: 1 : Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.839 OF 2006 SECOND APPEAL NO.839 OF 2006 SECOND APPEAL NO.839 OF 2006 1.Devki Uttam Waghchoure . 2.Gangutai Ramdas Jadhav . Both R/o.Vetalacha Para, . Pune Road, Nashik-422 006. . 3.Bhagirathi Ramachandra Bele . R/o.Rajur, Taluka Akola, . District Akola. . 4.Mirabai Bhaguji Jadhav . R/o.Nandgaon, Taluka and . District Nashik. . 5.Rajendra Dhondiram Pagare . 6.Sanjay Karbhari Hirekar . Both R/o.Vetalacha Para, . Pune Road, Nashik - 422 006. . 7.Aruna Ramdas Inamke . R/o.Nashik ...Appellants Versus 1.The Nashik Municipal Corporation, . Through The Commissioner, . Rajeev Gandhi Bhavan, . Sharanpur Road, Nashik - 422 002 . 2.Bhagwan Waman Vidhate . 3.Chandrabhaga Waman Vidhate . Both R/o.Vetalacha Para, . Pune Road, Nashik. ...Respondents Mr.M.M. Sathaye, Advocate, for the Appellants. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. Date on which submissions are heard : 30th Jan., 2008. Date on which submissions are heard : 30th Jan., 2008. Date on which submissions are heard : 30th Jan., 2008. : 2 : Date on which Judgment is pronounced: 8th Feb., 2008. Date on which Judgment is pronounced: 8th Feb., 2008. Date on which Judgment is pronounced: 8th Feb., 2008. JUDGMENT : JUDGMENT : JUDGMENT : 1. The present Second Appeal is by the original plaintiffs. The suit property subject matter of this Appeal is City Survey Nos.7077, 7078, 7079, 7088 and 7089 bearing final Plot No.315 of the Town Planning Scheme No.1, admeasuring 3100 sq.mtrs. situated at Nasik. 2. One Waman Parasharam Vidhate is the father of the appellant Nos.1 to 4 and 7. The said Waman instituted Regular Civil Suit No.486 of 1974 against the respondent No.1 herein (the Nasik Municipal Corporation) and the State of Maharashtra. The said Suit also relates to the suit property. The contention of the said Waman in the said Suit was that he had become owner of the suit property by adverse possession. 3. In the Suit it was stated that the suit property previously belonged to the State Government. It was contended that grand-father of the said Waman installed a family deity in a small portion of the suit property bearing City Survey No.7078. The temple constructed by him was later on declared as a trust : 3 : property and according to the said Waman he was the sole trustee of the said Trust. In the Suit it was asserted that Chief Officer of the erstwhile Nasik Municipal Council informed the said Waman in April, 1970 that the suit property was converted into final Plot No.315 under the Town Planning Scheme No.1 and the suit property was reserved as an open site and for the temple. Contention raised by the said Waman was that the authorities of the Town Planning did not follow the requisite procedure and passed illegal orders behind his back. The State Government opposed the Suit by contending that the suit property was vesting in the State Government and in city survey inquiry it was held that except land bearing City Survey No.7078, the remaining suit property vests in the State Government. The Nasik Municipal Council opposed the Suit by contending that the said Waman could have agitated the matter before the Town Planning Authorities because a public notice was given before finalizing the Town Planning Scheme. 4. The Trial Court decreed the Suit. In paragraph No.9 of the Judgment, the Trial Court noted that the suit property admittedly belongs to the State Government. It was held that the said Waman has established his plea of adverse possession and hence : 4 : the Trial Court decreed the Suit. There were two separate Appeals preferred by the State Government and Nasik Municipal Council. The said Appeals were allowed by the District Court and the Suit filed by said Waman was dismissed. 5. The District Court held in view of Town Planning Scheme No.1 dated 1st October, 1963, the suit property vested in the Municipal Council. The learned District Judge recorded a finding that with effect from 3rd October, 1963, the suit property owned by the State Government vested in the Municipal Council and therefore, at highest, adverse possession from 1940 to October, 1963 against the State Government was proved. It was held that as adverse possession was claimed against the State Government, unless period of 30 years was completed, it cannot be held that the said Waman perfected his title by adverse possession. 6. The present Suit was filed by the appellants for permanent injunction restraining the 1st respondent-Municipal Corporation from taking possession of the suit property on the basis of so called reservation either under the Town Planning Scheme or under the Sanctioned Development Plan without giving an opportunity of being heard. In the : 5 : alternative, it was prayed that the Municipal Corporation be called upon to enter into and execute an agreement of transfer pertaining to the suit property for consideration as per the rates fixed by the Government valuation. The Suit was contested by the Municipal Corporation. The Trial Court dismissed the Suit by holding that the appellants have failed to prove that they are the owners of the suit property and that they are in lawful possession. The Trial Court held that the appellants have failed to prove that the reservation imposed on the property has lapsed. The judgment of the Trial Court has been confirmed in the Appeal. The Appellate Court held that apart from the fact that the appellants have failed to prove their title and lawful possession, the Suit was barred by principles of res-judicata. 7. The learned Advocate for the appellants submitted that when the earlier Suit filed by the Waman was decided, the parties to the Suit were labouring under a mistake of fact that the suit property was under reservation. He submitted that even the Municipal Corporation was labouring under the mistake of fact about the reservation of the suit property in the Town Planning Scheme till the decree was passed in the earlier Suit. Therefore, the : 6 : learned Advocate for the appellants submitted that the decree passed in such a Suit cannot bind the parties. He submitted that as the appellants’ grand-father was under an impression that the suit property was under reservation, he came out with the plea of adverse possession. He submitted that in his evidence the Assistant Director of Town Planning examined by the 1st respondent-Corporation admitted that final Plot No.315 does not figure as a reserved plot in the booklet published under the Town Planning Scheme. He submitted that it is thus obvious that lawful possession of the appellants continues and they cannot be evicted from the suit property. 8. I have given careful consideration to the submissions made by the learned Advocate for the appellants. It will be necessary to refer to the averments made in the Suit filed by Waman. In paragraph No.1 of the plaint, the said Waman admitted that the suit property originally belonged to the State Government and he acquired title to the suit property by adverse possession and has, therefore, become the owner of the suit property. Thus, the plea of adverse possession is not on the ground of subsequent vesting of the suit property in the State Government or Municipal Council by virtue of the Town : 7 : Planning Scheme. The said Waman admitted that the property was owned by the State Government and the same was in possession of his ancestors for a period of 100 years. 9. By amending the plaint in the said Suit, it was contended that a small portion of the suit property bearing City Survey No.7078 was utilized for construction of a temple of a deity and an area admeasuring 10ft. x 10ft. and 5 inches has been occupied by the said temple. It was contended that a public trust has been registered in respect of the said temple under the Bombay Public Trusts Act, 1950. The said area has been shown as a Trust property. The plaint further referred to the communication dated 14th April, 1970 issued by the Chief Officer of the Nasik Municipal Council stating therein that the suit property has been converted into final plot No.315 which is reserved as an open site and for a temple under the Town Planning Scheme. Perusal of the plaint in the said Suit filed by Waman shows that the plea of adverse possession was not raised on the basis of vesting of the suit property on account of reservation in the Town Planning Scheme. The plea of adverse possession is founded on the assertion that the suit property was owned by the State Government and the : 8 : said Waman and his predecessors had acquired title to the said property by adverse possession. So late Waman did not claim adverse possession on the basis of subsequent vesting of the property in the State Government but it was his contention that the suit property was always owned by the Government and his forefathers occupied the said property 100 years back. The said contention was accepted by the Trial Court by granting a declaration that the said Waman had become owner by adverse possession. However, the finding of the Appellate Court is that the adverse possession was not completed as what has been found to be established is adverse possession from 1941 to 1st October, 1963. 10. It will be necessary to refer to the Judgment and Order dated 15th October, 1998 passed by this Court in Second Appeal No.436 of 1988 by which the decree passed by the Appellate Court dismissing the Suit filed by the said Waman was confirmed. The learned Single Judge of this Court has referred to Section 54 of the Bombay Town Planning Act, 1954 and Section 88 of the Maharashtra Regional and Town Planning Act, 1966. This Court has categorically accepted the finding recorded by the Appellate Court that all rights claimed by the deceased Waman came to an end on 1st October, 1963 i.e. the date on which : 9 : the Town Planning Scheme was brought into force. The decision of this Court has attained finality. 11. The present appellants-plaintiffs are admittedly claiming through the said Waman. The learned Advocate for the appellants relied upon an admission of the Assistant Director of Town Planning to the effect that final Plot No.315 has not been included in the list of reserved plots. However, there is nothing on record to show that when the Town Planning Scheme brought into force on 1st October, 1963, the suit property was allotted to Waman or to the predecessor of the present appellants. There is no averment in the present Suit filed by the appellants that when the earlier Suit filed by Waman was heard, he laboured under a mistake of fact that the suit property was under reservation. Therefore, such a plea cannot be raised in this Second Appeal. 12. Thus the situation which emergences is that the father of the appellants claimed adverse possession against the State Government. The said plea was negatived in the earlier Suit and the decree passed by the Appellate Court against the said Waman has been affirmed by this Court. In the present Suit, the appellants-plaintiffs claimed injunction. The : 10 : equitable relief of perpetual injunction under the Specific Relief Act, 1963 is always discretionary. The appellants and their predecessors have no title to the Suit property and appellants and his predecessors admitted that the suit property was the Government property. There is no error in the approach of both the Courts. The equitable and discretionary relief of injunction was rightly denied to the appellants-plaintiffs as they have no title. It is obvious that if appellants-plaintiffs are to be evicted, the concerned authorities are bound to follow due process of law. 13. In the circumstances, there is no merit in the Appeal. Hence, the same is accordingly dismissed with no order as to costs. 14. On the prayer made by the Advocate for the appellants, ad-interim order passed by this Court will continue to operate for a period of eight weeks from today. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]