1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.447 OF 2008 WITH CIVIL APPLICATION NO.522 OF 2008 Mrs.Rita Jerome Soz alias D'souza & ors .. Appellants V/s Thomas Lawrance D'souza & ors ..Respondents Mr.P.S.Dani with Mr.R.D.Suryavanshi, Advocate, for the appellants Mr.P.K.Dhakephalkar, Senior Counsel i/b.Mr.Amol P. Mhatre, Advocate, for the respondent Nos.1 & 3 Mr.R.S.Apte, Senior Counsel, for the respondent No.2 CORAM : R.M.SAVANT, J. DATE : 24TH FEBRUARY, 2009 P.C. . This appeal takes exception to the Order dated 23rd April, 2008, passed by the learned 2nd Joint Civil Judge, Senior Division, Thane by which order the application Exh.5 for temporary injunction filed by the appellants/plaintiffs came to be rejected. 2. The appellants are the original plaintiffs, who have filed 2 Special Civil Suit No.832 of 2007 inter alia claiming a declaration that the plaintiffs are the owners of the suit property bearing old Survey No.491, Hisssa No.4 now corresponding to new Survey No.84, Hissa No.4 admeasuring 660 Sq.meters situate and land bearing Old Survey No.491, Hissa No.2(part) corresponding to New Survey No.84, Hissa No.2/A admeasuring 1290 Sq.meters at village Bhayandar Taluka and District Thane. 3. The plaintiffs in the said suit have filed an application for permanent injunction restraining the defendant No.2 from granting T.D.R/D.R.C/F.S.I in respect of the second property viz. Land bearing old Survey No.491, Hissa No.2 now corresponding to New Survey No.84, Hissa No.2/A admeasuring 1290 Sq.meters. The bone of contention therefore, is the land bearing New Survey No.84, Hissa No.2/A admeasuring 1290 Sq.meters. The said plot of land is reserved in the Development Plan of the Municipal Corporation for the purpose of play-ground on account of which the owners are entitled for TDR or monetary compensation. 3 4. As mentioned here in above, the plaintiffs in the said suit have filed an application Exh.5 for temporary injunction which has been rejected by the impugned order dated 23rd April, 2008. 5. In so far as the claim for temporary injunction is concerned, the plaintiffs have based their case on Mutation Entry No.5570 dated 27th June, 1994, which was effected in respect of the said two lands. The defendant No.1 had filed an appeal against the said Mutation Entry No.5570 which came to be allowed by the Higher Revenue Authority and the said Mutation Entry No.5570 came to be set aside. Save & except the said Mutation Entry the plaintiff could not support their case for claiming the said reliefs by any other document at the stage of consideration of the said application Exh.5. 6. On the other hand, the defendants have traced the Mutation entry effected in their favour in the Say-cum-Written Statement filed by them. The ancestor of the defendants was one Jao Francis Soz, who died on 25th September, 1959. The entries made in favour of the defendants are mentioned in para 1A of the Say-cum-Written 4 Statement filed to the said application Exh.5. The defendant No.1 also relied upon Khate Utara No.304 dated 12th September, 1994. 7. In so far as the plaintiffs are concerned, they claimed through one Jao alias Juze Francis alias D'souza, who died on 1st May, 1961. As mentioned earlier, the entry in favour of the plaintiffs was made in respect of the land in question for the first time on 27th June, 1994 vide Mutation Entry no.5570. The said Mutation Entry has been set aside in R.T.S Appeal No.31 of 2003 filed by the defendant No.1 on 29th May, 2007. On the death of the plaintiffs' ancestor said Jao alias Juze Francis alias D'souza, Mutation Entry No.4860 was effected in favour of the plaintiffs in respect of the following lands. --------------------------------------------------------------------------------------------- ---- OLD SURVEY HISSA NEW SURVEY HISSA NO. NO. NO. NO. --------------------------------------------------------------------------------------------- ---- 688 6 29 6 500 (P) 73 ---- 498 6 83 6 490 17 68 17 5 529 24 69 24 --------------------------------------------------------------------------------------------- ---- However, the lands which are the subject matter of the above suit were pertinently not mentioned in the said entry. The defendant No.1 apart from relying upon the Order dated 29th May, 2007, setting aside Mutation Entry no.5570 made in favour of the plaintiffs also relied upon an old document dated 19th July, 1940, by which the grandfather of the defendant No.1 has allegedly purchased the propery in question. 8. It would also be pertinent to note that the plaintiffs have not said anything about the possession of the said land in question which has been reserved for play ground in the Development Plan. The defendants have come with a specific case that the defendant No.1 has entered into an Agreement with the defendant No.2 i.e.Corporation for handing over the plot of the land to the corporation for the purpose for which it has been earmarked in the Development Plan. The said Agreement is dated 12th October, 2007. The 6 defendant No.1 has also given “No Objection” for the said land being entered in the name of the defendant No.2 which is merely being done and presently the said land is in possession of the defendant No.2 as also entered in its name. 9. The Trial Court considering the aforesaid conspectus of facts has rejected the said application for interim injunction. As indicated above, the plaintiffs solely rely on the Mutation Entry made in their favour in the year 1994 which has been admittedly set aside. Considering the material produced by the plaintiffs as well as the material produced on record by the defendants and the handing over of the said plot of land in question to the defendant No.2 – Corporation by the defendant No.1, in my view, no fault can be found with the order impugned in the present appeal. The appeal is accordingly dismissed. 10. Since the T.D.R is issued by way of D.R.C and which is transferrable Certificate, in my view, if the plaintiffs ultimately succeed in the said suit, they can be adequately compensated in terms of 7 money as the value of the TDR is capable of being computed in monetary terms. 11. The ad-interim order which is in operation till today is continued for six weeks on the application of the learned counsel for the appellants. (R.M.SAVANT, J.)