IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO.100 OF 1996 IN APPEAL FROM ORDER NO.1140 OF 1995 IN DECLARATORY SUIT NO.1576 OF 1995 1.Ranchhoddas Karsondas Rangwala, Rangwala Building, 73, J.V.Road, Ghatkopar (West), Bombay 400 086. 2.Prakash Ranchhoddas Rangwalla, of Bombay, Indian Inhabitant, carrying on business at Rangwala Industrial Estate, at Plot No.25, of Adi Shankaracharya Marg, Powai, Vikhroli (West), ...Petitioners Bombay - 400 083. (Ori.Defts.) Versus 1.Nalinchandra Gordhandas Soparkar, of Bombay, Indian Inhabitant, residing at Suman Vihar, 11th Road, Khar (West), Bombay 400 052. 1A.Vijay Bhavanji Sethia, the constituted attorney of Defendant No.1, having his address at 21, Kaysons Co-op. Housing Society Ltd., Station Road, Vikhroli (West), Bombay 400 083. 1B.Vinaychand D.Jain, the constituted attorney of Defendant No.1, having his addres at E-3, Hazari Baug, Near Station, Vikhroli (West), Bombay 400 083. : 2 : 2.Shah Developers, a partnership firm, duly registered under the Partnership Act, having their registered office at Chandra Kunj, Gr.Floor, Station Road, Vikhroli (West), Bombay 400 083. 3.Jayesh Bhawanji Sethia, 21, Kaysons Co-operative Housing Society, Station Road, Vikhroli (West), Bombay 400 083. 4.Gitabai Ganeshlal Paliwal, E-4, Hazari Baug, Near Station, Vikhroli (West), Bombay 400 083. 5.Gajraj Sohanlal Jain, C-3, Hazari Baug, Near Station, Vikhroli (West), Bombay 400 083. 6.Jayantilal Virchand Shah, residing at Bharat Mahal, Doongarsey Road, Malabar Hill, Bombay 400 006. 7.Ramesh Hazari Shah, residing at Pavapuri Apartment, Khetwadi 9th Lane, Girgaum, Bombay 400 004. 8.Shankerrao Pawar, ...Respondents Senior Inspector of Police, (Respdts.Nos. In-charge, Park Site Police Station, 1 & 2-Ori. Vikhroli (West), Bombay 400 083. Plaintiffs) ...... Mr.I.M.Khairadi as amicus curiae for Petitioners. Petitioner No.2 present in-person. Mr.J.Reis with Mr.Denzil D’Mello for : 3 : Respondents 1 to 7. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. AUGUST 4, 2006. AUGUST 4, 2006. AUGUST 4, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Contempt Petition was disposed of on August 20, 1996. Against the said decision, Petitioners carried the matter in Appeal before the Supreme Court. The Supreme Court by order dated July 21, 1997 has relegated the parties before this Court with direction to examine the issues afresh on the basis of all relevant materials on record. 2. Briefly stated, in the Contempt Petition as filed, the Petitioners assert that the Respondents have wilfully disobeyed the order of this Court dated 19th October 1995 passed in Appeal from Order No.1140 of 1995. The said Appeal from Order was filed against the decision of the City Civil Court restraining the Petitioners from interfering with the development work undertaken by the Respondents 1 and 2/original Plaintiffs on the : 4 : plot owned and occupied by them. That relief was granted while allowing Notice of Motion No.1434 of 1995. 3. The Respondents 1 and 2 had filed Suit before City Civil Court, asserting that they were seized and possessed of property bearing CTS No.4B of Village Hariyali Adishankar Chhaya, Powai, Mumbai, as per the plans annexed to the Plaint. It was the case of Respondents 1 and 2 in the said Suit that Petitioners/Defendants were causing obstruction, interference and/or preventing them from carrying on development activities on the suit property. As mentioned earlier, Respondents/Plaintiffs had taken out Notice of Motion No.1434 of 1995 for granting temporary injunction against the Petitioners/Defendants during the pendency of the Suit. Besides, the said Notice of Motion, Respondents/Plaintiffs had also filed Notice of Motion No.3148 of 1995 for appointment of D.I.L.R. to survey and demarcate the properties in question, particularly, the plot belonging to the Respondents/Plaintiffs. Both the Notices of Motion were allowed in favour of the : 5 : Respondents/Plaintiffs by the Trial Court. The Trial Court had invited report of the Commissioner appointed by the Court. The Court Commissioner visited the suit property on 18th March 1995 pursuant to order dated 9th March 1995 and submitted his report to the Trial Court dated 18th March 1995. This report states that the Court Commissioner was appointed to find out actual situation at site in respect of the possession of the properties belonging to Plaintiffs and Defendants and existence of nallah and existence of boundary line as claimed by the respective parties. The Court Commissioner was also directed to verify the claim of the Petitioners/Defendants regarding demolition of the wall and structure. The Commissioner undertook detailed investigation as recorded in his report dated 18th March 1995. The relevant portion whereof reads thus: "3. The plot No.33 is to the South of Powai Road. The entrance to the said plot is from Powai Road. To the South of said plot, there is a nallah and plot No.25 is to the South of the nallah. The entrance to the plot No.25 is from 50 feet wide road. There are western side compound walls to the plot Nos.25 and 33 : 6 : respectively. The said compound walls are made of rubble masonary. There is an opening above the said nallah between the western side compound wall of plot No.33. The distance between the abovementioned compound wall is 32 feet. There is a office and/or watchman cabin of the defendants to the north of gate of the plot No.26 and touching the western side compound wall. The western side compound wall of plot no.25 is upto about 29 feet 2 inches north of the said office or watchman cabin. The north edge of the said compound wall is broken and not straight from bottom to top so also the southern side edge of the western side compound wall of plot No.33 is broken and not straight from bottom to top. There is an open drainage touching the western side compound wall (on the road side) of plot No.25. The said open drainage is upto about 2 feet to 3 feet north of western side compound wall of plot No.25. The depth of the said open drainage is 4 feet. The drain water is flowing south-north. There is a pipe underneath the 50 feet wide road run west-east. The said pipe is 11 feet from the northern side edge of the said pipe is approximately 1 feet 6 inches to 2 feet. The drain water is flowing west-side east from the said pipe. The drain water flowing from abovementioned open drainage mix with the water of these called nallah and the said water flows towards the western side, even beyond the eastern side compound walls of plot Nos.25 and 33. Even though the distances between western side compound walls of plot Nos.25 and 33 is about 32 feet, the width of the nallah is not 32 feet because of heaps of the earth in the nallah. The said nallah runs west to east. I noticed heaps of the earth to the north side of the nallah and touching the southern side wall of the Plaintiffs buildings. The said heaps of : 7 : the earth is from the western side compound wall, even there is a slopping on the plot No.25 in the nallah. The ground level of plot No.25 and 33 is higher than ground level of nallah, the depth of the nallah from the ground level of plot No.25 and 33 is approximately 5 to 6 feet. The so called nallah is actually portion between plot Nos.25 and 33. There is a building of the Plaintiffs in plot No.33. The southern side of the building is consists of 8 galas. For the purpose of my commission and for making points, 1 numbered the said galas as 1 to 8 from the western side. 4. There is no boundary to the said nallah. Water in the said nallah is flowing from west to east side where it gets a way. The flow of the water near the abovementioned pipe is 1 to 2 feet and opposite to gala No.2 it is 2 to 4 feet thereafter it is 1 to 2 feet and opposite to gala no.5 the flow is about 5 to 6 feet. The water is constantly west to east. 5. Shri Dubey pointed out one iron rod embedded in the earth opposite gala No.1. According to Mr.Dubey it is the southern boundary of plot No.33 the distance between gala No.1 and the said rod is about 26 feet 9 inches at this stage Mr.Dubey requested me to take distance between northern edge of actual flowing of water and gala No.1. The distance between this is about 22 feet 3 inches thereafter defendant No.2 pointed out the northern side boundary of plot No.25. It is made of rubble masonary wall. The distance between office or watchman cabin and southern edge of said boundary is about 28 feet 4 inches. At this point water of the said nallah is flowing north of northern side compound wall of plot No.25 and said rod pointed on by Mr.Dubey. : 8 : Mr.Dubey pointed out another iron rod embedded in earth opposite gala No.4 as southern side boundary of plot No.33 and distance between gala No.4 and said iron rod is about 28 feet 6 inches. The defendant No.2 pointed out northern side boundary of plot no.25. The distance boundary of plot No.25 in about 10 inches at this point water is flowing north of boundary of plot no.25 and said rod. Mr.Dubey pointed out the third rod embedded in earth which is opposite to gala No.5 as southern side boundary of plot No.33 and the distance between the said rod and gala No.5 is about 29 feet. At this point defendant No.2 pointed out the boundary of plot No.25 the width of the said boundary is about 1 feet 7 inches and height is about 8 inches above the water level. The said rod is 4 inches north of northern side edge of the boundary of plot No.25 at this point water is flowing north of boundary and said rod. The southern side boundary of flat No.25 opposite to gala Nos.5 and 6 is broken and water of the aid nallah is flowing oven to the south of said boundary. 6. When we reached opposite gala No.8 and west of these sanitary tank Shri Shantilal Shah, representative of the Plaintiffs wanted to point out the southern side boundary of plot No.33 and which south west corner of sanitary tank the defendant No.2 objected for the same. according to defendant No.2 the said point is in his property. I told defendant No.2 that both the sides are entitled to point out their respective boundaries. After some discussion he allowed Shri Shah to point out his boundary. Shri Jayantilal Shah pointed out southern : 9 : side boundary of plot No.33 which is west of sanitary tank and opposite of south east corner of Plaintiffs’ building (gala No.8) and the distance between said boundary and south east corner of gala No.8 of the Plaintiffs’ building is about 29 feet 6 inches. At this point there is no marking of the boundary as shown earlier with the help of iron rod embedded in earth. Mr.Dubey pointed out one iron rod lying near the boundary tank. According to Mr.Dubey the said iron rod was embedded where Shri Shah has pointed out the sanitary pipes joined together and one edge of the same is broken which is lying where Mr.Shah pointed out the boundary. 7. The defendant No.2 pointed out boundary of plot No.25 which is touching northern side wall of sanitary tank. The distance between the said wall and south east corner of gala No.8 of Plaintiffs’ building is about 21 feet 10 inches. The western side wall of the said sanitary tank is about 9 feet 11 inches east of the said point, and the distance between south east corner of plaintiff’s building and north west corner of sanitary tank is about 25 feet on crew files. Internal dimensions of sanitary tank is 11 feet 9 inches x 4 feet 1 inch and the thickness of the wall is about 11 inches. The north east corner of said sanitary tank is broken so also top slab or sanitary tank is broken to the extent of 7 feet 9 inches in length. I also noticed the pieces of broken brick masonary walls and some iron rods near the said tank. According to defendant No.2 they are the pieces of sanitary tank. There is no water in the said tank and flooring is muddy. 8. There is a dug up portion between eastern side wall of said tank and eastern side compound wall of plot No.25. The width of the said dug up portion near : 10 : eastern side wall of the said tank is about 10 feet and width of the dug up portion to the west of eastern side compound wall is about 8 feet 4 inches and length is about 35 feet and depth is about 4 feet 4 inches and depth near sanitary tank is about 4 feet 8 inches. At this point water is flowing to the north of boundary wall of plot No.25 which is touching to the said tank. 9. There is a W.C. to the east of south east corner of plaintiffs’ building the distance between the same is about 20 feet 8 inches. The straight distance between W.C. and dug up portion is about 31 feet 9 inches. Mr.Dubey pointed out the iron angle near the boundary of plot No.25 touching the eastern side compound wall. The distance between northern side edge of the eastern side compound wall and the said angle is 6 feet 7 inches in other words the northern edge of the eastern side of compound wall is 6 feet 7 inches north of iron angle. The distance between the south east corner of the Plaintiffs building and the said angle is about 60 feet as crow-flies. 10. There is foundation of boundary wall of plot No.25 from sanitary tank to eastern side of compound wall and the said foundation of boundary wall is covered by earth. The defendant No.2 removed the earth through his servants and pointed the same. The boundary pointed out by Mr.Dubey is to the south-east of the said boundary of plot No.25. 11. After completing my inspection I asked abovementioned persons whether they want to inspect anything else or not anything more and they replied in negative. The inspection work was concluded at about 7.30 p.m. Thereafter alongwith abovementioned persons, I sat in : 11 : the office of defendant No.2 and checked the notes and rough sketch in the presence of abovementioned persons. I left the suit premises about 8.30 p.m." 4. Along with this report, rough sketch prepared on the basis of notings made by the Commissioner during his visit is also appended. The Trial Court after considering the said report and other materials on record declined to accept the claim of the Petitioners/Defendants that the Plaintiffs were undertaking construction beyond the property owned and possessed by them (Plaintiffs). The Trial Court has noted the claim of the Petitioners/Defendants that they have become owner by adverse possession in respect of certain portion of the land beyond nallah which separates the properties of the Plaintiffs and the Defendants. The Trial Court has also noted that both the Plaintiffs and Defendants purchased respective properties, Plot Nos.33 and 25 respectively from the same owner. The Plaintiffs had purchased Plot No.33 admeasuring 2892.08 square meters under registered Conveyance Deed on 30th November 1969. Whereas, the Defendants/Petitioners purchased plot : 12 : No.25 admeasuring 2693.59 square meters in terms of Agreement for Sale dated 12th December 1975 and later on registered Deed of Conveyance dated 6th December 1979. The Conveyance Deed of both the parties clearly indicate that their property is separated by a natural nallah. The Trial Court has also noted that the schedule and the plan appended to the respective Conveyance Deed describes the property sold and delivered to the respective party. The Trial Court has noted that it is undisputed position that plot No.25 of the Defendants and Plot No.33 of the Plaintiffs is divided by a water nallah and Plot No.25 is on the Southern side of said nallah and Plot No.33 is on the Northern side of the said water nallah. The Trial Court has then noted that the Defendants have not been able to establish the circumstances in which they can be said to have been put in legitimate possession of any property beyond the nallah. The argument of the Petitioners/Defendants that they were in settled position of certain portion of the land or property beyond the nallah, has been negatived. Suffice it to observe that on considering the materials on record, the Trial : 13 : Court recorded following conclusion: "8. In any event and under any circumstances, it clear appears that whatever structure were constructed by the defendants were within or inside the said plot no.25 and on the southern side of the said water nalla and not beyond the said water nalla and if that is so, the claim of the defendants of being in possession of any property beyond the nalla must be rejected and they should not be allowed to obstruct the plaintiffs in making and completing the construction of their building on the said plot no.33 which is on the southern side of the said water nalla. 9. In the circumstances, in my opinion, the plaintiffs have made out more than prima facie case for granting the notice of motion No.1434 of 1995 and dated 9.3.1995 and the same deserves to be made absolute. It also appears that the defendants in the guise of being in possession of the property beyond nalla and which claim is found to be false and dishonest will obstruct the said construction and, therefore, prayer (d) for police protection also should be granted." 5. In Paragraph 10 of the said Judgment, the Trial Court noted that it would be appropriate to call upon the District Inspector of Land Records (D.I.L.R.) and/or City Survey Officer to carry out survey and demarcate the boundary of the respective plots and record the location of the nalla between : 14 : the said two plots. Accordingly, both the Notice of Motions filed by the Respondents/Plaintiffs were allowed on the following terms: "O R D E R Notice of Motion No.1434 of 1995 is made absolute in terms of prayers (a) and (d) thereof and the defendants to pay the costs of the said Notice of Motion to the plaintiffs. Notice of Motion No.3148 of 1995 is also made absolute in terms of prayer (a) thereof. I direct the City Survey Officer to appoint the concerned officer of District Inspector of Land Records to carry out the survey and demarcate the boundaries of the said 2 plots i.e. plot nos.25 and plot no.33 within 2 weeks from the date when the certified copy of this order reaches its office and the work of survey and demarcation shall be carried out after giving notice to both the plaintiffs and the defendants. The plaintiffs shall carry out their development and construction work only in the plot of land number 33. At this stage Mr.D.T.Gandhy for the defendants applies for stay of operation of my above order, as the defendants want to file an appeal against my judgement and order. Mr.P.K.Pandit for the plaintiffs has left the matter to me. In the circumstances I stay the operation of my above order for a period of 8 weeks from today on the condition that the defendants and/or their advocate shall : 15 : given notice of at least 48 hours to the advocates for the plaintiffs before moving for any ad-interim/interim reliefs in the proposed appeal or any other proceedings which may be filed against this judgment and order." 6. Against the decision on Notice of Motion No.1434 of 1995, restraining the Petitioners/Defendants from interfering with the development work undertaken by the Respondents/Plaintiffs on their plot, the Petitioners had filed appeal before this Court being Appeal from Order No.1140 of 1995. That Appeal, however, has been dismissed as having become infructuous by order dated April 3, 2006 inasmuch as the main Suit filed before the Trial Court has already been withdrawn and the appeal from Order was directed against interlocutory order passed in the said Suit. Insofar as order passed on Notice of Motion No.3148 of 1995, directing the City Survey Office to appoint concerned Officer of D.I.L.R. to carry out the survey and demarcate the boundaries of the two plots, the Petitioners filed Appeal from Order No.1224 of 1995. It is seen from the record that the said Appeal from Order was : 16 : disposed of as not pressed in terms of order dated December 7, 1995. What is relevant for our purpose is to note that this Court passed ad-interim order in the former Appeal from Order No.1140 of 1995 on 19th October 1995. As the entire controversy in the present proceedings is regarding breach of the said order, I think it apposite to reproduce the text of the entire order dated 19th October 1995 which reads thus: ". Heard both sides. 1. Mr.Jahagirdar for the appellants makes a statement that the appellants have no claim over any portion of the property beyond the nalla on the north side. Similarly, Mr.Rane for the respondents makes a statement that the respondents have no claim over any portion of the property beyond the nalla on the southern side. Statements made by both the learned counsel are accepted. 2. Both the learned Counsel agree not to put up any construction in the nalla portion or pending admission of this appeal. 3. The District Inspector of Land Records is scheduled to visit the site on Friday, the 3rd November 1995 at 10-00 a.m. to measure both the properties in dispute, as directed by the City Civil Court. Both sides are directed to remain present at the site, at about 10-00 A.M. on 3rd November 1995. The D.I.L.R. is directed : 17 : to complete the work of measurement on 3rd November itself and submit his report to this Court by 9th November 1995 and copies thereof be furnished to both sides. 4. In view of the above, no further ad-interim order is required in the C.A. The ad-interim order granted on 29th September 1995 is, therefore, vacated. Adjourned to 13th November, 1995. 5. Certified Copy expedited." (emphasis supplied) 7. From the averments in the Contempt Petition, it can be noticed that the Petitioners are alleging wilful disobedience of the order dated 19th October 1995 on the allegation that inspite of the order of the Court on 15th January 1996, the Respondents came on the suit property and demolished the wall on the north and partly demolished the septic tank, removed cover of second sanitary tank and also demolished pipe line. It is stated that on account of such damage, entire sewerage (drainage) line became chocked, which is dangerous to the health and thereby the Respondents/contemnors have flouted the order of the Court. Even on liberal reading of the averments in the Contempt Petition, the only other allegation which according to the Petitioners : 18 : constitutes contempt is that the Petitioner apprehend that the contemnors/Respondents 1 to 7 were likely to carry on construction in the nallah portion. On these allegations, the present Contempt Petition came to be filed on 1st March 1996. 8. The case of the contemnors on the other hand is that they did not indulge in any act which would constitute wilful disobedience of the order of the Court. It is their case that the construction activity on the suit site particularly of erecting the boundary wall was undertaken by them only after the D.I.L.R. had visited the site and submitted report demarcating the respective boundaries. The D.I.L.R. was required to visit the site in terms of order of this Court to undertake measurement and demarcation of the boundaries of the respective plots. It is the case of the contemnors that the order passed by this Court directing D.I.L.R. to undertake