Bombay High Court
DEVENDRA JAYSING SHINDE AND ORSversusKONKAN ANGAN A WING CO OP. SOCIETY LTD. THR. ITS CHAIRMAN 1) S. R. TAYDE, 2) S. M. DALVI AND ORS
- Decided
- Disposal
- Dismissed
- Bench
- N JAMADAR
Holding
The plaint cannot be dismissed on the ground of area discrepancy, and a Section 11 certificate does not bar a suit for title.
Summary
The petitioners, who are defendants in a suit for conveyance of land, challenged a civil judge's order rejecting their application to dismiss the plaint under Order VII Rule 11 of the CPC. They argued that the area of land for which the plaintiff society sought unilateral deemed conveyance (647.21 sq.m.) differed markedly from the larger area claimed in the suit (2126.33 sq.m.), and that this discrepancy should justify dismissal of the suit. The court held that such a discrepancy is not a threshold ground for rejecting a plaint; the entitlement to conveyance under Section 11 of the Maharashtra Ownership Flats Act, 1963, is a matter for trial, and the summary inquiry under that section does not determine title. Consequently, the order rejecting the petitioners' application stands, and the writ petition is dismissed. The decision reaffirmed that a certificate under Section 11 does not bar a properly constituted suit on title.
Issues considered
- Whether a discrepancy between the area of land claimed in a Section 11 application and the area claimed in a suit is a ground to reject the plaint under Order VII Rule 11 of the CPC.
- Whether a certificate of unilateral deemed conveyance under Section 11 of the Maharashtra Ownership Flats Act, 1963, precludes the aggrieved party from instituting a suit for title.
Legislation cited
Subjects
- conveyance
- Section 11
- MOFA 1963
- discrepancy in land area
- Order VII Rule 11
- summary inquiry
- title suit
- civil procedure
Judgment
2026:BHC-AS:31687
9 wp 8992 of 2026.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8992 OF 2026
Devendra Jaysing Shinde and Ors. ... Petitioners
versus
Konkan Angan ‘A’ Wing co-op. Society Ltd.
and Ors. … Respondents
Mr. Onkar Warange, for Petitioners.
Mr. Y.S.Kochare, “B” Panel Counsel for State.
CORAM: N.J.JAMADAR, J.
DATE : 31 JULY 2026
ORDER :
1. Heard Mr. Warange, the learned Counsel for the Petitioners.
2. The challenge in this Petition is to an order dated 4 May 2026 passed
by the learned Civil Judge, Sr. Division, Mahad, whereby the application
preferred by the Petitioners – Defendant Nos.2 to 4 and Defendant No.1, for
rejection of the plaint under the provisions of Order VII Rule 11 of the Code of
Civil Procedure, 1908, came to be rejected.
3. Respondent No.1 – Plaintiff has instituted a suit seeking conveyance in
respect of the property described in the plaint along with the admissible FSI
thereof and the allied reliefs. Defendant Nos.1 to 4 filed an application for
rejection of the plaint raising myriad grounds, ranging from the suit claim
being under-valued to the suit being barred by the provisions of the
Maharashtra Ownership Flats (Regulation of the Promotion of Construction,
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9 wp 8992 of 2026.doc
Sale, Management and Transfer) Act, 1963. Learned Civil Judge, Mahad, did
not accede to any of the submissions.
4. Mr. Warange, learned Counsel for the Petitioners, confined the
challenge primarily to the discrepancy in the area of the land in respect of
which unilateral deemed conveyance application was filed by the Plaintiff –
Society before the Competent Authority, and, the area of the land in respect of
which such conveyance was claimed in the instant suit. It was submitted that
the claim for conveyance in respect of the area admeasuring 2126.33
sq.mtrs., is far in excess of the area claimed in the application under Section
11 i.e. 647.21 sq. mtrs. only. Therefore, the suit seeking conveyance in
respect of the expansive area to which the Respondent No.1 is, on its own
showing, not entitled to, deserves to be nipped in the bud.
5. I am afraid to accede to the submissions of Mr. Warange. The
entitlement of the Respondent No.1 Society for conveyance in accordance
with the contractual and the statutory obligations contained in Section 11 of
the MOFA 1963, is a matter of trial. The discrepancy in the area claimed
before the Competent Authority and in the instant suit, even if taken at par, by
no stretch of imagination, can be a ground to reject the plaint at the threshold.
6. Moreover, it is well recognized that under Section 11 of the MOFA,
1963, the Competent Authority has to conduct a summary inquiry and
discharge a statutory function of granting certificate of unilateral deemed
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9 wp 8992 of 2026.doc
conveyance, if the requisite conditions are satisfied. The Competent Authority
cannot embark upon an inquiry as to the title of the property. Nor the order
passed by the Competent Authority under Section 11 of the MOFA 1963,
precludes the aggrieved party from instituting a properly constituted suit
based on title. A useful reference in this context can be made to the judgment
of the Supreme Court in the case of Arunkumar H. Shah HUF V/s. Avon
Arcade Premises Co-op. Society Ltd. and Ors.1.
7. For the foregoing reasons, the Writ Petition does not deserve to be
entertained.
8. The Writ Petition stands dismissed.
( N.J.JAMADAR, J. )
1 (2025) 7 SCC 249
SSP 3/3
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 01/08/2026 15:42:15
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