1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 1015 OF 2001 IN NOTICE OF MOTION NO. 3682 OF 1999 IN S.C. SUIT NO. 4591 OF 1996 1. SUBHASH PANDURANG GAWAND ) 2. JAGDISH PANDURANG GAWAND ) 3. REKHA SHRIKANT BAKRE ) 4. BHANUMATI PANDURANG GAWAND ) 5. NIRMALA PANDURANG GAWAND ) 6. KUMUD PANDURANG GAWAND ) All having their address at ) C/o Subhash Pandurang Gawand) Oswal Niwas, Pandurang Bhoir) Road, Dahisar Gaothan, ) Dahisar (W), MUMBAI 400 068 ) .. APPELLANTS V/s. 1. M/s. MEHER ENTERPRISES ) having office at 3015/16, ) Highlands Park, S. V. Road, ) Dahisar (E), MUMBAI 400068 ) 2. MURAD DODHIA ) 2 3. NAGINDAS MEHTA ) Both partners of Defendant ) No.1, having their address at C/o. Meher Eneterprises, ) 3-15/16, Highlands Park, S.V. Road, Dahisar (East) ) MUMBAI 400 068. ) 4. NATHA BHATIA RAWAL WAGHRI ) 5. LAHU BHATIA RAWAL WAGHRI, ) 6. MADHU VIRJI SATHALIA ) 7. VILESHI VIRJI SATHALIA ) 8. RATNA VIRJI SATHALIA ) 9. SHANTU SAWAJI WAGHRI ) 10.SAVITA MACHRU WAGHRI ) 11. NAGATA SANJI VARVEDIA ) Nos. 4 to 11 residing at ) Bablipada, Opp. Bhuvanendra ) Co-operative Society, ) Chatrapati Shivaji Road, ) Dahisar (E), MUMBAI 400 068 ) 12. ATMARAM SANJI VARVEDIA ) residing at Dahisar Gauthan ) (West), Ramchandra Pawaskar ) BOMBAY 400 068 ) 13. VELJI MACHRU MITHAPARA ) 3 KANTABAI MACHRU MITHAPARA ) Nos.14 & 15 residing at ) Bablipada, Opp. Bhuvanendra) Co-operative Society, ) Chhatrapati Shivaji Road, ) Dahisar (E) MUMBAI 400 068 ) Defendant Nos.4 to 14 ) through their C.A. Madhu ) Virji Sathalia ) .. RESPONDENTS Mr. P. K. Samdani i/b H.S.S. Murthy for appellant Mr. A. Narula for R-1 Mr. Ravi Kadam, Sr. Counsel i/b S. K. Jain for R-4, 6, 9, 10, 13 & 14 CORAM:SMT.RANJANA DESAI & K. K.TATED, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED :30TH SEPTEMBER,2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:25TH NOVEMBER,2008 JUDGMENT:-(Smt. Ranjana Desai, J.) . The appellants are original plaintiffs in S.C. Suit No. 4591 of 1996 which is pending in this court. The respondents are original defendants in the said suit. In this appeal the appellants have challenged order dated 31/8/2001 passed by learned 4 Single Judge of this court on Notice of Motion No. 3682 of 1999 taken out by them praying for an order of injunction against the defendants. By the impugned order learned Single Judge has dismissed the motion. For the sake of convenience, we shall refer to the appellants and the respondents as the plaintiffs and the defendants respectively. 2. It is necessary to begin with the facts of the case. 3. The suit land is Survey No. 317 (Hissa No. 3 part) bearing C.T.S. No. 1409 admeasuring 1 acre and 32 gunthas situated at Dahisar, Mumbai. The suit land along with the other land was held by one Haji Ali Mohamed Haji Kasam. He died in the year 1946. On his death, a suit being Suit No. 3145 of 1947 was filed in this court for administration of the estate of the deceased. By this court’s order dated 30/1/90 the Court Receiver was appointed in respect of the property left behind by the deceased. Pursuant to the preliminary decree passed by this court, the Receiver was authorised to sell the estate of the deceased. Pursuant to that permission the estate was sold and ultimately the sale deed of the suit land was executed in 5 favour of M/s. Veekaylal Investment Company Pvt. Ltd. According to the plaintiffs, the land Survey No. 317 was admeasuring 9 acres and 32 gunthas. Out of that 5 acres of land was Pot Kharaba. The balance land admeasuring 4 acres 32 Gunthas was under cultivation. Out of 4 acres and 32 gunthas, which was under cultivation, the land admeasuring 1 acre and 32 gunthas (i.e. the suit land) was cultivated by one Pandurang Gawand, of whom the plaintiffs are legal representatives. 4. Proceedings were initiated under the Bombay Tenancy and Agricultural Lands Act ("Bombay Tenancy Act" for short) to find out whether the said Pandurang Gawand is a tenant of the land admeasuring 1.32 acres. A finding was recorded in favour of Pandurang Gawand. The proceedings went up to Maharashtra Revenue Tribunal ("Revenue Tribunal" for short). At that stage, there was a compromise between the owner M/s. Veekaylal Investment Pvt. Ltd., the Court Receiver, High Court, Bombay and the said Pandurang Gawand. As a result of the compromise a sale deed was executed in favour of the said Pandurang Gawand in respect of land admeasuring 1.32 acres 6 5. One Bhatia Rawal, of whom defendants 4 to 14 are the legal representatives, claimed to be the tenant of the Pot Kharaba land and, therefore, proceedings were initiated by him by making an application on 13/3/66 under Section 70(b) of the Bombay Tenancy Act for deciding whether the said Bhatia Rawal was the tenant of 5 acres of land from Survey No. 317. The Agricultural Lands Tribunal by order dated 5/4/67 held that the said Bhatia Rawal was cultivating 5 acres of land from Survey No. 317. Thereafter the Agricultural Lands Tribunal took up proceedings for determination of the purchase price of the said land. However, in that order, it was shown that the said Bhatia Rawal is entitled to ownership of 6.32 acres of land from Survey No. 317. A certificate under Section 32-M of the Bombay Tenancy Act was issued to the same effect on 15/5/67. Order passed by the Mamlatdar holding Bhatia Rawal to be tenant of 5 acres of land as also 32-M certificate were challenged by M/s. Veekaylal Investment Pvt. Ltd., and the Court Receiver by filing an appeal before the Sub-Divisional Officer. In that appeal the Sub-Divisional Officer set aside the 32-M certificate issued in favour of Bhatia Rawal to the extent of land in excess of 5 acres. The 7 Sub-Divisional Officer remanded the proceedings to the Mamlatdar. 6. A revision was filed against that order by a Trust to whom Bhatia Rawal had transferred 5 acres of land. That revision was decided by the Revenue Tribunal by order dated 5/10/81. The Revenue Tribunal set aside the order passed by the Sub-Divisional Officer in appeal and remanded the appeal to the Sub-Divisional Officer for fresh consideration. 7. It appears that the transferee from Bhatia Rawal filed Writ Petition No. 1315 of 1982 in this court challenging the order passed by the Revenue Tribunal. That petition was admitted and further proceedings, on remand before the Sub-Divisional Officer were stayed. In the meanwhile proceedings were initiated before the authorities, who maintain land records. However, while taking entries in the revenue records, the land records department ignored the 32-M Certificate. In the appeal, Pandurang Gawand, the predecessor-in-title of the plaintiffs was joined as the respondent. The appeal was decided by the Sub-Divisional Officer on 31/8/84. The Sub-Divisional Officer by his order 8 dated 21/8/84 set aside the entries made by the authorities of the land records department and directed them to make entries in consonance with certificate issued under Section 32-M of the Bombay Tenancy Act. Feeling aggrieved by that order the plaintiffs filed an appeal before the Deputy Collector (appeals). During pendency of this appeal Writ Petition No. 1315 of 1982 was finally decided by this court by its judgment dated 26/7/88. This court held that the Sub-Divisional Officer, who had set aside 32-M certificate and remanded the matter to the Mamlatdar for issuance of fresh 32-M certificate was not justified in remanding the proceedings to the Mamlatdar. This court also held that the Revenue Tribunal, which had set aside the order of the Sub-Divisional Officer and remanded the proceedings to the Sub-Divisional officer for fresh decision was also not justified in making the order of remand. This court set aside both the orders, i.e. one passed by the Sub-divisional Officer as also one passed by the Revenue Tribunal. While the writ petition was pending before this court, M/s. Veekaylal Investment Pvt. Ltd. had filed Suit No. 268 of 1987 in this court claiming amongst other reliefs a declaration that the certificate issued under 9 Section 32-M in favour of Bhatia Rawal was illegal and nullity. This court, therefore, held that in view of the pendency of that suit it is not necessary for this court either to make an inquiry in the writ petition as to validity or otherwise of the 32-M certificate or to remand the proceedings to the authorities under the Bombay Tenancy Act. It was specifically observed that the validity or otherwise of the 32-M certificate can be gone into by this court in that civil suit. To this writ petition the said Pandurang as also the legal representatives of Bhatia Rawal were also parties. 8. The instant suit is filed by the plaintiffs inter alia for a declaration of their title and for protection of their possession of land admeasuring 1.32 acres from Survey No. 317 because their possession was threatened by defendants 1 to 3 who are transferees from defendants 4 to 14 immediately before the suit was instituted. In Notice of Motion No.3682 of 1999, the plaintiff sought interim injunction restraining the defendants from putting up any construction on the suit land admeasuring 1 Acre 32 Gunthas. Interim injunction was also sought restraining the defendants from transferring, selling etc. the suit land. 10 9. Before learned Single Judge, it was contended by the defendants that Pandurang Gawand, predecessor in title of the plaintiffs came to know of the certificate issued under Section 32-M of Bombay Tenancy Act when he was served with the papers of the appeal filed by the transferee from Bhatia Rawal in the year 1983, and, therefore, as the present suit is governed by the provisions of Article 58 of the Limitation Act, 1963 the suit had to be instituted within a period of three years from the date when the said Pandurang Gawand acquired knowledge of the 32-M certificate, which amounts to setting up rival title by the said Bhatia to the title of the plaintiffs. Reliance was placed on the judgment of the Supreme Court in State of Punjab & Ors. v. Gurudev Singh & Ashok Kumar, AIR 1992 SC 11 and it was contended that even for a suit seeking a declaration that an order is a nullity, the law of limitation applies. This submission found favour with learned Single Judge. He held that 32-M certificate was subject matter of challenge before the Revenue Tribunal as also in Writ Petition No. 1315 of 1982. Learned Single Judge observed that the plaintiffs’ predecessor-in-title Pandurang Gawand was the 11 respondent in Writ Petition No. 1315 of 1982 and in fact the sale deed in favour of the plaintiffs was executed by the original owners M/s. Veekaylal Investment Pvt. Ltd. and the Court Receiver during the pendency of this writ petition. Learned Single Judge held that, therefore, the proceedings in which 32-M certificate was challenged, the plaintiffs predecessor was a party. The plaintiffs were also aware that the legal representatives of Bhatia Rawal were claiming title to their land and, therefore, if the plaintiffs wanted to assert their title, they should have filed the suit within limitation. Learned Single Judge concluded that prima facie, it appears that the suit is barred by limitation and, therefore, it cannot be said that the plaintiffs have a prima facie case in their favour so as to entitle them to an order of interim relief in the suit. In the circumstances, learned Single Judge disposed of the motion without granting any interim relief to the plaintiffs. The plaintiffs have challenged the said order in this appeal. 10. The appeal was admitted on 30/10/01. The Division Bench directed that there shall be status quo pending hearing and final disposal of this 12 appeal. 11. We have heard Mr. Samdani, learned Senior Counsel appearing for the appellants/plaintiffs. We shall refer to a few of the documents on which Mr. Samdani has placed reliance. He took us to order dated 31/7/73 passed by Tahsildar Borivali holding Pandurang Gawand as tenant of the suit land. He drew our attention to Deed of Conveyance executed between the Court Receiver as Vendor, Veekaylal as confirming Party Second Vendor and Pandurang Gawand as purchaser. He also pointed out Index II issued by Sub-registrar in connection with this conveyance. Mr. Samdani submitted that ownership of the predecessor in title of the plaintiffs and consequently of the plaintiffs of the suit lands cannot be, therefore, doubted. Mr. Samdani then drew our attention to the deposition of Bhatia Raval dated 13/3/67 made before Tahsildar Borivali in which he has clearly admitted that 5 acres of land of S. No. 137 is with him and he is cultivating it as a tenant. He has clearly stated that he has no other land except this land either of his ownership or as tenant. Our attention was also drawn to the evidence of Bhaskar Churi, Manager of the Khot that Bhatia Rawal is in 13 possession of 5 Acres of land. Mr. Samdani submitted that even Pandurang Gawand has in his evidence supported Bhatia Rawal. He has stated that Bhatia Rawal is in possession of 5 acres of land, it is cultivated by him and it is situated next to his land. We have been shown order dated 5/4/07 passed by Tahsildar Borivali holding that Bhatia Rawal is the lawful tenant of 5 acres of land and Mutation Entry No. 3045 made pursuant to this order in favour of Bhatia Rawal in respect of 5 Acres of land. Mr. Samdani submitted that in spite of the above a certificate came to be issued in favour of Bhatia Rawal under Section 32-M of the Bombay Tenancy Act in respect of 6 Acres 32 Gunthas of land instead of 5 Acres. It includes 1 Acre 32 Gunthas belonging to the plaintiffs. Significantly in this certificate 5 Acres land is shown as Pot Kharaba. Mr. Samdani submitted that this certificate is erroneously issued is evident from the fact that Bhatia Rawal sold 5 acres of land to a trust. The said sale deed is on record. Mr. Samdani submitted that, therefore, Sub-Divisional Officer wrongly passed order directing name of Bhatia Rawal to be added in respect of 1 Acre 32 Gunthas by order dated 21/8/84. Mutation Entry No. 6743 dated 9/5/85 came to be effected showing 14 plaintiffs’ 1.32 acres land in the name of Bhatia Rawal and revenue record was manipulated. This gave rise to further proceedings. Mr. Samdani pointed out that in September/October, 1996 the defendants commenced constructing a compound wall on the suit property. The possession of the plaintiffs was obstructed. The plaintiffs, therefore, filed Suit No. 6193 of 1996 in the City Civil Court at Bombay for injunction. Mr. Samdani drew our attention to order dated 4/11/96 passed by the City Civil Court in the said suit stating that since efficacious remedy of filing a substantive suit on title is open to the plaintiffs, the suit for injunction simplicitor is not maintainable. The suit was withdrawn with liberty to file a fresh suit. The City Civil Court directed the parties to maintain status quo. Mr. Samdani pointed out that pursuant to the said order the plaintiffs have filed the instant suit on title on 6/12/96. 12. Mr. Samdani submitted that learned Single Judge erred in holding that the suit was barred by limitation. He erred in referring to paragraph 15 of the plaint where the plaintiffs have stated that Pandurang Gawand came to know of the certificate issued under Section 32-M of the Bombay Tenancy Act 15 when he was served with the papers of the appeal filed by the transferee from Bhatia Rawal in the year 1983, to hold that the plaintiffs had knowledge of 32-M certificate in 1983 and, therefore, as the suit is governed by the provisions of Article 58 of the Limitation Act, the suit had to be filed within three years from the date on which Pandurang Gawand acquired knowledge thereof. Mr. Samdani submitted that Article 58 provides that the limitation period shall start from the date when the right to sue first accrues and in this case the right to sue first accrued in the year 1996, when the defendants for the first time threatened the plaintiffs’ physical possession of the suit property. Mr. Samdani submitted that way back in the year 1983 the title of the suit land vested in the plaintiffs and the instant suit is a suit on title. Mr. Samdani submitted that revenue proceedings are independent proceedings which do not challenge the title vested in the plaintiffs. He submitted that learned Single Judge erred in giving undue weightage to revenue proceedings. 13. In support of his submission that the right to sue accrues when there is actual threat to physical 16 possession, Mr. Samdani relied on Mt. Bolo v Mt. Kokan & Ors., AIR 1930 Privy Council 270, Mst. Rukhmanibai V Lala Laxminarayan & Ors., AIR 1960 SC 335, Mohammad Yunus v. Unnissa & Ors., AIR 1961 SC 808, Rameshwar Dubey & Ors. v. Masomat Asha Kaur & Ors. (1996) 11 SCC 160, Gannon Dunkerley & Co. Ltd. v. Union of India, AIR 1970 SC 1433, judgment of the Delhi High Court in Irshad Ali v. Smt. Sahaba Begum, 1997 A I H C 3101, judgment of the Madhya Pradesh High Court in Bharat Singh v. Kunwar Singh & Anr., AIR 1991 MP 368, judgment of the Punjab & Haryana High Court in Ibrahim v. Sharifan, AIR 1980 Punjab & Haryana 25, and judgment of the Calcutta High Court in Rai Kiran Chandra Roy Bahadur & Ors. v. Tarak Nath Gangopadhyay & Ors., AIR 1936 Cal. 456. Mr. Samdani lastly submitted that, if two interpretations are possible on limitation then a liberal interpretation in favour of the party against whom limitation is set up must be adopted. In this connection, he relied on Full Bench decision of the Madras High Court in Kandeswami Pillai v. Kannappa Chetly, AIR (39) 1952 Madras 186 and judgment of this court in P.N. Films Ltd. & Anr. v. Overseas Films Corporation Ltd., AIR 1958 Bom. 10. Mr. Samdani submitted that learned 17 Single Judge has taken erroneous view of law. He submitted that the plaintiffs have made out a more than prima facie case in their favour which has not even been considered by learned Single Judge and, therefore, the impugned order be set aside and appropriate order be passed in favour of the plaintiffs. 14. Mr. Narula, learned counsel for defendants 1 to 3 submitted that no interference is necessary with the impugned order. Mr. Narula submitted that under Article 58 of the Limitation Act, 1963 the limitation starts running when the right to sue first accrues. The right to sue accrues when hostile title is set up. Mr. Narula submitted that certificate under Section 32-M is an unequivocal threat to the plaintiffs’ possession. Predecessor-in-title of the plaintiffs, on the plaintiffs own showing got to know about it when a copy of appeal filed by the transferee from Bhatia Rawal was served on him in the year 1983. Therefore, the suit ought to have been filed within three years, therefrom, as per Article 58 of the Limitation Act. Mr. Narula submitted that reliance placed by learned Single Judge on State of Punjab’s case (supra) is apt. Mr. Narula submitted that in that case the Supreme Court was considering Art. 113 of the Limitation Act, 1963 18 which pertains to suits for which there is no prescribed period. It states that for any suit for which no period of limitation is provided elsewhere in the schedule, the period of limitation will be three years from the date when the right to sue accrues. Mr. Narula pointed out that Art. 58 with which, we are concerned, the period of limitation is three years from the date when the right to sue first accrues. The words "right to sue first accrues" are significant. They connote that the moment the right asserted in the suit is infringed the period of limitation starts running. The concept of actual threat of dispossession or deprivation of right is not involved here. Therefore, in this case the date of knowledge of the fact that 32-M certificate was issued will be the starting point of limitation. Mr. Narula relied on the Supreme Court’s judgment in State of Punjab & Anr. v. Balkaran Singh, 2006 (12) SCC 709 and judgment of this court in Agyarani Dua v. Vidyagauri J. Tripathi & Anr., 1984 (4) BCR 844. Mr. Narula submitted that the suit is clearly out of limitation and hence relief has rightly been denied to the plaintiffs. 15. Mr. Kadam, learned Senior Counsel appearing 19 for respondents 4,6,9,10,13 & 14 submitted that Section 32 of the Bombay Tenancy Act inter alia provides that on 1/4/57 i.e. the Tillers day a tenant who cultivates the land personally shall be deemed to have purchased the said land from the landlord. Under Section 32-G of the Bombay Tenancy Act as soon as may be after the Tillers day the Agricultural Lands Tribunal shall publish or cause to be published a public notice in each village within its jurisdiction calling upon tenants, who under Section 32 are deemed to have purchased the lands to appear before it and shall proceed to determine the purchase price of the lands. Certificate under Section 32-M is a consequence of these proceedings. It is obligatory on the Agricultural Lands Tribunal to issue a certificate of purchase under this Section on deposit of purchase price. Statute creates this right and moment certificate under Section 32-M is issued, it extinguishes all other rights. Mr. Kadam submitted that on the date when 32-M certificate was issued, all rights which any one was claiming qua the suit land get extinguished. Therefore, on the date on which 32-M certificate was issued right to sue accrued to the plaintiffs. He submitted that physical threat to possession is merely 20 manifestation of that right and that is not the starting point of limitation. Mr. Kadam submitted that even a collateral challenge to 32-M certificate must be within limitation . He submitted that State of Punjab’s judgment (supra) has rightly been relied upon by learned Single Judge. He submitted that no case is made out by the plaintiffs for grant of interim relief and, therefore, the appeal be dismissed. 16. The moot question in this appeal is whether the instant suit is barred by limitation. The plaintiffs have inter alia prayed for a declaration of their title to the suit land and for a mandatory order directing the defendants to demolish the construction carried out by them on the suit land and to restore the suit to its position prior to the alleged construction. The plaintiffs had admittedly filed S.C. Suit No. 6193 of 1996 in the City Civil Court at Bombay for injunction simplicitor. The City Civil Court vide its order dated 4/11/96 opined that efficacious remedy of a substantive suit on title is available to the plaintiffs and hence the said suit was not maintainable. Learned counsel for the plaintiffs, therefore, withdrew that suit. The plaintiffs were 21 permitted to withdraw the said suit with a liberty to institute a fresh suit on title. Order of status quo was passed which is continued till date. 17. Pursuant to the above order the present suit was filed. It is a suit on title. The plaintiffs have inter alia relied upon Deed of Conveyance dated 17/5/84 between the Court Receiver as Vendor, Veekaylal as confirming Party-Second Vendor and Pandurang Gawand, their predecessor-in-title as purchaser and Index II issued in respect of the suit land. The plaintiffs claim to be owners of the suit land. They also claim to be cultivating the suit land. 18. The