(1) (905) AO 163/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk APPEAL FROM ORDER NO. 163 OF 2011 WITH CIVIL APPLICATION NO. 245 OF 2011 New Shree Swami Samarth Borivade Housing Company .. Appellant Vs. Mr. Abdul Hamid Hasanmiya Varekar & Ors. .. Respondents Mr. V. A. Thorat, Sr. Counsel a/w. Mr. Vaibhav Sugadhare i/b Mahimtura & Co. for the Appellant. Mr. Atul Rajadhakshya, Sr. Counsel i/b N. R. Gandhi for Respondent No.8. Mr. A. A. Kumbhkoni a/w. S. Deshpande for Respondent Nos.1 to 6. WITH APPEAL FROM ORDER NO. 247 OF 2011 WITH CIVIL APPLICATION NO. 358 OF 2011 Mr. Sola Hakim Medical Research .. Appellant Vs. Mr. Abdul Hamid Hasanmiya Varekar & Ors. .. Respondents Mr. Atul Rajadhakshya, Sr. Counsel i/b N. R. Gandhi for the Appellant. Mr. V. A. Thorat, Sr. Counsel a/w. Mr. Vaibhav Sugadhare i/b Mahimtura & Co. for Respondent No.7. Mr. A. A. Kumbhkoni a/w. S. Deshpande for Respondent Nos.1 to 6. CORAM : MRS. ROSHAN DALVI, J. Date : 25 th August, 2011. P.C. (2) (905) AO 163/11 1. The Appellant was Defendant No.2 in the above Suit. It claimed title to the Suit land through a Trust, who in turn claimed its title through one Ardeshir E. Doctor. The said Doctor executed the Deed of Gift on 30th March 1972 of the Suit land in favour of the Trust. The Trust after obtaining the permission of the Charity Commissioner under section 36 of the Bombay Public Trusts Act, 1950 conveyed the said land to the Appellant under the Conveyance Deed dated 9th December 1989. 2. The Respondents herein who are the Plaintiffs in the Civil Suit raised certain disputes with regard to the Appellant’s title and hence, the Appellant filed the application under section 70B of the Bombay Agricultural Tenancy Lands Act (BATLA) in which the possession as well as right and claim of the Respondents herein came to be negated. No Appeal has been filed by the Respondents against that order and instead the Suit came to be filed for protection of the Respondents’ possession. 3. The Respondents claimed initially as occupiers under the Salsette Estate Abolition Act, 1952. These lands could be obtained upon the liability for payment of land revenue being discharged under section 3 of the Act. That was not shown and hence the Respondents herein (the Plaintiffs in the Suit) were held not be occupants under the Act by an order dated 5th November 1968. That order of the (3) (905) AO 163/11 Commissioner has also not been appealed against. Instead the Respondents (the Plaintiffs in the Suit) relies upon that order to show observations with regard to their possession therein. 4. Mr. Kumbhkoni on behalf of the Respondents drew my attention to the fact that in fact, it has been observed that the examination of the aspects of possession upon acquisition of any rights of occupants not having been considered and hence, the occupancy claimed by the Respondents was held to be of very little value or no value. The order has further considered the receipts of rents, etc. relied upon by the Respondents’ predecessor-in-title. Upon considering those documents also, it was observed and held that the Respondents’ predecessor-in-title were not holding the land through the estate holder as was statutorily required. Mr. Kumkhkoni claims that these observations thus show that the occupation of the Respondents’ predecessor-in-title not as per the statute. The order holds that the estate holder Ardeshir E. Doctor was eligible to be recognised as occupant under the Salsette Estate Abolition Act, 1952. He was accordingly directed to be entered into revenue records. The predecessor-in-title of the Respondents herein (the Plaintiffs in the Suit) were allowed to get their status declared in a Court of law. Since however they raised disputes, it was observed that until those proceedings were finalised, the names would be retained in the other rights (4) (905) AO 163/11 column. 5. This order which is the fountainhead of the litigation between the parties, therefore, accepts the predecessor-in-title in the Appellant herein as the occupant under the Act and to be entered as such in the record of rights. He was therefore shown as a Kabjedar in the revenue records. The predecessors-in- title of the Respondents (the Plaintiffs in the Suit) were shown in the other rights column. 6. The entries in the revenue records relied upon and produced before the Trial Court showing that their names, retained in other rights column since 1968 under the aforesaid order dated 5th November 1968, continued as such. 7. The order passed under section 70B shows that the Respondents (The Plaintiffs in the Suit) have neither shown their possession nor occupancy rights. That order has also not been challenged. 8. Under these state of circumstances, the Respondents sued the Appellant and the purchasers for an injunction to protect their possession. The Respondents essentially rely upon the 7/12 extracts of the Suit property to show their possession. 9. The 7/12 extracts themselves demonstrate and illustrate the chronology of the events that (5) (905) AO 163/11 transpired in respect of the Suit land. The Respondents’ name has been initially shown as Kabjedar. It has been bracketed in the Kabjedar column. Thereunder the original owners have been shown as Kabjedar. Their names are also bracketed. Thereunder the name of the trust with the trustees of the trust are shown in the Kabjedar column which is from 1968 when the initial rights were determined by the Competent Court. 10. The name of the Respondents bracketed from the column Kabjedar has been put into the other rights column. A pencil entry shows the name of the predecessor-in-title of the Respondents prior to 1968 in the Kul and Khand column. It is thereafter shown in the Kul and Khand column in the year 1964, 1966, 1967, 1968-69, 1970-71, 1971-72, 1975-76, 1978-79, 1979-80, 1981 and 1997 with entries of some later years interpolated amongst entries of earlier years. Having seen such revenue record the learned Judge has correctly observed that his possession has been shown intermittently. 11. In the order of 1968 when the name of the predecessor-in-title of the Respondents was specifically bracketed and removed from the Kabjedar column and shown in the other rights column, it was held that he had no right and therefore he was so shown. He was thereafter directed to get his title determined in a competent Court. He failed to do that (6) (905) AO 163/11 through the years. 12. The Respondents rely upon the admission of Appellant that his name continued in the other rights column. In fact it only continued in that column. The predecessor-in-title of the Respondents was to be shown as occupant under definition contained in the statute. Mr. Thorat argued that under the Land Revenue Code the occupant would be either the owner or tenant who cultivated the land on behalf of the owners and thus occupies the land. It would not be any other occupant who can claim to be such. Hence only a trespasser who is not even a tenant or the owner cannot claim to be an occupant. Such was the position of the predecessor-in-title of the Respondents since he had never been not the tenant of the owner at any point of time and he failed to get his status determined. Further record of rights of the year 2008 and 2009 show the Appellant in the Kabjedar column since 2008-09. Those record of rights show the trustees having sold their land by following due process under the Bombay Public Trust Act, 1950 by obtaining the permission of the Charity Commissioner as required to have the name of the Appellant as purchaser brought on record as Kabjedar. These record of rights show the Respondents in the other rights column. These 7/12 extracts show the land to be fallow or barren from the year 2008-09. It was not under cultivation as claimed by the Respondents. (7) (905) AO 163/11 13. Mr. Thorat rightly argued that was the position of the land which prevailed immediately prior to the filing of the 70B Suit. Since the Respondents or their predecessor-in-title never took any action to have their status determined from 1968, the purchasers themselves made an application under Section 70B of the Act to have their status determined. It is argued on their behalf that they applied for negative declaration. That application by way of a Suit came to be heard and decided upon trial. The latest 7/12 extract came to be considered. 14. The 7/12 extracts produced by the Respondents, therefore, illustrate the position of the Suit land as also their status clearly. Consequently the application of the Respondents restraining the Appellant from creating third party interest in the Suit property and disturbing their possession is seen to be without merits against all the Defendants in the Suit, the Respondents having not shown their lawful possession which can be protected by an order of the Court. The due legal process in fact is seen to have been followed under the order passed in the application under Section 70B. 15. The learned Judge in the impugned order has observed that the Plaintiffs’ names have only interruptedly appeared in the revenue records though some time in the other rights column. Based preliminarily on such evidence, the learned Judge has (8) (905) AO 163/11 concluded that the possession of the Plaintiffs in the Suit requires to be protected. The injunction granted against the Defendants in this Suit from dispossessing the Plaintiff without following due legal process is seen to be wholly erroneous. The impugned order of injunction is, therefore, set aside. 16. The Appeal as well as the Civil Application is disposed of accordingly. 17. The interim order in this Appeal shall continue for two weeks. (ROSHAN DALVI, J.)