JUDGMENT 1. The plaintiffs claim as lessee of a plot of land along with a bungalow thereon. Defendant no. 1 is a Co-operative Housing society whose property is presently under redevelopment carried out by defendant no. 2. According to the plaintiffs, defendant no. 1 is utilizing FSI of the plaintiffs' plot of land. The plaintiffs' plot of land along with the plot in the occupation of defendant no. 1 is described as "the Larger Plot" which was hitherto owned by defendant no. 3. Defendant no. 4 is the District Deputy Registrar of Co-operative Societies (DDR) who has issued order of deemed conveyance. Defendant no. 5 is the Municipal Corporation of Greater Mumbai (MCGM). Defendant no. 6 is the Slum Rehabilitation Authority. 2. In the suit the plaintiffs seek a declaration that plaintiffs are the lease holders of land ad-measuring G09.GG sq.mtrs pursuant to Indenture of Lease dated 29th February, 1980 read with Deed of Assignment dated 2nd December, 1981. In the alternative they seek declaration that they are entitled to exclusive use and occupation of said area of G09.GG sq.mtrs. Elsewhere the area is shown as 622 sq.mtrs ("Suit Land"). Out of G09.GG sq.mtrs, 522.56 sq.mtrs form the entitlement of the plaintiffs under the aforesaid lease of deed but to the extent of 87.10 sq.mtrs (approximately) the plaintiffs' claim ownership by virtue of prescription/ adverse possession. 3. Consequential relief of sub-division of land is sought by carving out G09.GG sq.mtrs or 522.56 sq.mtrs. The plea seeks a direction to defendant nos. 1 to 3 to transfer and convey residuary rights of the lease hold land ad-measuring G09.GG sq.mtrs. The plaintiffs also seek cancellation of an order of deemed conveyance dated 26th June, 2014 passed by defendant no. 4. Further declarations are sought to the effect that construction on the land to the extent it relates to 522.56/622 sq.mtrs is non-est and void ab initio. Injunctions are sought pending disposal of the suit in terms of the interim application. In the alternative, plaintiffs seek damages from defendant nos. 1 and 2 to the extent of Rs.250,00,00,000/-. 4. By this interim application the plaintiffs seek (a) To restrain defendant nos. 1 and 2 by an order of injunction from carrying out or continuing construction / development activities at the suit property and exploiting FSI and development potential of the Suit Land. (b) To restrain defendant nos. 1 and 2 to the extent of Rs.250,00,00,000/-. 4. By this interim application the plaintiffs seek (a) To restrain defendant nos. 1 and 2 by an order of injunction from carrying out or continuing construction / development activities at the suit property and exploiting FSI and development potential of the Suit Land. (b) To restrain defendant nos. 1 and 2 from disturbing the plaintiffs' possession and occupation of bungalow known as Amir House and land appurtenant thereto bounded by walls on four sides. (c) To restrain defendant nos. 1 and 2 from applying for and obtaining Completion Certificate or Occupation Certificate of the buildings being constructed by defendant nos. 1 and 2. (d) A direction to the MCGM - defendant no. 5 and SRA- defendant no. 6 to restrain them from granting further permissions. (e) To prevent the construction activity touching or falling within the boundary wall of the plaintiffs' bungalow and appurtenant land. (f) A mandatory order directing defendant nos. 1 and 2 to forthwith restore status quo ante qua a 15 feet road access to the bungalow. 5. At the hearing of the interim application it became evident that plaintiffs' occupation and possession of lease hold land of 522.56 sq.mtrs, the bungalow standing thereat and right to use the access road were admitted. Accordingly in the course of proceedings parties arrived at consent terms. Defendant no. 1 has agreed not to obstruct the exclusive use, occupation and possession of the plaintiffs' on the suit land ad-measuring 522.56 sq.mtrs and the bungalow standing thereon. Defendant no. 1 also agreed to restore and has since rightly restored status quo ante qua the 15 feet wide road access to the bungalow. Thus the bungalow and land upon which it is constructed appurtenant thereto to the extent of 522.56 sq.mtrs and access thereto are protected. The suit therefore continues in relation to the area in excess of 522.56 sq.mtrs upon which plaintiff have constructed a boundary wall surrounding the bungalow. 6. The consent terms were made an order of the Court on 16th December, 2020. Parties thereafter agreed and have filed written submissions to enable final disposal of the interim application. Brief oral submissions were also made by parties reiterating the written submissions. According to the plaintiffs' the following documents are admitted; (i) An Indenture of Lease dated 29th February, 1980 between defendant no. Parties thereafter agreed and have filed written submissions to enable final disposal of the interim application. Brief oral submissions were also made by parties reiterating the written submissions. According to the plaintiffs' the following documents are admitted; (i) An Indenture of Lease dated 29th February, 1980 between defendant no. 3 as less or and one Vallabhdas Jethabhai as lessee granting a lease of 999 years, (ii) A Deed of Assignment executed on 2nd December 1981 between Vallabhdas Jethabhai as assignor of the plaintiffs' for the remainder of the term of 999 years along with bungalow. 7. It is contended by Mr. Sancheti that in pursuance of the admitted documents, the plaintiffs' have been in continuous possession and occupation of the suit land forming part of the "larger property" The plaintiffs' are said to be in exclusive occupation and possession of 622 sq.mtrs of land forming the larger part and hereinafter referred to as "the Suit Land" although the lease is in respect of 522.56 sq.mtrs. He submitted that this area was bounded by wall on all four sides. Defendant no. 1 has now contended that the plaintiffs' by putting up the boundary wall have encroached into the area owned by defendant no. 1. The boundary wall has been constructed about 39 years ago to the knowledge of the defendant no. 1 and the plaintiffs are in settled open, uninterrupted and hostile possession and therefore have acquired it by prescription and are owners of 609.66 sq.mtrs of land i.e. 522.56 sq.mtrs and the balance land within the four walls and that the plaintiffs cannot be dispossessed of except by the due process of law. 8. According to Mr. Sancheti the wall has been in existence from 1981 without any objection from defendant no.1. He relies upon report dated 30th March, 2015 submitted by the Land Records department in support. Defendant nos. 1 and 2 are apparently proposing to illegally demolish the boundary wall, dispossess the plaintiffs and encroach upon the Suit Land for construction of car parking structure and recreational garden. He relies upon notice dated 18th April, 2018 where defendant no. 1 called for a meeting on 22nd April, 2018 interalia noting the proposal whereby defendant no. 2 intended to take possession of 122 sq.mtrs of land forming part of the larger Suit Land by demolishing the existing bungalow and reconstructing the same on the lesser area of 400 sq.mtrs. He relies upon notice dated 18th April, 2018 where defendant no. 1 called for a meeting on 22nd April, 2018 interalia noting the proposal whereby defendant no. 2 intended to take possession of 122 sq.mtrs of land forming part of the larger Suit Land by demolishing the existing bungalow and reconstructing the same on the lesser area of 400 sq.mtrs. He therefore submitted that the plaintiffs are entitled to be protected against such forcible possession. Submissions were also made with regard to 15 feet access road. However now that apprehension does not survive in view of the consent order. 9. Mr. Sancheti has questioned the deemed conveyance order passed by defendant no. 4 on 26th June, 2014 granting conveyance of the larger plot. It is relevant to note that defendant no. 3 had conveyed his no objection unilaterally to the grant of deemed conveyance subject to indenture of lease in favour of the plaintiffs. It is therefore not in dispute that under the lease the plaintiffs were entitled to only 522.56 sq.mtrs but are occupying the Suit Land ad-measuring 609.66/622 sq.mtrs in respect of which relief is sought. 10. Mr. Sancheti has assailed the conduct of the defendants in not having sub-divided the land despite clause 7 of the lease deed providing if and when sub-division of the demised land is possible or permissible the less or (defendant no. 3) shall convey, transfer and assign the reversionary rights in the demised land unto the lessee Vallabhdas Jethabhai. The need for sub-division was apparently recognized by defendant no. 1 when he had entered into MOU with M/s. Rite Developers on 11th April, 2013 wherein the said developers were to take up the matter after negotiation with the less or for sub-division and separate demarcation of an area of 400 sq.mtrs demised by the less or in favour of Jethabhai along with right of deed. According to Mr. Sancheti defendant no. 1 reneged on the deal and has since replaced M/s. Rite Developers with Defendant no. 2 which has since taken over development activities. Defendant no. 1 has apart from failing to subdivide the plot has allegedly usurped the FSI of the plot wrongfully. 11. According to Mr. According to Mr. Sancheti defendant no. 1 reneged on the deal and has since replaced M/s. Rite Developers with Defendant no. 2 which has since taken over development activities. Defendant no. 1 has apart from failing to subdivide the plot has allegedly usurped the FSI of the plot wrongfully. 11. According to Mr. Sancheti clause 1 and 5 (c) of the Lease deed entitle the lessee Vallabhdas Jethabhai to not only construct the building, but also to demolish and reconstruct on the plot from time to time during the lease term of 999 years subject to renewal for a further equivalent period. There are no restrictions on the extent of construction whether it be 189 sq. mtrs or 400 sq.mtrs. The property being vested in the lessee and having been assigned to the plaintiffs under the deed of assignment dated 2nd December, 1981 the plaintiffs are entitled to all benefits of the Suit land in the aforesaid terms. 12. Reliance is placed on the decision of Chheda Housing Development Corporation vs. Bibijan Shaikh Farid [ 2007(3) Mh.LJ. 402 ] which, holds that FSI is a benefit arising out of the land. According to Mr. Sancheti defendant no. 2 has worked out the FSI in a manner such that all FSI of the larger plot excluding 400 sq.mtrs is being consumed by defendant no. 1. Referring to the defense to the extent that the bungalow consumed only FSI of 166 sq.mtrs Mr. Sancheti submitted that the defendants compilation of documents itself reveals an approved plan dated 17th September, 2019 which records that the built up area of the existing bungalow is 400 sq.mtrs and that a statement has been made in the reply to the effect that built up area of 400 sq.mtrs and its 3 5% fungible area has been kept aside as set out in paragraph 21 of the reply. This is said to be a false statement since approved plan does not so indicate that 35% FSI has been kept aside. However in my view this is not an aspect that was unknown to the plaintiffs. 13. Mr. Sancheti therefore contended that the defendants wrongfully seek to take advantage of additional FSI available of the Suit Land. The plaintiffs rely upon a report dated 17th July, 2020 issued by Architect Mr. However in my view this is not an aspect that was unknown to the plaintiffs. 13. Mr. Sancheti therefore contended that the defendants wrongfully seek to take advantage of additional FSI available of the Suit Land. The plaintiffs rely upon a report dated 17th July, 2020 issued by Architect Mr. Suhas M. Borole, M/s. S. B. Associates, Architects, Designers and Planners which apparently fortifies the plaintiffs' case as to how defendant nos. 1 and 2 have wrongfully and illegally sought to utilize the FSI of the larger plot and proposed redevelopment structure which includes car parking which will breach the boundaries of the compound wall. I may observe here that despite this report having been obtained on 17th July, 2020 the plaint is presented only on 2nd October, 2020. 14. According to Mr. Sancheti the plan sanctioned by the Corporation on 17th September, 2019 and filed by defendant no.1 indicates that a very tall parking lot is proposed to be constructed after razing the plaintiffs boundary wall. Part of the Suit land would be forcibly taken possession of and it also would block the air, light and ventilation of the plaintiffs bungalow. The construction would also gravely impede the ability of the plaintiffs to construct a new bungalow which plaintiffs are entitled to. Mr. Sancheti therefore submitted that he is entitled to ad-interim relief as prayed for. 15. In the course of submissions reliance is placed upon the following decisions : (i) Zainul Abedin Yusufali Massawawala & Ors. vs. The Competent Authority District Deputy Registrar of Co-operative Housing Societies, Mumbai & Or., Writ Petition no. 2163 of 2014 (ii) Rame Gowda (Dead) by Lrs. vs. M. Varadappa Naidu (Dead) by Lrs and Another, 2004) 1SCC 769 (iii) Krishna Ram Mahale (Dead) by Lrs. vs. Mrs. Shobha Venkat Rao, 1989) 4 SCC 131 (iv) Principal Secretary, Government of Karnataka & Anr. vs. Ragini Narayan and Anr, (2016) 10 SCC 424 . (v) Chheda Housing Development Corporation vs. Bibijan Shaikh Farid and Ors., ( 2007 (3) Mh. L.J. 402 16. Opposing the application on behalf of defendant no. 1 Mr. Kamdar submitted that the defendant no. 1-Society consists of 56 members who were flat owners and were presently out of their premises since the redevelopment commenced. The plans for the building were sanctioned on 1st April, 1975. L.J. 402 16. Opposing the application on behalf of defendant no. 1 Mr. Kamdar submitted that the defendant no. 1-Society consists of 56 members who were flat owners and were presently out of their premises since the redevelopment commenced. The plans for the building were sanctioned on 1st April, 1975. Society is in existence since 1977 and buildings are constructed around 1975 and the bungalow in 1976. Flats were sold between 1975 to 1978. The members have occupied it since 1979. According to Mr. Kamdar the plaintiffs' assignor Jethabhai had obtained lease hold rights only for 522.56 sq.mtrs. That lease deed has not been registered. Subsequently the assignment deed is dated 2 nd December, 1981. This assignment in favour of the plaintiffs is registered only on 28th September, 2016. 17. Mr. Kamdar submitted that around the year 2015 the society's buildings being dilapidated, were sought to be redeveloped and possession was handed over by all the flat holders. Sanction of plans were sought on 10th February, 2016. They were approved on 7th December, 2016. A Commencement certificate came to be issued on 12th February, 2017 and since then the new buildings have been constructed and finishing works are in progress. Meanwhile on 26th June, 2014 defendant no. 1 obtained an order of deemed conveyance as aforesaid. The plaintiffs filed a Writ Petition (L) no. 3178 of 2018 challenging the issuance of not only deemed conveyance but also Intimation of Approval and Commencement Certificate. Injunction was sought against issuance of Occupation Certificate. A declaration was sought pertaining to wrongful utilization of FSI but relief was granted. The Writ Petition was subsequently dismissed on 9th April, 2019 for default only to be restored and withdrawn on the ground that they have availed of an alternate remedy viz. this Suit. According to Mr. Kamdar the present suit and interim application is one more attempt to get the same relief. Mr. Kamdar therefore submitted that no relief ought to be granted. 18. According to Mr. Kamdar the original owner conveyed the larger property including the suit land and the land on which society has been constructed. Defendant no. 3 constructed two buildings Wing 'A' and Wing 19. Mr. Kamdar submitted that the agreements under MOFA executed by defendant no. Mr. Kamdar therefore submitted that no relief ought to be granted. 18. According to Mr. Kamdar the original owner conveyed the larger property including the suit land and the land on which society has been constructed. Defendant no. 3 constructed two buildings Wing 'A' and Wing 19. Mr. Kamdar submitted that the agreements under MOFA executed by defendant no. 3 during 1975 to 1978 contemplate lease in favour of Jethabhai (predecessor in title of the plaintiffs) not exceeding 400 sq.mtrs but the sale deed was executed for an area of 522.56 sq.mtrs. According to Mr. Kamdar FSI of 189.61 sq.mtrs was all that remained since the balance had been utilized for Wings 'A' and 'B'. Refuting the contention that the plaintiffs' were entitled to 609.66 sq.mtrs as lessee he submitted that the plaintiffs' rights are restricted to 522.56 sq.mtrs. Claim for balance 87.10 sq.mtrs or thereabouts is by way of ownership and adverse possession. That the plaintiffs are deliberately seeking to obstruct completion of defendant no. 1's development. He refuted plaintiffs contention of being in possession as a hostile and true owner. He submitted that the plaintiffs are trespassing on the land of the true owner. 20. As regards utilization of FSI Mr. Kamdar reiterated that the FSI of189.61 sq.mtrs has not been utilized by the society. The plaintiffs cannot claim to utilize all FSI of 609.66 sq.mtrs. They are not owner nor lessees of 609.66 sq.mtrs. The balance FSI after constructing bungalow and accruing from 522.56 sq.mtrs had already been exhausted and utilized in constructing the society buildings in 1975 itself. Therefore balance of convenience is in favour of the defendants. 21. Reliance is placed on the decisions of Amirchand Tulsiram Gupta & Ors. v. Vasant Dhanaji Patil & Ors, 1992 (94) BomLR 965] and Premji Ratansey Shah v. Union of India, (1994) 5 SCC 547 . Mr. Kamdar also relied upon compilation of documents consisting of sanctioned plan. 22. On behalf of defendant no. 2 Mr. Narula adopted Mr. Kamdar's submission. He supported defendant no. 1. 23. Having considered the factual background and submissions at the bar I am of the view that the plaintiffs are entitled to protection only to the extent that defendant nos. 1 and 2 cannot forcibly demolish the wall and without following due process. On behalf of defendant no. 2 Mr. Narula adopted Mr. Kamdar's submission. He supported defendant no. 1. 23. Having considered the factual background and submissions at the bar I am of the view that the plaintiffs are entitled to protection only to the extent that defendant nos. 1 and 2 cannot forcibly demolish the wall and without following due process. The legal position is claim to ownership by virtue of prescription/ adverse possession is an aspect that needs to be gone into at the hearing of the suit. Today what is material is whether the wall which is in existence can be demolished by defendant nos. 1 or 2 without following due process and the answer must be in the negative. 24. In the course of submissions I had enquired with Mr. Kamdar as to when the wall was constructed, to which defendant no. 1 had no concrete answer. I have therefore proceeded on the basis that the wall was in existence as contended by the plaintiffs for a very long time and probably since 1981. Apparently there was no resistance from the society when the wall was constructed. Had the society been diligent at that time and if it had been constructed in the property that was falling within the society's entitlement and not part of the lease deed and the assignment in favour of the plaintiffs, one would expect that construction of the wall would have been resisted. The society would have raised this issue during or soon after its construction but it has not done so. The fact that the wall is in existence for long time is not in dispute. This also appears to have been recognized by defendant no. 2 and thus became evident from the letter dated 20th June, 2018 Exhibit G to the plaint whereby defendant no. 1 in its communication addressed to defendant no. 2 referred to negotiations between the plaintiffs, defendant nos. 1 and 2 contemplating acquisition of 122.56 sq.mtrs of the land from the plaintiffs. The society had granted permission in this behalf and the plaintiffs had requested for conveyance of balance plot of 400 sq. mtrs. Negotiations at that time could not have ignored the fact that the wall had been constructed. 25. Furthermore Exhibit W to the plaint is a letter dated 8th March, 2014 addressed by defendant no. 2 to defendant no. The society had granted permission in this behalf and the plaintiffs had requested for conveyance of balance plot of 400 sq. mtrs. Negotiations at that time could not have ignored the fact that the wall had been constructed. 25. Furthermore Exhibit W to the plaint is a letter dated 8th March, 2014 addressed by defendant no. 2 to defendant no. 1 - society which defendant no. 1 appears to have circulated to all members of the society for discussions at meeting then proposed to be held on 15 th March, 2014. In that letter sub-para (a) certain facts are enumerated. The first of these reads as under. a. The area of plot under possession of bungalow is 622 sq.m much more than lease area of 522 sq.m as per flat sale agreement. b. . (c) This admission has been pressed into service by the plaintiffs to emphasise that possession has not been disputed. 26. In my view therefore, plaintiffs have made out a prima facie case for protection against demolition of the wall enclosing the area of G09.GG / 622 sq.mtrs. This admission may be read with the affidavit in reply filed on behalf of defendant no. 1 in which the deponent Secretary of defendant no. 1 society states as follows in paragraph 13"(13) With further reference, since the said property is forming part of a Town Planning Scheme, there is no sub-division permissible. Further, in the land revenue records also there is no separate leasehold plot reflected which is in possession and occupation of the Plaintiff and which is forming part of the larger plot of land. Thus, construction of wall at the behest of Plaintiff is contrary to the settled provisions of Town Planning Scheme and as such is illegal and irregular and as such is required to be removed for which Defendant may have to follow due process and the Plaintiff will get equal opportunity to protest the claim of this defendant before the appropriate forum . (emphasis supplied) Thus the need to follow due process is recognised. The defendant cannot take law into their own hands and forcibly remove the wall. Due process will have to be followed and in that light of the matter I am of the view that limited protection would have to be granted. 27. (emphasis supplied) Thus the need to follow due process is recognised. The defendant cannot take law into their own hands and forcibly remove the wall. Due process will have to be followed and in that light of the matter I am of the view that limited protection would have to be granted. 27. Considering the wide sweep of the interim application I am of the view that defendants are not entitled to any other relief. The question of restraining the defendant nos. 1 or 2 from carrying out construction activity or developing the plot of the society to its full potential does not arise and cannot be granted at this stage nor can the defendant be restrained from applying for or obtaining completion certificate or occupation certificate. 28. In the facts of the case and considering the delay, there is no case for restraining MCGM or SRA from issuing any permissions or considering appropriate action against the defendants for alleged wrongly utilization of FSI. Such wrongful utilization has prima facie not been established since the rival contention of the plaintiff and defendants will have to be considered at the trial. Actual utilization of FSI can only be ascertained at the trial. Reliance placed by the plaintiffs on their Architect report will have to be tested. Both sides have contested actual utilization of FSI and in my view the plaintiffs have exhibited much lethargy, especially in view of the fact that the plaintiffs have been in possession of various documents annexed to the plaint for a substantially long period and there is no justification in not having sought relief earlier in point of time. Furthermore the manner of prosecution of the Writ Petition speaks for itself. Even otherwise the negotiations which the plaintiffs had in 2018 is evident from Exhibit G to the plaint. The plaintiffs waited for the order of deemed conveyance to be issued and thereafter file a writ petition belatedly and failed to prosecute it and eventually withdrew it after filing the present suit. 29. Reliance on the decision of this Court in Writ Petition 2163 of 2014 in relation to the challenge to the deemed conveyance appears to be by way of justification for having withdrawn the Writ Petition. However that does not justify its institution in the first place. 29. Reliance on the decision of this Court in Writ Petition 2163 of 2014 in relation to the challenge to the deemed conveyance appears to be by way of justification for having withdrawn the Writ Petition. However that does not justify its institution in the first place. The various other contentions of the plaintiffs also demonstrate the lackadaisical manner in which the plaintiffs have pursued their rights, if any. The question whether plaintiffs' possession would entitle plaintiffs to ownership cannot be considered at this stage and in that respect decisions relied upon by the plaintiff are not material except to state that the plaintiff cannot be dispossessed of the area beyond 522.56 sq. mtrs. by the defendants by taking law into their own hands. Recourse to due process cannot be side-stepped. 30. Considering the facts at hand the only aspect that comes to the plaintiffs rescue is that defendants had knowledge of the plaintiffs possession since long. Defendants have not been able to show that the construction of the wall was sought to be prevented at any time. They are unable to even state when the wall was put up. The existence of wall had not been a question over these long years and if the wall has been illegally constructed and on land that to which the plaintiffs had no right, its removal today would have to be subject to due process. In the facts and circumstances of the present case, the admission of the defendants in correspondence at Exhibit W dated 8th March, 2014 read with paragraph 13 of defendant nos. 1 s affidavit would justify the grant of protection. In view thereof I pass the following order. (i) There will be an interim order only in terms of prayer clause (b) which is reproduced below subject to liberty to the defendants to follow due process of law in relation to the proposed removal of the wall or the area in excess of 522.56 sq.mtrs. (b) That pending the hearing and final disposal of the Suit, this Hon'ble Court be pleased to restrain the Defendant Nos. 1 and 2, their servants and agents from in any manner disturbing the Plaintiffs' exclusive use, possession and occupation of the said Bungalow, viz. Amir House and the land appurtenant thereto and covered by the boundary wall on all four sides. 1 and 2, their servants and agents from in any manner disturbing the Plaintiffs' exclusive use, possession and occupation of the said Bungalow, viz. Amir House and the land appurtenant thereto and covered by the boundary wall on all four sides. (ii) Interim order dated 16th December, 2020 shall also continue to operate in terms of consent terms between parties till the disposal of the suit. (iii) Interim Application is disposed in the above terms. (iv) No costs.