1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 249 of 2007 Dwarkanath Ramlal Patel & Ors. Vs. Nagpur Improvement Trust Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri B. S. Deshpande Adv. for appellants. Shri S. K. Mishra Adv. for respondent. CORAM: C. L. PANGARKAR J. Dated: 28 th February, 2008. Heard. This is an appeal by original plaintiffs. Plaintiffs instituted a suit for declaration of the ownership of the two plots bearing Nos. 12 and 14 in Laxminagar area. The plaintiffs owned a 2 large piece of land i.e. Survey Nos. 1 and 3 in mouza Ajni having an acreage of 24.6 gunthas. Government of Maharashtra decided to acquire entire survey Nos. 1 and 3 belonging to the plaintiffs for the acquiring body Nagpur Improvement Trust. Accordingly Notification under Section 4 as well as Notification under Section 6 came to be issued in respect of these two survey numbers. An award came to be passed on 10.11.1941. After the award came to be passed there were some negotiations between the plaintiffs and the defendant. The defendant had agreed to allot six plots to the plaintiff. The plaintiff submits that therefore he is the owner of these plots. According to plaintiffs neither the Government nor Nagpur Improvement Trust ever took possession of the suit property and therefore the title never vested either in Government or in Nagpur Improvement Trust. In 3 the year 1983 the defendant Nagpur Improvement Trust issued a notice of auction of these two plots i.e. Nos. 12 and 14. Since the plots were put to auction the plaintiffs issued a notice to the Nagpur Improvement Trust informing it that he intends to institute a suit. A suit has accordingly been instituted seeking a declaration that plaintiffs are the owner of the suit property and restraining the defendant from auctioning those plots. Defendant resisted the suit mainly on three counts, firstly according to defendant notice given by the plaintiffs was invalid inasmuch as the suit came to be filed before the period of expiry as contemplated by Section 115 of the Nagpur Improvement Trust Act. Secondly, according to defendant there was complete acquisition of the complete survey numbers and the title vests in the Government and then in the 4 defendant trust; and thirdly as agreed 4 plots were allotted to the plaintiffs and there was no question of allotment of any more plots and the possession of the plaintiffs on the said two plots was illegal. The learned Judge of the trial Court found that the notice was valid. He found that the property did not vest in the trust or the Government and therefore plaintiffs continued to be the owner. Holding so he granted a declaration in favour of the plaintiffs. Defendant trust preferred an appeal before the District Judge. District Judge found that the notice was invalid because the suit came to be instituted before expiry of the period contemplated by Section 115 of the Nagpur Improvement Trust Act. He also found that the possession was taken over by the Land Acquisition Officer as well as Nagpur Improvement Trust and the contention 5 that the title did not vests in the Nagpur Improvement Trust was not proper. He further found that the plaintiff had in fact voluntarily agreed to accept 4 plots instead of 6 and therefore there was no question of granting any declaration. The learned counsel for the appellant contended before me that the appeal needs to be admitted on two substantial questions of law; as to whether the title vests in the Government or the Nagpur Improvement Trust or not? That the notice as issued by the plaintiff was invalid. Shri Deshpande learned counsel for the appellants submitted that there is no evidence whatsoever on record to show that either the Land Acquisition Officer or the Trust had taken possession of the property. He submitted that Section 12 of the Land Acquisition Act contemplates that the Government must take 6 possession and it is only after taking possession that property vests in the Government. The proposition cannot be disputed. Here it must be borne in mind that the defendant is an acquiring body and not acquisition agency. The acquisition agency is State of Maharashtra. There is always a presumption that all official acts have been properly followed, therefore, it must be presumed that possession was taken over by the Land Acquisition Officer. There is no pleading that the Land Acquisition Officer did not take possession of the property after the award was passed. The property was said to be acquired in the year 1941 and the award was passed in the year 1941. The question that possession was never taken is being raised for the first time in the year 1983. Further the record shows that the plaintiffs themselves have made a request to the Nagpur Improvement Trust to allot them 6 plots 7 and they conceded to the acquisition of the rest of the land belonging to them. That the plaintiffs agreed to accept 6 plots and conceded to the acquisition proceedings, itself suggest that they had surrendered the possession of the property and they never claimed that they were continuing in possession as owners thereof. Further more, the first appellate Court has rightly found that there was an agreement Ex. 101 in between the plaintiffs and the defendant. After having gone through the said agreement I also concur with the findings of the first appellate Court that the plaintiffs had agreed to accept 4 plots instead of 6 plots. They having accepted only 4 plots and they admittedly being in possession of the 4 plots they have no right to say that they are entitled to have two more plots. It appears from the said agreement that those 4 plots were accepted by the plaintiffs in full and 8 final settlement of the claim whatsoever they have had against the Nagpur Improvement Trust and in final settlement. They having entered into such agreement they have no right whatsoever to claim declaration in respect of the two other plots. In the circumstances I find that the first appellate Court did not commit any error in allowing the appeal and dismissing the suit on that count. Further it was contended by the learned counsel for the respondent that the notice under Section 115 is also invalid. It appears that the notice was issued by the plaintiffs on 20.05.1983 and the suit is filed on 02.07.1983. Appellate Court found that period of 60 days had therefore not expired before the suit came to be instituted. Obviously, the notice as given by the plaintiffs was not valid. The learned Judge of the first appellate Court therefore rightly found that the suit was not maintainable because 9 of the invalid notice. There is no substance in the appeal. No substantial question of law is involved in the appeal. Appeal is therefore dismissed. JUDGE svk