- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUIT SUIT SUIT NO.2119 OF 1989 NO.2119 OF 1989 NO.2119 OF 1989 Wariam Singh s/o Sohan Singh Punjabi ...Plaintiff vs. Smt.Kuldeep Kaur Lakhbir Singh Balbir Singh ...Defendants Mr.R.S.Maurya for the plaintiffs Mr.Y.R.Shah for the defendant No.2 CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE ON WHICH THE JUDGMENT IS RESERVED : NOVEMBER 26,2008 DATE ON WHICH THE JUDGMENT IS RESERVED : NOVEMBER 26,2008 DATE ON WHICH THE JUDGMENT IS RESERVED : NOVEMBER 26,2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:DECEMBER 8,2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:DECEMBER 8,2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:DECEMBER 8,2008 JUDGMENT: JUDGMENT: JUDGMENT: 1. The suit is filed for possession of the alleged trespassed land under structure ‘E’ shown on the map annexed as Exhibit I and portion ‘F’ shown in Exhibit I-1 annexed to the plaint. The second prayer in the suit is for a decree directing the defendants to remove a lock unauthorisedly put up by the original defendant on the watchman’s room marked as ‘G’ on the map annexed I-1 annexed to the plaint. The second prayer is for a decree directing the defendant to pay to the plaintiff a sum of Rs.50,000/- per month or such sum as this court may deem fit and proper by way of mesne profits till the decree for possession is executed. The other prayers made in the suit are of interim relief. 2. The plaintiff claims that he was/is the owner of immoveable property admeasuring 1500 sq.meter or thereabout - 2 - bearing survey no.47(part) and city survey no.706 (part) of revenue village Marol, Bombay 400 059 with the structure standing thereon. The said larger property has been described in the plaint as the said property. It is the case of the plaintiff that initially there were 4 structures marked as A, B, C and D shown on the plan annexed as Exhibit A to the plaint. It is stated that the plaintiff was using the 4 structures for his auto garage business and the rest of the said property was open. It is stated that the plaintiff was carrying on business of auto garage in the name of Ajit Auto garage. 3. The original defendant is the plaintiff’s real brother. Sometime in the year 1973, the original defendant approached the plaintiff and requested him to allow him to do some auto garage work in the garage of the plaintiff. According to the case of the plaintiff, he permitted the original defendant to do the garage business in structure ‘D’. The case of the plaintiff is that he gratuitously granted a permission to the defendant to use the said structure. Accordingly, the original defendant started his business in the shed marked as ‘D’. It is the case of the plaintiff that the sheds marked by letters B and C were in joint possession of himself and the original defendant. It is stated that the said two sheds are open sheds as there are no doors towards the north and south. It is stated that the shed A is in exclusive possession of the - 3 - plaintiff and the same has been partitioned and has doors. 4. It is the case of the plaintiff that he allowed the original defendant to carry on business with a specific understanding that the original defendant will vacate the premises and hand over all the tools to the plaintiff as and when desired by the plaintiff. It is stated that the defendant was allowed to use the open space admeasuring 10’ X 15’ in front of the area marked ‘D’ for the purpose of parking of vehicles for repairs. It is stated that the original defendant carried on business in the said premises without payment of any compensation to the plaintiff. It is contended that the plaintiff continued to pay the property tax of the entire property and the registration of the garage business of the defendant under the Bombay Shops and Establishments Act,1948 was in the name of the plaintiff. 5. According to the plaintiff, in the year 1986 he called upon the original defendant to vacate the premises and hand over tools. The plaintiff stated that though the defendant agreed to do so, he sought time from the plaintiff. Instead of vacating the premises, the defendant filed a declaratory suit against the plaintiff in the court of Small Causes. the plaintiff filed a suit in the Court of Small Causes at Bombay under section 41 of the Presidency Small Causes Courts Act for possession of the shed which was allowed to be used by the - 4 - defendant as a gratuitous licensee. 6. At the end of June 1989, the plaintiff’s father in-law expired in the native place at Punjab. Therefore, the plaintiff alongwith his wife proceeded to his native place. It is alleged that taking undue advantage of the plaintiff’s absence, the original defendant encroached and trespassed upon the open land of the plaintiff forming part of the said property and started constructing a big shed by using iron rods and cement sheets. When the plaintiff returned from his native place on 8th July 1989, he became aware of the said illegal construction carried out by the original defendant. Though the plaintiff protested about the said construction activity, the original defendant, his son and hirelings threatened the plaintiff to suffer dire consequences, if any attempt was made by him to interfere. It is alleged that without obtaining permission from the Mumbai Municipal Corporation, the original defendant started construction. The plaintiff was forced to file a complaint to the police station. However, no action was taken. The plaintiff stated that the defendant demolished the shed marked as ‘D’ and constructed a larger structure which is marked as ‘E’ admeasuring 30’ X 81’. It is alleged that during the pendency of the suit, the original defendant encroached upon the open space parallel to the structure marked as ‘E’. Thereafter, the plaintiff noticed that certain construction was being - 5 - carried out by the defendant on area enclosed by tin sheets. The area covered by tin sheets has been marked by the letter ‘F’ on the plan Exhibit I-1 to the plaint. It is alleged that in March 1998, the original defendant put up his lock on the watchman’s cabin marked as ‘G’ on the plan annexed as I-1. The allegation is that though complaints were made by the plaintiff, no action was taken by the authority. It is alleged that during the pendency of the suit the original defendant carried out construction of a temporary structure thereby extending the shed marked by letter ‘D’ on the plan Exhibit I-1 to the plaint. During the pendency of the suit the original defendant started claiming himself to be the tenant of the suit property and made an attempt to create third party interests. Therefore, the present suit has been filed for possession and for mesne profits as pointed out earlier. 7. The original defendant filed written statement and contended that the plaintiff is not the owner of the said property described in the plaint and therefore, the plaintiff was not entitled to any relief. It is contended in the written statement that the original defendant was in possession of the area of 600 sq. yards out of area of 1005 sq. yards of which the original defendant is claiming to be the tenant of the plaintiff for which declaratory suit was filed. It is pointed out that the plaintiff filed a suit for - 6 - eviction against the defendant in the court of Small Causes in which area of 1005 sq. meters has been claimed by the plaintiff. The defendant stated that he is the sole proprietor of M/s.Ajit Auto garage and is having municipal licence of the said business from the year 1987. The defendant denied that he was gratuitous licensee of the plaintiff. The defendant relied upon the licence granted in his favour, electricity bills and water bills as well as income tax returns and the professional tax returns. It is stated that apart from the area of 600 sq. yards out of 1005 sq. yards of which the defendant is claiming tenancy in the declaratory suit filed by him, he is in possession of the land admeasuring 475 sq. yard out of survey no.43. Reliance was placed on the order dated 26th May 1986 passed by the Additional Tahsildar (N.A), Andheri, Bombay. By the said order, the said land was assessed for non agricultural taxes. The defendant denied all the allegations including the allegation of encroachment made by him. An additional written statement was filed by the defendant to the amended plaint. The plaint was amended on the basis of subsequent events taken place during the pendency of the suit. The defendant denied the allegation of encroachment made in the amended plaint. 8. The issues were settled on 12th December 2007 which read thus : (1) Does the plaintiff prove that he is the owner in - 7 - possession of immovable property admeasuring about 1500 sq. meters bearing survey no.47 (part) C.T.S.No. 706 (part) at andheri Kurla Road, near mithi river, Marol Naka, Mumbai 400 059 along with structures thereon ? (2) Does the plaintiff prove that the original defendant prove that the original defendant (since deceased) encroached upon the possession of plaintiff’s property as herein above described admeasuring 720 sq. yards ? (3) Does the defendant prove that the original defendant (since deceased) was a tenant of Mumbai Municipal Corporation in respect of 600 sq. yards of land as described herein above ? (4) Does the defendant further prove that the original defendant (since deceased) was assessed in respect of land admeasuring about 475 sq. yards by the Authorities and is licensee and/or tenant of Mumbai Municipal Corporation? (5) Does the plaintiff prove that he is entitled for damages and other reliefs as prayed ? 9. The plaintiff examined himself by filing his affidavit in lieu of examination in chief. During the pendency of the suit - 8 - the original defendant expired and his legal representatives were brought on record as the defendant nos.1 to 4. The second defendant filed his affidavit in lieu of examination in chief and examined himself before the court. 10. The learned counsel for the plaintiff has taken me through the affidavit of evidence and the documents on record. He submitted that the original defendant applied to the Mumbai Municipal Corporation for grant of tenancy in respect of encroached portion in respect of which the decree has been sought by the plaintiff and the said application was turned down by the Mumbai Municipal Corporation. He invited my attention to the documents at Exhibit P-1 to Exhibit P-4 which according to him establish the title and ownership of the plaintiff. He submitted that the defendant has no title to the said property or any part thereof. He submitted that as the defendant has no title or any right, title or interest, the decree must follow. The learned counsel for the defendant submitted that the plaintiff has not adduced any evidence to establish his ownership. He submitted that as the plaintiff has no title, he cannot maintain the present suit. He submitted that apart from the area of 600 sq. yard in respect of which he is claiming tenancy, the original defendant was in possession of an area of 475 sq. yards with which the plaintiff has no concern. He, therefore, submitted that no case has been made out by the plaintiff and the suit deserves - 9 - to be dismissed. 11. I have given careful consideration to the submissions made on behalf of the parties. I have perused the oral and documentary evidence placed on record. In the plaint, the plaintiff claims to be the owner of the property admeasuring 1500 sq. meters bearing survey no.47(part) and 706 (part) of village Marol which has been described as "the said property". However, in affidavit in lieu of examination in chief the plaintiff stated that the land admeasuring 1052.89 sq. meters bearing survey no.47(part) and CTS No.706 (Part) of village Marol was in his possession along with structures thereon. It is pertinent to note that in paragraph 2 of his affidavit he has not claimed to be the owner of the said land admeasuring 1052.89 sq. meters. He has simply stated that he is in possession of the said land. Reliance has been placed on Exhibit P-1 which is an order passed by the Additional District Deputy Collector of Bombay in respect of land admeasuring 1005 sq. yards equivalent to 840 sq meters on survey no.47(part) of village Marol. By the said order, N.A. assessment has been fixed. The order fixing N.A. assessment cannot be a document of title of the plaintiff. The Revenue Officer who has issued the said order has no authority to decide the issue of title. Reliance has been placed on the Exhibit P-2 which are the extracts of the property register card. On the said extracts the name of the Mumbai Municipal - 10 - Corporation is shown as holder of CTS No.706 (Part) of Marol and the name of the plaintiff appears in the other rights column as the owner of the structures. Reliance has been placed on the 7/12 extracts at Exhibit P-3 in respect of the land bearing survey no. 47 (Part) of Marol village. The occupant shown in the 7/12 extracts is one Mr.A.J.Wadia. In the cultivation column the name of the plaintiff is shown as holding a hut. A reliance is placed on the notice of demand of land revenue (at Exhibit P-5) issued by the Tahsildar. The plaintiff relied upon a special notice issued by the Mumbai Municipal Corporation under section 167 of the Mumbai Municipal Corporation Act,1888. The extracts of property register card and the 7/12 extracts produced by the plaintiff do not establish the title of the plaintiff as the said documents are extracts of the revenue record maintained for fiscal purposes. In the extract of the property register card, the name of the plaintiff is shown as the owner of the structure and the Mumbai Municipal Corporation has been shown as the holder of the land. It will be necessary to refer to the document at Exhibit P-10 which is an order passed by the Enquiry Officer of the Mumbai Municipal Corporation under section 105-B of the Mumbai Municipal Corporation Act,1888. The said order to which the plaintiff is a party opponent records that the land bearing city survey no. 706 admeasuring 3580.08 has been acquired by the Mumbai Municipal Corporation and the same has been declared as a slum area. The order - 11 - records that the area of 1052.89 sq.meters out of the said land has been in occupation of the plaintiff. The order records that the enquiry relates that the said area of 1052.89 sq. meters. The said order records that the plaintiff could not establish that he was the owner of the said land. Therefore, an order of eviction was passed against the plaintiff. An appeal was preferred by the plaintiff against the aid order. A copy of the order passed in Appeal by the City Civil Court is at Exhibit P-11. While disposing of the Appeal, the City Civil Court held that the plaintiff has failed to prove his ownership over any portion of the land bearing city survey 706 which is standing in the name of the Mumbai Municipal Corporation. A Writ Petition was filed by the petitioner against the said order was dismissed by this court by order dated 24th April 2001. The said order is at Exhibit P-13. This has court considered the entire documentary evidence produced by the plaintiff. 12. Perusal of the paragraph 1 of the plaint shows that the suit has been filed by the plaintiff claiming title as the owner. Thus, the suit is filed for removal of encroachment on the ground that the plaintiff is the owner and accordingly the first issue has been framed regarding the ownership of the plaintiff. In the cross examination, the plaintiff admitted that the order passed in the Writ Petition referred to above was confirmed by the Apex Court and thereafter Mumbai - 12 - Municipal Corporation took the possession of the shops marked by letters ‘A’, ‘B’ and ‘C’. He states that the area of shops A, B and C must be 800 to 900 sq. meters. 13. The plaintiff has not established his ownership over the said property. The plaintiff has not produced any document of title. The plaintiff has not even pleaded as to what is the basis or foundation of his title. In the circumstances, the first issue will have to be answered in the negative. 14. The original defendant claimed to be a tenant of the Mumbai Municipal Corporation in respect of area of 600 sq. yards. The original defendant has also claimed that he was the licensee and/or tenant in respect of area of 475 sq. yards of Mumbai Municipal Corporation. In the affidavit in lieu of examination in chief of the 2nd defendant, he has not stated the basis on which the tenancy was claimed by his father (the original defendant) from the Mumbai Municipal Corporation. He relied upon the order passed by the Tahsildar fixing the N.A. assessment. He has also relied upon the licence issued by the Mumbai Municipal Corporation in the name of original defendant which has been renewed from time to time. All these documents cannot prove the claim of the tenancy of the original defendant. In paragraph 5 of the cross examination, the defendant admitted that neither his father nor he himself made any application to the Mumbai - 13 - Municipal Corporation claiming tenancy in respect of any property. In paragraph 8 of the cross examination, he admitted that on many occasions he approached Mumbai Municipal Corporation for claiming tenancy of the property in his possession. He stated that the Mumbai Municipal Corporation informed him that the matter is subjudice and after completion of the case, prayer for grant of tenancy will be considered. Thee is no evidence adduced by the defendants to prove their title as the tenants. Thus, the defendants have failed to discharge the burden on them to prove the issue Nos.3 and 4. 15. The plaintiff filed the present suit on title. The plaintiff has not established his title. The defendants have not established that the original defendant was a tenant of the Mumbai Municipal Corporation. As the suit filed by the plaintiff for removal of encroachment is on the basis of title, on the failure of the plaintiff to establish his title, the suit is liable to be dismissed. Considering the fact that even the defendants have not proved their case, the parties will have to bear their respective costs. 16. The suit is dismissed. The parties will bear their respective costs. JUDGE JUDGE JUDGE