The Chief Justice of India
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4307-4308 OF 2018
(Arising out of S.L.P.(C) Nos.2672-2673 of 2018)
Cornell Housing Infrastructure Pvt. Ltd. Appellant(s)
Versus
Smt. Geeta Patkar and Others Respondent(s)
O R D E R
Leave granted.
These appeals, by special leave, assail the order
dated 7 th
August, 2017, whereby the High Court of Judicature
at Bombay in appeal from Order No.511 of 2017, has affirmed
the order of injunction passed by the Civil Judge, Senior
Division, Thane.
On a perusal of the order passed by the High Court,
we find, after quoting few judgments, it has asribed reasons
which are to the following effect:-
�9. In the present case, both the parties
i.e., the appellant and respondent No.1/the
original plaintiff, both claimed rights
originally on the basis of the sale deed dated
5.10.1965. Further, the plaintiff claims right
on the basis of second document dated
7.10.1965, which was executed between Kantilal,
the plaintiff, and the other defendants. In
the said impugned registered document, of the
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total suit land admeasuring 315 acres,
percentages of all the co-sharers are
specifically mentioned. Kantilal, the original
predecessor in title of the appellant,
admittedly holds 48.2% shares by virtue of the
said document. The original plaintiff i.e.,
respondent No.1, holds 6 pies i.e., more than
3% in the suit property. Other defendants also
have shares in the property which are
specifically mentioned and out of which
Kantilal has further purchased 2.1% shares of
one Babubai and thus, Kantilal, the predecessor
in title , was having approximately 51% share.
Thus, the other persons including the original
plaintiff, are holding 49% undivided share in
the entire property. It is informed that one
or two co-sharers have also filed suits against
the present appellant. Thus, the plaintiffs in
the suit may be having 3.125% share in the
entire property but the total of other co-
sharers is 49% and hence, not at all
negligible. The appellant has challenged the
title of the respondent/original plaintiff and
also the document of 7.10.1965 is disputed.
However, it is a matter of evidence. At this
stage, the share of the appellant and the other
co-sharers comes to nearly 50% and, therefore
the appellant alone cannot be allowed to
transfer, alienate or develop the suit property
even to the extent of some share unless the
suit property is partitioned especially, when
he is predecessor-in-title who was a co-sharer
had abandoned the property to him without the
consent of other co-sharer earlier. The
submissions of the learned senior counsel that
the plaintiff has not asked for partition
cannot be appreciated at this stage because the
plaintiff does not want to transfer the
property and, therefore, she has sought only
declaration.
18. Thus, though the share of the present
plaintiff is 6 pies and 3.125% in the entire
suit property, the total undivided share of the
other co-sharers including the plaintiff�s
share is 49% and hence, it am of the view that
the order passed by the learned trial Judge is
correct and hence, not to be disturbed.�
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It is submitted by Mr. Harish N. Salve and Mr. Mukul
Rohatgi, learned senior counsel appearing for the appellants
that the plaintiff-respondent can at best make a claim of
49.25% of the shares in the property, but that would not
entitle it to stop development in the rest of the property.
Dr. Abhishek Manu Singhvi, learned senior counsel appearing
for the owner would submit in support of the appellant that
the development can take place in respect of the rest of the
property.
Mr. C.U. Singh, learned senior counsel appearing for
the respondent No.1 has serious objection to the aforesaid
submission. It is his contention that there was an agreement
between the owner and the respondent No.1 for a joint venture
in 1965. The property is asset of the joint venture and the
purchase was made of the undivided property.
A proposal has also been given by Mr. Salve and
Mr. Rohatgi that some appeals filed by the other plaintiffs
are pending before the High Court and they have no objection
if the appeals are allowed and the matter is remitted to the
trial Judge for Suit No.55 of 2010 to be tried along with
Suit Nos.78 of 2011 and 776 of 2011 and they should be
consolidated and tried by one Civil Judge, Senior Division.
Having heard learned counsel for the parties, we
think it appropriate that the High Court should consider
these aspects appropriately. However, as far as the present
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order of injunction is concerned, we are of the view that an
adequate analysis was not made by the High Court and,
therefore, the said order is set aside. The learned Single
Judge while considering the proposals may look into various
aspects and pass a reasoned order keeping in view the concept
of � prima facie case� , balance of convenience and irreperable
injury.
Liberty is granted to the parties to mention before
the High Court at Bombay.
In view of the aforesaid, the order of the High
Court is set aside. The appeals are disposed of accordingly.
The matter stands restored to the Single Judge for hearing
afresh.
..................CJI.
[Dipak Misra]
....................J.
[A.M. Khanwilkar]
....................J.
[Dr. D.Y. Chandrachud]
New Delhi,
April 20 , 2018.
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ITEM NO.35 COURT NO.1 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) Nos.2672-2673/2018
(Arising out of impugned final judgment and order dated 07-08-2017
in CAAST No. 22083/2017 07-08-2017 in AFO No. 511/2017 passed by
the High Court of Judicature at Bombay)
CORNELL HOUSING INFRASTRUCTURE PVT LTD Petitioner(s)
VERSUS
GEETA PATKAR & ORS. Respondent(s)
Date : 20-04-2018 These matters were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE A.M. KHANWILKAR
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
For Petitioner(s) Mr. Harish N. Salve, Sr. Adv.
Mr. Mukul Rohatgi, Sr. Adv.
Mr. Shyam Divan, Sr. Adv.
Mr. Praveen Samdani, Sr. Adv.
Mr. Kunal Vajani, Adv.
Mr. Pranaya Goyal, AOR
Mr. Aman Gandhi, Adv.
Ms. Ankita Sangwan, Adv.
Ms. Priykshi Bhatnagar, Adv.
For Respondent(s) Mr. C.U. Singh, Sr. Adv.
Mr. Anirudh B. Laad, Adv.
Mr. Anuvrat Sharma, AOR
Ms. Alka Sinha, Adv.
Mr. Rubin Vakil, Adv.
Mr. Nikhil Goel, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
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The appeals are disposed of in terms of the signed
order.
(Chetan Kumar) (H.S. Parasher)
Court Master Assistant Registrar
(Signed order is placed on the file)
