: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 40 OF 1982 SUIT NO. 40 OF 1982 SUIT NO. 40 OF 1982 1.Jamshed Nusserwanji Guzder ] 2.Minoo Rustomji Shroff ] 3.Smt. Siloo Kaikhushroo Kavarana ] 4.Dinshaw Rusi Mehta ] 5.Dadi Bejonji Engineer ] 6.Rustom Sheriar Tirandaz ] 7.Dinshaw Kaiki Tamboly ] All of Bombay, Indian Inhabitant ] the present Trustes of the Parsi ] Panchayat Funds and Properties ] Bombay, having their office at 209, Dr.] Dadabhoy Nawrojee Road, Fort, Bombay, ] Bombay 400 001 ]...Plaintiffs. Versus 1.Pestonji Dhujishaw Zilla ] residing and carrying on business ] at Zilla Wadi, 9,A, Turen Road ] Andheri, Bombay 400 093 ] 2.Maliram Gouridutt Mittal ] carrying on business at Lentin ] Chambers, Dalal Street, Bombay ] Bombay 400 023. ] 3.Farmeshwar Gouridutt Mittal ] carrying on business at Lentin ] at Lentin Chambers, Dalal Street, ] Bombay 400 023. ] 4.Vishwanath Gouridutt Mittal ] carrying on business at Lentin ] Chambers, Dalal Street ] Bombay 400 023. ] 5.Shankerlal Gouridutt Mittal ] carrying on business at Lentin ] Chambers, Dalal Street, Bombay ] Bombay 400 023. ] 6.Messrs. M.G.Mittal & Co. ] A Partnership firm carrying on ] business at Lentin Chambers ] Dalal Street, Bombay 400 023. ] ..Defendants. ALONGWITH SUIT NO. 58 OF 1982 SUIT NO. 58 OF 1982 SUIT NO. 58 OF 1982 Pestonji Dhanjishaw Zilla ] Indian national Parsi Bombay ] Inhabitant, Zilla Wadi, Suren ] Road, Andheri (E),Bombay 400093 ] ..Plaintiff. Versus. 1.Dr.Aspi Framroze Golwalla ] : 2 : 2.Eruch Byramsha Desai ] 3.Jamshed Gulfam Kanga ] 4.Homi Phiroze Ranina, ] 5.Jamshed Nuserwanji Desai ] 6.Minoo Rustomji Shroff ] 7.Dr.(Miss)Mehroo Dhunjishaw Bengalee ] all of Bombay, Indian Inhabitants, the ] present Trustes of the Parsi Panchayat ] Fund and Properties, Bombay, having ] their office at 209, Dr. Dadabhoy ] Nowrojee Road, Fort, Bombay 400001 ]...Defendants. Ms.Rajani Iyer a/w. Mr. Manjir Shah i/b. Pardiwala & Co. for the Plaintiffs in Suit NO. 40 of 1982 and for defendants in Suit No. 58 of 1982. Mr. Jn.B.Chinai, Sr. Counsel a/w. Sanjay Jain & Mr. Choksey i/b. M/s.Choksey & Co. for the Plaintiff in SuitNO. 58 of 1982. Mr. P.D.Zilla in person in SuitNo. 40 of 1982. CORAM : S.K.SHAH, J. CORAM : S.K.SHAH, J. CORAM : S.K.SHAH, J. Date of Reserving the Judgment : 06/08/2004. Date of Reserving the Judgment : 06/08/2004. Date of Reserving the Judgment : 06/08/2004. Date of Pronouncement of the Judgment : 30/09/2004. Date of Pronouncement of the Judgment : 30/09/2004. Date of Pronouncement of the Judgment : 30/09/2004. -: ORAL JUDGMENT :- -: ORAL JUDGMENT :- -: ORAL JUDGMENT :- 1. Both these suits are being disposed of by a Common Judgment as the parties to the Suits and the subject matter of the Suits are the same and with the consent of the Counsels on both the sides, the evidence was recorded in common. 2. Suit No. 40 of 1982 is filed by the Trustees of the Parsi Panchayat against Pestonji Dhanjishaw Zilla. The Suit No. 58 of 1982 is filed by Pestonji Zilla against the Parsi Panchayat. The other defendants in Suit No. 40 of 1982 are added as they are claiming right through the defendant No.1 Pestonji Zilla. The : 3 : Plaintiffs in Suit No. 40 of 1982 claim to be the owners of the suit lands, whereas the Plaintiff in Suit No. 58 of 1982 also claim to be the owners of the Suit lands. The Properties in Suit No. 40/1982 are nine pieces of land as Survey Nos. 30/1, 30/2, 30/3, 30/4, 84(part), 29/4, 29/6, 49/9 and 31/2 situate at Village Gundavali, near Andheri in Greater Bombay. The properties involved in Suit No. 58 of 1982 are only seven out of the aforesaid properties, namely, Survey Nos. 30/1, 30/2, 30/3, 30/4, 29/6, 49/9 and Survey No. 84(part), regarding which the Plaintiff in that Suit claims to be the owner. Consequently, there is no dispute about the ownership of the Parsi Panchayat in Suit No. 40/1982 with regard to the lands of Survey Nos. 29/4 and 31/2. The parties are referred to, hereinafter, as Plaintiff and Defendant and also the suit properties as per Suit No. 40 of 1982. 3. The Plaintiff - Trust is the registered Trust and and other Plaintiffs are the Trustees of the said Trust. They alleged that one Behram Shavaksha Panthaki was the owner of several pieces and parcels of lands, totally admeasuring about 82,669 square yards which included the suit properties. The said Behram Panthaki died on or about 3rd March, 1963 leaving a Will, dated 12th September, 1960. The Probate to the said Will was granted on 14.10.1964 in favour of Jahangir Hormasji Cama and Kaikhushru Hormasji cama. All the pieces of land totally admeasuring 82,669 square yards situate at village Gundavali near Andheri in Greater Bombay, were : 4 : mentioned in the Will. By deed of transfer, dated 16.2.1967 between Cama brothers, in their capacity as Executors of the Will of Behram Panthaki as also in their individual capacity conveyed to the Plaintiff - Trust out of the pieces of lands totally admeasuring 52283.25 square yards, equal to 43901.14 square meters, as per plan annexed to the conveyance deed. The Suit lands are comprised in the said area of lands admeasuring 52283.25 square yards. 4. The Plaintiffs further alleged that in 1963, certain lands i.e. 77 sq. mts. -out of Survey No.30/1, 93 sq.mts. out of S.No.30/3, 2002.20 sq.mts.- out of S.No. 20/4, 1.5 sq.mts.- out of S.No. 31/2, 3122.20 sq.mts.- out of S.No.84(part), 761.20 sq.mts.- out of S.No.37/7(part), 135 sq.mts.- out of S.No.37/8, 526.45 sq.mts.- out of S.No.37/10 , 177 sq.mts.- out of S.No. 37/11 were acquired for hundred feet wide approach road. They further alleged that the Trust made a claim by way of compensation for the acquisition of the said lands. However, the defendant No.1 put up a claim for compensation only in respect of the acquisition of the land out of S.No. 30/1, 30/3 and 30/4 and S.No. 84(part). A dispute with regard to the claim of compensation between the Plaintiff and the defendant No. 1 has been pending in this Court, by way of Land Acquisition Reference No. 4/1978. 5. The Plaintiffs allege that they have constructed 22 buildings in Behram Panthaki’s property after : 5 : obtaining N.A. permission. They have been paying the N.A. Assessment bills as also the Municipal Taxes in respect of 22 buildings. They also obtained exemption Order of the Competent Authority under the Urban Land Ceiling and Regulation Act, 1976 for construction of the remaining ten buildings to fulfil the desire of late Mr. Pestonji. As such it is alleged that the Plaintiffs are in possession of the entire suit lands and the record of rights also show their ownership and possession over the suit lands. They allege that somewhere in November, 1981, the defendant No.1 agreed to sell some of the suit lands to one Mr. Mittal- the defendant No.2, the Plaintiffs raised dispute about it. As a result, there was exchange of notices between the advocate of the Plaintiff and defendant No.1 & 2, which ultimately led to the filing of this Suit for declaration of the ownership over the suit lands and for consequential relief of permanent injunction restraining the defendant from disturbing the plaintiffs possession over the suit land and not to creat any third party interest in respect of the suit land. 6. The contentions of the defendant in his Suit, being Suit No. 58 of 1982 as also in Suit No. 40 of 1982 are that he has acquired the title to the aforesaid seven pieces of lands through deed of dissolution of partnership and Gift deed dated 22.12.1938. He contends that by agreement of Sale dated 31.7.1934, Mariam Sultan, who owned the suit properties agreed to sell them to Shavksha Sorabji Panthaki alongwith other pieces : 6 : of lands, which were known as ’Jinwadi’ or ’Chikkuwadi’ by conveyance deed, dated 18.9.1934. Those properties including the Chikkuwadi property, were sold to Merwanji Ardeshir, Jamsetji Nobel and Pherozshaw Shavksha, the nominees and benamidars of one Pherozshaw Merwanji Mehta, who happened to be the maternal uncle of defendant No .1. Out of the total agreed consideration of Rs. 21,000/-, Rs. 5000/- was paid as earnest money, Rs. 15,000/- were paid by Merwanji Ardeshir for and on behalf of and out of the money belonging to Pherozeshaw Merwanji Mehta, the maternal uncle of the defendant No.1. The earnest money of Rs. 5000/- which were paid were the money belonging to Dhanjishaw Dinshawji Zilla, the father of the Plaintiff. 7. He further contend that Merwanji Ardeshir, Jamshedji Nobel and Shavaksha and other were partners in the Firm called as M/s. Bharat Ginning & Pressing Co. The Factory of the Ginning and Pressing Company, the Partnership Firm was allowed by Pherozeshaw Mehta to be constructed on the land situated at Gundavali, known as Chikkuwadi by registered deed of gift, dated 22.12.1938. Phirozshaw Merwanji Mehta, the maternal uncle of defendant No.1 made absolute gift of the said property of Chikkuwadi alongwith the suit property to defendant No.1. At that time, the defendant No.1 was minor and, therefore, under the gift deed, Jahangir S. Patel was appointed Trustee with direction to handover the suit properties to the defendant No.1 on his attaining majority in the year 1948. The said deed of gift was : 7 : confirmed by Pherozeshaw Shavaksha separately. 8. It is further the contention of the defendant No.1 that the name of Firm M/s. Bharat Ginning & Pressing Co. was changed to Bharat Cotton Waste Products by a partnership deed, dated 10.4.1943. In the said Partnership deed, it was recorded that amount of Rs. 16000/- and earnest money amount of Rs. 5000/- (in respect of the conveyance, dated 18.9.1934), were paid by the defendant No.1’s father Dhanjishaw Dinshaji Zilla and Pherozeshaw M.Mehta, the father and maternal uncle of defendant No.1, for and on behalf of the defendant No.1., who was then minor. It is further his contention that in the deed of dissolution of partnership, dated 18.9.1949, the said firm, namely, M/s. Bharat Cotton Waste Products was dissolved. In the said dissolution deed, it was recorded that after the demolition of the premises of the factory, the landed property would belong to the defendant No.1, who was absolute owner of the said properties and those properties are the suit properties (as per Suit No. 58 of 1982). Therefore, it is the contention of defendant No.1 that he is the owner of the suit properties and having been in possession of the suit properties since the year 1948, when he became major. He had put fencing wall around the suit property. 9. The defendant No. 1 further contend that in the year 1962 the defendant No. had mortgaged the portion of the suit property in favour of the M/s. Chhotubhai : 8 : Patel and Co. for Rs. 20730/- and subsequently he had redeemed the said mortgage by paying off the said amount. On 19.6.1962, Behram S. Panthaki executed a cultivation bond in favour of defendant No.1 wherein it was declared that the Plaintiff was absolute owner of the suit property, as mentioned in the deed of conveyance, dated 18.9.1934. In the year 1964, the defendant No.1 again mortgaged the suit property by way of equitable mortgage with one Udhavram Parikh and by deed of release, dated 29.9.1980, the property was redeemed. 10. The defendant No.1 further contended that in the acquisition proceeding, the portion of the land admeasuring. 2168 sq.mts. was acquired. It is his contention that he handed over the possession of the said piece of land to the land acquisition officer. However, the plaintiffs made false claim of compensation and that the litigation in that regard being L.A. Reference No. 4 of 1978 is pending in Court. He further contended that by way of Order of attachment, dated 7.11.1930, passed by the Income Tax Authorities, the suit properties were attached. There also the Plaintiff had applied for removal of the said attachment but failed to do so. 11. He further contended that in 1972, taking disadvantage of the absence of the defendant No.1. the Plaintiff illegally encroached upon the portion of the suit property, bearing S. No. 30/1 and to the extent : 9 : of area of 21 sq.mts. and erected thereon the building. He had lodged a complaint with police in that regard and had also filed a Civil Suit in City Civil Court being Suit No. 2551 of 1972. He further contended that on 27.11.1981, the Plaintiffs encroached upon the remaining portion of the suit property wrongfully with a view to erect another building. As such there was exchange of notices between the advocate of the Plaintiff and defendant No.1 and ultimately, the defendant No.1 filed the Suit No. 58 of 1982 praying for declaration that he is the absolute owner of the suit properties (in Suit No. 58 of 1982) and for declaration that building No. 7 erected on his plot of land was unlawfully erected and for a direction to remove the said building or in the alternative the plaintiff should b directed to pay the compensation of Rs. 78,25,000/- to the defendant No.1 and consequential reliefs. 12. In view of the rival pleadings of the parties, the following issues were formulated in Suit No. 40 of 1982:- ISSUES FINDINGS. (1) Whether the plaintiffs prove ..In the that they are the owners of the affirmative. lands (described in Exhibit-’N’ to the plaint) by virtue of the Deed of Transfer dated 16.2.1967 as claimed in paragraph 3 of the plaint and : 10 : as denied in paragraph 1 of the written statement ? (2) Whether the Plaintiffs prove ..In the that they are in possession of the affirmative. lands (described in Exhibit ’N’ to the plaint) since 16.2.1967 as claimed in plaint and as denied in paragraph 3 of the written statement? (3) Whether the defendant No.1 ..In the proves that he is the owner of the negative. land (described in Exhibit ’N’ to the plaint) as alleged in paragraph 2 of the written statement? (4) Whether the defendant No.1 ..In the proves hat the plaintiffs are negative. trespassers upon the said lands as alleged in paragraph 7 of the written statement? (5) What Order & Reliefs? ..As per final Order. 13. In view of the rival pleadings of the parties, the following issues were formulated in Suit No.58 of 1982 :- : 11 : ISSUES FINDINGS. (1) Whether the suit, as framed is ..Does not not maintainable as all the trustees ..arise are not joined in the suit ? (2) Whether the Plaintiff proves ..In the that he is the owner of the suit ..negative. lands? (3) Whether the plaintiff is in ..In the possession of the suit ..negative. property since the year 1948, if yes, what is its effect ? (4) Whether the plaintiff proves ..In the that the defendants are rank ..negative. trespassers ? (5) Whether the Plaintiff proves ..In the that the alleged Deed of Gift ..negative. dated 22.12.1938 is genuine, legal and valid ? (6) Whether the Plaintiff proves ..In the that the Deed of partnership dated ..negative 10.4.1944 and the deed of dissolution of partnership dated 18.9.1949 are genuine and valid documents ? (7) Whether the plaintiff is ..Does not entitled to damages of Rs. ..survive. 78,25,000/- or any other amount as Defendant No. alleged in paragraph 34 of the 1 is not plaint and as denied in paragraph entitled to 45 of the Written Statement ? any damages. (8) What Order & Relief,if any? ..As per final Order. AS TO ISSUE NOS. 1 AND 3 OF SUIT No. 40 OF 1982 AND AS TO ISSUE NOS. 1 AND 3 OF SUIT No. 40 OF 1982 AND AS TO ISSUE NOS. 1 AND 3 OF SUIT No. 40 OF 1982 AND AS TO ISSUE NOS. 2,5 & 6 OF SUIT No. 58 OF 1982. AS TO ISSUE NOS. 2,5 & 6 OF SUIT No. 58 OF 1982. AS TO ISSUE NOS. 2,5 & 6 OF SUIT No. 58 OF 1982. 13. The Plaintiff-Trust has examined one of its Senior Executive of the Parsi Panchayat Funds & Properties PW 1 Parvez Bamanshah Aaibara and PW 2 Parvez Homi Driver, who is resident of Panthaki Baug. The defendant No.1 has examined himself in Suit No. 58 of 1982. It may be pointed out at this juncture, as stated : 12 : above, by consent of the parties, the evidence was recorded in common in respect of both the Suits. 14. Plaintiffs’ witness Parvez Aaibara - PW 1 has stated that the Suit properties are given to the Trust as per the last wish of late Behram Panthaki, as incorporated in his Will, dated 12.9.1960. He further stated that the Executors under the Will (Exhibit ’B’), namely Cama Brothers conveyed the suit lands to the Trust by a Deed of Transfer, dated 16.2.1967 (Exhibit ’A"), after obtaining the Probate to the Will on 24.10.1964 (Exhibit ’B’). 15. A perusal of the Will about which the Probate has been obtained at Exhibit ’B’ would show that Behram Panthaki had appointed Seth Hormasji Cama and Kaikhushru Hormasji Cama as Executors and Trustees of his Will and testament. The Will also shows that deceased Behram Panthaki devised and bequeathed all his properties whatsoever and wherever situate, to the Trustees in the Trust known as Parsi Panchayat, Bombay for the purpose of building housing colony for poor and deserving parsi persons and had directed under the Will to the two Cama brothers who were Executors under the Will to hand over all the properties to the Trustees of the said Trust, making it clear that the property would be of the Trust absolutely and without in any manner shattering the absoluteness of the gift made by the Will. This Will was Probated on 24.10.1964 by Order of this Court in Petition No. 340 of 1963. Paragraph 19 of the Will : 13 : describes the properties as " pieces of agricultural land situated at village Gundavali and village Vileparle", admesuring in all 82669 square yards on the estimated market value as per the Valuation Report, dated 24.10.1963 of K.A. Patell, Chartered Architect of M/s. K.A.Patell and Company, at Rs. 4,86,666/-. The Plaintiffs have also produced the deed of transfer at Exhibit ’A’. This was executed by two Cama brothers as executors under the Will and also in their individual capacity, in favour of the Plaintiff Trust and Trustees. What was transferred under this deed of transfer was all the lands described in paragraph (A) of the Schedule annexed to the Deed of Transfer. This Schedule ’A’ comprises of several lands described thereunder as Survey Numbers and all the nine pieces of land which are the subject matter of this Suit, are included in the said description. The deed of transfer further mentions in clause A(1) that :- "the Trustees will hereafter hold the lands hereditaments and premises described in the Schedule hereunder written upon trust to utilise and apply the same for establishing a Housing Colony for poor and deserving Parsis as provided in the said Will of the deceased Behram S. Panthaki." The evidence of the Plaintiff in this regard has gone unchallenged. Therefore these documents establish that under the probated Will [Exhibit ’B’] of the deceased Behram Panthaki, the Suit lands were directed to be transferred or to be handed over to the Plaintiff -Trust as absolute owners. As per these directions of the deceased Behram Panthaki, the Executors under the Will, : 14 : the two Cama brothers, by deed of transfer dated 16.2.1967 [Exhibit -’A’] actually transferred several pieces of the lands including the Suit lands to the Trust. These documents, therefore, establish the ownership of the Plaintiff - Trust over the Suit properties. 16. The contention of the defendant, however, is that under the Award passed by the two Arbitrators in respect of the dispute between himself and the deceased Behram Panthaki, the land admeasuring 3-acres and 36-gunthas, was given to him as owner, by way of settlement of the dispute. The said Award is produced at Exhibit ’A’ in Suit No. 58 of 1982. The Award is dated 30th March, 1951. 17. It will be necessary to see as to what effect the Award has on the rights of the parties to the properties purported to be divided between the parties, as per the Award. In case, the Award is acceptable to the extent of deciding the rights of the parties to the properties, it will have to be considered as to what effect it has on the bequest made by late Behram Panthaki by his Will and subsequent transfer made by his Executors under the Will in favour of the Plaintiff-Trust. 18. A perusal of the Award [Exhibit ’A’] indicates that the Award was passed by the two arbitrators to whom the dispute between Behram Panthaki and the defendant No.1 was referred. It is contended on behalf of the : 15 : defendant No.1 that by this Award, the land admeasuring 3-acres and 36 gunthas was given to the defendant No.1 and the remaining land of 9-acres and 3-gunthas was given to Behram Panthaki. A perusal of the Award also indicates that there was a dispute between Behram Panthaki and the defendant No.1 raised before the Court of Mamletdar, Andheri, being Case No. RTSR/27/2950, wherein the defendant No.1 was the applicant and Behram Panthaki was the Respondent. The Award further specifies that the two arbitrators were appointed as per the agreement in writing between the applicant and the respondent therein to give final Award in and upon the matters described in the said agreement. That agreement,however, is not filed in this case. In the Award there is reference to the conveyance deed dated 30.8.1939 (Exhibit ’J’), whereby Shavaksha Panthaki, the father of Behram Panthaki had conveyed the lands and properties to Mohammed Hussain Dehdasti. There is also reference to Registered Conveyance Deed, dated 8.4.1920, whereby the said Mohammed Dehdasti had purchased the properties from Joshi Mulji Purushottam. There is also reference to the Registered Conveyance made in the year 1934, whereby the same properties sold out by the heirs of Dehdasti in favour of one Nobel, whereunder the assignee Gunjishaw Dhanjishaw Zilla, the father of the Defendant No.1, reserved his claim because of the decree in their favour and the said decree was amalgamated with the conveyance, which was made in 1934. There is reference to part of the properties having been gifted to the defendant No.1 on 22.12.1938 and these properties : 16 : having been merged in that deed of conveyance of 1934. There is also reference to amalgamation of the land admeasuring 3-acres and 37 gunthas at village Gundavali for Bharat Cotton Products, wherein the father of the defendant No.1 was a Partner in that Firm. There is also reference to a deed of dissolution, dated 18.9.1949 showing the applicants i.e. defendant No.1’s property being separate from the properties of Behram Panthaki, the Respondent therein. There is also reference to the conveyance deed, dated 25.7.1944 between Nobel and Behram Panthaki. 19. The Arbitrators gave finding of rejection of the conveyance, as the title of the property was in favour of the Respondent-therein i.e. Behram Panthaki. They also declared the applicant therein i.e. the defendant No.1 being the lawful owner of 3-acres and 34-gunthas of land as per the deed of dissolution, dated 18.9.1949. There is also observations that the facts were confirmed by Behram Panthaki and it was also agreed by the defendant No.1 i.e. the applicant, as per the gift deed, dated 22.12.1938 of the property which was purchased by Mohammed Houseman Dehdasti as per deed of conveyance dated 30.8.1919 and 8th April, 1920 and the entire properties situate at Gundavali and Vileparle, which belong to the applicant therein i.e. defendant No.1. The relevant portion of the award is as