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Bhavesha Suresh Goradia v/s Aviation Travels Pvt. Ltd. & Others

    NOTICE OF MOTION NO.1847 OF 1994 IN SUIT NO.2865 OF 1994

    Decided On, 02 September 1997

    At, High Court of Judicature at Bombay

    By, THE HON'BLE MR. JUSTICE A.Y. SAKHARE

    Mr.S.H.Doctor with Mr.Shekhar Shetty i/b Pandya Gandhi & Co. for plaintiff. Mr.V.V.Tulzapurkar with Mr.D.H.Mehta for defendant No.1. Mr.M.H.Shah for proposed deft. No.1-A. Mr.Virag V.Tulzapurkar with Mr.A.Y. Bookwala for defendant Nos. 2 to 6.



Judgment Text

P.C.


This motion is taken out by plaintiff for seeking various reliefs. As far as prayer clause (b) is concerned, the same is not pressed. Defendant Nos. 2 to 6 are trustees. Plaintiff and defendant Nos. 7 to 23 are beneficiaries. The suit is filed for claiming sum of Rs.1 crore from the defendant No.1 and for injunction. The Trust is the owner of the property. Property is described at Ex.`A' page 37 of the plaint. Trustees, by oral agreement agreed to sell certain areas from the property to defendant No.1. Defendant No.2 is a partnership firm of which defendant No.1 is one of the partner. Area agreed to be sold and in possession of defendant Nos. 1 and 2 is as follows :

"2000 square feet in basement.

500 square feet for covered parking space (Porch),

2700 square feet covered portion on the first floor,

5700 open terrace on the first floor and

200 square feet for the lift and the corridor."

Oral agreement is reflected in letter addressed by defendant No.1 to Messers Presidency Centre. On this basis defendant Nos.1 and 2 claim to be in possession of the area. Dispute between the parties is now restricted to drive-way/passage shown in Yellow colour in plan Ex.`B-1' to the plaint and toilet block marked `Z' on the plan Ex.`B-1' and open space. Plaintiff claims that defendant Nos.1 and 2 are not entitled to prevent her from having ingress and egress on the drive-way passage and using or utilising toilet blocks. Plaintiff claims that defendant Nos.1 and 2 are not entitled to use the open terrace of the building. From the record it appears that drive-way/passage and toilet blocks are not sold or agreed to be sold to defendant Nos.1 and 2. Affidavit in reply of defendant No.1 states that the trustees agreed to convey the said portion to them and, therefore, they are entitled to utilise the same to the exclusion of plaintiff. The relevant averments are in para-10 of the affidavit of K.Shrinivas Rao dated 20.7.1994. Considering the pleadings of the parties as far as drive-way/passage and toilet blocks are concerned, prima-facie, defendant Nos.1 and 2 have no legal rights to prevent plaintiff from using the same. Defendant Nos.1 and 2 claim that drive-way/passage goes to their Cafe and by granting any relief to plaintiff safety and security of their Cafe is likely to be disturbed and nuisance is likely to be caused. On that plaintiff cannot be prevented from using drive-way/passage and toilet blocks. Thus, defendant Nos.1 and 2 are directed to permit the plaintiff to have ingress and egress on the drive-way/passage shown in Yellow colour in plan Ex.`B-1' during 9.00 a.m. to 10.00 p.m. It is made clear that plaintiff will not be entitled to block the said passage by parking car or any goods and liberty is only to the extent of having ingress and egress. It is made clear that plaintiff should not cause any nuisance or obstruction to defendant Nos. 1 and 2, their servants, agents and customers from using the said drive-way/passage. As far as plaintiff's relief qua toilet blocks is concerned, defendant Nos. 1 and 2 to permit plaintiff to use toilet blocks, if she desires to do so between 9.00 a.m. to 10.00 p.m. with same restrictions as referred to above.

2.As far as prayer qua open terrace is concerned, it is defendant Nos.1 and 2's case that by obtaining permission from Commissioner of Bombay Municipal Corporation temporarily every year the said terrace is covered. Defendant Nos. 1 and 2 are directed to cover the open terrace only if and during the period in which permission is granted by the Commissioner of Bombay Municipal Corpora

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tion. 3.As far as prayer clause (a) is concerned, ad-interim order passed by this Court can be continued and parties to this suit have no objection to the same. As far as prayer clause a-(v) is concerned, considering the controversy between the parties, plaintiff will not be entitled for this relief. 4.Notice of motion to stand disposed of in aforesaid terms with no order as to costs.
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