1 FH fa.847, 848, 849.87.doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 847 OF 1987 The State of Maharashtra ... Appellant Versus Devshi Vala Padaya and another ... Respondents ALONGWITH FIRST APPEAL NO. 848 OF 1987 The State of Maharashtra ... Appellant Versus Mrs.Dahyabai Maya Mulji Boricha and others ... Respondents AND FIRST APPEAL NO. 849 OF 1987 The State of Maharashtra ... Appellant Versus Smt. Savitribai Dhondu Fulsunder and another ... Respondents ----- Mr. A.R.Patil, AGP for the Appellant – State. Mr. D.S.Sawant for Respondent No.1A, 1B-i to 1B-iii. Mr. Saumil S. Rege i/b M/s. Crawfod Bayley and Company for Respondent No.2. ----- 2 FH fa.847, 848, 849.87.doc CORAM : A.S.OKA, J. DATE : 11 th February, 2011. ORAL JUDGMENT: 1 These three appeals can be disposed of by common judgments as the three suits which are the subject matter of these three appeals have been decided by a common judgment. 2 The Appellant – State of Maharashtra is the 1 st defendant in all the three suits. First Appeal No. 847 of 1987 arises out of a decree passed in S.C. Suit No. 2869 of 1976, which was filed by the 1 st respondent. First Appeal No. 848 of 1987 arises out of a decree passed in S.C. Suit No. 9083 of 1977 filed by the 1 st to 3 rd respondents. First Appeal No. 849 of 1987 arises out of a decree passed in S.C. Suit No. 7348 of 1977 filed by the 1 st respondent. 3 As far as S.C. Suit No. 2869 of 1976 is concerned, the plaintiff therein claims to be a lessee of the 2 nd defendant (the Trustees of the Will of the late Mr.A.H.Wadia Charity Trust) in respect of an area of 3 FH fa.847, 848, 849.87.doc 110’ x 40’ situated at Kurla Creek in the Takia Ward of the then Kurla Borough Municipality.. It is stated that the plaintiff therein erected a chawl, which was assessed from the year 1949 to Municipal rates and taxes by the Borough Municipality under House No.168-A of Takia Ward. It is stated that after the Municipal Corporation of Greater Bombay came into existence, the assessment was continued under Ward No.L-1508 and street No. I68-A. It is stated that lease was executed by the 2 nd defendant from 1 st January, 1952 to 31 st December, 1970. It is stated that the plaintiff continued to be in possession and enjoyment of lease hold land and the chawl erected thereon even after the expiry period of the lease and has been paying rent to the 2 nd defendant. 4 The plaintiff pointed that notice dated 20 th February, 1968 was issued by the Tahsildar to him under the provisions of 248 of the Maharashtra Land Revenue Code, 1966 to vacate the land within seven days from the receipt of the notice and to remove the construction. The description of the land is village Parigh Khar, Taluka Andheri bearing Survey No.4 (part). A reference is made to notice dated 29 th February, 4 FH fa.847, 848, 849.87.doc 1968 issued by the Tahsildar stating that the rights of the plaintiff on the said land have come to an end and that the structure standing on the land, which was a government land stands forfeited. It is stated that an appeal was preferred by the plaintiff against the order of forfeiture passed by the Tahsildar. The appeal was preferred before the Sub-Divisional Officer and stay was granted in the said appeal by the Sub-Divisional Officer. It is stated that enquiry under Section 37(2) of the Bombay Land Revenue Code was completed before the Inquiry Officer. It is stated that the appeal preferred by the Plaintiff before the Sub-Divisional Officer was allowed and the order of forfeiture was set aside. Reliance is placed on the order passed in appeal dated 21 st September, 1968. It is alleged in the plaint that the Plaintiff is collecting the rents and profits from the property and was paying municipal taxes. Reliance is placed on the order dated 25 th October, 1960 passed by the Additional Collector by which it was declared that the creek lands have been declared to have been appropriated by Defendant No.2 and the same do not vest in the Government. Reliance was placed on the notice under Section 80 of the Code of Civil Procedure, 1908. The suit is filed for perpetual injunction 5 FH fa.847, 848, 849.87.doc restraining the 1 st defendant (State of Maharashtra) from interfering with possession of the property bearing Ward No. L-1508 and restraining the said defendant from recovering or demanding rent from the tenants of the plaintiff occupying tenements therein. 5 The 1 st defendant filed written statement contending that the land is situated on Survey No.4 of village Parigh Khar, which was vesting in the 1 st defendant. It was contended that the 2 nd defendant has no right in respect of the said land as the same was vesting in the 1 st defendant. The 2 nd defendant filed written statement and claimed to be the owner of the land. It was contended that there was a registered deed of exchange executed in the year 1819 between the United Company of Merchants of England and predecessors of the 2 nd defendant under which certain lands in fort area belonging to the predecessors of the 2 nd defendant were exchanged and lands at village Marol, Kurla, Asalphe, Kalina, Sabar etc. were given to the predecessor of the 2 nd defendant. 6 In Suit No. 9083 of 1977, the plaintiffs stated that by lease- 6 FH fa.847, 848, 849.87.doc deed dated 15 th April, 1953, effective from 1 st January, 1952 till 31 st December, 1970, the 2 nd defendant granted a lease to one Khodawala in respect of the area of 4400 sq.feet situated to the west of new Agra Road Takia Ward, Kurla. It is alleged that under the deed of assignment dated 28 th March, 1968, the said Khodawala assigned his interest to the husband of the 1 st plaintiff, who was the father of the 2 nd and 3 rd plaintiffs. It is stated that the husband of the 1 st plaintiff erected a chawl, which was assessed under L-1520 (1). The other facts alleged are similar to the facts in the first suit. There were similar written statements filed by the defendants. 7 In Suit No. 7348 of 1977, the plaintiff claims to be a lessee of the 2 nd defendant in respect of the land admeasuring 146.5 square yards situated at Kurla creek in Takia Ward. There was a chawl constructed by the said plaintiff, which have been assessed as L-1515 (15), L-1515 (7) and L- 1515 (8). It is stated that the Tahsildar served notice dated 15 th February, 1968 to the plaintiff stating that she was in unauthorized possession of the land. Notice of forfeiture dated 27 th February, 1968 7 FH fa.847, 848, 849.87.doc was issued against which an appeal was preferred before the Sub- Divisional Officer. It is stated that the said appeal was allowed. Similar relief has been claimed in the plaint as in case of other two suits. The written statements are more or less identical. 8 The trial Court framed various issues. The trial Court held that the suit lands are owned by the 2 nd defendant. The trial Court held that the lands form part of Kurla creek as contended by the 2 nd defendant and the lands do not form part of Survey No.4 of Parigh Khar village. The Court proceeded to grant perpetual injunction in respect of the assessed structures against the 1 st defendant-State of Maharashtra. 9 The learned AGP appearing for the Appellant submitted that in the suit, there was no proper description of the lands in respect of which lease hold rights were claimed by the plaintiffs. He submitted that the survey number and even boundaries of the lands in question were not set out in the plaint and therefore, there was no compliance made with Rule 3 of Order VII of the Code of Civil Procedure, 1908. He submitted 8 FH fa.847, 848, 849.87.doc that the plaintiffs have led no evidence and this is a case where there is absolutely no evidence to show that the lands claimed by the plaintiffs were part of the lands claimed by the 2 nd defendant in respect of which there was an inquiry under Section 37 of the Bombay Land Revenue Code. He submitted that as the plaintiffs failed to establish their rights, the suit ought to have been dismissed. 10 The learned counsel appearing for the original plaintiffs pointed out that the trial Court has recorded elaborated findings on the basis of documents and maps on record holding that the lands claimed by the plaintiffs form part of land held by the 2 nd defendant at village Kurla. He submitted that even the Appellant led no evidence to show that the lands claimed by the plaintiffs were vesting in the State Government. He submitted that the oral and documentary evidence proved that the lands in question were situated at Kurla, which were owned by the 2 nd defendant. The learned counsel appearing for the 2 nd defendant supported the judgment and decree by pointing out the evidence on record. He submitted that the documents of lease have been produced 9 FH fa.847, 848, 849.87.doc and proved and therefore, title of the 2 nd defendant to the lands in question is held as established. He submitted that no interference is called for. 11 I have given careful consideration to the submissions. Perusal of the plaint in S.C.Suit No. 2869 of 1976 shows that only area of the alleged land in respect of which lease was granted by the 2 nd defendant has been mentioned without making any reference to the revenue survey number or even boundaries of the land. The particulars such as assessment number of the chawl have been set out. An order of forfeiture was passed by the Tahsildar on 29 th February, 1968. The order dated 21 st September, 1968 of the Sub-Divisional Officer does not record any reason. It says that the appeal was admitted and the order of Tahsildar was set aside. It must be stated here that the order of resumption has been addressed to the plaintiff. Even in S.C.Suit No. 9083 of 1977, only the area of the land allegedly leased by the 2 nd defendant to Khodawala has been set out, but either the boundaries or revenue survey numbers are not set out. In this case, there is no order of 10 FH fa.847, 848, 849.87.doc forfeiture pleaded in the plaint. As far as S.C.Suit No.7348 of 1977 is concerned, the plaintiff claims to be the lessee of the 2 nd defendant. Here again only area of the land is mentioned in the plaint without setting out the boundaries or survey numbers. In this case, it appears that there was an order of forfeiture against which appellant preferred an appeal and the Sub-Divisional Officer allowed the said appeal. 12 Parties agreed to lead common evidence in S.C. Suit No. 2869 of 1976. Surprisingly, none of the plaintiffs stepped into witness box. One Yeshwant Mahadeo Joshi, an employee of the 2 nd defendant was examined. In his examination-in-chief, he stated that he was conversant with the facts of the case in all the three suits. He merely stated that the plaintiff has constructed a chawl and was paying municipal taxes. He produced Kabulayat dated 13 th June, 1934 along with a plan. Surprisingly, in his evidence, he has not given description of the lands allegedly held by the plaintiffs on lease from the 2 nd defendant. He has not stated that the said lands form part of the land held by the 2 nd defendant. Only other witness examined is one Mr.Shriram Udhav 11 FH fa.847, 848, 849.87.doc Godbole by the Appellant – State. He was working as Head Surveyor in the office of the Tahsildar. 13 Surprisingly, none of the plaintiffs stepped into witness box. The only witness examined by the plaintiff has stated nothing as regards the description of the lands, which were claimed to be in possession of the plaintiffs. He has not stated that the said lands form part of the land vesting in the 2 nd defendant. Taking the evidence of the said witness as it is, this was a case where there was absolutely no evidence adduced by the plaintiffs to show that the suit lands described in paragraph No.1 of the plaint in all the three suits, were owned by the 2 nd defendant. Therefore, issue No.4 “whether the suit land belongs to the Defendant No.2 as contended by the plaintiffs?” could not have been answered by the Court in the affirmative. In fact, there was no reason to answer any of the issue Nos.4 to 7 in favour of the plaintiffs as these were the cases where no evidence was adduced by the plaintiffs. The entire exercise done by the trial Court by going through the maps and other documents on record was completely uncalled for in absence of any evidence 12 FH fa.847, 848, 849.87.doc adduced by the plaintiffs themselves. Thus, the findings recorded by the trial Court of Issue Nos. 4 to 7 will have to be set aside. It is not necessary to deal with the issue of title of the 2 nd defendant as the issue does not arise for determination as the plaintiffs have failed to prove that the lands claimed by them form part of lands allegedly held by 2 nd defendant. 14 The trial Court has passed a decree for perpetual injunction even in absence of any evidence adduced by the plaintiffs. The said decree will have to be set aside. However, it must be stated that the orders passed in two cases for forfeiture have been purportedly set aside by the Sub-Divisional Officer without recording any reason. In the written statement of the Appellant – 1 st defendant, the possession of the disputed property by the plaintiffs is not disputed. Therefore, the Appellant – State Government will have to adopt due process of law for eviction or dispossessing the plaintiffs in the suit. 15 It must be stated here that all issues regarding the title 13 FH fa.847, 848, 849.87.doc claimed by the plaintiffs as well as the 2 nd defendant will have to be kept open. Clause (ii) of the decree passed in the suits will have to be set aside as the plaintiffs will not be entitled to costs. However, clause (i) of the decree passed in every suit will have to be modified by directing that the plaintiffs shall not be dispossessed by the Appellant without following due process of law. 16 Hence, I pass the following order: i. The appeals are partly allowed; ii. Clause (ii) of the decree passed by the trial Court is quashed and set aside; iii. Clause (i) of the decree passed in all the three suits is modified by adding the following after the last word of clause (i) of the decree : “otherwise than by following due process of law”; iv. There will be no order as to costs in the suits and in the appeals. [ A.S.OKA, J ]