1 nms.3623.10-s.3231.10.odt mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3623 OF 2010 IN SUIT NO. 3231 OF 2010 M/s. Shreenath Builders ...Plaintiffs Vs. Gopinath Mahadev Koli & Anr. ...Defendants Mr. A. Bookwala, Senior Counsel with Mr. Deepak Chitnis i/b. Deepak Chitnis Chiparikar & Co., for Plaintiffs Mr. P.B. Lad & Mr. A.Muralidharan, Advocates for Defendants 1 and 2 AND NOTICE OF MOTION NO. 3711 OF 2010 IN SUIT NO. 3278 OF 2010 Buildcube Constructions Pvt. Ltd. ...Plaintiffs Vs. Gopinath Mahadev Koli & Anr. ...Defendants Mr. D.D. Madon, Senior Counsel with Ms. Madhu Hiraskar with Mr. Y.R. Shah for Plaintiffs Mr. P.B. Lad & Mr. A.Muralidharan, Advocates for Defendants 1 and 2 CORAM : SMT. ROSHAN DALVI, J. DATED : 15 TH FEBRUARY, 2011 ORAL ORDER : 1. The suit is filed for partition of the suit property described in Exhibits-A1, A2, A3 and A4 to the plaint by metes and bounds 2 nms.3623.10-s.3231.10.odt or upon its valuation and sale. The Plaintiff claims 25/27th share right, title and interest in the suit property . 2. The Plaintiffs are developers. They claim that the Defendants were co-owners of the suit land along with 25 other co-owners The Plaintiffs have entered into separate registered Conveyances with 25 co-owners of the suit lands and have been put in possession thereof. The Defendants herein are two of those co-owners who have not agreed to sell and have not sold their undivided 2/27th right, title and interest in the suit lands to the Plaintiffs. 3. The suit lands came up for acquisition and culminated into a Land Acquisition Reference being LAR No.3/1997. 4. Under an order passed in the LAR, 70% compensation was payable to the co-owners of the suit property being the 25 co- owners of Defendants 1 and 2 along with Defendants 1 & 2. 30% of the compensation payable was to be paid to the Plaintiffs herein. The 25 co-owners of Defendants 1 and 2 have withdrawn 25/27th share in the said 70% of the compensation deposited in this Court. 5. The Plaintiffs’ predecessor in title was one Vijay Enterprises. The Defendants as also the other 25 Co-owners of the suit lands had entered into agreements with the said Vijay 3 nms.3623.10-s.3231.10.odt Enterprises inter alia for development of the suit lands. There has been litigation between these two parties. 6. The suit of Vijay Enterprises being Suit No.1780/1993 has stood ultimately dismissed. The Plaintiffs have had separate conveyances in respect of the same subject matter with the other 25 co-owners as aforesaid. 7. The Defendants herein as also the other 25 co-owners had filed Civil Suit being Suit No.340/1987 against one Damodardas Bhaidas Bhuta and others. The said Bhuta was the real owner of the suit lands. The Defendants as also the other 25 co- owners claimed adversely to him. Certain consent terms were entered into by and between the Defendants herein as also other 25 co-owners and the said Bhuta and his family members. In the said consent terms, a copy of which is annexed as Exhibit-3 to the affidavit in reply of the Defendants, the Defendants (as the Plaintiffs therein) declared that they as also other 25 co-owners (in all 27 co-owners) were members of the joint Hindu undivided family and the owners of the property who claimed title by adverse possession. The Defendants herein accordingly have admitted that they are the co-owners with other 25 co-owners of the suit lands. 8. Those 25 co-owners have conveyed their undivided 25/27th share in the suit lands to the Plaintiffs. 4 nms.3623.10-s.3231.10.odt 9. Similarly in the suit filed by Vijay Enterprises, which has since being dismissed, against the Defendants and the other 25 co- owners, they all claimed possessory title to the suit lands. In the written statement filed by them declared by Defendant No. 1 herein, they have accepted their case of possessory title as set out in para 3 of the plaint filed by M/s. Vijay Enterprises. Consequently, the Defendants are seen to have admitted their claim along with the claim of their co-owners, of whatever nature that be, in respect of the suit lands even in the suit of 1993. 10.Similarly in the LAR No.3/1997 the Defendants along with their 25 co-owners who claimed compensation had stated in the written statement that claimants Nos. 1 to 27 were the owners of the suit plot of lands. The Defendants also claimed compensation on that footing. The 27 co-owners showing themselves are owners of the suit plots of land under acquisition have further stated that they were in possession of the plots and they have paid security charges to one Bombay Intelligence Securities Force. Consequently, the Defendants have exercised their right of ownership also jointly as co- owners with other 25 co-owners. 11.In a judgment dated 21st November 2005, which has been since upheld by the Apex Court in Suit No.1780/1993 it has 5 nms.3623.10-s.3231.10.odt been held that Defendants 1 to 27 in that suit were claiming that they were in possession for more than 12 years and consequently, became owners by adverse possession. 12.These are express admissions of the fact that Defendants 1 and 2 were co-owners with 25 other co-owners made from time to time by the Defendants in their pleadings as well as affidavits making a claim of adverse possession along with those 25 co- owners. That claim has come to be upheld in the judgment passed against Vijay Enterprises. 13.Since thereafter only 25 co-owners entered into registered conveyance with the Plaintiffs and these Defendants did not enter into such conveyance, the Plaintiffs claim partition of the entire lands as conveyed to them. The Plaintiffs claim to have been transferred the undivided right, title and interest of the 25 co-owners of Defendants 1 and 2. The right, title and interest of Defendants 1 and 2 remain with the Defendants. The Plaintiffs have become co-owners with Defendants 1 and 2 in the place and stead of 25 co-owners of Defendants 1 and 2. It is under these circumstances that the Plaintiffs have applied for partition of the lands by metes and bounds or by sale of the lands by purchase of the Defendants’ share. 14.In this Notice of Motion the Plaintiffs have claimed an injunction against the Defendants disposing off their right, title 6 nms.3623.10-s.3231.10.odt and interest in their 2/27th share in the suit lands held and co- owned by them along with the Plaintiffs and for preliminary decree of partition. 15.The relief of injunction is upon the acquisition of the Plaintiffs 25/27th share in the suit lands. The preliminary decree of partition is upon the admission of the Defendants of their co- ownership rights. 16.Once the properties/lands are admittedly co-owned by two or more persons, one of the co-owners can sue for partition and must be granted the decree of partition. Upon the aforesaid express admissions of fact the Plaintiffs claim that the Defendants admit that they were co-owners of the properties/lands with 25 other co-owners whose rights have been taken over by the Plaintiffs, the Plaintiffs stepping into the shoes of the 25 co-owners of the Defendants. 17.In the affidavit in reply filed by the Defendants to this Notice of Motion the Defendants have themselves extracted parts of the agreements entered into by them along with their 25 co- owners with Vijay Enterprises. These agreements are shown to be dated 6th July 1984, 29th April 1985 and 22nd July 1991. Both the Defendants are admittedly parties to the agreement dated 6th July 1984. The recitals recited by the Defendants in para 3 of the affidavit in reply themselves show that there are 7 nms.3623.10-s.3231.10.odt 11 Vendors to the agreement who are stated to have jointly owned and possessed the suit lands. They are also shown to have acquired the lands by adverse possession. “All the Vendors are thus owners …..” of the suit lands as recited by them. They have shown the legal title of the lands in the name of aforesaid Bhaidas Bhuta from whom they claim adverse possession. Further in the said recitals they have recited that in the record of rights the name of Defendant No.1 as “one of the Vendor” is shown as the Kul (cultivator). Hence on the Defendants own showing in the documents, admittedly executed by them both the Defendants have been shown to be jointly owning and possessing the suit lands adversely to the real owners and have been 2 of the 11 vendors. 18.Similarly such agreements have been executed by 7 other co- owners on 29th April 1985 and yet 7 other co-owners on 22nd July 1991. Consequently, 25 of the 27 co-owners including the Defendants admittedly entered into agreements with Vijay Enterprises. The other two agreements of 29th April 1985 and 22nd July 1991 also show similar recitals which are set out in paragraphs 4, 5 and 6 of the affidavit of the Defendants. However, they do not require to be recited again, since all those co-owners have ultimately conveyed their undivided right, title and interest in favour of the Plaintiffs and have no disputes with them. 8 nms.3623.10-s.3231.10.odt 19.Based upon such documents executed inter alia by the Defendants with Vijay Enterprises, which are not disputed by the Plaintiffs, the Defendants in para 20 of the affidavit in reply in fact claim that the Plaintiffs are estopped from contending that the Defendants have 2/27th undivided interest in the said lands. The Plaintiffs do not dispute the 2/27th undivided interest in the suit lands belonging to the Defendants. The Plaintiffs accept such interest. It is upon such acceptance itself the Plaintiffs have sued for partition. 20.Upon their specific statement in paragraph 20 of the affidavit in reply to this Notice of Motion itself the Defendants admittedly have 2/27th undivided interest in these lands. 21.The preliminary decree in a suit for partition is required to be passed under Order 20 Rule 18 of the C.P.C. That decree would be passed upon the Plaintiffs’ share being ascertained by the Court. When the Plaintiffs’ share is admitted, the Court is not required to adjudicate upon the ascertainment of such share. Upon the admitted facts that two or more parties are co-owners, the Court would, therefore, pass a preliminary decree. 22.These admissions of co-ownership would, like any other admissions, be required to be made orally or in writing in the 9 nms.3623.10-s.3231.10.odt pleadings between the parties or in any other manner. Upon such admissions, as admissions in any other suit, a judgment on admission would be required to be passed. The judgment on admission would be passed under Order 12 Rule 6(1) of the C.P.C, which runs thus: “ORDER XII Rule 6(1): Judgment on admissions: (1) Whether admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.” 23.The admissions of facts which are required to be seen can be made in the pleadings of the parties “or otherwise”. This expression would encompass pleadings in earlier litigations between the parties as also in documents other than pleadings. 24.In fact the wide ambit of Order 12 Rule 6 requires admissions made even orally to be considered for passing a judgment upon them. This would be without determination of any other question between the parties. The expression “Without waiting for the determination of any other question between the parties” would allow the Court to pass such a judgment on admission the moment the admission is made and no matter 10 nms.3623.10-s.3231.10.odt that some other questions would come up for its determination later. It, therefore, allows the Court to pass a judgment at the stage, before the stage of trial when the issues between the parties on material disputed facts would be agitated, tried and answered. The expression “at any stage of the suit” would include the ad-interim or the interim stage. In this case it is the interim stage upon the application by the Plaintiffs by way of Notice of Motion which the Defendants can and have defended and answered. 25.Despite their undivided interest the Defendants have sought to defend the Notice of Motion to resist the Plaintiffs’ claim to the preliminary decree of partition being passed in this Notice of Motion upon the Defendants’ admissions. Mr. Lad on behalf of Defendants specifically relied upon and drew my attention to a typewritten copy of a declaration made by 6 of the co-owners including Defendant No.2 that Defendant No.1 is only attending to and looking after the agricultural lands whereas the others are attending to fishing business and why the name of only Defendant No.1 has been entered in the record of rights. In the declaration they further declared that they had requested the appropriate authority to enter their names also in the record of rights along with the Defendant No.1, who has no objection to the other names being entered in the record of rights. It is not understood what the Defendants seek to make of the declaration. This declaration is a further act of 6 of the 11 nms.3623.10-s.3231.10.odt 27 co-owners including the Defendants for having their names entered in the record of rights along with Defendant No.1. It further shows that the name of Defendant No.1 alone in the name of records of rights is only for the sake of convenience or reverence out of the fact that he alone cultivated the lands whereas 6 other co-owners carried on their business. This declaration does not show that the Defendants have disputed that they are co-owners along with the other 25 co-owners (or at least other 6 co-owners). 26.Similarly another declaration has been made by the Defendant No.1 which is annexed as Exhibit-I to the affidavit in reply of the Defendants showing that Defendant No.1 declared that as he was looking after and cultivating the agricultural lands, his name was entered into record of rights, but he prayed that the names of his brothers also be recorded in the record of rights. Those are his other 6 brothers including Defendant No.2. 27.It is argued on behalf of the Defendants that these declarations were made to evade and avoid the provisions of the Urban Land Ceiling Act, 1976 by Defendant No.1 and his brothers though the Defendant No.1 alone owned the suit lands as a cultivator thereon. The declaration is made by Defendant No.1 as also his 6 brothers on 5th March 1985 well after the Urban Land Ceiling Act come into force in 1976. The declaration was for defeating the provisions of the said Act. The Defendants 12 nms.3623.10-s.3231.10.odt would be bound by the declaration. Defendant No.1 as the sole owner, was required to file his returns under Section 6 of the said Act. On acquisition of the land under the Land Acquisition Act, all the 27 co-owners, along with the Defendants have applied for and obtained and taken their 1/27th share each in the compensation granted. 28.The other 18 co-owners are the widows and children of the 7 brothers mentioned in the aforesaid 2 declarations seen together. Consequently, the Defendant No.1 who was one of the 7 brothers, fairly declared and prayed for and called upon the appropriate authority to enter the names of his 6 other brothers. The 6 other brothers prayed before the appropriate authority to get their names entered into record of rights for the same reason. These 6 brothers along with their wives and children entered into various agreements on 6th July 1984, 29th April 1985 and 22nd July 1981 with Vijay Enterprises. They accepted the execution of the agreements in the affidavit in reply filed in this Notice of Motion also. All these 25 co-owners entered into registered conveyance deed with the Plaintiffs after the claim of Vijay Enterprises was negatived and they were free to enter into further transactions with other parties. Only Defendants 1 and 2 have not done so. The Plaintiffs stepped into the shoes of other 25 co-owners. The Plaintiffs are, therefore, co-owners along with Defendants 1 and 2 in the suit lands. 13 nms.3623.10-s.3231.10.odt 29.The extent of their co-ownership is the extent of ownership of their predecessor in title who are 25 other co-owners of Defendants 1and 2. Consequently, the Plaintiffs are co-owners to the extent of 25/27th share in the suit property. 30.By virtue of specific admissions in the earlier litigations as also in the affidavit in reply to this very Notice of Motion more specifically their claim in paragraph 20 of the affidavit in reply herein, which is analogus to the agreements executed by them along with the other co-owners, as also the aforesaid 2 declarations made by them, it is seen that the Defendants have expressly admitted their co-ownership rights with 25 other co- owners and are entitled to 2/27th undivided interest in the suit lands. 31.Based upon such express admission the judgment on admission can be passed against the Defendants protecting their 2/27th interest in the suit lands and along with the Plaintiffs 25/27th interest, right and title in the suit property. In a suit for partition that would be by way of preliminary decree. In any other civil suit that would have been by way of final judgment. The Plaintiffs have, therefore, restricted their claim to a preliminary decree since they have filed a suit for partition. For passing a preliminary decree the provisions of Order 20 Rule 18 of the C.P.C. must be seen. Order 20 Rule 18 14 nms.3623.10-s.3231.10.odt runs thus : “ORDER XX Rule 18. Decree in suit for partition of property or separate possession of a share therein. - Where, the Court passes a decree for the partition of property or for the separate possession of a share therein, then, - (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54. (2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.” 32.The suit lands are not assessed for the payment of revenue to the Government. Sub Clause 2 of Rule 18 aforesaid would, therefore, apply to this case. 33.Under the aforesaid provision the Court is required to declare the rights of the Plaintiffs as well as Defendants in the suit lands as parties interested in the suit lands and give the requisite directions. Hence, the following order. 15 nms.3623.10-s.3231.10.odt 34.A judgment on admission by way of a preliminary decree is passed as follows: 1. The Plaintiffs are declared to be 25/27th owners of the suit lands with the Defendants. 2. The Defendants are declared to be 2/27th owners of the suit lands with the Plaintiffs. 3. The suit lands are required to be partitioned such that Defendants 1 and 2 are given a portion of the suit lands in the aforesaid 2 suits which are clear and unencroached upon. 4. These lands form a part of the lands belonging to the Plaintiffs in suit No. 3278/2010. 5. Counsel on behalf of both the Plaintiffs in the aforesaid two suits state that they are agreeable with Defendants 1 and 2 be given 2/27th portion of the suit lands in both the suits from the lands marked A2 in suit No.3278/2010 from its Westernmost point which is between the land belonging to Raja Industrial Estate to its North as well as South. 6. The Commissioner for taking accounts of this Court shall visit the suit lands and demarcate the 2/27th share of the suit lands along with the City Survey Officer, Kurla Division, Mulund, Mumbai. 7. The demarcation shall be made within 8 weeks from today. 16 nms.3623.10-s.3231.10.odt The Commissioner for taking accounts shall report the Court of the demarcation. 8. This order is stayed for 6 weeks. 9. However, Defendants are restrained from alienating, encumbering, parting with possession, selling, transferring, disposing off or creating 3rd party rights in respect of the suit lands. 10.Notice of Motion is disposed off accordingly. (SMT. ROSHAN DALVI, J.)