1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.645 OF 1990 WITH CIVIL APPLICATION NO.3142 OF 1993 Shashikant Dattatray Walke ) Age-38 years, Occupation : Service ) Resident of 2726 D Ward, Kolhapur ..Appellant Vs. 1 Marutrao Ramchandra Redekar s/d through his Lrs ) ) 1a Smt. Indumati w/o Marutrao Redekar ) 1b Shri Dattatraya M. Redekar ) 1c Kum. Sangeeta M. Redekar ) 1d Kumar Sandeep M. Redekar ) (Dismissed as per Addl.Registrar order dated 10.12.1993) ) Nos.1a to 1d are residing at 2723 D ward, Shukrawar Peth ) Kesapur Galli, Kolhapur ) 1e Mrs.Smita Diliprao Patil ) Married daughter age 32 years ) residing at C/o. S.Arts, 1524, B-ward, Sarang Galli, ) Mangalwar Peth, Kolpahur ) 2 Commissioner, Kolhapur Municipal Corporation, Kolhapur )..Respondents ---- Mr. R.S. Datar for the appellant. Mr. Rajesh Parab i/by D.S.Sawant for the respondent no.1. ---- Coram : R.S.MOHITE,J Date : 8th February, 2010 Oral Judgment :- 1 This is a Second Appeal filed by the original plaintiff who had filed the original Suit for a declaration that the defendant no.1 i.e the Commissioner, Kolhapur Municipal 2 Corporation had no right to sell the suit land which was an area admeasuring 10 ft x 20 ft. out of survey no.2726/1 to any other person except the plaintiff. It is an admitted position that the suit land was a part and parcel of the larger piece of land which had earlier been acquired for road winding to be carried out by the Kolhapur Municipal Corporation. It appears that the Kolhapur Municipal Corporation had passed a resolution for selling the suit land to defendant no.2. However, instead of selling the land to defendant no.2, defendant no.1 leased the said land to defendant no.2 by a lease deed dated 24.7.1981. It is also not in dispute that apart from the suit land, the other acquired lands were re- conveyed back to the plaintiff. 2 On 26. 10. 1982 plaintiff filed a suit for a declaration that defendant no.1 had no authority of law to sell the suit land to any third party except the plaintiff and seeking a corresponding injunction. During the pendency of the suit, according to the plaintiff, on 11.1.1985 defendant no.1 passed a resolution to sell the suit land to the plaintiff. This resolution is at Exhibit-51. By a further resolution at Exhibit-52 passed on 25.1.1985 defendant no.1 terminated the tenancy of defendant no.2 and aggrieved by this action, defendant no.2 filed RC Suit No.92 of 1985 challenging the termination of his tenancy. 3 On 31.7.1985 the plaintiff’s suit was partly decreed and injunction was granted restraining defendant no.1-Municipal Corporation from selling the suit property to any other person except the plaintiff but the prayer of the plaintiff for granting possession was rejected on the footing that possession was already with the defendant no.2 and the suit of defendant no.2 was pending. 3 4 Though the Municipal Corporation chose not to file any appeal, defendant no.2 filed an appeal bearing Regular Civil Appeal No.363 of 1985, which came to be allowed by the 3rd Addl. District & Sessions Judge, Kolhapur. In such circumstances, Second Appeal has come to be filed. 5 I have heard the parties. None has appeared on behalf of the Kolhapur Municipal Corporation and therefore, it is not known as to what action the Corporation has taken in pursuance of the resolution dated 11.1.1985. The only substantial question of law as raised is that the plaintiff obtained rights of preferential purchase on account of the resolution dated 11.1.1985. The contention is without any substance as the said resolution has been passed subsequent to the filing of the suit and is not part of the cause of action on which the suit was based. The second substantial question of law was that the defendant no.2 has no locus to file an appeal. There is no substance in this point as the plaintiff’s suit was for possession and the finding of the trial Court was that the possession was with defendant no.2. Defendant no.2 was therefore, an aggrieved party and had a right to challenge the decree since it would affect his possession over the suit property. Prayers have not being amended to deal with the subsequent resolution passed by the Municipal Corporation. There is no other legal principle on the basis of which the plaintiff can claim preferential rights of purchase in respect of land which had vested in the Municipal Corporation after the conclusion of the acquisition proceedings. In the circumstances, Second Appeal is liable to be dismissed. It is however, made clear that it will be open for the Corporation to sell the land to the plaintiff in accordance with any resolution that they may have passed or chose to pass, in accordance with law. In so far as original defendant no.2 is concerned, since he is a lessee, his rights will be governed by the final decision in 4 Regular Civil Suit No.92 of 1985 or any further proceedings arising therefrom. proceedings. With this clarification Second Appeal stands dismissed. CIVIL APPLICATION NO.3142 OF 1993 As the main appeal is dismissed, Civil Application also stands dismissed. (R.S.MOHITE,J) 5