- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION. APPELLATE JURISDICTION. APPELLATE JURISDICTION. WRIT WRIT WRIT PETITION NO.3637 OF 2008. PETITION NO.3637 OF 2008. PETITION NO.3637 OF 2008. Smt. Tulsibai Babu Tandel & 7 Ors. .. Petitioners. versus Smt. Ganibai Balkrishna Kadu & 13 Ors. .. Respondents. Mr. Sandesh Patil, Adv. for Petitioners. Mr. N.V. Walawalkar, Sr.Counsel, with Mr.M.D.Siodin, i/b.Rustamji & Ginwala, Adv. for Respondent Nos. 11 to 14 CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 30TH JUNE, 2008. : 30TH JUNE, 2008. : 30TH JUNE, 2008. P.C. P.C. P.C. 1. This petition is directed against the order dated 6.05.2008 passed by the Principal District Judge, Thane, whereby the appeal filed by the petitioner against the order dated 14.12.2007 of the Trial Court rejecting the prayer for injunction, came to be dismissed. 2. The suit is filed by the petitioners against respondents interalia for partition of the suit plot viz. plot No.98, admeasuring about 250 sq. mtrs. situated at Sector No. 44, Nerul, Navi Mumbai, which stands in the name of respondent Nos. 5 and 6. One - 2 - Krishna Bhudhya Tandel was owner of certain properties. The said Krishna Budhya Tandel expired on 25.08.1977. His wife Nagubai expired on 26.09.1984. The petitioners and respondents are the heirs of the deceased Krishna. The deceased Krishna had two sons, namely Babu and Tukaram and 4 daughters. Babu expired on 22.11.98, and the petitioner nos. 1 and 2 are his wife and son respectively. Tukaram had expired on 2.11.1998, and respondent nos.5 and 6 are his son and daughter respectively. Babu had two other sons who have expired, Rohidas and Madhukar. Petitioner No. 3 and 4 are the widow and daughter respectively of late Rohidas Babu Tandel. Petitioner No. 5 to 8 are the widow, sons and daughter respectively of late Madhukar Babu Tandel. The respondent nos.1 to 4 are married daughters of the deceased Krishna and his wife and they are not contesting parties and did not oppose the injunction application. 3. The grievance of the petitioners is that in respect of certain properties belonging to the deceased Krishna which were acquired by CIDCO, the award was wrongly passed in favour of respondent nos. 5 and 6 only, merely on the basis of revenue records, - 3 - when the petitioners and other respondents also have a share therein and in lieu thereof the suit plot bearing No. 98 admeasuring about 250 sq. meters was allotted by CIDCO under the 12.5% scheme to the respondent nos. 5 and 6 alone. It is alleged that the respondent No. 5 fraudulently obtained heirship certificate from the Court without adding the names of the petitioners and respondent Nos. 1 to 4. The Petitioners have thus filed the suit claiming their share in the suit plot. It is alleged by the petitioners in the plaint that the said respondent nos. 5 and 6 are in the process of selling of suit plot to the respondent nos.11 to 14 by tri-partite agreement with CIDCO and there was likelihood of construction and sale of the suit plot. 4. The petitioners filed an application for injunction to restrain the respondents including the respondent nos.5 to 14, from transferring the suit plot or creating any third party interest and from carrying out construction activities therein. 5. The case of the respondents, on the other hand is that the suit was barred by law of limitation. According to the respondents, the ancestral - 4 - properties of deceased Krishna (in lieu of which the suit plot was allotted) was acquired on 31.08.1989 by CIDCO through respondent No. 7 and after publishing notices under section 4 and 6 of the Land Acquisition Act 1894, an award was passed in the name of respondent nos.5 and 6 as their name was recorded in the revenue records and compensation thereof was also paid to them and they were allotted the suit plot under the 12.5% scheme by CIDCO. However, no objection was raised by the petitioners or their father, i.e. Babu, who expired in 1998, at any time prior to the filing of the present suit in 2006. 6. It is stated that pursuant to the allotment of the suit plot by CIDCO to the respondent Nos. 5 and 6 under the 12.5% scheme, an agreement to lease dated 29.03.2006 was executed between CIDCO and the respondent Nos. 5 and 6 and the same was registered and possession of the suit plot was delivered to respondent nos. 5 and 6. Thereafter respondent Nos. 11 to 14 after negotiation with the respondent nos. 5 and 6 obtained the suit plot by executing a Tripartite Agreement between respondent nos. 5 and 6, CIDCO and respondent Nos 11 to 14, after paying the necessary transfer charges to CIDCO and the suit - 5 - plot was transferred to the respondent nos. 11 to 14 and the respondent Nos. 5 and 6 have ceased to have any interested in the suit plot. The respondent Nos. 11 to 14 have after having the plans submitted and sanctioned and obtaining the Commencement Certificate are now developing the suit plot. 7. The Trial Court dismissed the injunction application and came to the conclusion that no prima-facie case is made out and the balance of convenience was not in favour of the petitioners and no irreparable loss could be caused them. The matter was carried in Appeal. After hearing the parties, the Appeal Court was pleased to dismiss the Appeal hence the present petition. 8. The learned Counsel for the petitioners at he out set submitted that both the Courts below have failed to appreciate the evidence on record. He submitted that it is not disputed that the ancestral properties in-lieu of which the suit plot was allotted by CIDCO, under the 12.5% Scheme originally belonged to late Krishna Tandel. The learned Counsel further submitted that both the Courts have acknowledged the right of the petitioners in the ancestral properties - 6 - of deceased Krishna. However, the Courts wrongly refused to grant injunction. He pointed out para 15 of the order of the Trial Court wherein it is observed that "This has been specifically denied by the defendants in the written statement". The learned Counsel submitted that this is an erroneous observation inasmuch as the fact that the ancestral properties belonged to deceased Krishna was admitted by the respondent Nos. 5 and 6. He pointed out that the Appeal Court has mechanically taken the sentence from the order of the trial Court and in para 21 it is observed as follows "Defendants have denied the same in the written statement" 9. The learned Counsel submitted that there was no such denial by the respondent Nos. 5 and 6 in their written statement and therefore, both the Courts had erroneously observed that the respondents had denied this fact, when, in fact, the respondents had clearly acknowledged the right of the petitioners in the ancestral properties belonging to deceased Krishna. 10. The learned Counsel for the petitioners has invited my attention to the original property card - 7 - which bears the name of deceased Krishna Tandel The learned Counsel submitted that merely because the CIDCO had allotted another plot in-lieu of ancestral properties it would not mean that the petitioners had ceased to have interest in the suit plot. The learned Counsel submitted that once the share of the petitioners was established in the ancestral properties they cannot be denied the relief of injunction and that the petitioners would suffer irreparable loss if the injunction as prayed for was not granted and that they had prima facie case and the balance of convenience was in their favour and therefore, the injunction ought to have been granted. The learned counsel referred to the following cases 1) Asher Ali V. Sukhna Seikh, Asher Ali V. Sukhna Seikh, Asher Ali V. Sukhna Seikh, reported in AIR 1992 Gauhati, 2) Karanail Singh V. Jagir Singh, Karanail Singh V. Jagir Singh, Karanail Singh V. Jagir Singh, reported in AIR, 1984, Punjab & Hariyana 294, 3) K.B. Kishore K.B. Kishore K.B. Kishore V. V. V. Union of India Union of India Union of India reported in A.I.R. 1991 S.C. 90 4) Ramrati Kuer V. Dwarika Prasad Singh, Ramrati Kuer V. Dwarika Prasad Singh, Ramrati Kuer V. Dwarika Prasad Singh, reported in A.I.R. 1967 S.C. 1134. 5) Jattu Ram V. Hakam Jattu Ram V. Hakam Jattu Ram V. Hakam Singh Singh Singh, reproted in A.I.R. 1994 S.C. 1653 6) Raja Raja Raja Harish Harish Harish Chandra Raj Singh V. The Deputy Land Chandra Raj Singh V. The Deputy Land Chandra Raj Singh V. The Deputy Land Acquisition Acquisition Acquisition Officer Officer Officer, reproted in A.IR 1961 S.C. 1500 7) Boregowda V. Subbaramiah, Boregowda V. Subbaramiah, Boregowda V. Subbaramiah, reported in A.I.R. 1959 Mysore 265 8) A.I.R. 1966 S.C. 523. - 8 - 11. Relying upon the aforesaid decisions, the learned Counsel for the petitioners submitted that merely because the petitioners had not asserted their right would not mean that they are not entitled to exercise their rights. He submitted that the entries in the name of respondent No.5 and 6 in the ancestral properties would not create any title in their favour. The learned Counsel invited my attention to the notice dated 4-4-2006 and submitted that the petitioners had asserted their rights in respect of the suit plot. The learned Counsel submitted that the triable issues are involved and considering the facts and circumstances of the case, the impugned order is required to be set aside and that the respondents are required to be restrained from carrying out the construction in the suit plot and from creating 3rd party rights in the suit plot. 12. The learned Sr. Counsel for the respondents on the other hand, submitted that the facts in the instant case do not warrant any inference in the impugned order. The learned Sr. Counsel submitted that the acquisition of the ancestral properties by CIDCO took place as far back as in 1989 and - 9 - therefore, the present suit would be time barred. The learned Sr. Counsel invited my attention to section 16 of the Land Acquisition Act, 1894 and submitted that when Collector makes an award under Section 11, he takes possession of the land, which land thereupon vests absolutely in the Government free from all encumbrances. He therefore, submitted that the ancestral properties had vested in the Government and rights of the parties in so far as ancestral properties are concerned came to an end. The learned Sr. Counsel submitted that a fresh lease had been entered into between the CIDCO and the respondent Nos. 5 and 6 in respect of the suit plot. The learned Sr. Counsel also invited my attention to section 18 of the Land Acquisition Act 1894, which provides that any person interested and who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested. He submitted that the award ought to have been challenged within a maximum period of six months from the date of the award. The - 10 - learned Sr. Counsel also invited my attention to section 30 of the Land Acquisition Act, 1894 which provides that if any dispute arises as regard to the apportionment of the compensation or any part thereof, or as to the persons to whom the same or any part thereof,is payable the Collector may refer such dispute to the decision of the Court. 13. Relying upon the aforesaid provisions, the learned Sr. Counsel for the respondents submitted that if all the petitioners were aggrieved by the acquisition and/or award which was passed in favour of respondent Nos. 5 and 6, they ought to have moved the SLAO or the Government. However, the petitioners or Mr. Babu, who was living at the relevant time have not recorded any objection in respect of the acquisition of the land or award or apportionment of the compensation. He submitted that it is not disputed that the possession of the suit property was taken by the Government from respondents Nos. 5 and 6 alone. The learned Sr. Counsel submitted that at the relevant time acquisition of the properties by CIDCO were at a very large scale and public notices were issued in addition to the individual notices and therefore, it cannot be said that the petitioners did - 11 - not have knowledge about the acquisition of the ancestral properties in lieu of which the suit plot was allotted by CIDCO. The learned Sr. Counsel submitted that besides the ancestral property in lieu of which the suit plot was allotted, there were other ancestral properties which were also acquired and compensation in that regard was also paid to the petitioners also and therefore, the petitioners were aware of the acquisition, the award and the allotment of suit plot by CIDCO. However the petitioners or Mr. Babu did not raise any objection in that regard. The learned Sr. Counsel submitted that the petitioners have never asserted their rights and have therefore acquiesced and waived their right in respect of the ancestral properties which stood in the name of the respondent Nos. 5 and 6, as well as that of the suit plot. 14. The learned Sr. Counsel has pointed out the notice issued by the Advocate for the petitioners prior to the filing of the suit and submitted that from the notice it can be inferred that there was some family arrangement between the parties in respect of the ancestral properties. The learned Sr. Counsel submitted that the ancestral properties were - 12 - acquired in 1989 and the 12.5% scheme of CIDCO was introduced later i.e. in the year 1990-91 and therefore, there was no direct nexus as such between the acquisition of the ancestral properties and that of the allotment of the suit plot by the CIDCO to them. The learned Sr. Counsel submitted that once the ancestral properties are vested in the government, the petitioners cannot claim any right in respect of the same. 15. The learned Sr. Counsel submitted that the petitioners are guilty of delay and latches and on their own showing they had approached respondent No. 5 and 6 some time in September, 2004 and they have filed suit some time in July, 2006 and therefore the Courts below had rightly dismissed the injunction application and the Courts had exercised their discretion judiciously. The learned Sr. Counsel pointed out that under the Limitation Act, 1963 the time limit prescribed was 12 years and therefore, between 1989 when the ancestral properties were acquired and vested in the Government and the present suit which was filed in 2006, a period of more than 17 years had elapsed and therefore, the suit was clearly time barred. The learned Sr. Counsel for - 13 - the respondent Nos. 11 to 14 further invited my attention to the text in the book titled - " The Treaties on the Law and Practice of Injunction" by Willam Willamson Kerr 6th Edition which reads thus:- "The mere objection to, or a mere protest on the part of the plaintiff against, the act of the defendant, or a mere threat to take legal proceedings, is not in general sufficient to exclude the consequences of latches or acquiescence. Nor will the continual assertion of a claim unaccompanied by any act to give effect to it, keep alive a right which would be otherwise precluded." 16. Relying upon the above observations the learned Sr. Counsel for the respondents submitted that merely by giving notice some time in the year 2006 the petitioners could not be said to have asserted their claim in respect of the suit plot and when no such objection was raised from 1989 when the ancestral properties were acquired. He has further referred to "Tryner’s Latin Maxims" "Tryner’s Latin Maxims" "Tryner’s Latin Maxims" 4th Edition, which deals with the maxim:- "Vigilantes non Vigilantes non Vigilantes non dormentibus dormentibus dormentibus jura subveniunt" jura subveniunt" jura subveniunt" and the portion following which reads thus :- "The law helps or assist those who are watchful of their rights, not those who are not careless of them. On this maxim, preference is given in competition to rights which have been first perfected, and to - 14 - diligences which have been first used; those who have been most watchful of their rights, and careful to use the legal means for securing them being best entitled to the benefits which the law confers or affords. Prescription is founded in part upon this principle; for rights are cut off by prescription as much in poenam of the neglect of the creditor to enforce his claim as a presumption of abandonment or discharge." 17 . Relying upon the aforesaid maxim, the learned Sr. Counsel submitted that the petitioners have awakened from their slumber when they came to know that the suit plot is likely to be developed and the petitioners are clearly guilty of delay and latches. The learned Counsel has further referred to the book titled "The Limitation Act" The Limitation Act" The Limitation Act" by V.R. Manohar, 7th (1997) Edition (AIR Commentaries) and invited my attention to the portion, which reads thus:- " 5. Doctrine of limitation distinguished 5. Doctrine of limitation distinguished 5. Doctrine of limitation distinguished from from from the doctrine of latches.- the doctrine of latches.- the doctrine of latches.- The doctrine of latches is an application of the maxim of equity "Delay defeats equities" in the case of equitable reliefs. Courts of Equity in England refused to grant such reliefs to an applicant who had wilfully slept over his rights. This principle is applicable in this Country also in so far as discretionary orders of the Court are claimed, such as specific. performance, permanent or temporary injunction, appointment of receiver. In such cases Courts can still refuse relief where the delay on the applicant’s part has prejudiced the defendant even though the applicant might have come to Court within the period prescribed by the Limitation Act." - 15 - 18. The learned Sr. Counsel relying upon the decisions in the cases of (1) Hameed Joharan V/ Abdul Hameed Joharan V/ Abdul Hameed Joharan V/ Abdul Salam, Salam, Salam, AIR (2001) 7 SCC and (2) Kissondas Ranchod V. Kissondas Ranchod V. Kissondas Ranchod V. Jivtlal Jivtlal Jivtlal Pratapshi & Co., Pratapshi & Co., Pratapshi & Co., AIR 1936 Bombay 423 submitted the law Courts never tolerate an indolent litigant since delay defeats equity and even assuming the petitioners had some semblance of right, the latches in the instant case was such so as to disentitle the petitioners to claim any equitable relief. 19. The learned Sr. Counsel referred to text on Article 227 of Constitution of India and pointed the following observations:- "(i) The High Court’s power of revision under Article 227 of the Constitution of India would be limited and restricted to interferences in cases of grave dereliction of duty or flagrant violation of law and would be exercised most sparingly, in cases where grave injustice would be done unless the High court interferes. It can not be used as appellate or revisional powers. (ii) The power could not be exercised to create an error of fact or of a law, not being at "error of law apparent on the face of the record." of an "irregularity or illegality of procedure, unless such error affects the jurisdiction, or involves a breach of principle of natural justice or to reappraisal the evidence. (ii) Nor will the High Court exercise of this - 16 - power, substitute its own judgment for that on the inferior court, whether on a question of fact, or of law or interfere with the intra-vires exercise of a discretionary power, unless there was no evidence at all, on which the inferior Court could have come to the conclusion it did, or there was error of findings on a "jurisdictional fact". Whether the High Court found fault with the appellate court in declining to take into consideration certain documents and took them on record." 20. The learned Sr. Counsel lastly submitted that the suit plot is now already transferred by the respondent Nos. 5 and 6 to the respondent Nos. 11 to 14 and therefore respondent Nos. 5 to 6 had ceased to have any interest in the suit plot and the respondent Nos. 11 to 14 were bonafide purchasers and they had become the lessees of CIDCO in respect of the suit plot. He submitted that the petition is devoid of merits and no interference is called for by this Court under Article 227 of the Constitution of India. 21. I have heard the learned Counsel for both the parties and perused the material on record. 22. In so far as the prayers in the application for injunction in the trial Court are concerned, as stated in the reply of the respondents, the suit - 17 - property is already transferred in the name of the respondent No. 11 to 14 and, therefore, no reliefs in relation to the suit plot can be sought against the respondent No. 5 & 6, at this stage as they have ceased to have any interest in the suit plot and that the names of the respondent Nos. 11 to 14 already having been recorded as lessees in respect of the suit plot in the records of the CIDCO. 23. It is to be noted that right from 1989 when the ancestral properties were acquired by CIDCO through SLAO, the said properties had vested in the Government and in lieu thereof under the 12.5 % scheme of CIDCO, the respondent Nos. 5 and 6, who were admittedly in possession of the suit property, were allotted the suit plot. It is a settled law that mutation entries alone will not create any right in favour of respondent No.5 and 6; however there is no satisfactory explanation from the petitioner as to why all these years, the petitioners have not asserted the right in respect of the ancestral properties which stood in the name of respondent Nos. 5 and 6. In fact, it is not disputed that the petitioners or Mr. Babu had not objected to the acquisition and the award which was passed in favour - 18 - of respondent Nos. 5 and 6 and the petitioners or Mr. Babu had not claimed any share in respect of the compensation which was granted. Assuming that the petitioners had any right in respect of the ancestral properties, once the ancestral properties vested in government, the petitioners as well as other heirs including the respondent No. 5 & 6 would cease to have any interest in the same. Whether or not the petitioners had any right in respect of the suit plot which came to be allotted to respondent Nos. 5 and 6, they being in possession of the same, would ultimately be decided at the stage of final hearing of the suit. It is pertinent to note that there were other ancestral properties belonging to deceased Krishna which were also acquired by CIDCO and for which compensation was shared between the petitioners and other heirs including respondent Nos. 5 & 6 and it cannot therefore be said that the petitioners were not aware of the acquisition of the ancestral properties in lieu of which the suit plot was allotted. 24. Pertinently, in paragraph No. 16 of the plaint itself, the petitioners have averred as follows :- - 19 - " Plaintiffs have approached the