: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1990 of 1989 SUIT NO.1990 of 1989 SUIT NO.1990 of 1989 Byramjee Jeejeebhoy Pvt.Ltd., a Company registered under the Companies Act I of 1956, having its registered office at 83 Jolly Maker Chambers II, Nariman Point, Mumbai - 400 021. .. Plaintiffs. Versus Bhor Industries Ltd., a Company deemed to be registered under the Companies Act I of 1956, having its registered office at Veer Savarkar Marg, Mumbai - 400 025 .. Defendants. Mr.H.J.Thakkar, Senior Advocate i/b.Mathkar & Co. for the plaintiffs. None for the defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 26th August, 2008. DATE : 26th August, 2008. DATE : 26th August, 2008. JUDGEMENT :- JUDGEMENT :- JUDGEMENT :- 1. The plaintiffs herein have filed the present suit for following reliefs :- i) for a declaration that the defendants are a trespasser in regard to land, more particularly, set out in Schedule "A" Schedule "A" Schedule "A" to the plaint; : 2 : ii) for possession of land, more particularly, set out in Schedule "A" to the plaint. iii) for an injunction restraining defendants from entering upon and remaining upon the property, more particularly, set out in Schedule "A" to the plaint and/or carrying on any development or construction on the said plot; iv) for recovery of Rs.32.85 lacs being the arrears of damages by way of mesne profits and for costs. 2. Plaintiffs’ case in short is as under :- 3. Plaintiffs’ claim that they purchased immovable properties, more particularly, set out at Exhibit-"A" to the plaint being properties consisting of C.T.S. Nos.638 and 639 of Village Poisar, Taluka Borivali by Conveyance Deed dated 24.7.1951. According to the plaintiffs, the survey in respect of the said property was conducted on 5-6th of November, 1986 and the plaintiffs received copy of the survey report from the office of City Survey Office No.10, Bombay Suburban, Bombay, on 9.7.1987. It is at : 3 : Exhibit-P-4. According to the plaintiffs, on going through the said survey report as well as the situation at site, the plaintiffs realised that the defendants have committed trespass in respect of the lands owned by the plaintiffs to the extent of 2058.25 sq.mtrs. as per the survey report at Exhibit-P-4 in yellow colour. The plaintiffs claim that they entered into correspondence with the defendants for the purposes of settling the question of alleged trespass by the defendants. The said correspondence was entered into between the plaintiffs on one hand and the defendants on the other between the months of July, 1987 and September, 1987. The efforts to settle did not materialise and that is how the plaintiffs came to the conclusion that the defendants are not interested in going for a joint survey and surrender the land over which they had committed trespass. The plaintiffs, therefore, instituted the present suit for recovery of the possession in respect of the land over which the defendants had committed trespass, namely, land admeasuring 2058.25 sq.mtrs. (hereinafter referred to as the "suit land"). This suit came to be filed on 22.6.1989. The plaintiffs have also prayed for certain other prayers in the nature of injunction and recovery of mesne profit as mentioned earlier. : 4 : 4. The suit summons was served upon the defendants. The defendants contested the suit by filing written statement. According to the defendants, the defendants purchased a portion of land admeasuring 70755 sq.mtrs. out of survey No.109 and a portion of the land admeasuring 2288 sq.mtrs. of survey No.148 vide Agreement for sale dated 28.6.1963 and since then, the defendants are in possession of the said lands and that the suit land forms the part of the said lands. According to the defendants, in the beginning, there was a barb wire fencing covering the area of lands over which the defendants were having control. According to the defendants, subsequently, the boundary wall was put up in the year 1972 and, therefore, the question of defendants committing a trespass over the land of the plaintiffs did not arise. According to the defendants, the defendants are in possession of the suit lands since 1963 and have not trespassed upon suit land. The defendants have pressed for dismissal of the suit filed by the plaintiffs. 5. Based on the pleadings, issues came to be framed on 6.12.2007. They are as follows :- : 5 : I S S U E S I S S U E S I S S U E S i) Whether the defendants prove that the suit is barred by law of limitation as contended in para (3) of their written statement? .. In the .. In the .. In the negative. negative. negative. ii) Whether the plaintiffs prove that they acquired ownership of the properties, inter alia; consisting of CTS Nos.638 and 639 of village- Poisar, Taluka Borivli ("suit property") as contended in para (2) of the plaint? .. In the .. In the .. In the affirmative. affirmative. affirmative. iii) Whether the plaintiffs prove that by putting up the wall on the suit property the defendants have trespassed on the suit property as contended in para (6) of the plaint? .. In the .. In the .. In the affirmative. affirmative. affirmative. iv) Whether the defendants prove that they purchased land bearing Survey No.148 (part) and was handed over possession thereof on 28th June 1963 as contended in para- 1(b) of their written statement? .. In the negative. .. In the negative. .. In the negative. v) Whether the defendants prove that the boundaries of Survey No.148 (part) stood fenced with G.I.Netting as contended in para- 1(c) of their written statement? .. In the negative. .. In the negative. .. In the negative. vi) Whether the defendants prove that the boundary was erected by the defendants on the suit property in accordance with the plans certified and issued by the authorities in accordance with law as contended in para- 2 of their written statement? .. In the negative. .. In the negative. .. In the negative. vii) Whether the defendants prove that they are in possession of the land surrounded the boundary wall since the year 1963, as contended in para- 3 of their written statement? .. In the negative. .. In the negative. .. In the negative. viii) Whether the plaintiffs prove that agreement for sale dated 28th June 1963 is fraudulent as alleged in para- 13(a) of the plaint? .. Does not survive. .. Does not survive. .. Does not survive. : 6 : ix) Whether the plaintiffs prove that they are entitled to claim a sum of Rs.45,90,000/- or any other sum as and by way of damages for the act of trespass, as contended in para- 18 of the plaint? .. In the negative. .. In the negative. .. In the negative. x) Whether the plaintiffs prove that they are entitled to Rs.3,000/- per day from the date of filing of the suit till handing over possession as and by way of mesne profits for continuing trespass as contended in para- 18 of the plaint? .. In the negative. .. In the negative. .. In the negative. xi) What order and decree? .. As per the .. As per the .. As per the operative order. operative order. operative order. 6. My answer to each of the issue is mentioned against the respective issue. 7. At trial, on behalf of the plaintiffs Mr.Shirish D.Khatri, P.W.No.1 Estate Manager of the plaintiffs was examined. Mr.Syed Afsar Ali, P.W.No.2 is a qualified surveyor. He has been examined by the plaintiffs in order to place on record, the dimensions of the suit lands for the purposes of showing the area over which the defendants have carried out encroachment. Mr.Ramesh T. Paralkar is the Sheristedar working in the office of the City Survey at Goregaon. He has been examined by the plaintiffs to show as to how the survey was carried out by Mr.G.S.Sawant in November, 1986 and the related aspects. : 7 : 8. It must be mentioned that after conducting cross-examination of Shirish Khatri, P.W.No.1, on one date i.e. on 25.1.2008, the defendants remained absent before the court and that is how there was no further cross-examination of Shirish Khatri, P.W.No.1, Mr.Syed Ali, P.W.No.2 and Mr.Ramesh Paralkar, P.W.No.3. 9. I have with the assistance of learned Senior Counsel Mr.Thakkar perused the entire record. The issues framed in the aforesaid matter can be conveniently discussed together. 10. Evidence of Mr.Shirish Khatri, P.W.No.1 goes to indicate that the plaintiffs had purchased the land in the year 1951 out of survey Nos.638 and 639 and that they were in possession of the entire land till they came to know in the year 1987 as regards the encroachment by the defendants on their property. The evidence of P.W.No.1 Mr.Shirish Khatri goes to indicate that the plaintiffs were the owners of the lands purchased by them in terms of Document dated 29.6.1951 and Deed of Rectification dated 29.6.1989. The claim of the plaintiffs that effort was made by them to have the land surveyed after they got the map at Exhibit-P-4 with the help of defendants is also : 8 : made out inasmuch as though defendants in the beginning showed willingness to come forward for a joint survey but at later stage, not only they backed out but in the written statement, they took a stand that the defendants are in possession of the suit land as the owners thereof and they are in possession of the suit land right from 1963. It is pertinent to note that though defendants took such a stand at the stage of written statement, they have not made out a case in that behalf either by cross-examining the witnesses of the plaintiffs or by putting up their case through their witness. 11. The evidence of Mr.Syed Ali, P.W.No.2 goes to indicate that this witness had upon instructions from the plaintiffs carried out the job of tracing from and out of the plan at Exhibit-P-4 to the extent of the area over which the defendants had trespassed. This is being stated on the basis of the contents of paragraph 2 of the evidence of Mr.Syed Ali P.W.No.2. In paragraph 3 of his evidence affidavit he has narrated as to how the entire area trespassed by the defendants was broken into 10 triangles and how the area was counted which turned out to 2058.25 sq.mtrs. P.W.No.2 Mr.Syed Ali has produced a plan alongwith tracing done by him which is marked as : 9 : Exhibit-P-4A and the traced portion on the said area. Exhibit-P-4A goes to show that the portion of the land over which the defendants committed trespass which is being referred to as the suit land. The evidence of P.W.No.2 Mr.Syed Ali has gone unchallenged as there is no cross-examination on behalf of the defendants. The plaintiffs have examined Mr.Ramesh Paralkar, P.W.No.3, Sheristedar from the office of the city survey office, Goregaon. He has stated that the plan at Exhibit-P-4 was drawn and supplied to the plaintiffs pursuant to the survey carried out by Mr.G.S.Sawant, Maintenance Surveyor and that the survey was conducted on 5-6th November, 1986. He has further stated that the lands over which the plaintiffs have authority are put in by mentioning the points ON. If one peruses the said plan at Exhibit-P-4, it would clearly go to show that the trespassed portion falls within the ambit of the land owned by the plaintiffs. All this will clearly go to show that the plaintiffs have been able to make out a case that defendants had committed a trespass on the suit land. A perusal of the plan at Exhibit-P-4 would go to show that the area marked in the yellow colour is the suit land in possession of defendants. : 10 : 12. A perusal of the evidence of Mr.Shirish Khatri, P.W.No.1, Mr.Syed Ali, P.W.No.2 and Mr.Ramesh Paralkar, P.W.No.3 would clearly go to show that the plaintiffs have been able to make out a case that the defendants have committed encroachment over the lands of the plaintiffs to the extent of 2058.25 sq.mtrs. as manifested in plan at Exhibit-P-4. If this is the position, the plaintiffs would be entitled to recover possession of the suit land i.e. the land admeasuring 2058.25 sq.mtrs. and to that extent, the claim of the plaintiffs is required to be granted. 13. The plaintiffs have claimed mesne profit and the prayer for mesne profit is set out at prayer clause (d) to the plaint. The plaintiffs have claimed mesne profit to the extent of Rs.32.85 lacs and have also claimed interest @18% per annum and have also claimed further mesne profit @ Rs.3,000/- per day. The plaintiffs have prayed for order to seek enquiry for determination of the mesne profit under order 20 Rule 22 of the C.P.C. Insofar as this aspect is concerned, it may be true that the plaintiffs have been able to show that the defendants have committed a trespass in regard to the suit lands. However, no evidence is placed before the court in support : 11 : of the claim of the plaintiffs for seeking mesne profit to the extent of Rs.32.85 lacs as set out in prayer clause (d) to the plaint. If this be so, the plaintiffs claim for mesne profit cannot be granted as prayed for. 14. In view of this, plaintiffs are entitled to possession of the suit lands as indicated earlier. With the laying down of the aforesaid principal, I wish to answer the Issues which have been framed in the suit as follows :- Issue No.1 :- ============= 15. Insofar as Issue No.1 is concerned, the defendants were required to prove that the suit is barred by the period of limitation. No material is placed before the court in respect of this point by the defendants. In any case, on the basis of the material which is placed before the court, it is abundantly clear that the suit came to be filed by the plaintiffs within the period of limitation. The plaintiffs got the copy of the survey report from the City Survey office in the year 1987 and the plaintiffs proceeded to file the suit in the year 1989. This will go to show that the suit is filed within the period of limitation as such Issue No.1 is answered in the negative. : 12 : Issue No.2 :- ============= 16. Evidence placed before the court by the plaintiffs goes to indicate that the plaintiffs are the owners of the lands which are reflected in the Sale Deed dated 24.7.1951 being the portion of the lands bearing C.T.S.Nos.638 and 639. The Survey Report at Exhibit-P-4 also goes to show that the lands marked with points ON are of the plaintiffs. Accordingly, Issue No.2 is answered in the affirmative. Issue No.3 :- ============= 17. Evidence of P.W.No.1 Mr.Shirish Khatri, P.W.No.2 Mr.Syed Ali and P.W.No.3 Mr.Ramesh Paralkar, if considered cumulatively would go to show that the defendants have committed a trespass in regard to the land admeasuring 2058.25 sq.mtrs. Reasons are already mentioned in the earlier part of the judgement. As such, Issue No.3 is answered in the affirmative to hold that the defendants have committed a trespass in regard to the lands admeasuring 2058.25 sq.mtrs. shown in the plan at Exhibit-P-4. Issue No.4 :- : 13 : ============= 18. Issue No.4 relates to the stand of the defendants where they contend that they had purchased land bearing Survey No.148 (part) and possession of the same was handed over to them on 28.6.1963 and the suit land form the part of the said land bearing Survey No.148 (part). Except taking such a contention, no effort is made by the defendants to discharge this burden cast on them and as such Issue No.4 is answered in the negative. Issue Nos.5 and 6 :- ==================== 19. By this, the defendants were required to prove that the lands purchased by them being Survey No.148 (part) had a GI-netting which was subsequently converted into a wall fencing and that is how the defendants wanted to protect their property, no evidence is placed before the court in this behalf and as such Issue Nos.5 and 6 are answered in the negative. Issue No.7 :- ============= 20. Defendants have contended that they are in possession of the lands purchased by them including the suit land from 1963. No evidence is placed before the : 14 : court in that behalf and the Issue No.7 is answered in the negative. Issue No.8 :- ============= 21. The plaintiffs have contended that the Agreement for Sale dated 28.6.1963 is fraudulent. The said document has not come before the court and there was no occasion for this court to comment upon the said document and as such Issue No.8 does not survive and is accordingly answered. Hence, Issue No.8 answered "does not survive". Issue No.9 :- ============= 22. Except claiming the mesne profit, no substantive evidence was placed before the court by the plaintiffs to claim mesne profit in terms of Rs.45.90 lacs and as such the case of the plaintiffs must fail and, therefore, Issue No.9 is answered in the negative. Issue No.10 :- ============== 23. The plaintiffs have not placed before the court evidence to show that they were entitled to recover Rs.3,000/- per day from the date of the filing of the suit by way of mesne profit. The figure mentioned @ Rs.3,000/- : 15 : appears to have been without any evidence. No evidence was placed before the court by the plaintiffs and as such Issue No.10 is answered in the negative. Issue No.11 :- ============== 24. I have already indicated that the plaintiffs would be entitled to possession of the lands admeasuring 2058.25 sq.mtrs. and to that extent, the plaintiffs’ case will have to be accepted and the plaintiffs’ suit will have to be decreed. Hence, Issue No.11 is answered as per the operative part. 25. For the reasons mentioned aforesaid, I pass the following decree :- D E C R E E D E C R E E D E C R E E i) Defendants do deliver to plaintiffs possession of the land admeasuring 2058.25 sq.mtrs. from and out of land forming part of C.T.S.No.638 and 639 of village Poisar, Taluka Borivali, Mumbai which portion is reflected in the yellow wash colour on the map at Exhibit-P-4 and the traced portion on the map at Exhibit-P-4A. : 16 : ii) Defendants do pay to plaintiffs costs of the suit. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)