1 AO No. 162 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 162 OF 2010 Mrs. Latika w/o Pralhad Pate, Aged 66 years, Occ. Household & Business, Plot No. 23, Surana Nagar, Jalna Road, Aurangabad, Through her General Power of Attorney Shri Shriniwas s/o Pralhad Pate, Aged 42 years, Occupation Business, Resident of as above Appellant V E R S U S 1. Gayabai w/o Jagannath Mutekar, Aged 62 years, Occ. Household, Resident of Zambad Estate, Shreyanagar, Aurangabad. 2. Sow. Anita w/o Chandrakant Lagad, Aged 47 years, Occ. Household, Resident of above Trimurti Hospital, Uttamnagar, Jawahar Colony Road, Aurangabad. 3. M/s Shri Ambika Estates & Developers Through its following Partners : A] Shri Kamlesh s/o Jethmalji Parmar, Aged 41 years, Occ. Business, R/o. Kasari Bazar, Aurangabad. B] Sow. Pinki w/o Rajesh Parmar, Aged 34 years, Occ. Business, Resident of as above. C] Sow. Payal w/o Deepak Parmar, Aged 29 years, Occ. Business, R/o. as above. 4. State of Maharashtra, Through Collector, Aurangabad. Respondents 2 AO No. 162 of 2010 Mr. Amol K. Gawali, Advocate for the appellant Respondents No. 1, 2 & 4 though served, but absent Mr. Deelip L. Khivesara, Advocate for respondent No.3 A to 3C CORAM : A.V. NIRGUDE, J. DATED : 23rd February, 2011 ORAL JUDGMENT : By consent of parties, the arguments are heard and appeal is finally decided at this admission stage. 1. This appeal is filed against the order dated 20th November, 2010, passed by the learned Civil Judge, Senior Division, Aurangabad, below Exh. 05, in Special Civil Suit No. 251 of 2009 filed by the appellant. In the lower Court, the appellant was the plaintiff. The appellant’s case, in short, can be narrated as under : 2. Lands gut No. 1 and 117 of Nakshatrawadi Shiwar, which is situated very close to Aurangabad city belonged to one Jagannath s/o Laxman. During his life time, Jagannath converted these agricultural lands into non-agricultural lands and laid out 58 plots on them. He obtained sanction for such layout from the Assistant Director, Town Planning, Aurangabad, vide his order dated 20th August, 1982. He sanctioned the lay out and permitted Jagannath to utilize the plots for residential purpose. Accordingly, in 1983, on three different occasions, Jagannath sold out three different plots to the appellant through registered sale-deeds. The appellant thus purchased plot No. 16, ad-measuring 280.8 square meters Plot No. 31, ad-measuring 408.375 square meters and Plot No. 32, ad-measuring 396 square meters from the said layout. It is case of the appellant that after the execution of sale-deeds, she was put in physical possession of the 3 AO No. 162 of 2010 plots. Apparently, the appellant did not undertake any development work on the plots. In 1993, Jagannath died. The respondents No. 1 and 2 are his legal heirs. Some time prior to 2006, the original sanctioned layout plan preserved in the office of Assistant Director, Town Planning, Aurangabad went missing. However, the appellant has copies of the said sanction layout plan, because they were annexed to the registered sale-deeds of 1983. The appellant even moved an application under the provisions of Right to Information Act for getting a copy of sanctioned layout plan of 1982, in 2008, to the Assistant Director, Town Planning, Aurangabad, but the authorities informed him that the map annexed to the order was missing. 3. The appellant learnt that the plots which she purchased from Jagannath in 1983 and the adjoining land, was again purchased by the respondent No. 3 –a partnership firm, from the respondents No. 1 and 2. They in all purchased 15 plots, which included the land beneath the plots purchased by the appellant. The appellant also learnt that the respondent No. 3 had started construction activity on her property, and so, she rushed to the Court and filed this suit for declaration that the sale deeds executed in favour of the respondent No. 3 – partnership firm are illegal to the extent of the suit plots and for possession. 4. During the pendency of the suit, the appellant also filed an application for temporary injunction for preventing the respondent No. 3 from carrying on any construction activity on the suit plots and to prevent them from creating third party interest in them. The application was opposed both by the respondents No. 1 and 2 on one hand and the respondent No. 3 – partnership firm on the other. Both 4 AO No. 162 of 2010 have filed separate affidavits to oppose the application. 5. In the affidavit filed by the respondents No. 1 and 2, they stated that the sale-deeds executed in favour of the appellants were not lawful at all. They stated that after Jagannath’s death, their names, as heirs of Jagannath, were mutated in the revenue record. They stated that thereafter they sold the land beneath the suit plots as well as the adjoining land comprising of 12 plots to the respondent No. 3 – partnership firm. They said that their action was lawful. 6. The respondent No. 3 – partnership firm filed an affidavit, in which they stated that they purchased 15 plots including the land beneath the plots belonging to the appellant through a sale-deed dated 7th August, 2006. They also placed reliance on the order passed by the Assistant Direction, Town Planning, Aurangabad, sanctioning layout in 1982. They stated that as per the measurement map prepared on the basis of the order dated 20 th August, 1982 (in the pleading, the date is wrongly mentioned as 28.08.1982), they could purchase the suit plots as well as adjoining 12 plots lawfully. In short, they placed reliance on a map which was prepared in 2006. They further stated that after they purchase this larger piece of land comprising of 15 plots, they put up a proposal for construction with the Municipal Corporation and the plan is sanctioned. They also stated that pursuant to their plan for construction, they erected wire fencing around their property and erected some tin-shed structures ad- measuring 10 x 10 feet on various places including the plots claimed by the appellant. They also asserted that before purchasing this property, they had taken search of revenue record and found that in the 7/12 extract, the names of their vendors were mentioned. They 5 AO No. 162 of 2010 have also asserted that since the appellant had come to the Court after 24 years from the date of purchase of her plots, she should not be shown any favour while granting equitable relief. 7. The learned Judge of the trial Court rejected the application for temporary injunction taking a very simple-minded view. He held that the appellant is not entitled to injunction, because she had slept over her rights for 24 years; she did not raise objection when the respondent No. 3 – partnership firm published in newspaper their intention to purchase the property and thirdly because admittedly the respondent No. 3 is in possession of the plots. He further mentioned in his order that the question of title of the appellant would be examined at the trial stage. So, practically he refused and avoided to give finding on the question as to whether the appellant/plaintiff prima facie proved her title to the plots. He also avoided to answer another and connected pertinent question of fact as to whether the respondents prove that the respondents No. 1 and 2 had title to the suit plots and so, were entitled to transfer them to the respondent No. 3. These two questions therefore arose for my consideration. 8. The appellant prima facie proves the fact that she purchased the above mentioned three plots from Jagannath in 1983 through three different transactions. These transactions were recorded vide a three registered sale-deeds. This fact cannot be ignored at all. The respondents made a very vain attempt to deny the fact that the appellant had purchased the plots through registered sale-deeds. Jagannath admittedly was the owner of the property and was able to sell those plots to the appellant. The question is, what did the appellant purchase in 1983 and what they purchased in 1983 could 6 AO No. 162 of 2010 have been purchased validly ? It is common ground that in 1982, Jagannath as the owner of this agricultural land, converted the user of the land into non-agriculture. Jagannath, in April 1982, made an application to the Collector for converting the user of the agricultural land into non-agricultural one and the Collector in 1983 permitted such user. He even approached with a proposal to divide this land into plots, roads etc for using it for residential purpose. He approached the Assistant Director, Town Planning, Aurangabad sometime prior to August, 1982. His proposal was examined by the Assistant Director, Town Planning, Aurangabad and admittedly vide his order dated 20th August, 1982, bearing Outward No. 2352, the Assistant Director, Town Planning, Aurangabad issued sanction for the proposed layout. Copy of this permission is brought on record and the correctness of the same is not in dispute at all, because all the parties rely on this basic document. This basic document converted the user of the land into non-agriculture one and also allowed the owner to divide the land into plots and sell individual plots to purchasers. While granting this permission, the Assistant Director, Town Planning, Aurangabad, makes a reference to a map. He even stated that a copy of the map of the layout which was produced on his record by the owner, was preserved for the record. It is, therefore, clear that this order dated 20th August, 1982 was always annexed with a map of layout showing plots, roads, open spaces etc. As said above, the map, which was preserved for the record of the office of the Assistant Director, Town Planning, Aurangabad, has gone missing. The authorities informed the appellant about it and there is no difficulty in accepting this as a fact of the case. Now, soon after the 7 AO No. 162 of 2010 sanction for layout was obtained by Jagannath, he was free to sell individual plots to the purchasers. When he sold those plots, purchasers certainly placed reliance on the sanctioned layout map. Every time he sold a plot to an individual purchaser, he was bound to annex a copy of the sanction layout plan to the sale deed marking the individual plot on the map. Following similar procedure, Jagannath had sold the suit plots to the appellant in 1983. The sale deeds which Jagannath executed in favour of the appellant on three occasions thus became title documents of the appellant. Copies of these title documents are brought on record and the learned Judge of the trial Court could not have ignored them to record a finding which is irresistible even at prima facie stage that the appellant prima facie has proved her title to the suit plots. 9. After Jagannath’s death, his legal representatives could lawfully sell plots from the same layout to various people including the respondent No.3. When a purchaser intended to purchase plots from the same layout from the successor of Jagannath, the original owner, it was/is incumbent upon him or her to demand from the vendors a certified and authenticated copy of the original sanctioned layout plan. Such sanctioned layout plan was essential before he could decide as to which of the plots he should purchase. He would also ask as how many plots were already sold and to who and when. He would also take search of Index II in the office of the Sub-Registrar to check the title of the plot/s he would purchase. Admittedly, the respondent No. 3 did not have authorized and authentic copy of the sanctioned layout plan of this property. They placed reliance on certain map which was prepared in 2006 for identifying the property which they intended to 8 AO No. 162 of 2010 purchase. They have not explained in their pleading as to how and on what basis the said map could have replaced the original sanctioned layout map. It is their case that the map which was drawn in 2006 was prepared on the basis of original sanctioned layout map. It is prima facie clear that the respondent No.3 did not care to peruse the original sanctioned layout plan at all. They neither took search of the title in the office of Sub-Registrar. Had they taken such search, they would have certainly come across the registered sale-deed executed by Jagannath in favour of the appellant. It is thus clear that the respondents No. 1 and 2 had no title of the suit plots bearing Nos. 16, 31 and 32, as shown in the layout map annexed to the sale-deeds of 1983. They could not have transferred those plots to the respondent No.3. The respondent No. 3 – partnership firm does not have prima facie title to the suit plots. 10. Nonetheless it is clear that without examining the title of their vendor, they went ahead the sale-deed and with sheer muscle power they grabbed the suit plots validly sold to the appellant. But at the moment the appellant certainly shows her prima facie valid title to the plots. 11. The next question is, whether the appellant makes out a case for preventing the respondent No. 3 from erecting structures on the plots, which she purchased. The answer is in affirmative. When the suit was filed, the appellant clearly stated in her pleading that though she had lost the possession of her plots, the respondents have not commenced construction on the suit plots, such as wire fencing structure. Even the respondent No. 3 admitted this in their affidavit-in- reply. This position should therefore be preserved as far as the 9 AO No. 162 of 2010 development of the suit plots is concerned. The learned Advocate appearing for the respondent No. 3 tried to inform this Court that in the meantime the respondent No. 3 – firm had commenced the construction on the suit plots. I am afraid, if this had happened, the Court must stop such work as far as suit plots are concerned. This can be done by identifying the suit plots on the spot and stopping the development on them. Needless to add is the necessity to stop the respondent No. 3 from creating third party interest in respect of the suit plots. 12. While arguing the case for the respondent No. 3, the learned Advocate appearing for them placed reliance on the Judgment of Supreme Court in the case of Mandali Ranganna & Ors. Etc. v. T.Ramachandra &Ors. (2008 (4) All MR 932. He particularly placed reliance on following paragraph of the above Judgment : “While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the courts 10 AO No. 162 of 2010 is imperative. Contentions raised by the parties must be determined objectively.” 13. The ratio of this Judgment squarely goes against the respondent No. 3 as well as the respondents No. 1 and 2. I have explained the details of their misdeeds above, and looking to their conduct, I think, the Court is duty bound to help the appellant in protecting her property. Between the appellant, who is an individual and the respondent No. 3, which is a partnership firm apparently having more financial power and therefore influence, the Court must come to the help of the weaker who has valid title of the property and who has come to the Court without wasting much time. 14. Before I conclude this judgment I must express deep anguish about the fact that an important document from the office of the Asst. Director Town planning just goes missing and yet apparently no evasive or corrective action is taken for providing help to the needy plot holder. Is she so helpless? I direct the Director Town planning Aurangabad to take cognizance of the missing document and take steps for reconstructing the file and then arrange to issue a certified copy of the sanctioned layout plan to the appellant. I am equally dissatisfied about the quality of the impugned order. I hope the learned Judge does not give me an opportunity for criticizing the manner in which he appreciates facts and passes an order in future. Following order should thus suffice the ends of justice : ORDER 1. The appeal is allowed. 2. The impugned order is set aside. 11 AO No. 162 of 2010 3. The application for temporary injunction is allowed on following terms : a. The respondents shall not carry on construction on the suit plots bearing Nos. 16, 31 and 32, as identified / described in the pleadings, and if at all the construction work is going on, it shall be stopped forthwith. b. The learned Judge of the trial Court shall appoint Court Commissioner as soon as possible to identify and mark the suit plots on the spot and at that time the Court Commissioner shall take photographs of the suit plots showing the stage of construction. c. The respondent No. 3 shall not deal with the suit plots by alienating them further or creating any kind of third party interest thereon. 4. A copy of this order be personally served on the learned Judge who passed the impugned order and to the Director Town Planning Aurangabad, the collector Aurangabad and the Divisional Revenue Commissioner Aurangabad. ( A.V. NIRGUDE, J. ) SRM/ao/162/10/23/2/11/ok