in favour of the Appellant, and were never questioned or sought to be disturbed by

Respondent No. 4 or Mr. Vijay Dadhe at any time between 2001 and 2023. He

contended that it is in these circumstances that the 2003 layout plan, being the

position accepted by all the parties to the present proceedings, ought to be

considered and relied upon by the Court as the correct and accepted position, in

preference to the layout plan of 2023, which has been unilaterally invoked by

Respondent Nos. 1, 2 and 4 for the first time only after the coming into force of



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the UDCPR, 2023. He also submitted that in this regard, this Court was shown

the location of Buildings I and J as depicted in the 2003 layout plan, in order to

demonstrate that the Appellant itself accepts that the location of Buildings I and J

remains the same as shown in the said plan.

17.       He further submitted that the construction of Buildings I and J may be

permitted to proceed strictly in accordance with, and confined to, the layout plan

of 2003, being the position uniformly accepted by all the parties, including the

Appellant, for over two decades, and that the proposed construction ought

accordingly to be restricted to what is contemplated under the 2003 layout plan,

without permitting any enlargement of, or deviation from that position on the

strength of the layout plan of 2023, which represents a unilateral and belated

departure from the position consistently accepted by all concerned.

18.           Learned counsel on behalf of Respondent No. 4 has primarily adopted

the contentions made by learned counsel on behalf of Respondent Nos. 1 and 2.

He has further supplemented the contentions as taken by learned counsel on behalf

of Respondent Nos. 1 and 2 to submit that at all times, the FSI of 4085 sq. meters

along with the plot area of 4085 sq. meters was kept reserved and unused, and

considering that the layout plan of 2023 and the order of this Court dated 19 th July

2024 has not been challenged so far, the Appellant could now not contend that

there was any threat of his premises being encroached. He further submitted that

even in the Conveyance Deed which was executed between Appellant and

Respondent No. 3, there was a specific exclusion of portion of 4085 sq. meters for

Buildings I and J, and hence, considering that the Appellant stood on a larger



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amalgamated land, there could not be any right which the Appellant had in the

aforesaid property. He further submitted that the Appellant has undivided land

rights of 6511.23 sq. meters out of the total 15000 sq. meters of land, however, the

Appellant does not have any locus standi nor any say regarding planning and

development of Buildings I and J of Respondent No. 4, for which the 4085 sq.

meters of land had been kept untouched as per various orders passed by this Court.

He further submitted that there is no apprehension or actual encroachment which

the Appellant has been able to establish to seek the injunction as prayed for.

                           ANALYSIS AND FINDINGS

19.        I have considered the rival submissions and perused the impugned

order along with the relevant documents. At the very outset, the present dispute,

which has a very chequered history, and has gone through several rounds of

litigations, can be crystalized only in respect of the entitlement of the Appellant’s

protection vis-à-vis the suit property. It is an undisputed position by all the parties

that the Appellant was entitled to the suit property. The description of the suit

property has been specifically given by the Appellant in the plaint itself. It is

therefore clear that the Appellant’s property was always a part of an undivided

continuous land. It is only when litigation arose between Respondent Nos. 2 and 4

that orders were passed to keep an area of 4085 sq. meters along with the

equivalent FSI as untouched and reserved. The said portion has been kept reserved

by orders passed in Special Civil Suit No. 1145 of 2000, First Appeal No. 1074 of

2005, and Appeal from Order No. 837 of 2001. This Court has also in order dated

19th July 2024 modified order dated 28th November 2001 and specifically recorded



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that the obligation to keep plots for Buildings I and J reserved and unused be as per

the latest sanctioned layout of 2023 and further land of 4085 sq. meters be kept

unused.

20.         I am therefore of the view that as rightly held by the learned Trial

Court, as there is no challenge to the order dated 19 th July 2024 passed by this

Court, and also to the sanctioned layout of 2023, and considering that, the area of

4085 sq. meters along with equivalent FSI stands untouched, there is no case made

out by the Appellant to seek injunction in the present case. Throughout the various

proceedings which have culminated between the various Respondents and also the

Conveyance Deed by which the Appellant got the suit property, the area reserved

for plot for Buildings I and J and the area of 4085 sq. meters has been kept

reserved/untouched, and hence there is no case made out by the Appellant to seek

injunction in the present case. As rightly held by the learned Trial Court, it is not

the case of the Appellant that they were not aware that the aforesaid 4085 sq.

meters was reserved, and the said has been recorded in the Conveyance Deed dated

2nd December 2013 conveying the suit property to the Appellant.

21.        I am further of the view that even in the order of this Court dated 28 th

November 2001, which stood modified later, it has been held that the FSI of 4085

sq. meters and the location of the land corresponding to Buildings I and J, which

have ground coverage of 907.80 sq. meters, was kept reserved. It was in fact

clarified that the portion of 907.80 sq. meters was only plinth area and not land

coverage, and hence, at all times, the FSI of 4085 sq. meters remained protected.

An undertaking by Respondent No. 3 was given only in respect of the portion of



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land of 907.80 sq. meters and not land of 4085 sq. meters. Hence the reliance by

learned counsel on behalf of the Appellant on the aforesaid undertaking would not

help the Appellant to advance its case further. Further, even in the Deed of

Assignment dated 3rd June 2002, which was entered between Respondent Nos. 2

and 3 for an area of 15000 sq. meters, the portion of 4085 sq. meters was kept

reserved and never formed part of the aforesaid assignment.

22.        In my view, once an area is demarcated and the same is also reflected in

the Conveyance Deed dated 2nd December 2013 which has been entered by

Respondent No.3 with the Appellant, then to seek injunction in respect of that

portion of land which was always protected, I am of the view that the Trial Court

has rightly refused the injunction. I am further of the view that contentions which

have been raised by the Appellant are issues which are to be tried at the trial and

the same would require determination after leading evidence, and particularly the

issue whether only 970 sq. meters land was available for an FSI 4,085 sq. meters.,

or whether 4,085 sq. meters, area of land was required for an FSI of 4,085 sq.

meters itself. These are issues which can be tried at the trial and do not require any

interference at the interlocutory stage as rightly held by the Trial Court. In fact, as

rightly pointed out by learned counsel on behalf of Respondent No. 2, it is clear

that the Conveyance Deed dated 2 nd December 2013 also clearly shows that the

land admeasuring 4085 sq. meters reserved for buildings I and J was deducted

from the net plot area admeasuring 19438.20 sq. meters. The balance amount of

15000 sq. meters was therefore available to Respondent No. 3, which included the

area of 6511.23 sq. meters which belongs to the Appellant. There is, therefore, no



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doubt in my mind that the learned Trial Court has rightly come to the conclusion

that considering that in all the documents evidencing assignment/sale of the suit

property, the land admeasuring 4085 sq. meters and the equivalent FSI has been

kept untouched and reserved.

23.        I am also of the view that the learned Trial Court has also considered

that the Sale Deed dated 12 th January 2024 conveyed by Respondent Nos. 2 and 4

in respect of plot for Buildings I and J in favor of Respondent No. 1 was a sale of an

undivided FSI on the land as per the sanctioned approved plan of 2003 and 2023,

which is accepted by this Court. Therefore, the learned Trial Court had rightly

come to the conclusion that the Appellant had not been able to establish any right,

title, and interest in the suit property beyond the side margins of the land. and the

same could not even be prima facie proved from the pleadings and documents.

24.           I am also of the view that in the present case, the Appellant has not

been able to establish either before the learned Trial Court or even before this

Court as to what encroachments haven taken place, or are apprehended by the

Appellant, considering that the Appellant’s rights were only in respect of the land

and the FSI conveyed to them by the Conveyance Deed dated 2 nd December 2013

executed in their favor. The Appellant has also not disputed that the suit property

is a part and parcel of an amalgamated piece of land, and therefore, I am of the view

that the learned Trial Court has rightly come to the conclusion that the Appellant

had no prima facie case to prove any right, title and interest in respect of the suit

property beyond the side margins of the area conveyed to them, and there was

actually no tangible encroachment that has taken place.



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25.        I am of the view that on mere apprehension that encroachment would

take place would not give the right to the Appellant to seek the injunction as

sought for, and only on the basis of the layout plan of 2023, where the Appellant

has pointed out that the total proposed area of Building I has increased to 863.76

sq. meters could not be a ground to apprehend that any encroachment would take

place. In the earlier plans of 2001, 2003 and 2010, the net plot area remains

19436.20 sq. meters, wherein a provision was made for 4085 sq. meters, which was

reserved for Buildings I and J as per this Court’s order dated 28 th November 2001,

and the balance amount of the undivided land of 15000 sq. meters is where the

development had taken place. Therefore, only on the basis of the 2023 layout plan,

which the Appellant has chosen not to challenge, and which has also been accepted

by this Court in its order dated 19 th July 2024, I am of the view that the Appellant

has failed to make out a prima facie case in its favor, and therefore, I am of the view

that the order of the learned Trial Court does not warrant any interference. Further

considering that the area of 4085 sq. meters, was always reserved, any development

on the aforesaid property would not in anyway encroach upon the rights of the

Appellant as the same was always out of the purview of the Appellant’s rights. That

once the sanctioned 2023 plan and the order of the High Court dated 19 th July

2024 was not a subject matter of challenge by the Appellant, then to contend that

there was a change in the 2023 plan in respect of the area demarcated for Buildings

I and J would not be a ground available to the Appellant to seek injunction.

26.        It is also my view that by order dated 27 th February 2024, this Court

had allowed Respondent no.4 to put up the fencing around the Buildings I and J



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and only once that permission was granted, Respondent no.4 put the fencing

around the Buildings I and J in accordance with the sanctioned layout of 2023. It

is therefore an erroneous contention on the part of the Appellant that the

Respondent no.1 is now seeking to encroach the area which is actually the area of

the Appellant. Once the position not being disputed that the land admeasuring

6,511.23 sq. meters conveyed to the Appellant forms part of the remaining 15,000

sq. meters of land which was conveyed for the purposes of development and 4,085

sq. meters of land always being reserved and protected, then the plea of the

Appellant that there is encroachment has been rightly rejected by the Trial Court.

Hence, I am of the view that no interference is called for in the Trial Court’s

impugned order.

27.        I am further of the view that applying the principles of Wander Ltd. v.

Antox India (P) Ltd.1, while considering an application under Order XXXIX Rules

1 and 2 of the CPC, the appellate court would not ordinarily interfere with the

exercise of discretion by the court of first instance or substitute its own discretion,

except where such discretion has been exercised or has been shown to have been

exercised arbitrarily, or capriciously, or perversely, or where the Court has ignored

the settled principles of law regulating grant or refusal of interlocutory injunctions,

and the facts of the present case do not warrant any interference with the impugned

order of the Trial Court, as the impugned order is a well-reasoned and well-

considered order.




1 (1990) Supp SCC 727


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28.         Considering the aforesaid facts and the settled position of law, I am of

the view that the impugned order has been passed after duly appreciating the facts

and the applicable law. The view taken by the learned Trial Court is a plausible

view and does not warrant interference by this Court in its appellate jurisdiction.

29.         In view thereof, the Appeal from Order fails and is accordingly

dismissed. The Trial Court is directed to dispose of suit expeditiously. There shall

be no order as to costs.

21.         In view of the dismissal of the Appeal from Order, pending Interim

Application(s), if any do not survive and are accordingly disposed of.




                                                         (AARTI SATHE, J.)




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