1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2674 OF 2007 IN SUIT NO.1998 OF 2007 Jitendra Amritlal Sheth & Ors. ...Plaintiffs Vs. Matangi Realty Limited & Ors. ...Defendants Mr.A.Bookwala , Sr. Adv. With Mr. Bharat Chaudhari with Mr. Ankit Lohia i/b. M.L.Chaturvei for Plaintiffs Mr.Naveen Joshi for Defendant No.1 Ms.Heena A. Mody for Defendants 2 to 57(except 17 & 30) Mr. J.S. Chandnani for Defendants 17 & 30 Mr. Diwakar Dwivedi for Applicant in Ch.Sum.No.1366/2008. CORAM: SMT.ROSHAN DALVI, J. DATED: 5 TH JANUARY, 2009 P.C. 1. The Plaintiffs have sued as owners of the suit property to restrain Defendant No.1 from developing the property occupied by the Defendants 2 to 51 and several others totaling 835 occupants on the Plaintiffs' land. The Plaintiffs claim is to be owners of CTS Nos.4, 40 and 44. The agreement between the Defendants is for CTS Nos.4 and 44. Hence the real dispute between the parties is with regard to a part of the Plaintiffs' property. 2 2. The Plaintiffs have relied upon the Indenture dated 29th December 1942 between Hansraj Jivandas, Ramdas Jivandas and Jamnadas Vassonji as Vendors and father of Plaintiffs 1 and 2 as the purchaser. The Plaintiffs have relied upon the recital in the Conveyance to show how the property was utilised prior to the purchase by the father of Plaintiffs 1 and 2. The recitals show that there was a partnership formed in the year 1919(prior to the first codified law with regard to Partnerships being the Partnership Act, 1932). The said partnership is stated to have been dissolved. A suit being Suit No.39/1933 for dissolution was filed in the Court of First Class Subordinate Judge at Thane. A preliminary decree was passed therein and Commissioner for taking accounts was appointed, who sold the property by auction to the aforesaid Vendors and auction purchasers upon the highest bid of Rs.52,000/- . It was realised that the Court Receiver was appointed in the Suit. Hence under the indenture dated 24 th December 1942 the Court Receiver sought to sell the property to the auction purchasers. The said auctioned property was sold by the auction purchasers to the father of Plaintiffs 1 and 2 on 29th December 1942. Accordingly the Plaintiffs have traced their title to the purchase under the auction in Suit No.39/1933. 3. The Schedule of the property so purchased shows lands 3 at village Chandavli of 122 bighas of paddy ground, 7 bighas of village ground, 170 bighas of ghaut ground and 234 bighas of hilly ground consisting of a total of 584 bighas which are shown to be un- surveyed khoti lands. 4. It is shown that the land was mortgaged from 23rd July 1952 by the father of Plaintiffs 1 and 2 and has been re- conveyed under the Indenture dated 30 th March 1960 interalia to Plaintiffs 1 and 2. 5. The Plaintiffs have relied upon Revenue records in respect of the aforesaid survey numbers. The Revenue record for CTS No.4 shows land admeasuring 19008.4 sq. mtrs acquired by the MHADA for Shipping Corporation of India in January 1985. It has been reverted back to MHADA under an order dated 26 th November 2002. 6. Both the Plaintiffs as well as Defendants seek to develop this property independently. The Plaintiffs seek to develop it under Sanctioned Plans despite acquisition. The Defendants seek to develop it under the MOU entered into by them inter se dated 14 th May 2007, Exhibit- B to the plaint, which is challenged in this Suit. It is not understood how the land sought to be acquired for Shipping Corporation of India can be developed by either of the parties to this Suit. 4 7. It is the case of the Plaintiffs that they are owners of a large land which they are developing. It is argued on their behalf that that is Survey No.4, which is constituted by CTS Nos.2,3,4 and 5 as also several other Hissa numbers constituted of the unauthorised structures on that land. Be that as it may, the suit is in respect of CTS Nos.4 and 44. CTS No.4 is seen to have been acquired. None of the parties to this Suit can develop the CTS No.4. 8. The Revenue record with regard to CTS No.44 shows an area of 873.1 sq. mtrs interalia in the names of Plaintiffs 1 and 2. 9. The Defendants claim title by prescription. Defendant No.1 claims to have entered into MOU with Defendants 2 to 51 upon a footing that they are in possession of their respective structures on CTS Nos.4 and 44 since many years prior to the execution of the MOU. Such claim does not constitute title by prescription. The Defendants have shown nothing even primafacie to suggest any adverse possession hostile to the Plaintiffs for the last 12 years prior to the filing of the suit also. 10. The main argument on behalf of the Defendants is that 5 the suit properties are slums and hence they, as the slum developers, can develop the property under S.R.A Scheme. The Defendants have not produced any declaration under Slums Act with regard to any part of the suit properties showing any part of the suit properties as slum. The Defendants have relied upon a notification interalia for CTS No.44 declaring it as a slum. An appeal came to be filed therefrom being Appeal No.225/1979. The declaration of slum was set aside as no notice was given to the Plaintiffs as the owners. The authorities were directed to issue a show- cause notice and then proceed. No show- cause notice is issued. No further declaration is shown. No portion of either of the CTS numbers constituting the suit properties can be taken to be a slum. 11. I have been shown a Writ Petition filed by the Plaintiffs herein being Writ Petition No.1598/2008 against the MMC, the Collector of Mumbai and other Officers for conducting a survey and demolition of the unauthorised structures on the Plaintiffs' land bearing CTS Nos.4,40 and 44(which includes the suit properties). An order came to be passed by the Division Bench of this Court on 13 th August 2008 directing the BMC to carry out the survey, prepare a list of unauthorised structures and the names of the persons residing therein and to take further action in the matter 6 based on the survey so conducted. That order has yet not been complied and is required to be complied. 12. The Defendants' basic contention is by way of attack on the Plaintiffs title. The Defendants 2 to 51 claim title by mere occupation. In fact the MOU shows the Defendants 2 to 51 and others merely as occupants and in exclusive possession, occupation and use and enjoyment of the rooms/shops on the suit property “since many years ”. If their claim is by prescription, as is argued on their behalf, it shows the acceptance of the Plaintiffs as owners of the suit lands which their structures are constructed. The Defendants do not claim title upon any transfer. 13. The Defendants' Advocate showed the Court the schedule to the aforesaid Indenture dated 24th December 1942, 29 th December 1942 and the re-conveyance dated 30th March 1960 all of which have identical schedule showing that they are Khoti lands. She drew my attention to the Bombay Khoti Abolition Act 1940, under Section 3 of which all khoti tenures stood abolished and all the incidents of such tenure stood extinguished under Section 8. The Khoti lands were reverted as the property of the Crown. The Revenue records however, do not show the suit lands as Khoti lands. The Defendants also do not claim any rights 7 from or against the Collector of Mumbai. The Defendants have not claimed that they are occupants of Government land. The Defendants do not have any Census Cards issued by the Government. The Defendants have themselves proceeded on a footing that the suit lands are private lands on which they are mere occupants and in possession of their structures and seek to develop the land, not standing in their names in the Revenue Records. 14. Though the Defendants have not produced any declaration that the suit lands are a slum, they seek to rely upon certain letters and orders with a view to contend that it would be assumed that the suit lands are declared a slum. No land can be assumed to be a slum or to have been declared as slum. Hence, in the absence of any declaration the Defendants 2 to 51 cannot seek to develop the suit lands through Defendant No.1, which otherwise are owned by the Plaintiffs. 15. In any event as aforesaid the land under CTS No.4 which is acquired by MHADA for the Shipping Corporation of India cannot be developed by either of the parties. The order of the Division Bench of this Court already passed in the aforesaid Writ Petition also requires to be implemented. Consequently until the suit properties are declared slum 8 after following due legal process including notice to the Plaintiffs as the owners of the suit land, the Defendants cannot act upon the MOU dated 14 th May 2007. Defendant No.1 is, therefore, restrained from entering upon the suit property and carrying on any development work under the aforesaid MOU or entering into any agreements for development with any of the occupants or submitting any plans to the MMC or the Slum Authorities for development of the suit property before it is declared as slum. The Defendants, therefore, cannot create any third party interest in respect of the suit lands. 16. Notice of Motion is, therefore, made absolute in terms of prayers (a), (b), (c) and (d). No order as to costs. (SMT. ROSHAN DALVI, J.)