1 sa231-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION SECOND APPEAL NO.231 OF 2011 Abdul Samad Sattar Shaikh .. Appellant V/s. Managing Director, Konkan Railway Corporation Ltd. .. Respondent ..... Mr. Sudhir Prabhu for the appellant. ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 22, 2011. P.C.: Heard the learned counsel appearing for the appellant. Appellant is the original plaintiff. A suit for declaration was filed by the appellant. The declaration claimed was that he is the owner of the suit land together with house thereon admeasuring 23 feet X 41 feet. The appellant claims on the basis of the sale deed dated 28th February, 1999 executed by the original owner. The area of the suit property is 925 square meter together with the house as aforesaid forming a part of the land bearing Hissa No.4 of Survey No.78. In the plaint, it is contended that acquisition proceedings were initiated under the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”) at the instance of respondent Konkan Railway Corporation and an Award under Section 11 of the said Act has been passed with regard to an area of 13.5 R. The trial Court partly decreed the suit by granting injunction restraining the respondent from dispossessing the appellant from the suit house. 2 sa231-11 2. An Appeal was preferred by the appellant which has been dismissed by the impugned Judgment and decree. 3. The submission of the learned counsel appearing for the appellant is that there is no challenge in the suit to the acquisition proceedings. He submitted that the finding of both the Courts below is that some part of the acquired land is in possession of the appellant. He submitted that the possession of the acquired land can be taken over only in accordance with Section 16 of the said Act of 1894. He submitted that the Courts below ought to have protected the possession of the appellant over the entire suit property till possession was taken over under Section 16 of the said Act of 1894. 4. I have considered the submissions. In the cross- examination, the appellant admitted that an area of 13.5 R has been acquired at the instance of the respondent. There is no challenge in the suit to the acquisition proceedings. Without challenging the acquisition proceedings by filing appropriate proceedings, the appellant could not have claimed declaration of ownership in respect of the entire suit property. Grant of relief of declaration under Section 34 of the Specific Relief Act, 1963 is a matter of discretion. In the face of the acquisition for public purpose, the discretionary relief has been rightly denied by both the Courts below to the appellant. As far as the house is concerned, a limited protection has already been granted by the trial Court to the appellant. No substantial question of law arises. Second Appeal is accordingly dismissed with no order as to costs. (A.S.OKA, J.)