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of <h1>Appeal Partly Allowed: Court Upholds Property Sale Agreement, Modifies Injunction on FSI/TDR, Denies Right of Way Injunction.</h1> <h3>Chheda Housing Development Corporation Versus Bibijan Shaikh Farid</h3> Chheda Housing Development Corporation Versus Bibijan Shaikh Farid - 2007 (3) MhLj 402 Issues Involved:1. Prima facie case for specific performance of the agreement.2. Entitlement to an injunction to restrain the respondents from alienating, transferring, or using the TDR available from the suit plot.3. Grant of injunction concerning the right of way.Detailed Analysis:1. Prima Facie Case for Specific Performance of the Agreement:The court first addressed whether the appellants made a prima facie case that the agreement was for sale and not merely for security or development. The learned Single Judge, after examining the various documents, concluded that the agreement was indeed an agreement to sell and could be specifically enforced. The respondents needed to prove that this finding was perverse, but the appellate court upheld the trial court's view, noting that it was a plausible interpretation based on the material presented. The court also referenced several judgments to underline that specific performance of a contract for immovable property is generally enforceable unless proven otherwise.2. Entitlement to an Injunction to Restrain the Respondents from Alienating, Transferring, or Using the TDR:The court examined whether the appellants were entitled to an injunction to prevent the respondents from dealing with the TDR (Transfer of Development Rights) or FSI (Floor Space Index) from the suit plot. The court noted that FSI/TDR is a benefit arising from the land and thus constitutes immovable property, which can be specifically enforced. The court found that the appellants were entitled to use the FSI of the property and the additional FSI from the remaining property, but not necessarily the slum TDR, which would require the respondents to purchase it from the market. The court concluded that the learned Single Judge erred in clarifying the order to exclude the appellants' right to the additional FSI/TDR from the suit plot. Consequently, the court set aside the clarification made in para.46 of the impugned order.3. Grant of Injunction Concerning the Right of Way:The appellants sought an injunction for a right of way through Plot No. 2A to Plot A-2 of the respondents' property. The court found that this was not an easement of necessity or prescription but rather a contractual term for access. Since the plot had been subdivided and sanctioned by the Planning Authority, and Plot No. C-2 had independent access, the court agreed with the learned Single Judge's decision not to grant the injunction. The court held that the appellants failed to demonstrate irreparable loss or injury at the interim stage concerning access.Conclusion:The appeal was partly allowed, setting aside para.46 of the impugned order, which had clarified the injunction concerning the additional FSI/TDR. The cross objections filed by the respondents were rejected, and each party was ordered to bear their own costs.
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