ash 1 fa-600.03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.600 OF 2003 1. Shree Krusangli Akurli Mata ) Deosthan Samiti, ) Akurli Road, Kandivali (E), ) Bombay – 400 101. ) 2. Mangesh Nabar, ) Inhabitant residing at Pathare Wadi, ) Kandivali (E), Bombay – 400 101. ) 3. D.M. Rege, of Bombay Indian ) Inhabitant, residing at 1st Floor, ) Radha Dalvi Nagar, ) Kandivali (E), Bombay – 400 067. ) .. Appellants Versus 1. Dattatray Devaji Bhandar, ) Of Bombay Indian Inhabitant, ) residing at House No.15, Kamatipura ) Lane N.10, Bombay – 400 006. ) 2. M/s. V-6 Enterprises (deleted) ) 3. City Survey Officer, ) Uday Society, Motilal Nagar, ) Main Road, Goregaon (West), ) Mumbai – 400 063. ) 4. Superintendent of Land Records, ) Bandra, New Administrative Building) Near Chetna College, Bandra (East), ) Bombay – 400 051. ) 5. State of Maharashtra ) Through Government Pleader, ) Appellate Side, High Court, Bombay. ) .. Respondents -- ash 2 fa-600.03 Shri M.P. Rao, Sr. Advocate, Shri M.C.Shah along with Shri A.C. Mahimkar for the Appellants. Shri S.A. Sawant for Respondent No.1. -- CORAM ; A.S. OKA, J DATED : 9TH JUNE, 2011 ORAJ JUDGMENT : . The Appellants who are some of the Defendants have taken an exception to the judgment and decree passed by the learned Judge of the City Civil Court for possession and injunction in respect of the suit property described in the Plaint. The 1st Respondent is the original Plaintiff. 2. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it is necessary to make a brief reference to the facts of the case. The case is made out by the 1st Respondent-original Plaintiff in the Plaint is that prior to the year 1952, he along with one Shri Gangaram Devji Bhandar ( since deceased ) and Defendant Nos. 6 and 7 were the members of and constituted a joint Hindu family. It is alleged that the said family possessed several properties including the piece or parcel of land bearing Survey No.37, Hissa No.1 of village Akurli admeasuring about 1 acre and 2 gunthas. The said land is described as the suit land. It is stated that there is a ash 3 fa-600.03 temple and two zavali sheds used for residential purpose on the suit land. Exhibit -B to the Plaint describes the suit property and Exhibit-C describes the suit temple. As far as Exhibit-B is concerned, as stated above, it is the land bearing Survey No.37, Hissa No.1 with a temple and two Zavali shes. Exhibit-C is the description of the temple which reads thus:- “The temple of Shree Krusangli Devi Akurli Mata as also the temple of Hanuman, Datta, and Shiva as also the Tulsi Vrindavan along with all the movable property lying inside the main temple of Shree Kharsangli Devi Akurli Mata.” 3. There are various prayers made in the suit. The first prayer is for a decree for possession against the Defendant Nos.1 to 5 in respect of the temple described in Exhibit-C. Prayer (c) is for an injunction restraining the Defendant Nos.1 to 5 from entering into and/or upon the suit property including the suit temple and from constructing any structure on the suit property described in Exhibit B to the Plaint. Specific averment in the Plaint and in particular in Paragraph 2 is that the Plaintiff and the 6th and 7th Defendants along with the said deceased Gangaram have been the absolute owners of the suit property and as such they have been in the exclusive uninterrupted possession thereof since several years. Various averments have been made regarding digging up of a well by the father of the Plaintiffs in the ash 4 fa-600.03 suit property. 4. Reliance has been placed on the municipal bills and electricity bills etc. in respect of the temple property. It is that the said Gangaram became insolvent in the year 1956. It is stated that thereafter the Plaintiff started the managing the suit property. In Paragraph 8 of the Plaint, it is asserted that the Plaintiff requested some of the residents of the village Akurli to form a Panch Committee for looking after the day to day management of the suit temple and in the year 1964, the Panch Committee was formed to look after the management of the suit temple on behalf of the Plaintiff and the members of his joint Hindu family. It is stated in the Plaint that the Panch Committee invited the Plaintiff to participate in the celebrations in the suit temple by sending letters. It is stated that the panch committee was dissolved in the year 1966 and thereafter one Shri Bhagwandas Narshi, Makanji Velji and Kapadwala came forward to take over the management of the suit temple. It is alleged that the devotees of the temple were dissatisfied with the behaviour of the three persons and, therefore, the said three persons were driven away. 5. It is alleged that the Plaintiff requested the Defendant Nos. 2 and 3 to manage the suit temple. It is stated that in a meeting held on 11th November, 1973 which was attended by the Plaintiff, the ash 5 fa-600.03 Defendant Nos.6 and 7 and the said Gangaram, the Defendant Nos. 2 and 3 were appointed as the members of a new committee and the Plaintiff himself became the Chairman of the Committee. 6. In the Plaint, it is stated that an attempt was made by the Defendant No.2 to get the temple registered as a public trust. A reference has been made in the Plaint to the letters sent by the Defendant No.2 in that behalf. It is alleged that the Defendant Nos.1 to 5 who were allowed by the Plaintiff to merely manage the suit temple attempted to get the suit temple registered as a Trust. It is alleged that though the Defendant Nos.1 to 5 were managing the suit temple from October, 1973, the Plaintiff revoked their authority to manage the temple. That is the reason why the suit was filed by the Plaintiff. It is contended in Paragraph 12 of the Plaint that the Defendant Nos.1 to 5 are in possession of the temple as trespassers. The Plaintiff, inter alia, prayed for a decree for possession. 7. The suit was contested by the Defendant Nos. 1 to 5 by filing a written statement. The said Defendants specifically denied in Paragraph 3 of the written statement that the said Gangaram along with Plaintiff and the 6th and 7th Defendants were the owners of the suit property and that they were in possession of the property for a period of 50 years and more. It is contended that at one point of time the temple ash 6 fa-600.03 was in possession of bootleggers. It is stated that the Committee ousted the said anti-social elements and took over the possession of the Temple. Their contention is that after having found that the said Defendants were in possession of the suit temple, the Plaintiff expressed a desire to associate with the working of the Committee and therefore, the Committee accepted him as a member and appointed him as the President of the Committee. 8. The Trial Court framed various issues. The issues and findings thereon read thus:- “ISSUES FINDINGS 1. Whether this Court has jurisdiction Does not survive to entertain and try this suit ? 2. Does the Plaintiff prove that the In affirmative Plaintiff, the Defendant Nos.6 and 7 and the Gangaram D. Bhandar were the members of a Joint Hindu Family ? 3. Does the Plaintiff prove that In affirmative Joint Hindu family is the owner of the suit property and as such had in possession and management thereof ? 4. Does the Plaintiff prove that Prior to In affirmative 1973, the suit temple was being managed and looked after by and/or for and on behalf of the said Joint Hindu family and/or the Plaintiff ? ash 7 fa-600.03 5. Does the Plaintiff prove that he In affirmative appointed and/or authorized the Defendant Nos.1 to 5 to manage the suit temple for and on behalf of the Plaintiff ? 6. Do the Defendant Nos.1 to 5 prove In negative that they have any right to manage and possess the suit temple as also the movable property therein ? 7. Whether the Plaintiff is entitled In affirmative to the relief of injunction sought at prayer Clause (c) of the Plaint ? 8. What reliefs and what order ? As per the final order.” 9. Learned senior counsel appearing for the Appellants/Defendants submitted that the suit has been under-valued and if the suit would have been properly valued, the valuation would have exceeded pecuniary jurisdiction of the City Civil Court. Therefore, the City Civil Court had no jurisdiction to entertain the suit. He, therefore, submitted that the decree is nullity. His second submission is that apart from producing mutation entry and the documents such as electricity bills, tax bills, no documents were produced by the Plaintiff to establish his alleged title. He invited attention of the Court to the case made out by the Plaintiff in examination in chief in which he admitted that the suit land which was a Khoti land was allotted by the Government of Bombay to Goraksha Mandal and the Goraksha Mandal released the land in favour of deity and the father of the Plaintiff. He pointed out that there is no document produced on record to show the ash 8 fa-600.03 surrender or transfer of the land by the said Goraksha Mandal in favour of the Plaintiff’s father. He submitted that as no document of title was produced and proved, the finding of the issue of title could not have been recorded in favour of the Plaintiff. He submitted that as the suit is founded on title, the same ought to have been dismissed as no documents were produced by the Plaintiff to prove the title. 10. Learned counsel appearing for the Plaintiff submitted that the Defendant Nos. 1 to 5 have not even a semblance of the title. He submitted that there is no cross-examination made by the contesting Defendants on the aspect of the title claimed by the Plaintiff. By referring to the mutation entry No.81, he submitted that the same makes a reference to the order of the Competent Authority by which the land was released by Goraksha Mandal. He pointed out that Mutation Entry No.81 specifically refers to the fact that the property was transferred in the name of Gangaram as the owner and Vahiwatdar of the temple. He submitted that a return under the Urban Land and Ceiling) Act, 1976 was filed by the Plaintiff. He submitted that on one hand, the Plaintiff has established the long standing possession of his family and on the other hand, the original Defendant Nos.1 to 5 have no right, title or interest in the suit property. He submitted that the Trial Court was justified in upholding the title on the basis of the documentary evidence on record. Inviting the attention of the Court to ash 9 fa-600.03 the written statement of the Defendant Nos. 1 to 5, he submitted that the valuation of the suit for the purposes of Court fee and jurisdiction was never challenged by the said Defendants and in view of Section 21 of the Code of Civil Procedure, 1908, now it is not open for the Defendant Nos.1 to 5 to raise the issue of lack of pecuniary jurisdiction of the City Civil Court to entertain the suit. 11. I have given careful consideration to the submissions. The point for determination will be whether the Plaintiff has proved the ownership of joint family over the suit property as pleaded by him. This point for determination arises as the suit is on title. The third issue framed by the Trial Court is on the ownership of the joint family. This point for determination goes to the root of the matter as the suit is based on the title and not on the prior possession. The second point for consideration will be based on the plea of lack of pecuniary jurisdiction raised by the learned senior counsel. 12. As far as the first point for determination is concerned, a reference will have to be made to the relevant averments made in the plaint. Paragraph 1 of the Plaint reads thus:- “Prior to the year 1952, the Plaintiff and the Defendants No.6, 7 and one Shri Gangaram Devji Bhandar, since deceased, ( hereinafter called the said Gangaram) being the father of the Defendant No.8, ash 10 fa-600.03 abovenamed, were member of and constituted a joint Hindu Family. The said Joint Hindu Family owned and possessed several properties, including the piece or parcel of land bearing Survey No.37, Hissa No.1 of Village Akurli admeasuring about one acre two gunthas and situated at Village Akurli, Kandivali (East), bombay – 400 067, in the Registration Sub-District of Bandra in Bombay Suburban District, which land is hereinafter called the suit land. One the suit land there are three structures bearing the Municipal House Nos.569, 569(1) and 569(2) and bearing the R-Ward Nos. 3251, 3251(1) and 325(2) respectively, the first being a temple (hereinafter called the suit temple ) and the other two being Zavali sheds used for residential purpose ( hereinafter called the suit sheds)”. ( Underline supplied ) 13. Thus, a specific case made out in the Plaint is that the joint Hindu family was the owner of the land bearing Hissa No.1, Survey No. 37 together with temple structure and Zavali sheds thereon. As far as the Plaint is concerned, the Plaintiff has not pleaded the mode in which the property was acquired. In Paragraph 2 of the Plaint, it is pleaded that the Plaintiff and the 6th and 7th Defendants along with the said Gangaram and after the death of the said Gangaram along with 8th Defendant are the absolute owners of the suit property and have been in possession for last more than 50 years. The Plaintiff stepped into the witness box and claimed that the joint family was the owner of the suit property. The Plaintiff in his deposition stated as under:- ash 11 fa-600.03 “Formerly this land was unused. Formerly, this land was Khoti land. Thereafter, the Govt. of Bombay had given the entire land of Kandivali (E) including the suit property to one Goraksha Mandal. It was sometime approximately around the year 1900. In or about 1950 the suit land of one acre and two gunthas was released by Goraksha Mandal in favour of Deity and of my father having Vahiwat over the same.” 14. Thus, the case made out in evidence is that the then Government of Bombay granted the suit property to Goraksha Manal and in the year 1950, the area of 1 acre and 2 gunthas was released by Goraksha Mandal infavour of the Deity and the Plaintiff’s father. The name of the father of the Plaintiff is Devji. He admitted the factual position that no document of any such release or grant by Goraksha Mandal is placed on record of the suit. Learned counsel appearing for the Plaintiff has relied upon the Mutation Entry No.81 which makes a reference to the order of Mamlatdar passed in the year 1950 by which the name of Goraksha Mandal was deleted and the name of Gangadhar was ordered to be mutated as “Deviche Malki Va Vahiwatdar”. The names of Deity and Gangadhar were mutated on the basis of the said mutation entry. The mutation entries and the entries in revenue record do not confer any title. It is pertinent to note that the Plaintiff pleaded surrender by Goraksha Mandal in favour of his father but the mutation entry of the 1950 incorporates the name of Gangaram and not the father of the Plaintiff. Moreover, a copy of the order of Mamlatdar mentioned in Entry No.81 has not been produced on record. As stated ash 12 fa-600.03 earlier, the specific case of the Plaintiff is that Goraksha Mandal was the owner of the property and there is a surrender by Goraksha Mandal in favour of his father. There is no document of surrender produced before the Court. The mutation entry and the entry in the record of rights will not confer any title on the Plaintiff. The second document relied upon by the learned counsel appearing for the Original Plaintiff is the consent decree passed in Suit No.1080 of 1967 to which the Plaintiff along with his family members and one Yashwant Anantrao Ajinkya were the parties. It is not anybody’s case that the said Ajinkya was the owner of the suit property. The consent decree is based on the consent terms between the parties to the suit which is merely an agreement between the parties to the suit. On the basis of the consent decree, the Plaintiff cannot claim the title for two reasons, the first is that the Defendants in the said suit were not the owners of the property and secondly the said decree is binding only on the parties to the suit. 15. Apart from the mutation entry, the 7/12 extract and the consent decree, the documents are in the form of declaration/return under the said Act of 1976, the property taxes, bills, electricity bills, etc. None of the said documents prove the title of the joint family of the Plaintiff. ash 13 fa-600.03 16. The suit is not filed on prior possession. The suit is filed on the basis of the ownership set up in the joint Hindu family of which the Plaintiff is a member. The title pleaded in the deposition by the Plaintiff is through Goraksha Mandal on the basis of the alleged surrender. There is not documentary evidence to prove such surrender. The surrender could have been only by a registered instrument. Thus, taking the deposition of the Plaintiff as it is, the Plaintiff has failed to prove the ownership set up in the joint Hindu family. Mere failure of the Defendant Nos.1 to 5 to cross-examine the Plaintiff is no basis to accept the title as pleaded by the Plaintiff. As stated earlier, the case set up that the Goraksha Mandal was the original owner was not pleaded in the Plaint. The case of ownership pleaded by the Plaintiff has been specifically denied in the written statement and in particular Paragraph 3 thereof. 17. Even according to the case of the Plaintiff, the Defendant Nos. 1 to 5 were members of the Committee which was manging the affairs of the suit temple. According to the Plaintiff, the authority of the Defendant Nos.1 to 5 was terminated and thereafter the present suit for possession was filed. As the suit is founded on the alleged ownership of joint Hindu family and as the Plaintiff has failed to prove the title, the suit must fail. ash 14 fa-600.03 18. Learned counsel for the Plaintiff tried to contend that the said Gangaram was the Vahiwatdar. However, the suit is not filed by the Plaintiff in his capacity as Vahiwatdar of the temple or on the basis of the possessory title. Therefore, the finding recorded by the Trial Court on the Issue No.3 cannot be sustained and the same will have to be set aside. 19. As regards the issue of valuation, the perusal of the Written Statement filed by the Defendant Nos.1 to 5 shows that the issue of under-valuation was not at all raised. Hence, the learned counsel appearing for the original Plaintiff is right to the extent that Section 21 of the said Code will apply and after having failed to take up the objection to the under-valuation before the Court of the first instance, the same cannot be raised for the first time in appeal. Hence, I pass the following order:- ORDER:- (a) The impugned judgment and decree dated 27th March, 2002 is quashed and set aside and S.C. Suit No.5597 of 1978 is hereby dismissed. ash 15 fa-600.03 (b) The Appeal is allowed. There will be no orders as to costs. (c) Civil Application No.761 of 2010 does not survive and the same is disposed of. (d) On the prayer made by the learned counsel appearing for the original Plaintiff, interim arrangement which was operating till today will continue to operate for a period of three months from today. ( A.S. OKA, J )