ata 1 217.fa.79.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.79 OF 1992 The State of Maharashtra (through the Collector,Thane) ...Appellant vs. Shri. Giddandas Jhmandas Lohane (Since deceased) through Legal Heirs 1A) Shri. Ilariram Giddandas Lassi(Lohane) Son, R/o Resident Brk. No.337 Room No.1, Sonar Gali,Ulhasnagaar-2, Dist Thane 1B)Smt. Mohini Dnyanchand R/o Hira Society, 3rd Floor, “B” wing, Opposite Padamji Park, Swargate,Pune 1C)Smt. Bhagwati Iiiranand Kariya R/o Hira Society,Aman Cinema Road, Ulhasnagar-3,Dist Thane 2.Shri. Suresh Kishinchand Bhavnani 3.Smt. Radha Kishinchand Bhavnani 4.Shri. Rajkumar Kishinchand Bhavnani 5)The Managing Officer and Assistant Administrator(Camp No.2), Ulhasnagar Township Pawai Chowk, Ulhasnagar-3,Dist Thane Respondent Nos.2 to 4 residing at:- Jai Shankar Apartments,Ulhasnagar-2 Dist.Thane , through their Constituted Attorney Shri. Hariram Giddandas Lohane Occupation Business, residing at Brk.No.337, Room No.1, Ulhasnagar-2, Dist Thane ...Respondents ata 2 217.fa.79.92 Mr. A. R. Patil, AGP, for the Appellant. CORAM : A.S. OKA, J DATED : 4TH AUGUST, 2011 ORAL JUDGMENT: Heard Learned AGP for the Appellant. The challenge in this Appeal is to the judgment and decree dated 25th April, 1990 passed by the Learned Civil Judge, Senior Division,Thane in a suit filed by the first to fourth Respondents. 2. According to the case of the 1st Respondent, he was the original occupant of a Government plot admeasuring 5248 square yards situated in Ulhasnagar Township. The said plot bears U. No.73, Sheet No. 49 of Ulhasnagar No.2. According to the case of the said Respondents, as per the demand made by the Managing Officer and Assistant Administrator Camp No.2, of Ulhasnagar Township under notice dated 4th February,1985, the 1st Respondent deposited an amount of Rs.73,621/- towards the costs, damage charges and conveyance charges. 3. It is alleged that after payment of the said amount, the 5th Respondent (2nd Defendant-the Managing Officer and Assistant Administrator Camp of Ulhasnagar Township) issued a Conveyance Deed dated 29th February, 1988 in respect of the said plot. ata 3 217.fa.79.92 4. It is alleged that out of the suit plot, an area of 1400 square yards was sold by the 1st Respondent to the 2nd Respondent by a Registered Sale Deed dated 4th August, 1988. It was also alleged that another part of the suit plot was sold by the 1st Respondent by sale deed dated 30th August, 1988 to 2nd to 4th Respondent. On 27th July, 1988, the 5th Respondent issued notice under section 50 of the Maharashtra Land Revenue Code, 1966( hereinafter referred to as “the said Code”). By the said notice, the Respondent Nos. 1 to 4 were called upon to stop the work of construction of the suit plot. It was contended that the said notice was illegal. 5. The first prayer made in the Suit was for declaration that the Conveyance deed dated 29th February, 1988 was legal and proper and that the 5th Respondent had no authority to cancel the same. The second payer was for declaration that in view of the Conveyance Deed, the Appellant and the 5th Respondent had no jurisdiction to proceed against the structures of Respondent Nos.1 to 4 under the provisions of the said Code. The next prayer was for restraining the Appellant and 5th Respondent from taking any steps towards cancellation of the Conveyance Deed. 6. The Appellant and the 5th Respondent filed Written Statement. In the Written Statement, it was contended that the amounts recovered from the 1st Respondent were on account of damage charges and non ata 4 217.fa.79.92 agricultural assessment charges and not on account of cost of suit plot. It was specifically contended that the possession of the 1st Respondent was not regularized by the Screening Committee in it’s meeting hold on 9th April, 1976. It was contended that the record regarding the said Conveyance Deed was not available,and therefore, it was not issued by the office of the 5th Respondent. It was contended that the impugned notice dated 27th July, 1988 is only a show cause notice. 7. After the parties adduced the evidence, the Trial Court decreed the suit. The operative part of the decree reads thus: “ORDER Suit is decreed with costs. It is hereby declared that conveyance deed No. Adm./Plot/C-2/CDR/49/73 dated 29th February 1988 is legal and proper and Defendant No.1 has no Power of Authority to cancel the same. It is also hereby declared that in view of the conveyance deed, the defendants have no jurisdiction to proceed against the structure of plaintiff in the suit plot either under the M. L. R. Code or under any other law. The defendants, their agents and servants, and other claiming through them are hereby restrained by means of a perpetual injunction from taking any steps towards cancellation of the conveyance deed dated 29th February, 1988. The defendants, their agents, and servants and others claiming through them are hereby restrained by means of perpetual injunction from interfering in any way with the possession of the plaintiff on the suit plot and/or carrying out any demolition therein.” ata 5 217.fa.79.92 8. The Learned AGP for the Appellant submitted that the Civil Court had no jurisdiction to entertain and try a suit challenging the show cause notice issued under Section 50 of the said Code. He submitted that the Conveyance Deed relied upon by the Respondent Nos.1 to 4 at Exhibit 32 was infact not proved in accordance with law. He submitted that at the inception, a case was made out in the Written Statement that Conveyance Deed was not issued and was a bogus document. He submitted that the learned Trial Judge recorded a finding on the basis of evidence of the 5th Respondent that the Screening Committee had not regularized the possession of the 1st Respondent over the suit plot and therefore, the Conveyance Deed could not have been executed. He submitted that as the Conveyance Deed was not proved, the suit on title filed by the 1st to 4th Respondents, must fail. 9. None appears for the Respondent Nos.1 to 4. I have perused the pleadings. I have perused the record of the Suit. In the Written Statement filed by the Appellant and 5th Respondent, a specific stand was taken that the alleged possession of the 1st Respondent over the suit plot was not regularized by the Screening Committee in it’s meeting held on 9th April, 1996. It was contended that the said Conveyance Deed has not been issued by the office of the 5th Respondent. 10. The son of the original Respondent No.1 who is the Respondent No.1(A) stepped into the witness box. He stated that he was a power of attorney holder of 1st to 4th Respondent. In his evidence, the Learned ata 6 217.fa.79.92 Trial Court marked the Conveyance Deed as Exhibit 32. At that stage an objection was raised by the Learned AGP that the document was bogus. The Learned Judge overruled the said objection by observing that the document bears the seal of the Additional Tahasildar- Ulhasnagar and signature of the Managing Officer. The date of Conveyance Deed is 29th February, 1988. Thus, it was not a 30 years old document on the date of recording of evidence which was recorded on 15th February,1990. . There is no attempt made by the Respondent Nos. 1 to 4 to prove the signature on the alleged Conveyance Deed which purported to be the signature of the Managing Officer and Assistant Administrator of Ulhasnagar-Township. Thus, the execution of the said Conveyance Deed by a person by whom it purports to be executed was not at all proved. The specific case in the Written Statement was that no such Conveyance Deed has been issued by the office of the 5th Respondent. 11. At this stage, it will be necessary to make a reference to the evidence of Mr. Dattatray Wanmali, who was working as Assistant Administrator, Ulhasnagar-2 since 17th February, 1988. He produced the implementation register of Screening Committee before the Court. A verified extract of the said register was produced on record. He stated that the said register of the Screening committee does not refer to the Conveyance Deed being issued to the 1st to 4th Respondent. He stated that the possession of the first Respondent over the suit plot was not ata 7 217.fa.79.92 regularized by the Screening Committee. In cross examination, he admitted that Screening committee was an advisory committee. Surprisingly, in the cross examination, the witness was not shown the Conveyance Deed at Exhibit 32, for the purposes of confronting him with the signature on the said document. Thus, the execution of the conveyance itself was not proved in accordance with law. The claim of the 1st to 4th Respondent was founded on the said conveyance deed which has not been proved in accordance with law. The extract of the implementing register of the screening committee placed on record, shows that no conveyance deed was executed in respect of the said plot. Apart from the fact that execution of the conveyance deed has not been proved, a serious doubt is created about the genuineness of the said document. As the Conveyance Deed has not been proved, the suit on title based on the Conveyance Deed must fail. 12. It is, therefore, not necessary to go into the other aspects of the case. As on account of failure report of 1st respondent to prove the Conveyance Deed, suit must fail. As the relief of declaration and injunction under the Specific Relief Act, 1963 was discretionary, after having failed to prove the alleged document of title, the Plaintiffs were disentitled to any relief. 13. Perusal of the judgment of the Learned Trial Judge and in particular, paragraph No.20 shows that the Learned Judge recorded finding that screening committee has not regularized the suit structure. ata 8 217.fa.79.92 The Learned Judge has merely observed that there is a signature of the Managing Officer on the alleged Conveyance Deed. However, no attempt was made by the 1st to 4th Respondents to prove the Conveyance Deed. 14. Thus, the suit on title filed by the 1st to 4th Respondents deserves to be dismissed. 15. Hence, I pass the following order. ORDER i) The impugned judgment and decree dated 25th April,1990 is quashed and set aside. ii) Special Civil Suit No. 577 of 1988 stands dismissed, with no order as to costs. Iii) Appeal is accordingly allowed, with no order as to costs. ( A.S. OKA, J )