Bombay High Court

CHANDRAKANT JOSHI AND OTHERSversusM/S. SHREE DURGA VASTU MAKERS PRIVATE LIMITED AND OTHERS

Decided: 17 July 2026
Disposal: Disposed Off
Bench: FARHAN P DUBASH

Holding

The appellate court set aside the injunction restraining the defendants' use of the suit land and disputed land as access and held that the relief restraining further construction was rendered infructuous.

Summary

The appellants, heirs of a deceased landowner, claimed ownership of parcels CTS 220 and 227/1 in Borivali and sought an injunction to stop the developers from using these lands as access for new Wings D and E of the Veerdhaval Building and to restrain further construction. The trial court restrained the defendants from using the lands as access but declined to halt construction, prompting cross‑appeals. The appellate court held that the construction of Wings D and E was already completed, rendering the injunction against further construction moot, and that the trial court had not established the plaintiffs' exclusive possession of the lands, so the injunction restraining access was unsustainable. The court set aside the access injunction, ordered the developer to deposit Rs 50 lakhs with the trial court as security, and directed the trial court to dispose of the suit expeditiously. The matter of title, the scope of the 2014 agreement, and alleged fraud were held to be issues for trial and not for interlocutory determination.

Issues considered

Whether the trial court erred in refusing to restrain further construction of Wings D and E pending the suit.
Whether the 28 August 2014 development agreement confers only a limited right of access for Wings A‑C and not for Wings D‑E.
Whether the plaintiffs have exclusive possession of CTS 220 and CTS 227/1 sufficient to justify an injunction restraining access.
Whether allegations of fraud and fabrication in municipal approvals can be decided at the interlocutory stage.
Whether the injunction restraining the defendants from using the suit land and disputed land as access should be upheld.

Subjects

property dispute
injunction
interim relief
title
access right
development agreement
municipal approval
construction
possession
fraud allegation

Judgment

AO-957-2023
Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO. 957 OF 2023

Chandrakant Joshi & Ors. … Appellants
V/s.
M/s. Shree Durga Vastu Makers Pvt. Ltd. & Ors. … Respondents
WITH
INTERIM APPLICATION NO. 7119 OF 2024
WITH
INTERIM APPLICATION NO. 17483 OF 2023
IN
APPEAL FROM ORDER NO. 957 OF 2023
WITH
APPEAL FROM ORDER (ST) NO. 31717 OF 2023
WITH
INTERIM APPLICATION (ST) NO. 31719 OF 2023
IN
APPEAL FROM ORDER (ST) NO. 31717 OF 2023
WITH
APPEAL FROM ORDER NO. 995 OF 2023
WITH
INTERIM APPLICATION NO. 17821 OF 2023
IN
APPEAL FROM ORDER NO. 995 OF 2023
___________________________________________________________________

Ms. Prachi Tatake, for the Appellants/Org. Plaintiffs.
Mr. Pradeep Thorat, with Ms. Richa Singh, for Respondent No. 1/Org. Defendant
No. 1.
Mr. G. C. Singh for Respondent No. 2/Org. Defendant No. 2.
Mr. Ashutosh Gavnekar, with Ms. Neeta Jadhav, i/b Ms. Komal Punjabi, for the
Respondent No. 3/ Org. Defendant No. 3 - MCGM.
___________________________________________________________________

Digitally signed
by SHUBHAM
SHUBHAM SHESHRAO
SHESHRAO GADHAVEPATIL
GADHAVEPATIL Date:
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2026.07.17 -------------------------------------
19:15:41 +0530 Order dated 17th July 2026
AO-957-2023
Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

CORAM: FARHAN P. DUBASH, J.

RESERVED ON: 17th APRIL 2026
PRONOUNCED ON: 17th JULY 2026
___________________________________________________________________

ORDER:

1. The present Appeal is directed against the order passed by the Trial Court
on the Notice of Motion taken out by the original Plaintiffs, who claim to be
the owners of parcels of land bearing C.T.S. Nos. 220 and 227/1 situated at
Borivali, Mumbai. By the order dated 9 th October 2023 (hereinafter referred
to as the “impugned order”), the Trial Court, pending the hearing and final
disposal of the suit, restrained original Defendant Nos. 1 and 2 from using
the land bearing C.T.S. No. 220 (hereinafter referred to as the “disputed
land of way”) and the land bearing C.T.S. No. 227/1 (hereinafter referred to
as the “suit land”) as an access for ingress to and egress from Wings “D”
and “E” of the Veerdhaval Building from Lokmanya Tilak Road. However,
the Trial Court declined to grant the further relief sought by the original
Plaintiffs of restraining original Defendant No. 1 Developer, from carrying
out any further construction of Wings “D” and “E” of the Veerdhaval
Building belonging to original Defendant No. 2 Society.

2. The impugned order has given rise to cross Appeals. The original Plaintiffs
have preferred Appeal from Order No. 957 of 2023 challenging the refusal
to restrain further construction, whereas, original Defendant No. 1
Developer has preferred Appeal from Order (St.) No. 31717 of 2023, and
original Defendant No. 2 Society has preferred Appeal from Order No. 995
of 2023, challenging the injunction restraining the use of the suit land and
the disputed land of way as access. For convenience, therefore, the parties

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AO-957-2023
Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

shall hereinafter be referred to in the same manner as they are described in
the cause title of the suit. Original Defendant No. 3 is the Municipal
Corporation of Greater Mumbai (MCGM), while original Defendant No. 4
is a proforma defendant against whom no substantive relief has been
claimed.

B R I E F FA C T S

3. The relevant facts giving rise to the present Appeals may be briefly stated as
under:

(i) One Govind Narayan Joshi, who died on 3rd May 1968, was the owner
of lands bearing C.T.S. Nos. 227 and 227/1 to 227/3 admeasuring
approximately 228.5 sq. metres, together with a bungalow known as
“Govind Smruti” standing on C.T.S. Nos. 227/2 and 227/3. Upon his
demise, he was survived by his three sons, namely, late Hareshwar
Govind Joshi, late Madhukar Govind Joshi and late Ganpat Govind
Joshi, who are stated to be the predecessors-in-title of the Plaintiffs.

(ii) Defendant No.2 Society is the owner of lands bearing C.T.S. Nos. 43,
222, 222/1 to 222/5, 225, 225/1 to 225/3 and 226. With a view to
developing the said property, Defendant No. 2 entered into a
Development Agreement dated 5th September 2013 with Defendant
No.1 for construction of Wings “A”, “B” and “C” of the Veerdhaval
Building.

(iii) On 8th July 2014, the MCGM issued the Intimation of Disapproval,

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AO-957-2023
Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

thereafter granting amended approvals and extending commencement
certificates from time to time.

(iv) During 2014, for the purpose of facilitating construction of Wings
“A”, “B” and “C”, Defendant No.1 approached the predecessors of the
Plaintiffs seeking permission to utilize a portion of the disputed land
of way, namely, C.T.S. No. 220, as an access from Lokmanya Tilak
Road. Consequently, some of the predecessors of the Plaintiffs, who
collectively held a 1/4th undivided share in the disputed land of way,
executed an agreement dated 28 th August 2014 (hereinafter referred to
as the “said agreement”), permitting Defendant No.1 to utilize the
FSI/TDR relatable to their share in the disputed land of way and to use
the said land as access for Wings “A”, “B” and “C”. The remaining
co-owners are also stated to have subsequently executed agreements
in favour of Defendant No. 1 in respect of the other/remaining share.

(v) On 28th December 2018, a Part Occupancy Certificate was granted in
respect of Wings “A”, “B” and “C”.

(vi) Thereafter, in or about November 2021, Defendant No.1 proposed
further development by amalgamating adjoining lands bearing C.T.S.
Nos. 42, 44, 45 and 229 with the existing layout, with the object of
constructing two additional buildings, namely Wings “D” and “E”.

(vii) On 20th December 2021, the Municipal Commissioner approved the
revised proposal, pursuant to which sanctioned plans dated 27 th
December 2021 came to be issued for Wings “D” and “E”.

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Chandrakant Joshi & Ors. vs. Shree Durga Vastu
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(viii) On 28th March 2022, Plaintiff No.1 lodged a complaint objecting to
the proposed development in relation to the suit land and the disputed
land of way.

(ix) In July 2023, the Plaintiffs instituted the present suit seeking, inter
alia, declarations that they are co-owners of C.T.S. No.227/1
admeasuring approximately 32 sq. metres, that they hold an undivided
1/3rd share in C.T.S. No.220 admeasuring 49.70 sq. metres, and that
Defendant Nos.1 and 2 are not entitled to use either of the said
properties as access from Lokmanya Tilak Road to Wings “D” and
“E”.

(x) The Plaintiffs further sought a declaration that the approvals granted
for construction of Wings “D” and “E” had been procured on the basis
of fabricated documents and in violation of the agreement executed in
respect of the disputed land of way, and were therefore illegal and
liable to be declared invalid.

(xi) In August 2023, the Plaintiffs took out a Notice of Motion seeking
interim reliefs, including an injunction restraining Defendant Nos.1
and 2 from carrying out further construction of Wings “D” and “E”,
and restraining them from interfering with the Plaintiffs’ alleged
possession of the suit land and the disputed land of way or from using
the same as access to Wings “D” and “E”. The said Notice of Motion
culminated in the impugned order dated 9th October 2023.

(xii) During the pendency of the present Appeals, several developments
have taken place. Various orders have been passed by this Court,

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Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

including orders directing a survey for identification of the suit land,
seeking clarifications from MCGM regarding utilisation of FSI,
directing inspections of the site, and calling for reports from the
concerned authorities. However, and most importantly, it is stated that
construction of Wings “D” and “E” now stands completed. However,
Defendant No. 3 MCGM has withheld issuance of the Occupancy
Certificate in respect thereof.

SUBMISSIONS OF THE PLAINTIFFS

4. Ms. Prachi Tatake, learned counsel appearing for the Plaintiffs, submits that
the Trial Court committed a manifest error in refusing to grant prayer clause
(a) of the Notice of Motion despite recording a prima facie finding in
paragraph 19 of the impugned order that Defendant Nos. 1 and 2 were not
entitled to use the suit land and the disputed land of way for construction of
Wings “D” and “E”.

5. It is submitted that once the Trial Court concluded that Defendant Nos.1
and 2 had no entitlement to use the Plaintiffs’ lands, it necessarily ought to
have restrained further construction of Wings “D” and “E”. According to
Ms. Tatake, having accepted the existence of the suit land on the basis of the
Sanad issued by the Revenue Authorities and the City Survey Plan, the Trial
Court ought to have granted complete interim protection.

6. Ms. Tatake further submits that the Trial Court itself observed that the rival
claims would require adjudication after a full-fledged trial and that the
Plaintiffs could not be deprived of their asserted rights in the disputed land

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Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

of way without such adjudication. Having recorded these findings and
found a prima facie case in favour of the Plaintiffs, she contends that the
refusal to restrain further construction renders the interim protection illusory
and defeats the very purpose of the Notice of Motion. Reliance is placed
upon the decision of the Supreme Court in Gangubai Bablya Chaudhary v.
Sitaram Bhalchandra Sukhtankar 1.

7. She further submits that the Trial Court failed to correctly construe the
agreement dated 28th August 2014. According to her, the agreement merely
permitted utilisation of FSI/TDR in respect of the property specifically
referred to therein and granted a limited right of access for Wings “A”, “B”
and “C”. Particular reliance is placed upon clause 5, which expressly
provides that the agreement is not a conveyance and does not create or
transfer any estate or interest in the property. It is therefore submitted that
Defendant Nos.1 and 2 acquired only a limited contractual right and no
proprietary or heritable right in the Plaintiffs’ property.

8. It is further submitted that the sanctioned plans dated 27 th December 2021
were obtained on the basis of fabricated and incorrect City Survey plans,
which omitted the suit land. According to Ms. Tatake, Defendant Nos.1 and
2 amalgamated C.T.S. Nos.42, 44, 45 and 229 with the earlier layout and
procured approvals by suppressing the existence of the suit land and
without obtaining the Plaintiffs’ consent. It is contended that such conduct
amounts to deliberate suppression of material facts and misrepresentation
before the municipal authorities and the Court, thereby disentitling
Defendant Nos.1 and 2 to any equitable relief. Reliance is placed upon

1 (1983) 4 SCC 31

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Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

Commissioner of Customs (Preventive) v. Aafloat Textiles (I) (P) Ltd. 2.

9. Ms. Tatake further points out that by a communication dated 12 th January
2026, Defendant No.1 offered to pay a sum of Rs. 50,00,000/- towards
settlement of the Plaintiffs’ claims in respect of the suit land. According to
her, the Plaintiffs declined the proposal since the dispute concerns alleged
fraudulent conduct in procuring development permissions and cannot be
resolved merely by payment of monetary compensation.

10. She submits that Defendant No.1 deliberately misrepresented the
availability of access from Lokmanya Tilak Road by portraying the suit
land and the disputed land of way as part of the access to Wings “D” and
“E”, despite having no lawful authority to do so. Such alleged acts of
fabrication and suppression, it is urged by her, cannot subsequently be
legitimized by an offer of settlement.

11. On the aforesaid grounds, it is submitted that the impugned order suffers
from patent legal infirmity to the extent it declines to restrain further
construction and therefore warrants interference in appellate jurisdiction.

SUBMISSIONS OF DEFENDANT NO. 1 DEVELOPER

12. Per contra, Mr. Pradeep Thorat, learned counsel appearing for Defendant
No.1, submits that the Trial Court committed an error in granting prayer
clause (b) after having declined prayer clause (a). According to him, once
the Trial Court held that the Plaintiffs had failed to establish a prima facie
case to restrain construction upon Defendant No.1's own lands, it could not
2 (2009) 11 SCC 18

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simultaneously restrain the use of the access.

13. He submits that Wings “D” and “E” have been constructed entirely upon
C.T.S. Nos. 42, 44, 45 and 229, in which the Plaintiffs admittedly claim no
ownership. He adds that the construction has been completed strictly in
accordance with sanctioned plans. He further submits that Defendant No.1
has acquired a 3/4th undivided interest in the disputed land of way bearing
C.T.S. No. 220 from the remaining co-owners, whereas the Plaintiffs hold
only a 1/4th share. Under the agreement dated 28 th August 2014, he points
out, the Plaintiffs’ predecessors transferred the development potential
relatable to their share for valuable consideration of Rs. 30,00,000/-, which
has admittedly been accepted. He submits that the corresponding FSI has
already been consumed for construction of Wings “A”, “B” and “C”. In
these circumstances, he urges that Defendant No.1 cannot be restrained
from using the disputed land of way for access to Wings “D” and “E”.

14. Insofar as the suit land is concerned, Mr. Thorat submits that the Plaintiffs
are not in possession thereof. He submits that at the time of passing the
impugned order, the Plaintiffs were not even in a position to identify its
exact location. Therefore, he adds that in the plaint, the Plaintiffs have
neither made any pleading of them being in exclusive possession thereof
nor is there any document annexed therewith, from which they were able to
corroborate this position. He further relies upon the survey conducted on
18th April 2024, which, according to him, indicates that the suit land falls
within the compound of Defendant No.2 Society. He also points out that the
Plaintiffs have not sought recovery of possession and that their conduct
since 2014, when the “A”, “B” and “C” Wings were constructed with their

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Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

consent, belies any possessory claim.

15. Without prejudice to the rights and contentions of Defendant No.1
regarding the correctness of the City Survey Report, Mr. Thorat submits that
Defendant No.1 is willing to deposit a sum of Rs. 50,00,000/- before the
Trial Court to secure the Plaintiffs’ alleged interest in the suit land. On these
grounds, he submits that the impugned order, insofar as it restrains use of
the access, deserves to be set aside.

SUBMISSIONS OF DEFENDANT NO. 2 SOCIETY

16. Defendant No. 2 Society did not advance any independent submissions in
support of the Appeal preferred by it, but instead, adopted the submissions
made by Defendant No. 1 Developer.

A N A LY S I S , R E A S O N S & F I N D I N G S

17. I have heard the parties at some length and have perused the material placed
before this Court.

18. At the outset, it would be apposite to bear in mind the well-settled limits on
the exercise of appellate jurisdiction while considering an appeal arising
from an interlocutory order granting or refusing temporary injunction. An
Appellate Court does not lightly substitute its own discretion for that
exercised by the Court of first instance merely because another view is
possible. Interference is justified only where the discretion has been
exercised arbitrarily, capriciously, perversely or upon an erroneous

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application of settled principles governing the grant of interim relief. The
Appellate Court is therefore required to examine whether the Trial Court
correctly applied the trifecta tests of prima facie case, balance of
convenience and irreparable injury while passing the impugned order.
Moreover, it is also well settled that generally, the Appellate Court is
required to undertake such an exercise on the basis of the pleadings and
documents that were placed before and considered by the Trial Court.

19. The Plaintiffs assert ownership of the suit land bearing C.T.S. No.227/1 and
an undivided share in the disputed land of way bearing C.T.S. No. 220.
Defendant No.1, on the other hand, disputes the extent of such rights and
relies upon the agreements executed by the predecessors of the Plaintiffs
and the other co-owners. It is, however, not in dispute that the Plaintiffs do
not claim exclusive ownership over the disputed land of way. Their own
case is that they possess only an undivided share therein. Equally, it is also
not disputed that Defendant No.1 has obtained similar agreements from the
remaining co-owners. Consequently, Defendant No.1 cannot be regarded as
a complete stranger at least insofar as the disputed land of way is
concerned. At the same time, Defendant No.1 cannot claim rights greater
than those flowing from the agreements executed in its favour. The exact
nature and extent of those rights necessarily require a detailed examination
of the agreements and surrounding circumstances, which can only be
undertaken upon the parties leading evidence at trial.

20. Much emphasis has been placed by the Plaintiffs upon the agreement dated
28th August 2014. According to them, the agreement merely permits
utilisation of FSI/TDR relatable to their share in the disputed land of way

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Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

only for the purposes of Wings “A”, “B” and “C” and expressly records that
it is not intended to operate as a conveyance of any estate or interest in the
land. Defendant No.1, on the other hand, submits that the agreement also
permits use of the disputed land of way as an access and that the parties
have acted upon the same after receipt of consideration.

21. Having considered the rival submissions, it cannot be disputed that clause 5
of the agreement expressly provides that the instrument is not a conveyance
and does not transfer any estate or proprietary interest in the Plaintiffs’
property. Prima facie, therefore, the agreement cannot be construed as
conferring ownership rights upon Defendant No.1. However, the agreement
also records that the disputed land of way was to be utilized as access in
connection with the development undertaken by Defendant No.1. Whether
such permission was confined only to Wings “A”, “B” and “C” or whether
it extends to subsequent phases of development is a question which
necessarily depends upon a complete construction of the agreement as a
whole. Such an exercise would necessarily require evidence and cannot
appropriately be undertaken while considering an interlocutory application.

22. The principal grievance of the Plaintiffs is that the rights, if any, flowing
from the agreement of 2014 stood exhausted upon completion of Wings
“A”, “B” and “C” and that, there exists no agreement whatsoever
authorizing Defendant Nos.1 and 2 to utilize either, the suit land or the
disputed land of way for the purposes of Wings “D” and “E”. Prima facie,
this submission cannot be said to be wholly devoid of substance. The
proposal for construction of Wings “D” and “E” admittedly arose pursuant
to a revised layout sanctioned in the year 2021 after amalgamation of

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Makers Pvt. Ltd. & Ors.

additional lands. Whether the earlier contractual arrangement can
legitimately be extended to the revised development proposal is itself one of
the principal issues arising in the suit and cannot be finally concluded at this
stage.

23. Equally, considerable reliance has been placed by the Plaintiffs upon the
Sanad, the City Survey records and the subsequent reports obtained during
the pendency of these Appeals to contend that the suit land was omitted
from the plans submitted for sanction and that the development permissions
were procured on the basis of incorrect plans. Defendant No.1 has seriously
disputed these allegations. Defendant No. 3 MCGM has also explained in
the affidavits filed by them that the permissions were granted on the basis of
ownership documents furnished by the project proponent and that the
subsequent mutation reflected in the plan dated 18 th June 2024 came into
existence after the development permissions had already been granted.

24. In my view, these rival contentions raise substantial questions of fact which
cannot be conclusively determined at the interlocutory stage. Allegations of
fraud, fabrication and suppression of material facts are undoubtedly serious.
However, fraud is required to be specifically pleaded and strictly proved.
The Court cannot record definitive findings on allegations of fraud merely
upon affidavits filed in interlocutory proceedings. Whether Defendant Nos.1
and 2 suppressed material facts or procured development permissions on the
basis of fabricated documents are issues which must necessarily await
adjudication after evidence is led by the parties. In the circumstances, the
decision in Aafloat Textiles (supra) is of no assistance to the Plaintiffs.

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25. At the same time, it is equally well settled that the grant of municipal
sanction neither creates title nor extinguishes existing proprietary rights.
Building permissions are granted from the standpoint of municipal law and
compliance with the relevant Development Control Regulations. Such
permissions do not adjudicate private rights between rival claimants to
property. Consequently, even assuming that the development permissions
were validly granted, the same cannot conclude the Plaintiffs’ civil rights, if
any, in respect of the suit land or the disputed land of way. Conversely, no
fault can prima facie be found with Defendant No. 3 MCGM merely
because it acted upon the ownership documents placed before it by the
project proponent while scrutinizing the development proposal. The dispute
essentially remains an inter-sé dispute between private parties regarding
title and contractual rights.

26. However, there is one significant development which cannot be ignored by
this Court, namely, during the pendency of these Appeals, construction of
Wings “D” and “E” is stated to have been completed, though the
Occupancy Certificates in respect thereof have not been issued. The relief
sought by the Plaintiffs in prayer clause (a) of the Notice of Motion before
the Trial Court, insofar as it related to restraining further construction has,
therefore, been overtaken by subsequent events and is now rendered
infructuous. An injunction cannot ordinarily be issued to restrain an act
which already stands completed. However, the completion of construction
during the pendency of litigation cannot by itself confer any additional
equity upon Defendant Nos. 1 and 2, nor can it defeat such rights as the
Plaintiffs may ultimately establish at the trial. It is well settled that acts
undertaken during the pendency of litigation remain subject to the final

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outcome of the proceedings. Accordingly, the completion of construction
shall not create any special equities in favour of Defendant Nos. 1 and 2 nor
prejudice the rights and contentions of the Plaintiffs in the suit.

27. The Trial Court, while declining to restrain construction, nevertheless
restrained Defendant Nos.1 and 2 from using the suit land and the disputed
land of way as access to Wings “D” and “E”. Defendant No.1 submits that
the two findings are mutually inconsistent. The Plaintiffs, on the other hand,
contend that once the Trial Court held that Defendant Nos.1 and 2 were not
entitled to use the suit land and the disputed land of way as access, it ought
to have also restrained further construction.

28. In my view, the apparent inconsistency noticed by both sides substantially
stems from the fact that the Trial Court attempted to balance competing
equities while leaving the question of title to be finally decided at trial. The
Trial Court was conscious that the Plaintiffs had raised a serious dispute
regarding their proprietary rights and the interpretation of the agreement of
2014. Equally, the Trial Court was also alive to the fact that the construction
was being undertaken on lands other than the suit land and the disputed land
of way. In such circumstances, the Trial Court exercised its discretion by
protecting the Plaintiffs’ asserted rights in the said lands while declining to
halt construction upon lands which admittedly do not belong to the
Plaintiffs. Whether such discretion ultimately requires modification in view
of the subsequent completion of construction is a distinct question.

29. A careful perusal of prayer clause (b) of the said Notice of Motion reveals
that the said relief of injunction, restraining Defendant Nos. 1 and 2 from

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using the suit land and the disputed land of way as access to Wings “D” and
“E” was sought by the Plaintiffs on the premise that they are in exclusive
possession of the said lands and hence, a declaratory relief to that effect was
also sought. For the sake of convenience, the said prayer clause (b) is
reproduced hereunder:

“(b) That pending the hearing and nal disposal of the suit,
the Defendants No. 1 and 2 be restrained by a
temporary order of injunction from in any manner
interfering with exclusive possession of the Plainti$s in
respect of lands bearing CTS Nos. 220 and 227/1 of
Village Eksar, situated at Babhai Gaothan, Borivali (W),
Mumbai - 92 and/or entering upon or using as an access
for ingress and aggress to "D" and "E" wings from
Lokmanya Tilak Road.”

30. However, there is absolutely no averment in the plaint in support of the first
part of the relief sought in this prayer clause and to the effect that the
Plaintiffs are in exclusive possession of the suit land and the disputed land
of way. There were also no documents produced by the Plaintiffs before the
Trial Court from which, this position has/could have been established.
Moreover, the Plaintiffs were also not in a position to identify the exact
location of the suit land and the disputed land of way before the Trial Court.
Further, it is also an admitted position that the Plaintiffs are merely the co-
owners of the disputed land of way. Considering this, it is difficult to
understand how the Trial Court, without recording any finding on the first
part of prayer clause (b), could have proceeded ahead and recorded a
positive finding in favour of the Plaintiffs insofar as the second part of the
relief sought in this prayer clause and restrained Defendant Nos. 1 and 2

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from using the suit land and the disputed land of way as access to Wings
“D” and “E”.

31. The impugned order cannot be sustained insofar as it restrains ingress and
egress over the suit land and disputed land of way, for the simple reason
that the Trial Court has not recorded any prima facie finding that the
Plaintiffs were in exclusive possession of the said lands. In the absence of a
foundational finding, namely, that prima facie the Plaintiffs are in
possession of the suit land and the disputed land of way, the consequent
relief of restraint proceeds on an assumption rather than on an adjudicated
or even prima facie established right. A temporary injunction of this nature
necessarily presupposes proof of possession, and where the pleadings and
material on record do not establish exclusive possession of the Plaintiffs
over the specific strip of land sought to be protected, the Court could not
have proceeded to exclude the Defendants from using the same as access.

32. Moreover, the present case concerns access over land. In such matters, a
court cannot proceed on a bare assumption that possession exists; instead, it
must undertake a reasoned analysis of whether the Plaintiff has established
possession with sufficient clarity to justify the restraint sought against the
Defendant. This requirement assumes greater significance where the relief
is not merely protective of a settled possession, but operates to prevent the
Defendant from using the land as ingress or egress. The impugned order, to
that extent, therefore suffers from a material infirmity.

33. It is also necessary to bear in mind that the balance of convenience which
existed when the impugned order came to be passed in October 2023 has

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Order dated 17th July 2026
AO-957-2023
Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

materially altered owing to subsequent events. Construction of Wings “D”
and “E” has admittedly been completed. Reports have been prepared
pursuant to directions issued by this Court. Clarifications have been
furnished by the Defendant No. 3 MCGM regarding the utilisation of FSI
and identification of the suit land. At the same time, the Occupancy
Certificate has also not been issued in view of the interim orders passed by
this Court. Consequently, the Court is now required to mould the interim
arrangement in the light of the present factual position while ensuring that
neither party suffers irreparable prejudice pending trial.

34. The reliance placed by the Plaintiffs on the decision in Gangubai Bablya
Chaudhary (supra) is of no assistance to them since the construction of
Wings “D” and “E” has already been completed. Hence, there is no question
of any irreversible or irreparable situation that would now be caused and
suffered by the Plaintiffs if the relief sought in prayer clause (a) of the
Notice of Motion is not granted in their favour.

35. Much emphasis was placed upon the offer made by Defendant No.1 to
deposit an amount of Rs. 50,00,000/- in order to secure the Plaintiffs’
alleged rights in respect of the suit land. Such an offer cannot, by itself, be
construed either as an admission of liability or as a recognition of the
Plaintiffs’ title. Equally, the refusal of the Plaintiffs to accept the said
proposal cannot prejudice their legal rights. Nevertheless, the willingness
expressed by Defendant No.1 to secure the Plaintiffs’ claim is a relevant
circumstance while considering an appropriate interim arrangement,
particularly when the construction already stands completed, and the suit
itself is yet to be tried.

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Order dated 17th July 2026
AO-957-2023
Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

36. Considering the above, I am of the prima facie view that the Trial Court was
justified in holding that the disputes relating to the title of the suit land, the
extent of the Plaintiffs’ rights in the disputed land of way, the true
interpretation of the agreement dated 28th August 2014, and the legality of
the use of the suit land and the disputed land of way by Defendant Nos.1
and 2 cannot be conclusively determined at the interlocutory stage. The
controversy is not confined merely to the interpretation of documents but
also involves disputed questions of title, identity of the properties, the effect
of subsequent mutations and surveys, and the conduct of the parties, all of
which necessarily require adjudication upon oral and documentary
evidence. Equally, allegations of fraud and fabrication are matters which
must necessarily await trial. Accordingly, any observations made in the
present order are purely prima facie and confined only to the adjudication of
these Appeals and the Trial Court shall decide the suit uninfluenced by any
observations contained herein.

37. The contention advanced on behalf of the Plaintiffs that the agreement dated
28th August 2014 conferred only a limited right to utilize the FSI/TDR
relatable to their share in the disputed land of way, namely, C.T.S. No.220
and permitted its use only in relation to Wings “A”, “B” and “C” cannot be
rejected outright at this stage. Equally, the contention of Defendant No.1
that the agreement conferred a continuing right to use the disputed land of
way as access and that such right has been acted upon after payment of
valuable consideration cannot also be brushed aside as devoid of merit. The
competing interpretations sought to be placed upon the agreement raise
arguable questions which cannot appropriately be decided on affidavits

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Order dated 17th July 2026
AO-957-2023
Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

alone.

38. Equally, the interim arrangement presently operating cannot be examined in
isolation from the subsequent factual developments. The Court is required
to balance competing equities. On the one hand, the Plaintiffs have
established the existence of serious triable issues concerning their
proprietary rights and the legality of the use of the disputed properties. On
the other hand, the construction has been completed, substantial
investments have admittedly been made, and the rights of third parties may
also become involved. The balance of convenience which existed at the
time when the Trial Court passed the impugned order has thus undergone a
material change.

39. Accordingly, all three Appeals from Order, namely, (i) Appeal from Order
No. 957 of 2023 preferred by the Plaintiffs; (ii) Appeal from Order (St.) No.
31717 of 2023 preferred by Defendant No. 1; and (iii) Appeal from Order
No. 995 of 2023 preferred by Defendant No. 2, are hereby disposed of, in
terms of the following order:

::ORDER::

(i) In view of the admitted completion of construction of Wings “D”
and “E” of the Veerdhaval Building, the relief sought by the
Plaintiffs in prayer clause (a) of the Notice of Motion restraining
further construction has been rendered infructuous. Such
completion, however, shall not create any equities in favour of

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Order dated 17th July 2026
AO-957-2023
Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

Defendant Nos.1 and 2 and shall remain subject to the ultimate
outcome of the suit.

(ii) The injunction granted by the Trial Court in terms of the second
part of prayer clause (b) of the Notice of Motion, restraining
Defendant Nos. 1 and 2 from using the suit land bearing C.T.S.
No. 227/1 and the disputed land of way bearing C.T.S. No. 220,
as access to Wings “D” and “E” of the Veerdhaval Building is
hereby set aside.

(iii) Consequently, in order to balance the competing equities while
ensuring that neither party suffers irreparable prejudice and that
the final adjudication of the suit is not rendered nugatory,
Defendant No. 1 shall deposit a sum of Rs. 50,00,000/- (Rupees
Fifty lakhs only) before the Trial Court which amount shall be
invested by the concerned Department/Registry of the City Civil
Court in a fixed deposit of a nationalized bank as per the Rules
and which deposit shall be renewed from time to time and shall
be subject to further orders of the Trial Court and the outcome of
the suit. Such deposit shall be made on or before 15 th August
2026. It is clarified that this deposit shall remain without
prejudice to the rights and contentions of all parties.

(iv) The Trial Court shall decide the suit as expeditiously as possible,
and preferably by the end of 2027, being uninfluenced by any
observations contained in this order which are purely prima facie
in nature and confined only to the adjudication of the three

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Order dated 17th July 2026
AO-957-2023
Chandrakant Joshi & Ors. vs. Shree Durga Vastu
Makers Pvt. Ltd. & Ors.

Appeals before this Court.

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

(vi) All pending Interim Applications taken out in the three Appeals
from Orders, if any, also stand disposed of in terms of this order,
and all interim orders passed therein, if any, shall stand vacated.

( FARHAN P. DUBASH, J. )

40. By an order dated 3rd October 2025 passed in the Appeal/s, this Court had
directed Defendant No. 3 MCGM not to grant the Occupancy Certificate in
respect of “D” and “E” Wings to Defendant No. 1 till the next date. The said
order has been extended from time to time and has continued till today.
After pronouncement of today’s order, Ms. Tatake, learned counsel who
appears on behalf of the Plaintiffs, seeks continuation of the said relief
granted to her clients for a further period of six weeks from today to enable
the Plaintiffs to take out an appropriate application seeking similar and/or
other reliefs before the Trial Court.

41. Considering that the said order has been in operation since 3 rd October
2025, the same is hereby extended till 18th August 2026.

( FARHAN P. DUBASH, J. )
Shubham Gadhavepatil

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Order dated 17th July 2026

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