1 JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1257 OF 2001 Jagannath Mahadev Bhoir. ... Plaintiff. V/s. Dungershee Kothari and Ors. ... Defendants. Mr. Uday Bobde and Mr. G. Mistry i/b. Mahendra Patel & Assoc. for the Plaintiff. None for the Defendants. CORAM : R.Y. GANOO, J. DATED : 02nd JULY 2010. P.C. :- The Plaintiff has instituted the present Suit for a declaration that the Plaintiff is the owner of the property more particularly described in prayer clause (a) of the plaint. Said property shall hereinafter be referred to Suit property. The Plaintiff also wants an injunction restraining the Defendants from disturbing and/or otherwise obstructing the peaceful enjoyment and possession of the Plaintiff in regard to the property mentioned in prayer clause (a). 2 2. It is required to be mentioned that though writ of summons was served upon Defendant Nos.1 to 3, nobody has filed written statement. The Suit was directed to be proceeded ex-parte. It is in the circumstances, no formal issues are framed in the Suit. 3. The Suit property originally stood in the name of Defendant No.3 i.e. M/s. Pamposh Construction Co. According to the Plaintiff, Defendant No.1 is the sole surviving trustee of the trust by name Pankaj Nandkishore Mehta Trust (1972) herein after referred to as the said trust. Defendant No.2 is the sole beneficiary of the said trust. According to the Plaintiff, Defendant No.3 was shown as the owner of the Suit property in the record of rights. According to the Plaintiff, Defendant No.3 purported to execute a lease in favour of Defendant No.1 and said Mrs. Pramila Nandkishore Mehta and said Mrs. Bhikhuben S. Kharas. Mrs. Mehta and Mr. Kharas have died. 4. It is the case of the Plaintiff that since 1965, the Plaintiff is in actual and exclusive possession and enjoyment of the suit property and is holding himself as a owner thereof qua. 3 Defendant No.3 as owner as also Defendant Nos.1 and 2 being the person to whom the property was leased out. It is to be noted that Defendant No.3 filed an application before Tahasildar questioning as to how the present Plaintiff’s name was shown in the record of rights and accordingly enquiry was conducted by the Tahasildar, Kurla in regard to the said aspect and said Tahasildar by his order dated 27th May 1980 gave a finding that the Plaintiff is in possession of the Suit property from 1976 and his name should be recorded in the record of rights from 1976 to 1977 with a remarks “possession without title”. 5. Defendant No.3 challenged this order before sub- Divisional Officer, Bombay Suburban District, Old Custom House by filing proceedings. Said sub-Divisional Officer, by order dated 8th April 1981 dismissed the proceedings filed by Defendant No.3 and confirmed the order passed by the Tahasildar. Against the said order dated 8th April 1981, Defendant No.3 filed R.T.S. Appeal before the Deputy Collector (Appeals), Bombay Suburban District. Said Appeal was decided in favour of the present Plaintiff. The Deputy Collector (Appeals) by his Judgment and Order dated 18th 4 September 1982 dismissed the Appeal filed by Defendant No. 3. Against this order, Defendant No.3 filed Appeal proceedings before the Additional Commissioner, Konkan Division. Said authority decided the said proceedings and by Judgment and Order dated 25th March 1985 dismissed the Revision Application and confirmed orders passed by the three Courts who had a occasion to deal with the matter. This will go to show that the observations of Tahasildar, Kurla that the Plaintiff’s name should be recorded in the revenue record from 1976 till 1977 came to be confirmed. 6. It is the case of the Plaintiff that he has been collecting rents in regard to the structures standing on the suit property and he is representing to the world at large including the real owner i.e. Defendant No.3 that he has acquired rights in regard to the suit property as and by way of owner by adverse possession. 7. The Plaintiff in support of his case had to lead evidence and the Plaintiff has filed his evidence affidavit viz. evidence affidavit dated 15th November 2008. The Plaintiff stepped into the witness box and affirmed his evidence led through 5 evidence affidavit. Nobody had appeared on behalf of the Plaintiff. No cross-examination was conducted and that is how evidence of the Plaintiff has gone unchallenged. The Plaintiff has produced various documents in the course of his evidence and except a map which was relied upon by the Plaintiff all the documents have been exhibited and the said documents shall be dealt with while giving the reasons for arriving at the final findings. 8. I have with the assistance of learned Counsel Mr. Bobde, appearing on behalf of the Plaintiff perused the evidence as well as the various exhibits and the other record. The Plaintiff has relied upon 7/12 extract which is at Exhibits ‘A’, ‘B’ and ‘C’. The 7/12 extract at Exhibit ‘A’ and ‘B’ do indicate that the name of Defendant No.3 is shown as a Kabzedar and the name of present Plaintiff is shown as a cultivator from 1980. The document at Exhibit ‘C’ happens to be a 7/12 extract where name of Defendant No.3 is shown in regard to the suit land as Kabjedar whereas, there is no entry whatsoever as regards the person cultivating the land. It appears that this 7/12 extract at Exhibit ‘C’ is an incomplete document. That will not go against the Plaintiff. Document starting from 6 Exhibit ‘D’ to Exhibit ‘G’ are the various orders which are passed by the Revenue authorities concerning the litigation which was initiated by Defendant No.3 in regard to the factum of possession of the suit land by the Plaintiff. As to how, the litigation proceeded from the stage of application before Tahasildar, Kurla and ended up to the stage of order passed by the Additional Commissioner, Kurla Division is narrated in the earlier para of the Judgment. 9. The Plaintiff has relied upon receipts issued by the Revenue Department for having paid taxes. Those receipts are at Exhibit ‘H’ collectively. Those receipts are issued no doubt in the name of Defendant No.3 and the name of the Plaintiff is mentioned as the person who has paid the said monies. Exhibit ‘J’ are the notices issued by the Revenue Authorities asking the Plaintiff to pay the arrears of the Revenue Land Taxes. Exhibit ‘K’ is a copy of declaration filed by the Plaintiff in accordance with the provisions of Urban Land (Ceiling and Regulations) Act. 1976. 10. I have perused the evidence as well as the documents. The Plaintiff has in his examination in chief given the 7 particulars as to how the litigation initiated by Defendant No.3 was attended to. A perusal of the said orders starting from Exhibit ‘D’ upto Exhibit ‘G’ will clearly indicate that the Plaintiff’s case that he has been in possession of the property has been accepted. The Plaintiff is held to be in possession of the property from 1976-77. In the order passed by Tahasildar, Kurla, there is an admission on behalf of Defendant No.3 that the Plaintiff is in possession of the property. Once it is held that the Plaintiff is in possession of the property, the Plaintiff’s case as regards his claim as owner by adverse possession is made out with reference to aspect of possession. It is required to be mentioned that despite the knowledge of order dated 25th March 1984, nothing is done by the Defendants to institute a Suit for eviction against the Plaintiff to get back the Suit land. If it was the case of Defendant No.3 that the Plaintiff was an encroacher or a trespasser on the suit land, it was necessary for the Defendant No.3 to institute a Suit for a recovery of possession within the period of limitation. Even if it is treated that the period of limitation commenced from 25th March 1984 i.e. the last order passed by the revenue authorities, Defendant No.3 had to filed Suit within 12 years 8 from 25th March 1984. From this date also Defendant No.3 has not instituted any proceedings for recovery of possession from the plaintiff. 11. The receipts produced by the Plaintiff at Exhibit ‘H’ as well as demand notice issued by Revenue Authority at Exhibit ‘J’ will clearly go to show that the Plaintiff has been paying the revenue assessment and this is also one aspect which deals with the claim as regards adverse possession of the suit property. Filing of the returns under the Land Acquisition Act is also one of the attributes of the claim of the Plaintiff as regards adverse possession. 12. Learned Counsel for the Plaintiff had relied upon the Judgment in the case of Manmohan Service Station V/s. Mohd. Haroon Japanwala and Ors. reported in AIR 1994 Delhi 337 to contend that if Suit is not filed for the recovery of possession within the permissible period and if a person is in a position to show that requirement to support the claim of adverse possession are fulfilled then, the person who claims that he is owner by adverse possession should be so declared as owner 9 of said property. The said Judgment was also cited by the learned Counsel for the Plaintiff to contend that the very fact that Defendant had knowledge of the possession of the Plaintiff in regard to the suit property was sufficient for the said Defendant No.3 to institute a Suit for recovery of possession and as the Suit has not been filed, the title of the Plaintiff in respect of the Suit property is perfected on account of adverse possession. 13. The learned Advocate for the Plaintiff had by taking me through the aforesaid Judgment submitted that a person who claims to be the owner by adverse possession need not take that point by way of defence only but he can rely upon his claim as a owner by adverse possession and institute a substantive suit to seek a declaration so as to perfect his title. 14. The argument advanced by the learned Advocate for the Plaintiff on the strength of the aforesaid Judgment and applying the same on the facts of the case is required to be accepted. 10 15. The Plaintiff has stated in his examination-in-chief at paragraph 7 that he has been collecting rent from the tenants or occupiers who are occupying structures on the land and that he has been paying the water bills and municipal taxes. This evidence shows that the Plaintiff is performing the duties which are otherwise cast upon a landlord. The Plaintiff in paragraph 8 has made reference to his claim as a owner by adverse possession as against all the Defendants. Perusal of the said paragraph 8 would go to show that the Plaintiff posed to the world at large including Defendant Nos.1 to 3 that he is in possession of the suit property and that such possession is retained by him against the interest of Defendant Nos.1 to 3 and as and by way of adverse possession. The text of paragraphs 7 and 8 clearly indicate that the Plaintiff was acting as a owner of the property qua the world at large and that again meets the requirement to perfect his title as owner by adverse possession. 16. For the reasons mentioned aforesaid, I hold that the Plaintiff has complied with the requirement for getting himself declared as owner by possession and to that extent, the 11 Plaintiff is entitled to a decree in terms of prayer clause (a). 17. Since the Plaintiff is held to be the owner of the suit property, his possession is required to be protected and therefore, an order of injunction is required to be issued against the Defendants restraining them from dispossessing the Plaintiff from the suit property save and except by due process of law. 18. For the reasons mentioned aforesaid, I pass the following decree :- (i) The Plaintiff’s Suit is decreed so far as prayer clause (a) is concerned. (ii) The Defendants, their agents and servants are by an order of injunction restrained from disturbing and/or obstructing peaceful enjoyment and possession of the Plaintiff in respect of suit property save and except by due process of law. 12 (iii) In the facts and circumstances of the case, there shall be no order as to costs. (R.Y. GANOO, J.)