1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1780 OF 1993 WITH L.A.R. NO. 3 OF 1997 Vijay Enterprises .... Plaintiffs. vs. Gopinath Koli & Ors. .... Defendant. Ms. S.M. Dandekar for SLAO. Mr. C.M. Korde with Bhagat i/by Vasant & Co. for claimant nos. 1, 3 to 8, 10 to 17, 19 to 22 in LAR and for Defendant no.1. 3 to 6, 8, 10 to 27 in Suit No.1780/93. Mr. R.C. Shah with Mr. B. Dandekar for Claimant No. 2. Mr. A.Y. Bookwala with Mr. V. Naik i/by K. Dalal & Co. for D. Nos. 29 to 32. in Suit No. 1780/93. Mr. B. Dandekar for Plaintiffs in S. No. 1780/93. CORAM : S.U.KAMDAR, J. DATE : 21st NOVEMBER, 2005. ORAL JUDGMENT : 1. Both the suit and the land reference has 2 been directed to be heard together and accordingly the same are placed before me for final disposal. 2. The suit has been filed by M/s. Vijay Enterprises inter alia seeking specific performance of an agreement for sale dated 6.7.1984 and three agreements for sale all dated 29.4.1985 in respect of the land which is more specifically described in Exhibit ’A’ to the said suit. As a consequential relief on decreeing the suit it has also been claimed that the plaintiff is entitled to compensation as awarded by the Special Land Acquisition Officer under award dated 3.11.1995 in LAQ No. 369/2. 3. The land acquisition reference has been filed by the SLAO in view of a diverse claim for compensation made by the parties in respect of the land under acquisition. The said reference is filed under section 30 of the Land Acquisition Act inter alia calling upon this Court to determine the entitlement of various claimants on the basis of conflicting claim of title in respect of the said property. In view of the aforesaid position, the present suit for specific performance has been tagged along with the said land acquisition reference. In my opinion, the decision in the suit would by and large decide the reference itself save and except on a few points because the title in 3 respect of the property would be determined in the said suit. Parties have led common evidence both for suit as well as Land Acquisition Reference. 4. The parties in the suit are also three divergent set of claimants who have put forward before me their claims in respect of the suit property. The defendant no. 1 to defendant no. 27 are the members of Koli families and are claiming right, title and interest in respect of the suit property as an owner by virtue of adverse possession. The plaintiff in the suit is claiming to have purchased the suit property from the defendant no. 1 to 27 under the aforesaid four diverse agreements and is claiming to be entitled to the specific performance of the said four agreements and consequentially entitled to be declared as owner in respect of the said property. The defendant no. 29 is also claiming title in respect of the property. The defendant no. 29 is claiming interest in part property on the basis of the agreement executed by him with the plaintiff and in respect of another part of the suit property claim is made on the basis of the agreement executed by the defendant no. 29 with defendant no. 1 to 27. Thus, as far as defendant no. 29 is concerned, he is claiming title in the property in respect of the part from the plaintiff and in respect of another part of the land from defendant nos. 1 to 27. 4 Further, defendant no. 29 is holding only agreement for sale and has admittedly filed no suit for specific performance of any of the alleged agreement executed in his favour. 5. Some of the material facts which are relevant for the purpose of determination of the aforesaid conflicting claim of title are briefly enumerated are as under :- 6. The present suit is filed in respect of four different plots of land covered by the four different agreements. The land involved in the present suit is survey no. 101 Hissa No. 2 (part), CTS no. 702 (part) admeasuring 2 acres 2 1/2 gunthas i.e. 10101 sq years = 8448 sq. mtrs. survey no. 53 Hissa no. 1, CTS No. 700 (part) admeasuring 1684 sq. mtrs, survey no. 54, Hissa No. 3 (part) CTS No. 698 (part) admeasuring 546 sq., mtrs., and survey no. 101 Hissa No. 2 (part) CTS No. 702 (part) admeasuring 6761 sq. yards = 5633 sq. mtrs. These four pieces and parcels of land are the subject matter of the suit in the present case. Only part of the said land has been acquired and was a subject matter of acquisition in respect of which LAR No. 3 of 1997 has been filed. 7. The defendant no. 1 to 27 are claiming title in respect of the property situated at the 5 aforesaid address being village Nahur, Mulund West, Bombay - 400 080 totally admeasuring 18631.25 sq. yards = 15575 sq. meters or thereabout as described in the earlier para hereto. The defendant no. 1 to 27 are claiming that they are the persons in possession for more than 12 years and thus by virtue of the said possession, they have become owners by doctrine of adverse possession. Originally one Bhaidas Dharshibhai Bhuta was owner in respect of the said property. Part of the said property was leased out by the said Bhaidas Dharshibhai Bhuta in favour of one M/s. Aurum Pharmaceuticals Pvt. Ltd., and M/s. Balaji Construction Corporation. M/s. Balaji Construction Corporation has in turn sub-let the part of the property to one Amubhai Velji Sethia who granted development rights in favour of one M/s. Mahavir Land Development Corporation. The said Shri Bhaidas Dharshibhai Bhuta died on 18.7.1981 leaving behind his last will and testament dated 23.10.1978 thereby appointing Shri Damodardas Bhaidas Bhuta and Shri Vasantrai Bhaidas Bhuta as the executors and trustees of the said will and testament. 8. One Laxman Mahadev Kakad was claiming to be the cultivator in respect of the large portion of the land prior to his death on 26.1.1973. By his last will and testament dated 17.5.1972 the said Laxman Mahadev Kakad bequeathed the large portion of 6 the said property to his adopted son namely, Gopinath Mahadev Koli, defendant no. 1 in the suit. The defendant nos. 2 to 27 are the family members of the said Gopinath Mahadeo Koli and are also claiming to be in possession of the said property. 9. It is the case of the plaintiff that these plots of land which is the subject matter of the suit were purchased by the plaintiffs under four different agreements of sale. The first agreement was executed on 6.7.1984 and remaining three agreements for sale were executed on 29.4.1985 between defendant no. 1 to 27 and the plaintiff herein. Putting all the four agreements together the plaintiff is claiming to have purchased 16,925.25 sq. yards of land = 14164 sq. mts. out of the total area of the suit property of 18,631.25 sq. yards = 15,575 sq. mts. of the said property. 10. Under the first agreement for sale dated 6.7.1984 which is executed by and between the plaintiff and defendant no. 1 to 27, a portion of the land bearing survey no. 101, Hissa No. 2 (part) CTS No. 702 (part), admeasuring about 6761 sq. yards = 5653 sq. mts. is supposed to have been agreed to have been sold by defendant nos. 1 to 27 on various terms and conditions set out therein. According to the plaintiffs, under the terms and conditions of the said agreement it was 7 inter alia provided that defendants no. 1 to 27 shall sell the said property to the plaintiff at the price of Rs. 205 per sq. yard, aggregating to Rs. 13,86,005/-. According to the plaintiffs, under the said terms price was payable by the plaintiff to defendant nos. 1 to 27 subject to the deduction of the amount payable by the plaintiffs to the estate of the said erstwhile owner Bhaidas Dharshibhai Bhuta and subject to the satisfaction of the claim of the lessees of the said plot of land, namely, M/s. Aurum Pharmaceuticals Pvt. Ltd., According to the plaintiffs, the total price was to be computed after deducting the amount to be paid by the plaintiff to these parties towards satisfaction of their claim so as to obtain marketable title of the said property. It is the case of the plaintiffs that under the said first agreement the original earnest money paid was Rs. 1,20,000/- but thereafter diverse amounts are paid from time to time. It is also the claim of the plaintiffs that in accordance with the terms and conditions of the agreement the plaintiff has satisfied the claim of Bhaidas Bhuta as well as the claim of M/s. Aurum Pharmaceuticals Pvt. Ltd., and plaintiff has paid the said M/s. Aurum Pharmaceuticals Pvt. Ltd., a sum of Rs. 6,68,880/- for relinquishing their right, title and interest as lessee in respect of the said property. It is also the case of the plaintiff that the plaintiff has also paid a sum of 8 Rs.12,49,381/- to the defendant nos. 1 to 27 over and above satisfying the claim of the said Bhaidas Bhuta and M/s. Aurum Pharmaceuticals Pvt. Ltd., In respect of the said agreement dated 6.7.1984 according to the plaintiff the defendant nos. 1 to 16 and 18 to 22 also executed an irrevocable power of attorney in respect of one Mr. Harshad Sethia and Dinesh K. Shah being the partners of the firm of the plaintiff irrevocably authorising them to obtain various permissions and obtain sanction of the plan from the Corporation for the purpose of construction of the building on the said plot of land. According to the plaintiff, in view of the fact that the plaintiffs have made substantial payments in respect of the said agreement dated 6.7.1984 in respect of the properties described therein and is for convenience sake known as plot "A’ the plaintiffs are entitled to specific performance since he has complied with all his obligations under the said agreement and it is the defendant no. 1 to 27 who have committed breach of their obligations to convey the property to the plaintiff herein and thus the present suit is filed by the plaintiffs for specific performance of the suit agreement dated 6.7.1984 and various other consequential reliefs. It is the case of the plaintiffs that the plaintiffs are in possession of the said plot in part performance of the said agreement dated 6.7.1984 and in support of the 9 aforesaid contention the plaintiff has relied upon a possession clause in the said agreement, the possession receipt and also the execution of power of attorney permitting the plaintiff to carry on construction on the said plot of land. 11. In so far as this agreement is concerned, the defendant nos. 1 to 27 has raised various defences and has contended that the plaintiff is not entitled to specific performance of the said agreement dated 6.7.1984. Firstly, it is the case of the plaintiff that the said agreement is not valid and binding because the price in the said agreement is filled in subsequently and is not in consonance with the agreement between the parties. Secondly, that the terms and conditions of the agreement are harsh, unequal and amounts to unequal bargain and, therefore, the said agreement is not valid and binding on defendant nos. 1 to 27. It has been contended that the defendant no. 1 to 27 are illiterate and uneducated persons and, therefore, unconscious bargain has been striked by the plaintiff with the said defendant nos. 1 to 27. 12. Alternatively it has been contended that the plaintiff is in breach of the terms and conditions of the said agreement because they have not made the payment of the price as stipulated under the agreement and thus the defendant nos. 1 to 27 are 10 not bound to specifically perform the said agreement for sale in favour of the plaintiff and they are entitled to refuse performance and the plaintiff cannot seek a decree for specific performance from this Court. 13. In so far as the other three agreements are concerned, the case of the parties before me has been slightly complex and different than that of the agreement for sale dated 6.7.1984 in respect of Plot A of the suit property. These three agreements dated 29.4.1985 is in respect of plot of lands for convenience sake identified as plots B, C and D and also forming part of the subject matter of the suit property described hereinabove. These three agreements are produced by the plaintiff in the course of evidence. The defendants have also produced their three agreements dated 29.4.1985. Both the set of documents i.e. three agreements produced by the plaintiff as well as three agreements produced by the defendant bear the same date and are duly executed by both the parties. However, both agreements differ substantially in respect of the terms and conditions of the agreement for sale of the said properties. A question arises in the present case which are the three agreements this Court must accept for the purpose of specific performance, if the Court is inclined to grant the said relief, whether the agreements produced by the 11 plaintiffs herein or the agreements produced by the defendants. Not only that, a further question arises in the present case for determination that whether the plaintiff is entitled to a specific performance of the said three agreements and whether the plaintiff has complied with the terms and conditions of the said agreement. The plaintiffs are relying upon three sets of agreements dated 29-4-1985 of which the terms and conditions inter alia provide that price will be paid in respect of the said three plots of land at the rate of Rs. 205/- per square yard. Each of the three agreements are identical in terms and conditions which are produced by the plaintiff. The said pertains to the various plots of land which are already set out hereinabove. The price fixed in the said agreements for plot ’B’ is at Rs. 205/- per square yard and the total consideration is Rs. 3.41.120/-. In respect of the second agreement which is for the plot of land being "C" which is of around 1966.25 sq. yards = 1664.02 sq. meters the price was calculated at the ate of 205/- per sq. yard totally aggregating to Rs. 4,03,081.25 and the third agreement dated 29.4.1985 is in respect of 6534 sq. yards = 5463.21 sq. mts. being Plot "D" and the price is fixed at the rate of Rs. 205/- per sq. yard totally aggregating to Rs. 11,76,308/-. It is an admitted position that under the aforesaid three agreements, the plaintiff has paid only the earnest 12 money and the balance payment has not been paid by the plaintiffs to the defendant nos. 1 to 27. 14. In respect of the land covered by the aforesaid four agreements, the plaintiffs further entered into an agreement with Balaji Construction Company to acquire their leasehold right to the said property so as to make the said property marketable. According to the plaintiffs they have paid an aggregate sum of Rs. 2,55,000/- to the third party Balaji Construction Company under the terms and conditions of the said agreement. It is the further case of the plaintiffs that the plaintiffs have also entered into an agreement with one Amubhai Velji Shethia who was claiming to be the sub-lessee in respect of the portion of the said plot of land and the plaintiffs have paid to him a sum of Rs. 1,10,000/- to satisfy his claim. It is his further case that the plaintiffs have taken various steps and expended large sums of money in order to settle in all claims of the various parties interested in the said four plots and acquired the interests of the various parties therein. It is the case of the plaintiffs that the plaintiffs have been put in possession in respect of the first agreement i.e. dated 6.7.1984 on 26.3.1985 while in respect of the remaining three plots he has been put in possession on 13.3.1985. 13 15. Further, in pursuance of the agreement and on acting upon the said agreements, according to the plaintiffs the defendants filed a suit at the instance of the plaintiffs being Suit No. 340 of 1987 in this Court. The said suit was filed against the heirs and legal representatives of the said Bhaidas Bhuta and the said Aurum Pharmaceuticals Pvt. Ltd., being the lessee of the said land. Balaji Construction Corporation was also impleaded as party defendant being defendant no. 9 in the said suit. It is the case of the plaintiffs that in the said suit a consent decree was obtained on 22.7.1991 and the said suit No. 340 of 1987 was amicably settled and the plaintiff bought over the right, title and interest of each of the said persons who were claiming interest therein and extinguished their claim by making payment of large amounts to the various parties. It is the further case of the plaintiffs that to the said consent terms the defendant no. 1 to 27 are also the confirming parties and by way of execution of the said consent terms they confirmed the aforesaid four agreements in respect of the suit property. It is the further case of the plaintiffs that thereafter the U.L.C. proceedings were in progress and the plaintiffs as a power of attorney holders of defendant nos. 1 to 27 followed up the said ULC proceedings and the ULC authority by its order dated 13.7.1992 passed under section 8 (4) of the U.L.C. 14 Act exempted the said land from acquisition under the provisions of the U.L.C. Act. It is the case of the plaintiffs that in the process of making the property marketable all these steps were taken and the plaintiff has already spent more than Rs. 20 lacs in respect of the said four plots, out of which the defendant nos. 1 to 27 have been paid an aggregate sum of Rs. 4,78,000/- 16. It is the further case of the plaintiffs that the plaintiffs have in turn executed two agreements with defendant no. 29 on 12-2-1985 and 28.7.1986 and have agreed to sell the first and second plot i.e. Plot B and C to the defendant no. 29 for the price of Rs. 47,24,000/- and have received part payment of Rs. 8,25,000/-. It is the further case of the plaintiffs that under seven different agreements, three being dated 10.10.1987, and other three being dated 3.12.1987 and one dated 26.4.1988 the plaintiff has agreed to assign, sell and/or transfer all the plaintiffs’ right, title and interest in the said third and fourth plots i.e. Plots Nos. C and D to the defendant no. 29 for an aggregate purchase price of Rs. 37,50,000/-. Thus, the defendant no. 29 is claiming the part of the said property being Plot known as C and D through the plaintiffs. It is the case of the plaintiffs that in respect of the aforesaid agreements the plaintiff has received part of the purchase price 15 from the defendant no. 29. 17. The plaintiff has stated in the said suit that on 11.12.1992 the defendant nos. 1 to 27 issued a public notice purportedly terminating the power of attorney dated 26.3.1985 and thus, the plaintiffs realised that the defendant nos. 1 to 27 are seeking to back out from the terms and conditions of the said agreement. Further, by an Advocate’s letter dated 30.1.1993 the plaintiff forwarded a cheque for Rs. 3 lacs in part payment to the defendant nos. 1 to 27 which the defendant nos. 1 to 27 refused to accept and consequently the plaintiffs were required to file the present suit for specific performance of all the four agreements as against defendant nos. 1 to 27. 18. Pending the suit for specific performance in this Court certain further developments took place which are relevant and material for the present case as I am also required to decide LAR No. 3 of 1997. The said further events are briefly set out as under :- 19. On 28.9.1993, the Government of Maharashtra in exercise of power under section 126 the Maharashtra Regional Town Planing Act, 1966 (hereinafter referred to as the MRTP Act) read with section 6 of the Land Acquisition Act issued a 16 notification for acquisition of a portion of the land bearing CTS No.54/3 and 101/2 corresponding to CTS No. 698-A and 702(A) admeasuring 1762 sq. meters for the public purpose for D.P. Road for Municipal Corporation of Greater, Mumbai. The said public road is popularly known as Goregaon-Mulund link road. In pursuance of the said notification, acquisition proceedings were commenced and ultimately culminated by passing an award under section 11 of the Land Acquisition Act, 1894 on 3.11.1995. Thus, the aforesaid land has been acquired by the State Government in exercise of State power of compulsory acquisition. The claimants who are plaintiffs, defendant no. 1 to 27 as well as defendant no. 29 have claimed the F.S.I. / T.D.R. in lieu of monetary compensation. Thus, ultimately no amount of compensation was paid though it was so declared being an amount of Rs. 1,65,82,966. In view of the diverse claims of ownership in respect of the said property, the SLAO has filed a section 30 reference in this Court which is numbered as LAR No. 3 of 1997. 20. Pursuant to the aforesaid events which have taken place, the plaintiff has amended the plaint and has also staked claim on the compensation amount which has been awarded by the Special Land Acquisition Officer and has contended that the plaintiff alone is entitled to the said amount of 17 compensation and not the defendants no. 1 to 27 and/or defendant no. 29. This claim has been denied by defendants no. 1 to 27 and 29 by filing written statement in this Court. 21. The defendants nos. 1 to 27 has in their written statement inter alia contended that the agreement is not legal and valid as it is executed under duress and without any proper knowledge and understanding of the agreements as the defendants nos. 1 to 27 were illiterate and uneducated. It has ben contended in the written statement that the defendant nos. 1 to 27 have been subjected to unequal bargain and it is a totally one sided agreement obtained by the plaintiff in respect of the said property. In so far as the third agreement dated 29.4.1985 is concerned, additional contentions are raised in the written statement that the agreement which has been produced and proved by the plaintiff is not the correct agreement which has been executed by and between the plaintiff and the defendants but the correct and true agreement has been produced by the defendants which inter alia indicates a different terms and conditions including the payment of price. It has been contended that the plaintiff is in breach of the terms and conditions of the said agreements by non-payment and thus the plaintiff is not entitled to specific performance and consequently not entitled to any 18 compensation as awarded by the Special Land Acquisition Officer. It has also been denied that the plaintiff was put in possession in respect of the said premises. 22. The defendant nos. 1 to 27 has filed a supplementary written statement dated 8.8.2002 giving reply to the averments made in respect of the subsequent acquisition of the portion of the land being CTS 101 (part) and CTS 702 (Part) and has contended that the plaintiff is not entitled to any specific performance and as such not entitled to any claim of any amount of compensation. It has been alternatively contended by the defendants that