1 FA 1100.02 w FA.1099.02.doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1100 OF 2002 Avinash Thodankar and others. ... Appellants Versus Mrs. Aishabai Fakir Mohamed Sheikh and others. ... Respondents WITH FIRST APPEAL NO. 1099 OF 2002 Avinash Thodankar. ... Appellant Versus Municipal Corporation of Greater Mumbai and others. ... Respondents ----- Mr. Aditya Bapat i/b M/s.S.K.Srivastav and Company for the Appellants. Mr. A.Y.Sakhare, Senior Counsel with Mr.Vachan Bodke i/b M/s.Chinis Vaithy and Company for Respondent Nos.3 to 5 in FA No.1099 of 2002 and for Respondent Nos.1 to 3 in FA No.1100 of 2002. Mr. R.S.Apte, Senior Counsel with Mr. Yatin R.Shah for Respondent No.6 in FA No.1099 of 2002 and for Respondent No.7 in FA No.1100 of 2002. Mr. N.V.Walawalkar, Senior Counsel and Vinod Mahadik for Respondent No.1 – BMC in FA No.1099 of 2002 and for Respondent No.6 in FA No. 1100 of 2002. ----- CORAM : A.S.OKA, J. DATE : 02 nd May, 2011. 2 FA 1100.02 w FA.1099.02.doc ORAL JUDGMENT: 1 On 8 th March, 2011 submissions of the learned counsel appearing for the parties were heard and today the appeals are kept for dictation of judgment. 2 First Appeal No. 1100 of 2002 arises out of L.C. Suit No.2487 of 1998 and First Appeal No.1099 of 2002 arises out of a decree passed in L.C. Suit No.2914 of 2001. There is a common judgment delivered by the trial Court in both the suits and these appeals are directed against the said common judgment and therefore, the same are being disposed of by a common judgment. 3 With a view to appreciate the submissions, it will be necessary to make a reference to the facts of the case. One Aishabai Fakir Mohamed Shaikh, Zaibunnisa Abdul Rajak Shaikh and Mairunnisa Gulam Nabi Shaikh are the plaintiffs in L.C. Suit No.2487 of 1998 and the defendants in L.C. Suit No.2914 of 2001. One Avinash Thodankar is plaintiff in L.C. Suit No.2914 of 2001. Avinash Thodankar, Anand 3 FA 1100.02 w FA.1099.02.doc Thodankar, Mrs.Pooja Thodankar and Shradha Thodankar are the defendant Nos.4 to 7 in L.C. Suit No.2487 of 1998. One Devidas Rajbhar is the defendant No.1 in L.C. Suit No.2487 of 1998. One Oswin Pallanna is the defendant No.2 in L.C. Suit No.2487 of 1998. The Mumbai Municipal Corporation is also a party defendant in both the suits. 4 First Appeal No.1100 of 2002 has been preferred by Avinash Thodankar and three others, who are the defendants Nos.4 to 7 in L.C. Suit No.2487 of 1998. First Appeal No.1099 of 2002 has been preferred by Avinash Thodankar, who is the plaintiff in L.C. Suit No.2914 of 2001. 5 Brief reference to the facts of the case will be necessary. L.C. Suit No.2487 of 1998 has been filed by the said Aishabai, Zaibunnisa and Mairunnisa. The suit property is described in paragraph No.2 of the said suit. In paragraph No.1 of the plaint, it is alleged that plaintiff No.1 – Aishabai is the widow of late Fakir Mohamed Shaikh. It is alleged that Zaibunnisa and Mairunnisa are the daughters of the said Fakir Mohamed. It is alleged that the said Fakir Mohamed was the owner 4 FA 1100.02 w FA.1099.02.doc of land bearing Survey No.168, Hissa No.10 admeasuring 1331 square yards of village Marol, Taluka Andheri, Mumbai Suburban District Mumbai. It is alleged that the land bearing Survey No.168, Hissa No.10 was subsequently converted into two CTS numbers out of which CTS No. 1251 admeasuring 535.5 square meters is the subject matter of the suit referred to as the suit property. The other City Survey number is 208. The case made out in the plaint is that said Fakir Mohamed constructed building on CTS No.208 by the name “Aysha Sadan”. It is alleged that CTS No.1251 was kept open to sky. It is stated that the suit property was proposed to be acquired by the Mumbai Municipal Corporation and action of acquisition was challenged by the plaintiffs. The allegation in the plaint is that one Oswin Pallanna in the year 1987 broke open the compound wall of City Survey No.1251 and encroached upon the suit property by illegally constructing two sheds. It is stated that as action of demolition was initiated by the Municipal Corporation by issuing notice under Section 351 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as “the said Act”), the defendant No.2 - Oswin Pallanna filed a suit in the year 1987 bing L.C.Suit No.4791 of 1987 against the Municipal 5 FA 1100.02 w FA.1099.02.doc Corporation. The said suit was dismissed on 4 th May, 1998. It is stated that the defendant No.1 Devidas Rajbhar filed L.C.Suit No.4679 of 1996 restraining the Municipal Corporation from demolishing a structure admeasuring 30’x20’ on a land bearing CTS No.1251 corresponding to Survey No.168 and Hissa No.9. In the said suit, the plaintiff Aishabai and two others produced a copy of the earlier notice under Section 351 issued by the Municipal Corporation. It is alleged that the said notice under Section 351 of the said Act was in respect of the illegal construction on Survey No.168, Hissa No.7 corresponding to CTS No. 1250 which had nothing to do with the suit property. It is alleged that taking advantage of interim relief granted in the Suit No.4679 of 1996, the defendant No.2 - Oswin Pallanna started construction by way of unauthorized extension to the two sheds constructed by him. It is alleged that the Municipal Corporation issued notice under Section 354 of the said Act and subsequently a notice dated 18 th November, 1996 under Section 351 of the said Act. It must be stated here that the plaintiffs applied by way of a Chamber Summons in the said L.C. Suit No.4679 of 1996 for impleading themselves as party defendants. The suit and the 6 FA 1100.02 w FA.1099.02.doc chamber summons were dismissed by the trial Court. It is alleged that according to the plaintiffs, the suit related to illegal construction on Hissa No.9 of Survey No.168 and not the suit property. 6 The defendant No.1 is in the suit – Devidas filed L.C. Suit No.2302 of 1998 in the City Civil Court. It is alleged that in the plaint that the said suit related to land bearing Hissa No.9 of Survey No.168. Reference is made to the order of temporary injunction passed in the said suit. It is alleged that the said suit does not relate to the suit property and therefore, the order of injunction is not binding on the Municipal Corporation. Therefore, the plaintiffs Aishabai and two others filed the said L.C. Suit No.2487 of 1998 for injunction against defendant Nos.1 and 2 namely Devidas and Oswin from encroaching upon any portion of the suit property and from carrying upon any construction. A mandatory injunction was sought against the Municipal Corporation for implementation of order dated 9 th October, 1997. Apart from the aforesaid two prayers, prayer clauses (c) and (d) in the plaint read thus: “(c) The plaintiffs be permitted to put up the compound wall at the suit premises to stop any further encroachment on the 7 FA 1100.02 w FA.1099.02.doc suit premises namely survey no.168, hissa No.10 of villages Marol, Taluka Andheri B.S.D. M.M. Road. (d) The surveyor from City Survey Office be directed to survey the boundary of the suit premises i.e. survey no.168, Hissa No.10 of village Marol, Taluka Andheri, B.S.D. Marol Maroshi Road.” 7 It must be stated here that subsequently Avinash Thodankar, Anand Thodankar, Pooja Thodankar and Shradha Thodankar were impleaded as defendants to the suit. 8 L.C. Suit No.2914 of 2001 has been filed by Avinash Thodankar, who is the Appellant in First Appeal No.1099 of 2002. In the said suit, a contention has been raised by the said Avinash that he was in occupation and possession of the property bearing CTS No.1251 (Survey No.168 and Hissa No.9), which was having four structures more particularly described in paragraph No.2 of the plaint. It is alleged that officers of the Mumbai Municipal Corporation have demolished the structures on the said property in December 2000. The said suit was filed by the said Avinash for declaration that action of demolition of the four structures of land bearing Survey No.168, Hissa No.9 and CTS No. 8 FA 1100.02 w FA.1099.02.doc 1251 was bad in law and illegal. The second prayer is for perpetual injunction restraining the defendants from disturbing possession of the said Avinash in respect of the remaining portion of the structures and the land admeasuring 120 square meters. Further perpetual injunction was claimed restraining the defendants from obstructing the plaintiffs in reconstruction of the structures as they existed before demolition on plot of land bearing CTS No.1251, Hissa No.9 of Survey No.168. Subsequently, Aishabai and two others, who were the plaintiffs in L.C. Suit No.2487 of 1998 were impleaded as party defendants to the suit. 9 The suits were contested by the parties by filing written statements. Issues were framed by the learned trial Judge in both the suits and findings recorded thereon in the impugned judgment read thus: “FIST SUIT i.e. SUIT NO. 2487 OF 1998 ISSUES FINDINGS 1) Do the plaffs. prove that they are the owners of the suit property viz. the land bearing survey no. 168, Hissa no. 10, CTS NO.1251 of village Marol, Taluka Andheri, B.S.D. ? Affirmative 9 FA 1100.02 w FA.1099.02.doc 2) Do the plffs. prove that the Deft.No. 2 had encroached upon the suit property in collusion with the deft. No.1 ? Affirmative subject to laying down boundaries of CST No. 1251. 3) Do the plffs. prove that they are entitled for the relief of mandatory order sought for in the plaint ? Affirmative. 4) Do the dents. 4 to 7 prove that the structures claimed by them were situated in survey no. 168 Hissa No. 9 and not survey no. 168 Hissa No. 10 viz. the suit property ? Negative. 5) Do the defts. prove that the suit property was acquired by the deft. No. 3 ? Negative. 6 What reliefs and order ? As given below. SECOND SUIT i.e. SUIT NO. 2914 OF 2001 ISSUES FINDINGS 1) Does the plff. prove that the was in lawful use, occupation and possession of the suit property being the land bearing survey no. 168, Hissa No. 9 and bearing corresponding CTS No. 1251 Opp.Marol Maroshi Road, Andheri, Mumbai ? Negative. 2) Does the plff. prove that the deft. No. 1 demolished the structure on 15/12/2000 unlawfully and/or without notice? Negative 10 FA 1100.02 w FA.1099.02.doc 3) Does the plff. prove that he is in possession of the land beneath the demolished structures also ? Negative 4) Does the plff. Prove that the entitled for reconstruction of the demolished structures ? Negative 5) Does the plff. prove that the land land where the demolished structures were situated were declaration as a slum area ? Negative 6) Does the plff. prove that the demolished structures were protected structures under the policy of deft. No. 2 ? Negative 7) Do the deft. Nos.3,4 and 5 prove that they have retaken the possession of the land beneath the demolished structures after the demolition ? Affirmative subject to survey and layout. 8 What reliefs and order ? As per final order.” 10 By the impugned judgment and decree, the learned trial Judge held that the land bearing Hissa No.10 of Survey No.168 corresponds to CTS No.1251. The learned Judge negatived the contention of the Avinash and others that the structures claimed by them were situated on Survey No.168, Hissa No.9 and not on survey No.168, 11 FA 1100.02 w FA.1099.02.doc Hissa No.10. The learned trial Judge held that the plaintiff-Avinash in Suit No.2914 of 2001 has failed to prove that he was in lawful use, occupation and possession of the property bearing Hissa No.9 of Survey No.168 bearing corresponding CTS No.1251. Finding of the trial Court is that Hissa No.10 of Survey No.168, which was owned by Fakir Mohamed was converted into CTS No.208/1 to 9 and CTS No.1251. The case made out by the Avinash Thodankar that Hissa No.9 of Survey No.168 has been converted into CTS No.1251 has been negatived by the trial Court. The operative part of the impugned judgment reads thus: “O R D E R L.C.Suit no. 2487/98 is decreed. L.C.Suit no. 2914/2001 is dismissed. No order as to costs in both the suits. The plaintiffs in first suit shall get C.T.S. No. 1251 surveyed by an authorized cadastral surveyor and lay down the boundaries of C.T.S. No. 1251 as per the record of City Survey Office and shall be entitled to remain in vacant possession of the same and if any material of the defendants in first suit and plaintiff in the second suit is found lying on such CTS No. 1251, the defendants shall remove the same of their own within 7 days of such survey carried out with intimation to them and defendant nos. 1,2,4 to 7 in the first suit shall thereafter be perpetually restrained from obstructing in any way into the possession of such CTS No. 1251.” 11 I have heard the learned counsel appearing for the 12 FA 1100.02 w FA.1099.02.doc Appellants in both the appeals. I have heard the learned senior counsel appearing for the said Aishabai, Zaibunnisa and Mairunnisa. I have also heard the learned senior counsel appearing for Respondent No.6 in First Appeal No. 1099 of 2002 and the Respondent No.7 in First Appeal No. 1100 of 2002. I have heard the learned senior counsel appearing for the Municipal Corporation. 12 The learned counsel appearing for the Appellants has taken the Court through the pleadings, notes of evidence and admitted documents on record. The first submission made by the learned counsel appearing for the Appellants is that in L.C. Suit No. 2487 of 1998, the learned trial Judge has virtually passed a decree for possession against the Appellants though the suit was not for possession. He submitted that the evidence on record shows that the Appellants are in possession of land bearing CTS No.1251. He pointed out the oral evidence adduced by the parties. He submitted that insofar as land bearing Hissa No.10 of Survey No.168 is concerned, the evidence of title adduced by the plaintiffs in L.C. Suit No.2487 of 1998 is completely inconsistent. He 13 FA 1100.02 w FA.1099.02.doc submitted that an altogether new case as regards the title has been made out in the evidence, which is inconsistent with the pleadings. He submitted the constituted attorney of the said plaintiffs Aishabai and others admitted in the evidence that the defendants (Thodankars) had committed encroachment on the property. He submitted that there is no evidence for establishing the title of the plaintiffs in the said suit and there was no suit filed for removal of encroachment. He, therefore, submitted that the L.C. Suit No.2914 of 2001 ought to have been decreed and the companion Suit No.2487 of 1998 ought to have been dismissed. The learned counsel has relied upon a decision of the Apex Court in the case of Gurunath Manohar Pavaskar and ors Vs. Nagesh Siddappa Navalgund and Ors [AIR 2008 Supreme Court 901 (1)]. He has also relied upon a decision of this Court in the case of Abdul Rehman Siddique & others Vs. Ahmed Mia Gulam Mohuddin Ahmedji and others [1996 (4) Bom.C.R. 696]. The learned senior counsel appearing for the plaintiffs in L.C. Suit No. 2487 of 1998 pointed out the evidence on record, which according to him establishes the title of the said plaintiffs therein to the land bearing Hissa No.10 of Survey No.168 corresponding 14 FA 1100.02 w FA.1099.02.doc to CTS No.1251. He submitted that Thodankars never claimed to be in possession of the suit property and in any case, the title of the plaintiffs to the suit property has been established. He pointed out that the alleged discrepancy in the evidence of the constituted attorney of the plaintiffs as regards title is totally irrelevant. The learned senior counsel appearing for the Respondent No.6 in First Appeal No.1099 of 2002 supported the decrees and submitted that the construction of the building has been already carried out on the suit property bearing CTS No.1251. He invited attention of the Court to the affidavit dated 17 th June, 2008 in First Appeal No.1100 of 2002, which makes a reference to the IOD granted on 28 th June, 2007. The learned senior counsel appearing for the Municipal Corporation relied upon a decision of this Court dated 7 th December, 1970 passed in Appeal from Order No.308 of 1969 and submitted that the Appellants in First Appeal No.1100 of 2002 are not entitled to injunction preventing the Municipal Corporation from reconstruction of the structure inasmuch as the structure which was completely unauthorized has been lawfully demolished by the Corporation. 15 FA 1100.02 w FA.1099.02.doc 13 I have carefully considered the submissions. The first issue is regarding the title of the Aishabai, Zaibunnisa and Mairunnisa (plaintiffs in L.C. Suit No.2487 of 1998). As far as Avinash Thodankar is concerned he alongwith Anand, Pooja and Shradha have not claimed title. In the plaint, a specific case made out by Aishabai and others is that the land bearing Hissa No.10, Survey No.168 admeasuring 1331 square yards was converted into two CTS numbers. One of them is CTS No.1251 admeasuring 535.5 square meters, which is the suit property in the said suit. The other is CTS No.208. The said Aishabai and two others claimed the suit property through their predecessor Fakir Mohamed, who was stated to be the owner of the suit property. 14 At the same time, it must be borne in mind that the said Avinash Thodankar in his suit has claimed that Hissa No.9 of Survey No. 168 corresponds to CTS No.1251 and he claimed to have four structures on the said property. 15 One Abdul Razak Shaikh, constituted attorney of the 16 FA 1100.02 w FA.1099.02.doc plaintiffs Aishabai and two others were examined. In the examination-in- chief, he stated that the land was owned by the Haji Fakir Mohd. Ismail Shaikh, who purchased from one Diago Fementa by a sale deed dated 19 th January, 1994. He further stated that one Usman Shaikh Mohd was the owner of the suit property who purchased it from Diago Fementa in the year 1924 by a sale-deed. He stated that Fakir Mohd was the son of the said Usman Shaikh. He placed reliance on 7/12 extracts and mutation entries. In the examination-in-chief, he has stated that the defendant Nos.1, 2, 4 and 5 trespassed in suit property on 9 th March, 2001 and raised temporary sheds. He stated that the structures erected by them were demolished by the Municipal Corporation. It is stated that on 27 th May, 2001, the defendants Nos.1, 2, 4 and 5 again committed trespass and assaulted the security guards of the plaintiffs. Reliance has been placed on the first information report lodged of the said incident. In paragraph No.7 of the cross-examination made by the advocate for the Thodankars, the constituted attorney stated that even on the day of demolition, Thodankars were not in possession. In the cross- examination, he stated that the defendants were in possession of the suit 17 FA 1100.02 w FA.1099.02.doc land as trespassers on 4 th June, 2001. he later on corrected by saying that on 19 th June, 2001, the defendants were in possession and not on 4 th June, 2001. 16 It must be stated here that as far as Thodankars are concerned, they never disputed the title of Aishabai and two others in respect of the land bearing Hissa No.10 of Survey No.168. In fact, the said Avinash Thodankar in his examination-in-chief specifically stated that he was not claiming any right as against land bearing Hissa No.10 of Survey No.168. He stated that he was not concerned with CTS No.208/1 to 208/9. The claim made by him is that one A.J.Wadia was the original owner of the land bearing Hissa No.9 of Survey No.168. Thus, title of the plaintiffs in L.C. Suit No.2487 of 1998 in respect of Hissa No.10 of Survey No.168 is not disputed. Thus, the only question is whether Hissa No.10 of Survey No.168 corresponds to CTS No.1251? 17 The Property Register Card in respect of CTS No.1251 was placed on record which shows the area thereof as 535.5 square meters. 18 FA 1100.02 w FA.1099.02.doc As far as CTS No.208/1 to 208/9 are concerned, the same appear to have been assigned to structures and name of the owner is shown as Fakir Mohamed. 18 The learned trial Judge has made a reference to various mutation entries recorded in the Revenue Record. The learned trial Judge also noted that as far as Property Register card in respect of CTS No.1251 is concerned, the name of Fakir Mohamed is not mentioned. However, 7/12 extract in respect of Hissa No.10 of Survey No.168, the name of the said Fakir Mohamed appears. Exhibit-11 is the consolidated extract of the conversion showing conversion of various hissa numbers of Survey No.168 into CTS numbers. The said document shows that Hissa No.10 of Survey No.168 was given CTS No.1251 and CTS No.208/1 to 208/9. On the basis of the said authentic document on record, a finding has been recorded that Hissa No.10 of Survey No.168 was converted into CTS No.208/1 to CTS No.208/9 and CTS No.1251. The said document establishes that the corresponding survey number and Hissa number of CTS No.1251 in Hissa No.10 of Survey No.168 and thus, Hissa No.9 of 19 FA 1100.02 w FA.1099.02.doc Survey No.168 claimed by Thodankars has nothing to do with CTS No. 1251 which is the suit property in L.C.Suit No.2487 of 1998. As stated earlier, in respect of no part of Hissa No.10 of CTS No.168, Thodankars have claimed any right, title or interest. Therefore, the finding of the trial Court that the Aishabai and two others have established the title in respect of CTS No.1251 will have to be accepted. 19 As far as the decree passed in L.C. Suit No.2487 of 1998 is concerned, in the earlier part of the judgment, this Court has already quoted the prayer clauses (c) and (d). From the operative part of the decree, it is obvious that prayer clause (c) has not been granted, and prayer clause (d) has not been granted as prayed. The plaintiffs have been directed to get CTS No.1251 surveyed from the cadastral surveyor and to get boundaries fixed. The Court directed that after the survey was carried out, the plaintiffs are entitled to remain in vacant possession of City Survey No.1251 and the defendants (Thodankars) were directed to remove their belongings on City Survey No.1251, if found lying there. There was no occasion for the trial Court to direct the plaintiffs in L.C.Suit 20 FA 1100.02 w FA.1099.02.doc No.2487 of 1998 to get their property surveyed. The plaintiffs could have always applied to the concerned survey officer for carrying out the survey. The last part of the direction contained in the decree could not has been issued as the entire plaint proceeds on the footing that the plaintiffs were in possession. Even assuming that Thodankars had committed any encroachment, there was no prayer for removal of encroachment by Thodankars. It must be noted here that there is no cross objection or cross appeal filed by the plaintiffs in L.C. Suit No.2487 of 1998. 20 It must be stated here that Thodankars never claimed to be in possession of any part of Hissa No.10 of Survey No.168, which has rightly held to be corresponding to CTS No.1251 and hence, there is a finding recorded that the Thodankars are not concerned with the suit property subject matter of L.C. Suit No.2487 of 1998. Nevertheless, the last part of the decree passed in the said suit directing Thodankars to remove their articles could not have been passed considering the limited prayers made therein.