abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 553 OF 1997 Shyamlal Biharilal Pandey .. Appellant V/s 1. Reliance Infrastructure Limited 2. Municipal Corporation of Greater Bombay 3. Kamlakant Biharilal Pandey 4. Mrs. Champa Andest Tripathi .. Respondents Mr.Navin Parekh with Mr.P.S. Gidwani for the appellant. Mr.J.J. Bhat, Senior Advocate with Ms.Anjali Chandurkar i/b Mulla & Mulla & Craigie Blunt & Caroe for respondent no.1. Mr.J.J. Xavier for respondent no.2. Mr.Vipin Kamdi for respondent no.3. CORAM : D.G. KARNIK, J. DATE : 4TH DECEMBER 2008 5TH DECEMBER 2008 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT: 1. This appeal is directed against the judgment and order dated 30th June 1993 passed by the City Civil Court, Greater Bombay dismissing the Long Causes Suit No.5134 of 1976 filed by the father of the appellant. 2. Biharilal Pandey was the original plaintiff. He - 2 - died during the pendency of the proceedings and is being represented by his son - the appellant herein. 3. A plot of land bearing final plot no.102, survey no.109 hissa no.4 (city survey no.33 part) admeasuring 874 sq. yards or thereabout (for short "the suit property") was purchased by Burjor Navrozji Wadiwala from Avelin Gustin D’Souza under a sale deed dated 30th April 1946 registered in the office of Sub-Registrar, Bandra at sr.no.489 of the year 1946. (Exhibit-B). By a writing dated 1st February 1951, Ramsurat Pandey (father of Biharilal Pandey - the original plaintiff) took on lease/rent the suit property in the name of his wife Kabishwaridevi agreeing to pay monthly rent of Rs.20/- for a period of one year. After the expiry of one year he continued in occupation of the suit property on payment of rent of Rs.20/- per month. After the death of Ramsurat, his son Biharilal and after him, his son i.e. the appellant continued in possession of the suit property. A town planning scheme known as "Santacruz Town Planning Scheme No.V" was framed under the Bombay Town Planning Act, 1954 for the area in which suit property is situated sometime in the year 1958-59 or thereabout. In the judgment of the trial court, there is a reference to the Town Planning Scheme framed under the Maharashtra Regional Town Planning Act, 1966. - 3 - The parties, however, are ad idem that the reference to Maharashtra Regional Town Planning Act, 1966 is erroneous and the scheme was framed under the Bombay Town Planning Act, 1954 and became effective from 1st August 1959. Under the said town planning scheme, two plots of land bearing final plot nos.102 (i.e. suit property) and final plot no.103 together admeasuring 1483 sq. yards were allotted to the respondent no.1 - Bombay Suburban Electric Supply Co. Ltd., whose name has since been changed to Reliance Infrastructure Ltd. The respondent no.1 thus became entitled to final plot nos.102 and 103 which were allotted to it under the town planning scheme. In the year 1969, the possession of plot no.103 was taken over by the respondent no.1. There is some dispute as to the manner in which the respondent no.1 took possession of final plot no.103. According to the respondent no.1, the possession was given to it, while according to the appellant the possession was forcibly taken by the respondent no.1 from Ramsurat and the father of the appellant. We are, however, not concerned with the same inasmuch as that plot of land was not the subject matter of the suit and, in any event, the respondent no.1 is in continuous possession of final plot no.103 since the year 1969. The possession of final plot no.102 (the suit property) however was not handed over to the respondent no.1. - 4 - This was probably because Ramsurat Pandey, who came in possession of the suit property in the year 1951, had built about 40 unauthorised huts/structures in the suit property and had let out the structures to different persons. The suit property was thus littered unauthorised structures in occupation of tenants of Ramsurat. Being unable to get possession of the suit property, the respondent no.1 filed a writ petition, numbered as Misc. Petition No.1072 of 1973, in this Court against the respondent no.2 Municipal Corporation. Ramsurat Pandey was joined as a party respondent to the said petition. The petition was allowed and this court issued a mandamus to the respondent no.2 Municipal Corporation to take the necessary steps for handing over the possession of the suit property to the respondent no.1 after demolishing the unauthorised structures standing thereon and eviction of the occupiers. Appeal No.229 of 1979 filed by Biharilal Pandey (son of Ramsurat Pandey) against the decision of this Court in Misc. Petition No.1072 of 1973 was summarily dismissed. Special Leave Petition (Civil) No.4094 of 1980 filed by him was also dismissed by the Hon’ble Supreme Court by the following order:- "Special Leave Petition is dismissed. We will however like to observe that any observations - 5 - made by the High Court in its Judgment will not affect the title by adverse possession of the petitioner, if any, in so far as the question will arise in the suit pending in the City Civil Court. The interim stay granted by this Court will continue for a period of three weeks from today within which proper orders may be obtained by the petitioner from the City Civil Court and thereafter it will stand vacated." 4. While proceedings before this Court in the writ petition were pending, Biharilal - the father of the appellant filed a suit bearing Long Cause Suit No.5134 of 1976 against the respondents nos.1 and 2. In the said suit, Biharilal pleaded that Ramsurat Pandey had taken the suit property on rent in the name of his wife from Burjorji Wadiwala. He further pleaded that Ramsurat Pandey was in possession of the plot and had constructed several structures and let them out on rent. He also pleaded that he was the sole heir of Ramsurat and on his death, he had inherited the property from Ramsurat. He then pleaded about the town planning scheme and further pleaded title of Wadiwala to the suit property was extinguished by reason of allotment thereof to the respondent no.1 under the town planning scheme. He then contended that Ramsurat Pandey and after him, he - 6 - continued in possession of the suit property adversely to the respondent no.1. He pleaded that his possession was uninterrupted, adequate, continuous, open and exclusive to the knowledge of the respondent no.1 who had become entitled to the suit property under the town planning scheme. In the alternative, he pleaded that he was a tenant of Wadiwala and the title of respondent no.1 acquired under the town planning scheme was subject to the tenancy rights of Ramsurat which were inherited by him. 5. The respondents resisted the suit. The respondent no.2 - Municipal Corporation contended that the suit was bad in law for non-issuance of notice under section 527 of the Mumbai Municipal Corporation Act, 1888. The respondent no.1, who was the main contesting respondent, contested the suit on all grounds. It denied all contentions raised by Biharilal, the original plaintiff and the father of the appellant. In particular, it denied that Ramsurat or Biharilal had become owners by adverse possession. It denied that the alleged tenancy rights of Ramsurat and Biharilal were saved and also denied the alternative claim of Biharilal that he was entitled to remain in possession of the suit property as a tenant. - 7 - 6. On these pleadings, the parties went for trial. During the pendency of the suit, Biharilal died and his legal representatives were brought on record. One of the heirs Kamlakant (respondent no.3) examined himself as P.W.1. Muneshwar Yadav, a tenant inducted by Ramsurat in one of the unauthorised structures erected by Ramsurat on the suit property was examined as P.W.2. The respondent no.1 or respondent no.2 did not adduce any oral evidence. Documents were filed on record by the parties. 7. After consideration of the oral and documentary evidence adduced by the parties, the learned Judge of the City Civil Court held that the appellant had not proved that Ramsurat and after him, Biharilal, the father of the appellant, had become owners of the suit property by adverse possession. The trial court further held that the appellant had not proved that the tenancy rights of Ramsurat continued to remain in force after coming into force of the town planning scheme under the Bombay Town Planning Act. Thus, the alternative claim of tenancy made by Biharilal, father of the appellant was also denied. In this view of the matter, the trial court dismissed the suit. Being aggrieved by that decision, the appellant is in appeal. - 8 - 8. I have heard the counsel for the appearing parties. In view of the submissions of the counsel, the following points arise for my determination: (1) Whether the appellant proves that Ramsurat Pandey and after him Biharilal, the father of the appellant, had acquired any right and title to the suit property by way of adverse possession? (2) Whether the appellant proves that the tenancy rights of Ramsurat and after him of his son Biharilal - the father of the appellant - continued to remain intact after the coming into force of the town planning scheme, and/or they continued to be tenants of the suit property? My answers to both the points are in the negative for the reasons mentioned below. REASONS REASONS REASONS 9. Most of the facts are undisputed and are admitted before me during the course of arguments by the learned counsel for the parties. The suit property - 9 - belonged to Wadiwala and Ramsurat Pandey became a tenant of it in the year 1951. Though tenancy agreement dated 1st February 1951 was not proved before the trial court, it is not in dispute that Ramsurat was in possession of the suit property as a tenant since 1951. Ramsurat and after him Biharilal, the father of the appellant and after him, the appellant are in continuous possession of the suit property from 1951 till date. It is also not in dispute that the Santacruz Town Planning Scheme (V) framed under the Bombay Town Planning Act, 1954 came in force with effect from 1st August 1959 and under the said scheme the suit property along with the adjoining plot bearing final plot no.103 was allotted to the respondent no.1. It is also not in dispute that the respondent no.1 received the possession of final plot no.103 in the year 1969, but the possession of the suit property was not handed over to the respondent no.1. The respondent no.1 filed a writ petition bearing Misc. Petition No.1072 of 1973 against the respondent no.2 Municipal Corporation, Ramsurat and others wherein a mandamus was issued directing the respondent no.2 Municipal Corporation to hand over possession of the suit property to the respondent no.1 by demolishing the unauthorised structures standing thereon. The appeal as well as the SLP against the said decision was dismissed. However, in view of the injunction granted by the City - 10 - Civil Court as also by this Court during the pendency of the appeal, the respondent no.2 has not taken any steps for demolition of the unauthorised structures (about 40 huts) erected by Ramsurat on the suit property and let out to the tenants. 10. Prior to the coming into force of the town planning scheme on 1st August 1959, the respondent no.1 was not the owner and had no concern with the suit property. The respondent no.1 even had no occasion to know prior to 1st August 1959 what was the position of the suit property and perhaps even the location of it. It was only when the town planning scheme became applicable that the respondent no.1 acquired the right to get possession of the suit property as well as adjoining property bearing final plot no.103. Under the Town Planning Act, a person to whom a new holding has been allotted may not get immediate physical possession of the property on the date of coming into force of the town planning scheme especially when an altogether different plot of land is allotted to him. However, an obligation is cast upon the planning authority to hand over possession of the reconstituted plots to the allottees of the plot. Section 53 of the Bombay Town Planning Act provides thus: - 11 - "On the day on which the final scheme comes into force.- (a) all lands required by the local authority shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances; (b) all rights in the original plots which have been re-constituted, shall determine and the re-constituted plots shall become subject to the rights settled by the Town Planning Officer." It will be seen that all lands in the area, which is subject to the scheme, to whomsoever they might have originally belonged, would absolutely vest in the local authority, if, under the scheme, the same are allotted to the local authority. As a necessary corollary to this, all rights to the original plots of the private owners would determine and if, in the scheme reconstituted final plots are allotted to them, the same shall become subject to the rights settled by the town planning officer in the final scheme. The original plots of one owner might completely disappear being allotted to the local authority for a public purpose. Such a private owner may be paid compensation or a - 12 - reconstituted plot at some other place may be allotted to him. If the reconstituted plot is allotted to any private person, then he shall have the new plot with such rights as are settled by the town planning officer. (See Municipal Corporation of Greater Bombay vs. The Advance Builders, (1971) 3 SCC 381). REGARDING POINT NO.2 REGARDING POINT NO.2 REGARDING POINT NO.2: 11. Clause (a) of section 53 of the Act applies in respect of the plots which are required by the local authority under the town planning scheme while clause (b) covers the plots which have been reconstituted and allotted to a private person. Wording of clauses (a) and (b) is not identical. Under clause (a), the land which is required by the local authority "vests absolutely in the local authority free from all encumbrances" on the date on which the final scheme comes into force. While clause (a) uses the words "vests absolutely in the local authority", such words are absent in clause (b). Clause (b) does not say that reconstituted plots shall vest absolutely in the person to whom they have been allotted, but says "reconstituted plots shall become subject to the rights settled by the town planning officer". The distinction in the wording is material. In the former case, the reconstituted - 13 - plots vest in the local authority absolutely and free from all encumbrances forthwith and immediately on coming into force of the scheme. Whereas in the latter case, where reconstituted plots are allotted to a private owner, the plots become subject to the rights settled by the town planning officer. Where the original plot was subject to an encumbrance like mortgage, lease or otherwise, it is open to the town planning officer to determine whether the encumbrance would stand transferred to the reconstituted plot or not. The town planning officer may determine that a reconstituted plot would stand allotted to the new allottee subject to the encumbrance or free from encumbrance as he decides in the scheme. It is for this reason that the legislature has not used the words "vest absolutely in the allottee free from all encumbrances" in clause (b). The allottee of a reconstituted plot would only have such rights as are conferred upon him under the scheme. The reconstituted plot may vest in the allottee absolutely or subject to an encumbrance as may be provided in the scheme. In the present case, a copy of the scheme is not produced on record. The appellant however has not pleaded that under the scheme the suit property, i.e. reconstituted final plot no.102, was allotted to the respondent no.1 subject to his encumbrance of lease/tenancy rights or any other - 14 - encumbrance. A copy of the extract of the town planning scheme filed as Annexure-A to the affidavit in reply of Vishnu Vidhate to Civil Application No.1984 of 2001 in the first appeal shows no encumbrance was transferred to the suit property (reconstituted final plot no.102). In the circumstances, it cannot be said that the encumbrance of lease/tenancy created in favour of Ramsurat or his heirs stood transferred to the suit property allotted to the respondent no.1 as a reconstituted plot under the town planning scheme. The opening words of clause (b) of section 53 of the Act to the effect: "all rights in the original plot shall determine", would show that all rights of the original owner or encumbrancer in the reconstituted plot would come to an end on the town planning scheme coming into force. For these reasons, the encumbrance of lease/tenancy which existed in favour of Ramsurat stood determined as it was not transferred to the reconstituted final plot no.102. Therefore, the contention of the appellant that Ramsurat Pandey and after him appellant’s father and he continued in possession of the suit property as a lessee/tenant and their tenancy rights were unabated has to be rejected. REGARDING POINT NO.1: REGARDING POINT NO.1: REGARDING POINT NO.1: - 15 - 12. Section 53 of the Bombay Town Planning Act casts a statutory obligation on the local authority to hand over possession of the reconstituted plots to the persons to whom they are allotted. Prior to the year 1971, however, there was a doubt as to interpretation of sections 53 to 55 of the Bombay Town Planning Act. It was the contention of the local authority that it was not its obligation to hand over possession the reconstituted plots to the owners, but it was duty of the allottees to secure possession through legal process. In particular, if there were encroachments made on the reconstituted plots, according to the planning authority, it was the duty of the allottees (new owners) to whom such reconstituted plots have been allotted to take steps for removal of the encroachments. That contention was rejected by the Supreme Court in Municipal Corporation for Greater Bombay v. The Advance Municipal Corporation for Greater Bombay v. The Advance Municipal Corporation for Greater Bombay v. The Advance Builders (India) Private Ltd., (1971) 3 SCC 381 Builders (India) Private Ltd., (1971) 3 SCC 381 Builders (India) Private Ltd., (1971) 3 SCC 381. The Supreme Court held that the Bombay Town Planning Act cast an obligation on the planning authority to remove all encroachments, if any, made on the reconstituted plot and to hand over vacant possession thereof to the allottees. The contention of the local authority - Municipal Corporation that the allottee must take steps for removal of the encroachment by filing of a suit was specifically rejected by the Supreme Court. Since the - 16 - suit property was allotted to the respondent no.1 under the town planning scheme, it was an obligation of the respondent no.2 Municipal Corporation to remove all unauthorised construction existing on it and hand over vacant possession thereof to the respondent no.1. As the respondent no.2 failed in its obligation to hand over vacant possession, the respondent no.1 was required to file the writ petition which was allowed and a mandamus has been issued to the respondent no.2 Municipal Corporation to hand over the vacant possession of the suit property to the respondent no.1 by demolishing the structures standing thereon and evicting the trespassers in occupation of the plot. 13. In my view, the title of the respondent no.1 to the suit property would be perfected only after the possession of the suit property is handed over to it. Till that time, it only has the right to get the possession of the suit property in accordance with the allotment of it made under the town planning scheme. Under clause (b) of section 53 of the Act, the respondent no.1, to whom the reconstituted plot has been allotted, gets all the rights which are settled in the scheme by the town planning officer. The town planning officer has allotted the suit property to the respondent no.1 without showing any encumbrance thereon. Section - 17 - 55 of the Bombay Town Planning Act specifically casts an obligation on the local authority to remove, pull down any building in the area included in the scheme which would contravene the scheme. The unauthorised structures erected by Ramsurat Pandey are not in conformity with the scheme. The suit property has been allotted to the respondent no.1 as an open plot free of encumbrances. If the respondent no.1 was to be given only a symbolic possession of the suit property, that would be contrary to the provisions of clause (b) of section 53 of the Act. The respondent no.1 can really claim to get absolute title to the suit property only on actual and vacant possession of thereof being given to it after removal of the encroachments. Till that time, it cannot be said that the suit property vests in the respondent no.1 free from encumbrances. If so, there could be no claim for adverse possession qua the respondent no.1 at all till the possession of the suit property is handed over to it. 14. In my view, a person, who sets up a claim of acquiring possession by adverse possession, is required to plead and prove that - (i) he is in peaceful, open, continuous and exclusive possession of the property for a - 18 - period of more than 12 years or such other period as may be prescribed by the law of limitation; (ii) he must not only prove the exclusive possession but also prove animus possidendi, i.e. to hold and possess the property to the exclusion of the actual owner of the property; (iii) mere continuous possession for the whole of the period prescribed by statute of limitation is not enough but the possession must be adverse to the true owner, it must be to the knowledge of the true owner and must show an intention on the part of the possessor to hold and possess the property contrary to or hostile to the ownership rights of the true owner; (iv) a person, who has permissive possession of the property and/or comes in possession of the property with the permission of the owner, cannot claim title hostile to the owner unless he first gives the possession and re-enters in possession of the property, claiming a hostile title. - 19 - 15. In the present case, admittedly, Ramsurat came in possession of the suit property in the year 1951 with the permission of Wadiwala, who was then the owner of the property. The possession of Ramsurat was thus a permissive possession. He therefore could not have claimed hostile possession against Wadiwala or a person claiming under Wadiwala unless he first surrendered possession to Wadiwala or the person claiming under Wadiwala. Mr.Parekh, learned counsel for the appellant, however, submitted that the appellant is not claiming under Wadiwala. The appellant is claiming by virtue of the statutory right of ownership acquired by him under the Bombay Town Planning Act and in particular section 53 thereof. Therefore, it was not necessary for Ramsurat to first hand over possession to the respondent no.1 before setting up a title hostile to it. He further submitted that on 1st August 1959 when the town planning scheme became applicable, the ownership of Wadiwala came to an end and the appellant became the owner of the property or acquired the right to own the property. After 1st August 1959, the respondent no.1 never exercised its right of ownership at least till the year 1973 when it filed the writ petition. Thus,