Ast 1 app1150.1151.78.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.1150 OF 2005 IN SUIT NO.1780 OF 1993 Vijay Enterprises, ) a Partnership firm, carrying on ) Business at 49, Madina Mansil, ) Dr. B. Ambedkar Marg, Parel T.T. ) Bombay 400 012. )... Appellant. Vs. 1. Gopinath Mahadev Koli ) of Bombay, Indian Inhabitant ) residing at Manish Apartment, ) Block No.4, St.Plus Coliny, ) Nahur, Mulund(West), ) Bombay 400 080. ) 2. Kashinath Mahadev Koli, ) 3. Laxmibai Kashinath Koli, ) 4. Motiram Mahadev Koli, ) 5. Gulabbai Motiram Koli, ) 6. Sadashiv Mahadv Koli, ) 7. Harischandra Mahadev Koli, ) 8. Mandakini Harischandra Koli, ) 9. Bhalchandra Mahadev Koli, ) 10.Draupati Bhalchandra Koli, ) 11. Bhagwan Mahadev Koli, ) 12. Hemakant Kashinath Koli, ) 13. Dinanath Kashinath Koli, ) 14. Hemchandrqa Motiram Koli, ) 15. Narendra Motiram Koli, ) Ast 2 app1150.1151.78.sxw 16. Sunil Motiram Koli, ) 17. Atul Motiram Koli, ) 18. Sanjiwani Suresh Thanekar, ) 19. Kumudini Ramakant Patil, ) 20. Draupadi Shashikant Mandvikar, ) 21. Janvi Jayant Nakhwa, ) 22. Hemalata Anant Tare, ) 23. Krusala Motiram Koli, ) 24. Ashwini Harischandra Koli, ) 25. Rina Harischandra Koli, ) The last two being minors ) (No.24 & 25) by their father ) and next friend-Harischandra ) Mahadev Koli) ) 26. Manish Bhalchandra Koli, ) 27. Parag Bhalchandra Koli, ) The last two minors(No.26 & 27) by their ) father and next friend-Bhalchandra ) Mahadev Koli-Defendant No.2 to 27 ) residing at K.M.House, Chandani ) Koliwada, Thane(East). ) 28. M/s. Rajesh Construction, ) a partnership firm, carrying on ) business at Seksaria chamber, 2 nd floor, ) Medows street, Fort, Bombay 400 023. ) 29. M/s. Shreenath Builders, ) a partnership firm, carrying on ) business at Classic Plaza, Naupada, ) Thane(West). ) 30. Digambar Sukhi, ) 31. Anant Waman Tare, ) 32. J.M.Shah, ) No.30 to 32 being partner of ) Ast 3 app1150.1151.78.sxw Defendant No.29 and carrying ) on business at classic Plaza, ) Naupada, Thane(West). )... Respondents. Mr.U.J.Makhija i/b. Bagla Dandekar & Co. for appellants. Mr.P.G.Lad for Respondent No.1. Mr. Vasant Bhagat i/b. Vasant & Co. for Respondent No.6. Mr. P.K.Dhakephalkar, Sr. Advocate with Madhu Hiraskar i/b. Chitnis Vaithy & Co. for Respondent Nos. 3,5,8,10, 12 to 27. Mr.A.Y.Bookwala, Sr.Advocate with Vijay Nair for Respondent Nos. 29 to 32. -------------- WITH APPEAL NO.1151 OF 2005 IN L.A.R.NO.3 OF 1997 Vijay Enterprises, ) a Partnership firm, carrying on ) Business at 49, Madina Mansil, ) Dr. B. Ambedkar Marg, Parel T.T. ) Bombay 400 012. )... Appellant. Vs. 1. Gopinath Mahadev Koli ) of Bombay, Indian Inhabitant ) residing at Manish Apartment, ) Block No.4, St.Plus Coliny, ) Nahur, Mulund(West), ) Bombay 400 080. ) 2. Kashinath Mahadev Koli, ) 3. Laxmibai Kashinath Koli, ) 4. Memakand K. Koli, ) Ast 4 app1150.1151.78.sxw 5. Sadashiv Mahadev Koli, ) 6. Bhagwan Mahadev Koli, ) all residing at Chendani, Koli Wada ) behind Railway Station, Bharati Road, ) Near Bayan Tree, Thane(East),400603. ) 7. Motiram Mahadev Koli, ) 8. Gulabbai Motiram Koli, ) 9. Harischandra Mahadev Koli, ) 10. Mandakini Harischandra Koli, ) 11. Hemchandrqa Motiram Koli, ) 12. Narendra Motiram Koli, ) 13. Sunil Motiram Koli, ) 14. Atul Motiram Koli, ) 15. Krusala Motiram Koli, ) 16. Ashwini Harischandra Koli, ) 17. Rina Harischandra Koli, ) all residing at Valmiki Nagar, Hsg. ) Soc., Building No.4, Moth Bandra ) Road, Thane(East) 400 603. ) 18. Bhalchandra Mahadev Koli, ) 19.Draupati Bhalchandra Koli, ) 20. Dinanath Kashinath Koli, ) 21. Manish Bhalchandra Koli, ) 22. Parag Bhalchandra Koli, ) all residing at Chandini Koliwada, ) Aparna Shailej Building, Thane East) ) 400 603. ) 23. Sanjiwani Suresh Thanekar, ) residing at Bomeshwar Apartment, ) Gurukul Soc., Thane(W)- 400 602. ) 24. Kumudini Ramakant Patil, ) c/o Ramakant Shankar Patil ) Room No.44, Worli, Koliwada, ) Ast 5 app1150.1151.78.sxw Mumbai 400 025. ) 25. Draupadi Shashikant Mandvikar, ) residing at Valmiki Nagar, Hsg. Soc., ) Building No.9, Mith Bandar Road, ) Thane(East) 400 603. ) 26. Smt. Rekha Jayant Nakhwa, ) all residing at Chendani, Koli Wada, ) Mukteshwar Building, Anand Bharati ) Road, Near Bayan Tree, Thane(East) ) 400 603. ) 27. Smt.Hemalata Anant Tare, ) residing at Anant Park, near Shrirang ) Scy., Thane 400 602. ) 28. M/s. Shreenath Builders, ) a partnership firm, carrying on ) business at Classic Plaza, Naupada, ) Thane(West). )... Respondents. (Original Claimant No.1 to 27 and 29) And 29. The Executive Engineer(M) ) Development Plan, 4 th floor, ) Extension Building, Gr.Mumbai ) Municipal Corporation, ) Mumbai 400 001. )... Respondents. )(Original Acquiring Body) 30. The Special Land Acquisition Officer ) Mumbai and M.S.D., Old Custom ) House, Yard, For, Mumbai 400 023. )... Respondents. Mr.U.J.Makhija i/b. Bagla Dandekar & Co. for appellants. Mr.P.G.Lad for Respondent No.1. Mr. Vasant Bhagat i/b. Vasant & Co. for Respondent No.5. Ast 6 app1150.1151.78.sxw Mr. P.K.Dhakephalkar, Sr. Advocate with Madhu Hiraskar i/b. Chitnis Vaithy & Co. for Respondent Nos. 3,8,10, 17, 19 to 27. Mr.A.Y.Bookwala, Sr.Advocate with Vijay Nair for Respondent No.28. WITH APPEAL NO.78 OF 2006 IN L.A.R.NO.3 OF 1997 IN CASE NO. LAQ 369/2 WITH CHAMBER SUMMONS NO.1302 OF 2006 AND CHAMBER SUMMONS NO.459 OF 2010 IN APPEAL NO.78 OF 2006 IN L.A.R.NO.3 OF 1997 1. Gopinath Mahadev Koli, ) of Bombay Indian Inhabitant, ) residing at Manisha Apartment, ) Block No.4, St.Pius Colony, Nahur, ) Mulund(West), Bombay 400 080. ) 2. Sadashiv Mahadev Koli ) 3. Bhagwan Mahadev Koli ) all residing at Chendani Koliwada, ) behind Railway Station, Anand Bharti Road,) Near Banyan Tree, Thane(E) 400 603. )... Appellants. (Org. defendant Nos. 1, 6 and 11) V/s. 1. M/s. Shreenath Builders, ) Ast 7 app1150.1151.78.sxw 13, Classic Plaza, Gokhale Road, ) Naypada, Thane(West) 400 602. ) 2. M/s. Vijay Enterprises ) c/o Harshad Sethia, R.No. 49, Madina ) manzil, Dr. B. Ambedkar Marg, Parel, ) T.T.Bombay 400 012. ) 3. Motiram Mahadev Koli ) 4. Smt. Gulabbai Motiram Koli ) 5. Hemchandra Motiram Koli ) 6. Narendra Motiram Koli ) 7. Sunil Motiram Koli ) 8. Atul Motiram Koli ) 9. Kum. Krusala Motiram Koli ) all residing at Valmiki Nagar, Housing ) society Building No.4, Mith Bunder Road, ) Thane(E) 400 603. ) 10. Hemalata Anant Tare ) residing at Anant Park, near Shreerang ) Society, Thane 400602. ) 11. The Executive Engineer(M) ) Development Plan, 4 th floor, ) Extension Building, Gr.Mumbai ) Municipal Corporation, ) Mumbai 400 001. )... Respondents. )(original claimants and )Original Acquiring Body) 12. The Special Land Acquisition Officer(3)) Mumbai and M.S.D., Old Custom ) House, Yard, For, Mumbai 400 023. ) 13. Mandakini Harishchandra Koli ) residing at Valmiki Nagar Housing Society ) Building No.4, Mith Bunder Road, ) Thane(E) 400 603. ) Ast 8 app1150.1151.78.sxw 14. Kum Ashwini Harishchandra Koli ) 15. Kum. Rina Harishchandra Koli ) all residing at Valmiki Nagar Housing ) Society Building No.4, Mith Bunder Road, ) Thane(E) 400 603. ) 16. Smt. Draupadi Bhalchandra Koli ) 17. Dinanath Kashinath Koli ) 18. Manish Bhalchandra Koli ) 19. Parag Bhalchandra Koli ) all residing at Chendani Koliwada, Aparna ) Shailej Building, Thane(E) 400 603. ) 20. Laxmibai Kashinath Koli ) 21. Hemakant K. Koli ) 22. Sanjiwani Suresh Thanekar ) residing at Someshwar Apartment, ) Gurukul Society, Thane(West) 400 602 ) 23. Kumudini Ramakant Patil ) C/o Ramakant Shankar Pati, Room No.25, ) Worli, Koliwada, Worli, Mumbai 400 025. ) 24. Draupadi Nishikant Mandvikar ) residing at Chendani Koliwada, ) Building No.9, Valmiki Society, Mith ) Bunder Road, Thane(E) 400 603. ) 25. Smt.Rekha Jayant Nakhawa, ) residing at Chendani Koliwada, ) Mukhteshwar Building, Anand Bharti ) Road, Near Banyan Tree, ) Thane(E) 400 603. )...Respondents. )(Original Claimants Nos. )2,3,6, 16) Mr.Vasant Bhagat i/b. Vasant & Co. for appellants. Mr.U.J.Makhija i/b. Bagla Dandekar & Co. for Respondent No.2. Ast 9 app1150.1151.78.sxw Mr.P.K.Dhakephalkar, Sr. Advocate with Madhu Hiraskar i/b. Chitnis Vaithy & Co. for Respondent Nos. 3 to 10, 13 to 25. --------------- CORAM : D.K.DESHMUKH & V.R.KINGAONKAR, J. DATE : APRIL 20, 2010. JUDGMENT:(Per V.R.Kingaonkar,J) 1. These three appeals can be conveniently disposed of together inasmuch as they arise out of common Judgment rendered by learned Single Judge in Suit No.1780 of 1993 and LAR No.3 of 1997. 2. The suit properties comprise of four parcels of lands situated at Village Nahur, Mulund(West). They are described in plaint map(Exh.A). They comprise of plots ‘A’, ‘B’, ‘C’ and ‘D’ as demarcated in that map. For sake of convenience, the contesting parties may be divided in four groups (i) original plaintiff(M/s. Vijay Enterprises); (ii) original defendant No.1, defendant No.6 and defendant No.11(Koli Group(A) i.e. Aggrieved Koli group); (iii) rest of defendants from defendant Nos. 1 to 27(Koli Group(NA) i.e. Non-aggrieved Koli Group) and (iv) original defendant No. Ast 10 app1150.1151.78.sxw 29(M/s. Shreenath Builders-subsequent prospective purchaser of portion of the suit properties) and other defendants. The Special Land Acquisition Officer(SLAO)) is a formal party. 3. The suit properties were held by one Damodardas Bhaidas Bhuta and Vasantrai Bhaidas Bhuta. One Laxman Mahadev Kakad claimed to be in cultivating possession of large portion of the suit properties. Original defendant No.1 Gopinath is his adopted son. By virtue of a Will Deed dated 17 th May, 1972, said Laxman Kakad bequeathed his possessory rights in the suit properties in favour of original defendant No. 1 Gopinath. Original defendant No.2 to 27 are members of the family of defendant No.1 Gopinath. All of them allegedly continued to remain in possession of the suit properties after death of said Laxman Kakad, who died on 26 th January, 1973. It appears that Damodardas Bhuta and Vasantrai Bhuta had not, however, given up their rights in the suit properties. So also third parties like M/s. Aurum Pharmaceuticals Pvt. Ltd., M/s. Balaji Construction Company and Amubhai Velji Shethia had Ast 11 app1150.1151.78.sxw staked their claims in respect of some portion of the suit properties. 4. Plaintiff-M/s. Vijay Enterprises filed suit seeking specific performance of four agreements of sale, one dated 6 th July, 1984 and rest of the three dated 29 th April, 1985 in respect of the suit properties, as described in the plaint map. During pendency of the suit some of the lands out of the suit properties have been compulsorily acquired. Hence, consequential relief is also sought for compensation which has been awarded by the Special Land Acquisition Officer under Award dated 3 rd November, 1995. Land Acquisition Reference No.3 of 1997 is for apportionment of the compensation amount in respect of the acquired part of the suit properties. This reference at instance of the SLAO is under section 30 of the Land Acquisition Act, 1984(for short “the L.A.Act”). 5. The plaintiff’s case was that the original defendant Nos. 1 to 27 entered into an agreement dated 6 th July, 1984 for sale of Plot No.A, out Ast 12 app1150.1151.78.sxw of the four parcels of the suit properties, in its favour. In pursuance to the said agreement of sale, considerable amount was paid as earnest money. The defendant Nos. 1 to 27 had agreed to transfer the plot No.A by registered conveyance deed as per the terms of the agreement of sale. The plaintiff further alleges that the defendant Nos. 1 to 29 subsequently entered into 3(three) agreements dated 29 th April, 1985 in its favour for sale of the remaining three plots-B, C and D. They agreed to alienate the four parcels of the lands(Plots A to D) admeasuring 14164 sq.mtrs. area out of the total area of the lands which admeasures 15575 sq.mtrs.. According to plaintiff M/s. Vijay Enterprises, the price was settled at the rate of Rs.205/- per sq. yds. The Plaintiff alleges that the title of the defendant Nos. 1 to 27 was to be cleared and, therefore, the claims of the third parties were settled after certain negotiations. The plaintiff further alleges that a consent decree was procured in Suit No. 6908/1985, which was filed for declaration that the rights of the third parties including Damodardas Bhuta and Vasantrai Bhuta were extinguished and the defendant Nos. 1 to 27 had acquired title by Ast 13 app1150.1151.78.sxw prescription on account of adverse possession for more than 12 years period. The plaintiff asserted that total payment of Rs.13,44,381/- was made to the defendant Nos. 1 to 27 including an agreegate sum of Rs. 4,78,000/- paid directly to them and rest of the amount paid on their behalf to the third parties. The plaintiff alleges that inspite readiness and willingness on its part, the defendant Nos. 1 to 27 committed breach of the agreements of sale. They had entered into an agreement of sale with the defendant No.29 in respect of part of the suit property without any legal authority to do so. They cancelled Power of Attorney executed in favour of partners of plaintiff. Thus, they have refused to perform their part of the agreement of sale and as such, the suit was laid. In the meanwhile, a part of the suit properties was acquired for the public purpose and compensation has been determined by the SLAO. The plaintiff claims entire compensation so awarded. 6. The Defendant Nos.1 to 27 resisted suit alleging that the plaintiff manipulated false entries in the suit agreements in the column of price by Ast 14 app1150.1151.78.sxw subsequently filling up the said column. They alleged that the agreements for sale relied upon by the plaintiff are not reflective of the true transactions between the parties. According to them, the plaintiff exploited them by taking undue advantage of they being illiterate and uneducated persons. They asserted that the transactions are unconscionable. They submitted that though price was settled at the Rs. 285/- per sq. yard, yet, it was wrongly shown in the suit agreements as Rs.205/- per sq. yard. They produced another set of three agreements dated 29 th April, 1985 in order to demonstrate that the set of the agreements produced by the plaintiff is in variance with their set of agreements. They contended that the plaintiff did not pay them the agreed price as per their agreements, and committed breach of the agreements. They further submitted that the plaintiff committed flagrant breach of the agreements and attempted to grab the suit properties by paying palpably low amount to them. They contended that they are not bound by the terms of the agreements relied upon by the plaintiff. Consequently, they sought dismissal of the suit. Ast 15 app1150.1151.78.sxw 7. In the meanwhile, a part of the suit properties bearing CTS No.54/3 and 101/2 corresponding to CTS 698/A and 702/A admeasuring 1762 sq.mtrs. was acquired for construction of D.P.Road known as Goregaon- Mulund Link Road. Notification for compulsory acquisition under section 6 of the L.A.Act and under section 126 of the Maharashtra Regional Territory Planning Act, 1966(MRTP Act) was issued . The defendant No. 29 claimed compensation being party in possession of a part of the acquired land under agreement of sale entered into between himself and defendant Nos. 1 to 27. His case is that the defendant Nos. 1 to 27 agreed to sell part of the acquired property to him. He alleged that he paid part of consideration in pursuance to the agreements of sale dated 12/2/1985 and 28/7/1986 in respect of Plot-B and C. According to him, he was put in actual possession of the said property as a purchaser and hence is entitled to protection available under section 53-A of the Transfer of Property Act. The other defendants are either formal or non-contesting parties. Ast 16 app1150.1151.78.sxw 8. The relevant issues were settled by the learned Single Judge. The parties adduced oral and documentary evidence in support of the rival contentions. On merits, the learned Single Judge came to the conclusion that the sale agreements produced by plaintiff M/s. Vijay Enterprises were not effective for grant of the relief of specific performance. The learned Single Judge noticed that the plaintiff erroneously attempted to club the amounts paid to the third parties towards payment of earnest amount to the Koli Group(defendant Nos.1 to 27). The learned Single Judge held that the agreements put forth by the plaintiff were unacceptable as true reflection of the terms of the contract in view of material variance in terms enumerated in the another set of agreements, which was placed on record by the defendant Nos. 1 to 27. The suit was, therefore, dismissed. As a fall out thereof, the plaintiff’s claim for compensation in respect of acquired property out of the Plot No.B and C, was also dismissed. The learned Single Judge held that the defendant No.29 was in possession of the acquired plots to certain extent in Ast 17 app1150.1151.78.sxw pursuance to the agreements relied upon by him. Hence, apportionment was made to the extent of 70% payable to the defendant Nos. 1 to 27 and 30% to the defendant No.29. 9. Aggrieved by the dismissal of the suit as well as claim for compensation, plaintiff M/s. Vijay Enterprises filed Appeal Nos. 1150 of 2005 and 1151 of 2005, respectively. Whereas Koli Group(A) has filed Appeal No. 78 of 2006 being aggrieved due to apportionment of 30% of the compensation amount in favour of the defendant No.29. 10. We have heard learned Counsel for the parties. We have perused the relevant record and have considered oral and documentary evidence adduced by the parties. Though large number of issues were framed by the learned Single Judge, yet, in our opinion, the points to be determined in the present appeals are only two : (i) whether the judicial discretion exercised by the learned Single Judge while Ast 18 app1150.1151.78.sxw refusing the relief for grant of specific performance is legal and proper and as such the impugned Judgment does not call for interference? and (ii) whether the apportionment of the compensation amount as between the claimants inter se i.e. Koli Group and the defendant No.29 is properly effected by the learned Single Judge while answering the Land Acquisition Reference ? It appears that even the learned Single Judge was of the opinion that the suit and the reference could be decided on such short grounds. For, he observed: “Though in the present case, large number of issues are framed, I find that basically the points which are required to be determined is whether the plaintiff is entitled to specific performance of all the said four agreements and if so, whether he is entitled to compensation amount, which he has received. If the plaintiffs are not entitled to the specific performance of the property, then whether the defendants are entitled to the compensation and whether the defendant No.29 by virtue of entering into an agreement for sale with parties and being in possession is entitled to any amount towards the said Ast 19 app1150.1151.78.sxw compensation. The plaintiff has not pressed issue Nos. 1,2 and 3.” 11. It is well settled that relief of specific performance of agreement is within discretion of the Court. The discretion exercised by the trial Court cannot be lightly interfered with by the appellate Court. It is only when the exercise of such discretion by the trial Court is demonstratedly perverse or is founded on erroneous principles of law, the appellate court may be required to interfere with the exercise of such discretion. Normally, the appellate Court will not substitute its views in place of the views of the trial Court only because two views are possible. 12. Coming to the fact situation obtained in the present case, it appears that the plaintiff managed Damodardas Bhuta and Vasantrai Bhuta to give consent for confirmation of the adverse title Ast 20 app1150.1151.78.sxw put forth by Koli Group. The plaintiff also satisfied monetary claim of M/s Aurum Pharmaceuticals Pvt.Ltd.. It appears that the plaintiff had obtained irrevocable Power of Attorney in favour of Harshad Shetia and Dinesh Shah, who are partners of the plaintiff firm, from defendant Nos. 1 to 27. They engaged advocates and got filed suit bearing Suit No.340 of 1987 in this Court against legal representatives of Bhaidas Gupta and M/s. Aurum Pharmaceuticals Pvt.Ltd. In that suit, Balaji Construction Corporation was also impleaded as a party being defendant No.9. It emerges from the record that the said Suit(Suit No.340/1987) was filed at the instance of plaintiff M/s. Vijay Enterprises through the members of Koli Group. In other words, plaintiff M/s. Vijay Enterprises was the real suitor. The plaintiff brought about consent decree in that suit. The plaintiff also got initiated the proceedings under the Urban Land Ceiling Act. The competent authority rendered order dated 13 th July, Ast 21 app1150.1151.78.sxw 1992 under section 8(4) of the ULC Act granting exemption from acquisition under provisions of the said Act. Thus, it is amply clear that the plaintiff managed the consent decree and other orders with a view to get created transferable rights in favour of the defendant Nos. 1 to 27. The necessary corollary of such findings is that the plaintiff entered into the agreements of sale with knowledge of the fact that it was running the risk because the defendant Nos. 1 to 27 had no marketable title at the relevant time. It further appears that the defendant Nos. 1 to 27 were under domination of plaintiff M/s.Vijay Enterprises. 13. We have noticed that conduct of the plaintiff is not free from blemish. The plaintiff has produced three agreements of sale dated 29 th April, 1984 in respect of the Plots Nos. B, C and D(Exh.P-21, P-23 and P-25). Contesting Koli Group also produced a set of three Ast 22 app1150.1151.78.sxw agreements of the same date(Exh.D-1, D-2 and D-3). There is substantial variance in the terms and conditions indicated in those two sets of the agreements for sale. The price fixed under the said agreements relied upon by the plaintiff is at Rs.205/- per sq. yds. The total amount of consideration for plot B is Rs.3,41,120/-, Rs, 4,03,081.25 ps. for Plot-C and Rs.11,76,308/- for Plot-D. We find that the plaintiff had not made substantial payment in pursuance to the agreements of sale to the defendant Nos. 1 to 27. 14. The evidence on record shows that the plaintiff was not in actual possession of the suit property. The plaintiff relied upon possession letter dated 26/3/1985. Still, however, the evidence on record does not show that the said letter was ever acted upon. The testimony of PW Harshad reveals that he had filled up the blanks in the agreements for sale. He explained that he had carried all such Ast 23 app1150.1151.78.sxw work of filling up the blanks prior to execution of agreements in question. The three agreements(Exh.P-21, P-23 and P-25) were admittedly having blank portions at places and particularly at a place of rate of the price. The witness was confronted with the another set of the agreements for sale which have been produced by Koli Group. The witness admitted that there are two separate sets of agreements. However, it was argued and stated that defendant -Motiram had orally instructed the plaintiff to destroy the agreements for sale(Exh.D-1, D-2 and D-3) which were not in consonance with the real terms settled between the parties. The said set of agreements was therefore not to be acted upon. The explanation appears to be lame and unacceptable. There appears no pleading as regards cancellation of another set of the agreements for sale(Exh.D-1, D-2 and D-3). Ast 24 app1150.1151.78.sxw 15. Perusal of the testimony of PW-Harshad go to show that he unequivocally admitted that in the report submitted by the Court Commissioner, who was appointed during the course of hearing of Appeal No.541 of 1993, shows that the defendant No.29 is in possession of major part of the acquired suit property. The report of the Court Commissioner was not challenged nor the plaintiff had called him to face the cross-examination. The learned Counsel for the plaintiff(appellant) would submit that the recitals of the report of the Court Commissioner could not be relied upon to infer that the defendant No.29 was inducted