Case Note & Summary
The petitioner, Shrikant Studios Pvt. Ltd., filed a review petition seeking to modify the order dated 30th August 2022 to permit it to put a gate and barbed wire fencing on its portion of sub-divided land. The land, bearing CTS No. 783(pt), was jointly owned by the petitioner and respondent No. 3 (Talwalkar). Pursuant to the earlier order, both parties independently applied to the City Survey Office for sub-division, which was carried out. The petitioner then sought permission from respondent No. 3 to lay a PNG pipeline and erect a gate with barbed fencing on its share abutting V.N. Purav Road, but received no response despite a letter dated 29th March 2023. The petitioner argued that after sub-division, each co-owner is entitled to use their respective share. The existing gate was too large and needed to be reduced to identify the petitioner's portion. The petitioner also accepted the sub-division as carried out by the City Survey Office. The court noted that the review petition was delayed by 223 days, but the delay was explained by respondent No. 3's reluctance to comply with the implied order. The court allowed the review petition, permitting the petitioner to erect a gate and barbed wire fencing on its portion of the sub-divided land, subject to no objection from respondent No. 3.
Headnote
A) Civil Procedure - Review Petition - Delay Condonation - Review petition delayed by 223 days - Court condoned delay as respondent No. 3 had shown reluctance to comply with implied order - Held that delay was sufficiently explained (Paras 4-5).
B) Property Law - Co-ownership - Sub-division of Land - Petitioner and respondent No. 3 jointly owned land bearing CTS No. 783(pt) - City Survey Office carried out sub-division - Both parties entitled to use and enjoy their respective shares - Held that petitioner could erect gate and barbed wire fencing on its portion (Paras 2-3).
Issue of Consideration
Whether the review petition should be allowed to permit the petitioner to put a gate and barbed wire fencing on its portion of sub-divided land.
Final Decision
Review petition allowed. Petitioner is permitted to put a gate and barbed wire fencing on that portion of the area on which the sub-division marking is done by the City Survey office pursuant to the order dated 30th August 2022, subject to no objection from respondent No. 3.
Law Points
- Review petition
- delay condonation
- sub-division of land
- co-owner rights
- gate and fencing
- City Survey
Case Details
2023 LawText (BOM) (08) 105
Review Petition (L) No. 11427 of 2023 in Writ Petition No. 1336 of 2022
Sunil B. Shukre, Kamal Khata
Mr. M.M. Vashi, Sr. Advocate a/w. Ms. Aparna Deokar i/b. M/s. M.P. Vashi & Associates for petitioner; Ms. Pooja Yadav a/w. Mr. Kunal Waghmare i/b. Sunil Sonawane, for respondent Nos. 1 and 2-BMC; Mr. Mayur Khandeparkar a/w. Mr. Viraj Parikh and Ms. Saloni Shah I/b. DSK Legal, for respondent No. 3; Mr. Suyash Balip S.I. (BP).
Shrikant Studios Pvt. Ltd.
Mumbai Municipal Corporation & ors.
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Nature of Litigation
Review petition seeking modification of order to permit gate and barbed wire fencing on sub-divided land.
Remedy Sought
Petitioner seeks permission to put a gate and barbed wire fencing on its portion of sub-divided land.
Filing Reason
Respondent No. 3 did not respond to petitioner's request to permit gate and fencing on petitioner's share of sub-divided land.
Previous Decisions
Order dated 30th August 2022 directed sub-division of jointly owned land by City Survey Office.
Issues
Whether the review petition should be allowed to permit the petitioner to put a gate and barbed wire fencing on its portion of sub-divided land.
Submissions/Arguments
Petitioner submitted that after sub-division, both parties are entitled to use their respective shares; existing gate is too large and needs reduction; petitioner accepts sub-division as carried out by City Survey Office.
Ratio Decidendi
After sub-division of jointly owned land, each co-owner is entitled to use and enjoy their respective share, including erecting a gate and fencing, subject to no objection from the other co-owner.
Judgment Excerpts
The Petitioner seeks a review of the order dated 30th August, 2022, to permit the Petitioner to put a gate and barbed wire fencing on that portion of the area on which the sub-division marking is done by the City Survey office pursuant to the aforestated order.
He on instructions stated that though in the review petition the sub-division is stated to be unacceptable, the Petitioners agree to accept the sub-division as carried out by the City Survey Office.
Procedural History
The petitioner filed Writ Petition No. 1336 of 2022, which was disposed of by order dated 30th August 2022 directing sub-division of jointly owned land by City Survey Office. Thereafter, the petitioner filed Review Petition (L) No. 11427 of 2023 seeking modification to permit gate and fencing. The review petition was delayed by 223 days. The court heard the matter on 25th July 2023 and pronounced judgment on 10th August 2023.
