In a judgment delivered on October 1, 2026, the Court dismissed Appeal No. 8 of 2026 filed by Abdul Kader Abdul Latif and M/s Sopariwala Exports against Shah and Nahar Industrial Premises Co-operative Society Ltd., upholding the dismissal of their original dispute by the Co-operative Court.

The dispute, which dates back to 1999, concerned Unit No. 616 in the Society’s industrial premises at Worli and a 2,360 sq ft open terrace adjoining the 1,670 sq ft unit. The appellants claimed that the terrace had been purchased along with the unit and that the Society could not interfere with their use and possession of it.

The Appellate Court, however, found that the appellants had failed to establish a valid and legally enforceable conveyance giving them exclusive rights over the terrace.

The dispute over a 2,360 sq ft terrace

The appellants’ case was that Unit No. 616, measuring 1,670 sq ft, had been purchased along with the terrace.

They relied on an Agreement for Sale dated July 31, 1986, a subsequent Deed of Confirmation dated April 29, 1992, and an earlier Agreement for Sale dated February 15, 1985 between Shah and Nahar Developers and Gangama Trust.

The appellants also pointed to the Society’s conduct over several years. According to the record, maintenance bills issued by the Society had, for a period, taken into account both the 1,670 sq ft unit and the 2,360 sq ft terrace.

The appellants argued that this demonstrated that the Society itself had recognised the terrace as being attached to their unit.

The Society disputed this and maintained that its member was entitled to Unit No. 616, but not to exclusive ownership of the open terrace.

Why the maintenance bills did not establish ownership

One of the most significant findings in the judgment concerns the old maintenance bills.

The record showed that the Society had issued bills which included the terrace area along with the unit for a number of years. However, the Court held that this could not by itself create or establish a proprietary right in favour of the member.

The Court relied on the principle that a common area cannot become private property merely because a Society’s earlier managing committees treated it differently for maintenance or billing purposes.

In other words, the fact that the Society charged maintenance in respect of the terrace was not treated as proof that the Society had legally transferred ownership of the terrace to the member.

The Court observed that even if the Society had charged maintenance specifically for the terrace for a decade, “estoppel against a statute” could not apply. A mistake or wrongful billing practice by previous managing committees could not permanently convert a common area into private property unless it was supported by a valid title deed or registered conveyance.

This became a crucial weakness in the appellants’ case.

The terrace had to be legally conveyed, not merely described

The Court then examined the documents relied upon by the appellants.

A major difficulty was found in the Agreement for Sale dated February 15, 1985. Although the word “terrace” appeared in the document, the Court found that the reference was handwritten.

More importantly, the document did not provide a proper description, measurement or boundary of the alleged terrace. The terrace was also not included in the relevant schedule, no separate consideration was shown for it and the handwritten insertion was not countersigned by the parties.

The Court also noted that the witness relied upon by the appellants did not have personal knowledge of the execution of the document.

As a result, the Court held that the appellants had not established that the handwritten reference was sufficient to legally convey exclusive terrace rights.

“Unit No. 616 with terrace” was also not enough

The appellants also relied upon the Agreement for Sale executed between Gangama Trust and the appellants, which contained the expression “Unit No. 616 (with terrace).”

But the Court found that this did not resolve the fundamental problem.

There was no adequate evidence that Gangama Trust itself had acquired exclusive terrace rights from the original developer.

The Court applied the basic principle that a transferee cannot transfer a better title or interest than what the transferor itself possesses.

Therefore, even if the subsequent agreement referred to the terrace, the appellants first had to establish that Gangama Trust had legally acquired exclusive rights over that terrace.

The Court concluded that this had not been established.

Statutory and administrative records could not substitute for title

The appellants had also relied upon other records, including Form No. 37EE and a notice issued under Section 269D(1) of the Income Tax Act, 1961.

The Court did not treat these documents as proof of ownership.

It held that references to the terrace in such statutory or administrative records were incidental and did not constitute instruments transferring a proprietary interest in the terrace.

The central question was whether there was a valid legal conveyance of exclusive terrace rights. According to the Court, the appellants failed to prove this.

Why the Society’s case succeeded

The Society’s case ultimately benefited from the absence of legally established exclusive title in favour of the appellants.

The Court relied on earlier judgments concerning common areas and terraces, including the Supreme Court’s decision in Nahalchand Laloochand Pvt. Ltd. v. Panchali Cooperative Housing Society Ltd. and the Bombay High Court’s decision in Ramagauri Keshavlal Virani v. Owalkeshwar Triveni Co-operative Housing Society Ltd.

The principles from these decisions were applied to the evidence in the present case.

The Appellate Court concluded that once the appellants failed to establish that the terrace had been lawfully conveyed to them as an exclusive appurtenance of their unit, the terrace remained part of the common property of the Society.

Importantly, the Court’s conclusion was based on the failure to establish exclusive legal rights in the particular terrace involved in this dispute. It should not be read as an absolute declaration that every terrace associated with every flat or unit can never be subject to a valid exclusive right.

The “settled possession” argument also failed

The appellants had another line of argument.

They contended that they had been using the terrace for many years and therefore could not be dispossessed without following due process of law. They relied on the Supreme Court’s principle concerning protection of settled possession.

The Appellate Court rejected the argument in the circumstances of this case.

It distinguished between someone having independent, settled legal possession and an individual member exercising exclusive control over what the Court found to be common Society property.

According to the Court, the appellants’ use of the terrace did not establish independent lawful possession because the terrace was found to be a common amenity.

The Court further held that “due process” in a cooperative housing society context does not necessarily mean that the Society must institute a separate, lengthy civil eviction proceeding every time it seeks to reclaim common property.

Where the Society acts within its statutory and internal framework, or where the issue has already been adjudicated following a full trial, the requirement of due process may be satisfied.

What about allegations of force by the Society?

The judgment also deals with allegations that the Society had allegedly appointed people to remove the appellants from the terrace.

The Court noted that, if established, such conduct could amount to high-handed behaviour.

But it held that allegations concerning the Society’s conduct could not change the underlying legal position regarding ownership.

In other words, even if the Society’s conduct was questionable, that would not establish that the terrace was privately owned by the appellants.

The Court therefore kept the two issues separate: the manner in which the Society acted and the legal question of who had title to the terrace.

What ultimately went wrong for the member?

The appellants’ case effectively failed at the level of title.

They were able to point to years of use, old maintenance bills and references to a terrace in their documents. But the Court required something more fundamental: proof of a valid legal instrument transferring exclusive rights over the terrace.

The Court found that:

• the terrace was not properly described or demarcated in the original documents;
• the crucial handwritten reference to the terrace was not adequately proved;
• there was no clear measurement or boundary for the alleged privately owned terrace;
• the relevant schedules did not establish the terrace as part of the transferred property;
• the appellants could not establish that Gangama Trust itself possessed exclusive terrace rights capable of being transferred; and
• old maintenance bills could not create ownership where a valid conveyance had not been established.

The larger lesson for Society members

The judgment highlights an important distinction between use of a property and legal ownership of that property.

A member may have used an adjoining terrace for many years. The Society may even have historically calculated maintenance charges with reference to that area. But those circumstances, standing alone, do not necessarily establish exclusive ownership.

For a member claiming private rights over an area that would otherwise form part of the common areas, the documentation becomes critical.

The judgment indicates that the claim must be supported by a clear and legally valid conveyance rather than merely by historical use, billing practices or an ambiguous reference in an agreement.

At the same time, the judgment should not be interpreted to mean that every terrace connected to a flat or unit is automatically incapable of being subject to any exclusive right. The Court’s decision turned on the particular documents and evidence before it and, most importantly, the appellants’ failure to prove a valid conveyance of the terrace in question.

Appeal dismissed

The Maharashtra State Co-operative Appellate Court found no infirmity in the January 20, 2026 judgment of the Co-operative Court and upheld the dismissal of the original dispute.

Appeal No. 8 of 2026 was consequently dismissed, with both sides directed to bear their own costs.

For homebuyers and Society members, the central takeaway is clear: historical use or maintenance billing cannot, by itself, replace a valid legal conveyance when exclusive ownership of a common area is claimed.

Also Read: Housing Society Ordered to Pay ₹2 Lakh to Member Over Terrace Leakage

The post Terrace Is Common Property, Old Maintenance Bills Cannot Prove Private Ownership: Tribunal appeared first on Square Feat India.

Justice Sandeep V. Marne dismissed Writ Petition No. 15791 of 2025 on 27 August 2026. The petition was filed by 41 members of Saujanya Co-operative Housing Society Ltd., Koparkhairane, Navi Mumbai. The Court upheld earlier orders of the Co-operative Court, Thane (11 March 2025) and the Maharashtra State Co-operative Appellate Court (16 September 2025) rejecting their dispute under Order VII Rule 11 of the Civil Procedure Code.

What the members were fighting

The society has 69 independent ground-floor structures allotted to members in 1995-96 on a 3,200 sq m plot. Members say the structures are not 30 years old and do not need reconstruction.

The managing committee began the redevelopment process in 2016. Key special general body resolutions followed:

• 9 May 2021 – appointment of Project Management Consultant
• 8 August 2021 – authority to the Redevelopment Committee to select a developer
• 6 March 2022 – appointment of M/s Omkar Planet Buildcon as developer
• 28 May 2023 – further steps in the process

The Development Agreement and Power of Attorney were executed on 16 October 2023.

Members then filed two separate cases:

• Dispute No. CCT 201 of 2024 in the Co-operative Court, Thane, challenging only the four resolutions
• Special Civil Suit No. 145 of 2024 challenging the Development Agreement and Power of Attorney

The society applied for rejection of the co-operative dispute. Both lower courts agreed. The High Court has now confirmed that view.

Why the Co-operative Court cannot hear this case

The High Court relied on the Supreme Court judgment in Margret Almeida v. Bombay Catholic Co-operative Housing Society (2012).

The logic is practical, not technical.

Once the Development Agreement is signed, the developer has already acquired an interest in the society’s property. Under Section 94(3) of the Maharashtra Co-operative Societies Act, such a developer cannot be added as a party in the Co-operative Court if that interest was acquired before the dispute was filed. Impleadment is allowed only if the interest arises during the pendency of the dispute.

If the Co-operative Court then declares the resolution illegal, the developer — who is not a party — can ignore that order and rely on the already-signed agreement. Members would still have to go to the Civil Court to attack the title. The Civil Court would then examine the same resolutions all over again.

The High Court also pointed to the contradiction that can arise if the two cases move on different tracks. If the civil suit challenging the Development Agreement is dismissed first, and the Co-operative Court later holds the resolution illegal, members are left with a paper declaration that changes nothing on the ground.

What this means for homebuyers and society members

This is the part that matters for every member facing redevelopment.

1. Do not file two cases after the agreement is signed
Challenging only the resolutions in the Co-operative Court and the Development Agreement in the Civil Court is a wasted route. The High Court has said both must be decided by the same court.

2. The Civil Court can examine the resolutions as well
While deciding a challenge to the Development Agreement and Power of Attorney, the Civil Court can also test whether the general body resolutions were valid. Members do not lose that issue by going to the Civil Court. They gain a forum that can bind the developer.

3. Timing of the agreement decides the forum
In this case the agreement was signed on 16 October 2023. The co-operative dispute was filed in June 2024. Because the developer’s rights already existed, the Co-operative Court could not grant effective relief. Members who act before the agreement is executed may still have a different legal position. Once the paper is signed, the Civil Court is the correct forum.

4. Pleadings on “business of the society” still matter
The High Court also noted that the members’ plaint itself said redevelopment started in 2016 — before the 2019 amendment that added demolition and reconstruction to the definition of a housing society. There was no pleading that redevelopment is an object of this society or that its bye-laws were amended after 2019. Without that foundation, Section 91 jurisdiction was weak in any event.

What members should do now

If your society has already signed a Development Agreement:

• Do not start a fresh co-operative dispute only against the resolutions.
• File a civil suit, or amend the pending civil suit, to challenge both the resolutions and the Development Agreement / Power of Attorney together.
• Keep the developer as a necessary party so any order binds the person who actually holds the development rights.

If the agreement is not yet signed, take legal advice quickly. Some recent High Court orders have treated pre-agreement resolution disputes differently. This judgment is about the stage after execution.

The larger takeaway

Redevelopment fights often fail not because members have no grievance, but because they choose the wrong court after the society has already created third-party rights. This order tells members a simple rule: once the builder deal is signed, one court, one composite challenge, and that court is the Civil Court.

The writ petition was dismissed. The 41 members must now carry the resolution challenge into their pending civil suit if they want both issues decided in one place.

Also Read: Bombay High Court Orders Eviction of Singer Preeti Sagar and Family from Walkeshwar Home After 30-Year Legal Battle

The post Don’t Split Redevelopment Fight: Bombay HC Sends Members to Civil Court appeared first on Square Feat India.