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

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