1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1665 OF 2009 Mrs.Sunanda Kashiram Rajput .. Appellant V/s Brihanmumbai Municipal Corporation & Ors. .. Respondents Mr.Dilip Bodke for the Appellant. Mr.Vinod Mahadik for Respondent No.1 Mr.Suresh Rajeshwar for Respondent No.2. CORAM: R.G.KETKAR, J. DATE: 20th September, 2010 JUDGMENT: 1. Heard Mr.Dilip Bodke, learned counsel for the Appellant and Mr.Vinod Mahadik, learned counsel for Respondent No.1 and Mr.Suresh Rajeshwar, learned counsel for Respondent No.2. 2. Admit. Learned counsel for the Respondents waive service on behalf of the respective Respondents. By consent appeal is taken up for final hearing forthwith. 3. This appeal is preferred by the original plaintiff challenging the judgment and decree dated 16th July, 2009 passed by the learned Judge of the City Civil Court, Greater Mumbai in L.C.Suit No.5306 of 2002. By that judgment, the learned trial Judge dismissed the suit. Parties, will hereinafter be referred as per their status in the trial Court. 4. Plaintiff instituted suit for perpetual injunction contending that she has 2 been residing with her family continuously for more than 15 years in Room No.12 admeasuring about 10 x 15 ft. in Sahakar Sadan Chawl No. 1, behind Anubhav Society, Konkan Nagar, also known as Utkarsha Nagar, Bhandup (W), Mumbai, situate at Survey No.114 (part), C.T.S.No.226 part of village Kanjur, B.S.D.Mumbai Suburban District (hereinafter referred to as the “suit premises”). Plaintiff claimed that she had purchased the suit premises on ownership basis under an agreement of ownership dated 27th August, 2002 as also the affidavit dated 27th August, 2002. 5. It is her case that prior to purchasing the suit premises, she was tenant in respect of the suit premises. In support of her claim, she relied upon the rent receipts. Plaintiff averred that she is a member of Sahakar Sadan Chawl Committee, and as such, she had made an application to the Ward Officer of Defendant No.1, Mumbai Municipal Corporation for carrying out repairs. She alleged that Defendants, at the instigation of some vested interest, threatened her to remove or demolish the suit premises and dispossess her. She further claimed that as the suit premises is in existence from 1st April, 1979 i.e.prior to 1st January, 1995, the structure is deemed to have been regularised and tolerated by Defendants. The suit premises is therefore eligible for protection and regularisation. She instituted suit for perpetual injunction restraining Defendants from demolishing, removing or pulling down the suit premises or in any manner disturbing the possession of the plaintiff in respect of the suit premises, without following due process of law. 6. Defendant No.1, Mumbai Municipal Corporation did not file written 3 statement. Defendant No.2 Anubhav Co-operative Housing Society Limited (for short the Society), resisted the suit by filing the written statement at Exh.5. It was contended that the Society was duly registered in the year 1993 as a Co-operative Housing Society under the Maharashtra Co-operative Societies Act, 1960. The Society has 59 members. In or about 1978 Mr.A.R.Kazi and Mrs.Tahira Kazi, carrying on construction business in the name and style of M/s.City Builders. advertised their intention to construct the building on a plot of land bearing Survey No.114, corresponding C.T.S.No.226 of village kanjur, Konkan Nagar, Bhandup (W), Mumbai and offered sell of the flats on ownership basis. The builders entered into agreements with several flat purchasers. The builders got the plan sanctioned in the year 1981 to construct the building consisting of seven storeys. The first Defendant issued stop work notice on 27th June, 1984 during the construction of 5th floor R.C.C.work on the ground of violation of F.S.I. The City Builders gave undertaking to defendant No.1 on 28th February, 1985 and agreed to complete the building up to 4th floor level and also sought permission to shift 7 tenants in the new building. That time, the chawl known as Sahakar Sadan was partly demolished. Despite giving undertaking, the City Builders did not complete the work and abandoned the entire project. M/s.City Builders gave no objection on 19th March, 1990 to the Society. The respective flat purchasers formed association and completed the building upto 5th floor level by incurring expenditure and took possession of the respective flats. Defendant No.2 also set out the name of 15 tenants 4 in the list and contended that plaintiff’s name is not in the said list. Defendant No.2 also contended that it had filed S.C.Suit No.2142 of 2000 in the City Civil Court, Mumbai. In that suit, Notice of Motion for injunction was taken out against Mr.Yusuf Kazi (from whom the plaintiff claims to have purchased the suit premises) and another restraining them from entering into, interfering, dispossessing Defendants and/or carrying on any construction or digging activities on the said plot of land. By order dated 19th April, 2002 the Defendants therein were restrained from interfering with the possession of Defendant No.2 herein and/or from carrying out digging or construction activities thereon. Defendant No.2 further asserted that said Yusuf Kazi instituted S.C.Suit No.4168 of 2000 against Defendant No.2 in which the tenants of Sahakar Sadan Chawl took out Chamber Summons No.1604 of 2000. Even in that Chamber Summons the plaintiff’s name was not included. Suit as well as the Chamber Summons were dismissed. 7. During the pendency of the suit, the plaintiff took out the Notice of Motion No.3814 of 2002 for injunction restraining Defendants from demolishing, removing the suit premises without following due process of law. Upon hearing both sides, learned Trial Judge dismissed the Notice of Motion on 7th February, 2006. Against that decision, plaintiff preferred Appeal from Order No.428 of 2006, which was also dismissed on 20th June, 2006. 8. On the basis of rival pleadings the learned Trial Judge framed necessary issues. Plaintiff examined herself and on behalf of Defendant No.2, President of the Society was examined. Considering the material on 5 record, the learned Trial Judge dismissed the suit. It is against this decision, the present appeal is preferred. 9. By order dated 14th January, 2010 this Court directed the Appellant to file compilation of documents relied upon by him and also called for Record and Proceedings of the case. Pursuant to that order, Appellant has filed compilation of the relevant documents and the Record and Proceedings was also received. I have heard learned counsel for the parties at length. 10. In support of this appeal, Mr.Bodke submitted that the plaintiff has established her ownership over the suit premises. He submitted that the suit structure is in existence from 1st April, 1979 i.e.prior to the detum line of 1st January, 1995. Consequently, the suit premises is capable of being regularised and is tolerable as per the policy of the Government. He submitted that the learned Trial Judge committed error in disbelieving the various rent receipts produced by the plaintiff to substantiate her claim that prior to acquiring the suit premises on ownership basis, plaintiff was tenant of the suit premises. Plaintiff had purchased the property under the agreement of ownership dated 27th August, 2002 from Yusuf Kazi, constituted attorney of Mr.A.R.Kazi. He was authorised to sell the property and consequently, plaintiff has established her ownership over the suit premises. 11. On the other hand, Mr.Rajeshwar on behalf of Defendant No.2 supported the impugned judgment. He submitted that plaintiff had instituted the present suit in collusion with said Mr.Yusuf Kazi. Mr.Yusuf Kazi had no right, title and interest to issue any rent receipts. The plaintiff has no 6 semblance of interest in the suit premises and therefore she is not entitled to any relief. 12. I have considered the rival submission made by learned counsel for the parties. With their assistance I have gone through the record as well as compilation of documents submitted by the Appellant. Following points arise for my consideration:- (i) Whether the plaintiff has established that she is owner of the suit premises? Answer:- In the negative (ii) Whether the plaintiff has established that the suit premises is in existence prior to detum line of 1st January, 1995? Answer:- In the negative. (iii) Whether the plaintiff has proved that the suit premises is tolerable and can be regularised as per the Government policy? Answer:- In the negative. (iv) What order? Answer:- As per the final order. 13. Plaintiff asserted that she was tenant of the suit premises prior to acquiring the same on ownership basis. In support of this contention plaintiff has produced on record several rent receipts. Perusal of these rent receipts indicates that the rent receipts do not bear any dates, excepting one receipt which bears date of 27th August, 2002. This is the date on which plaintiff claims to have acquired the suit premises as per the agreement of 7 ownership. This agreement was executed by Yusuf Kazi claiming to be the constituted attorney of A.R.Kazi. The agreement records that plaintiff herein was a monthly tenant of the vendor Kazi in respect of the kaccha structure bearing Room No.12 admeasuring 10 x 25 ft. for the last more than 15 years on monthly rent of Rs.30/-. It was also recorded that plaintiff had paid a sum of Rs.3,600/- as full and final price of the said premises. Plaintiff has produced on record the receipt of Rs.2700/- which does not bear any date and the other receipts dated 10th March, 2002, 10th April, 2002 and 10th May, 2002 for Rs.100/- towards the maintainance charges, B.M.C.taxes and other expenses. It is relevant to note that in the suit, plaintiff averred that she was in possession of the suit premises as a tenant from 1st April, 1979 and the said premises admeasures 10 x 15 ft. However, as indicated earlier, the agreement of ownership described the premises as 10 x 25 ft. 14. The learned trial Judge in paragraph No.9 of the impugned judgment observed that the plaintiff has not given any explanation as to why the rent receipts do not bear any dates. In so far as the agreement of ownership dated 27th August, 2002 is concerned, it is not registered. Whereas the rent receipts are issued by the City Builders, the agreement of ownership is executed by Yusuf Kazi. Plaintiff has not brought any material on record to establish that the said Yusuf Kazi was authorised to sell the suit premises or that he has any authority, right, title or interest. On the other hand, the Defendant No.2 substantiated their claim that the City Builders were the owners and were developing the land. There was litigation between the 8 Defendant No.2 and Yusuf Kazi. In that litigation also, the name of the plaintiff was not included in the list of tenants. If at all the plaintiff was really a tenant, certainly her name would have been included in the said list. In respect of Room No.12 being the suit premises, the record indicates that one Mr.Haricharan Maniram Benbanchi was the tenant. It therefore cannot be accepted that the plaintiff was a tenant in respect of the suit premises. 15. Earlier, M/s.City Builders instituted S.C.Suit No.4168 of 2000 in Bombay City Civil Court at Bombay against M/s.Anubhav Co-operative Housing Society Limited. In that suit, Sahakar Sadan Co-operative Housing Society and 11 others claiming to be the tenants took out the Chamber Summons No.1604 of 2004. In that Chamber Summons Mr.Haricharan Maniram Benbanchi was one of the applicants. In support of the Chamber Summons, Smt.Savita Shankar Bankar made an affidavit dated 24th August, 2000. In paragraph No.4 of the said affidavit it was asserted that the applicants were the tenants of M/s.City Buiilders for the last 20 years and more, and they enclosed thte rent receipts. In so far as the Room No. 12 i.e., the suit premises is concerned, the rent receipt dated 1st December, 1999 was produced which showed the name of said Haricharan. However, none of the rent receipts enclosed to that affidavit was in the name of plaintiff herein. Plaintiff has not examined vendor Yusuf Kazi to prove the agreement of ownership. The plaintiff has also not examined any other witness in support of her case. 16. On behalf of Defendant No.2, Chandrakant Bhagwan Rane , chairman of 9 the Society was examined. He reiterated the contentions raised in the written statement and further deposed that plaintiff high handedly put up illegal and unauthorised construction on the portion of land. Society made complaint to Mumbai Municipal Corporation and on the basis of the complaint, Mumbai Municipal Corporation demolished the suit premises on 12th February, 2002. Plaintiff reconstructed the demolished structure which was once again demolished by Mumbai Municipal Corporation on 24th May, 2002. As noted earlier, plaintiff came out with the case that initially she was a tenant of the suit premises and thereafter she purchased the same from Yusuf Kazi. Except one rent receipt, other rent receipts do not bear the dates. The plaintiff has not given any explanation as to why the other rent receipts do not bear the dates. These rent receipts cannot be believed and consequently, there is no sufficient material on record to establish the existence of the suit premises prior to the year 1995 or her status as a tenant in respect of the suit premises. 17. Plaintiff has produced affidavit and the agreement dated 27th August, 2002 at Exh.10. In the first place, the said agreement is not registered instrument. Secondly, Yusuf Kazi is shown as vendor in the said agreement. Plaintiff has not brought any material on record to establish the authority under which the said Yusuf Kazi purportedly sold the suit premises to plaintiff. The said agreement is also not between plaintiff and M/s.City Builders. It has come on record that the suits were filed between the Society and Mr.Yusuf Kazi, where-under certain orders were passed against Mr.Yusuf Kazi. 10 18. On the other hand, the Society has produced voluminous evidence on record to show that M/s. City Builders were the owners and they intended to develop the land beneath the Sahakar Sadan Chawl. The learned trial Judge has considered this aspect in paragraph No.9 of the impugned judgment. Considering the material on record, the learned trial Judge dismissed the suit. 19. As indicated earlier, during the pendency of the suit, the plaintiff took out Notice of Motion No.3814 of 2002. The learned Trial Judge while dismissing the Notice of Motion on 7th April, 2006 prima-facie recorded the finding that the suit premises were demolished on 24th April, 2002. By virtue of order dated 19th April, 2002 passed by the learned Judge of the City Civil Court in Suit No.2142 of 2002, the said Mr.Yusuf Kazi was restrained from interfering with the affairs of the Society. In view of this he could not have issued the rent receipts on 27th August, 2002. The plaintiff challenged that order in Appeal from Order No.428 of 2006, which was also dismissed on 20th June, 2006. 20. Considering the material on record, in my opinion, it is clear that the plaintiff has failed to establish that she has any semblance of interest in the suit premises. She has also failed to establish that she was a tenant of the suit premises and that the said premises were in existence prior to 1st January, 1995. Consequently all the issues are decided against the Plaintiff. 21. In my opinion, the learned trial Judge has not committed any error in dismissing the suit. Appeal is devoid of any substance. Hence the same is dismissed. In the circumstances of the case, however, there shall be no 11 order as to costs. 22. In view of dismissal of the First Appeal, no orders are necessary in the Civil Application Nos.3691/2009 & 88/2010, and the said applications stand disposed of with no order as to costs. (R.G.KETKAR, J.)