M/S EUREKA BUILDERS & ORS. versus GULABCHAND S/O VELJEE DAND SINCE DECEASED BY L.RS. & ORS. ETC. ETC.
[2018] 4 S.C.R. 779, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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M/S EUREKA BUILDERS & ORS.
v.
GULABCHAND S/O VELJEE DAND SINCE DECEASED BY
L.RS. & ORS. ETC. ETC.
(Civil Appeal Nos. 4757-4760 of 2018)
MAY 3, 2018
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
Karnataka Village Abolition Act, 1961: Grant of property and
re-grant of property in favour of the original holders by the State –
Devolution on holders – Held: Person can only transfer to other
person a right, title or interest in any tangible property which he is
possessed of to transfer it for consideration or otherwise – Once it
is proved that on the date of transfer of any tangible property, the
seller of the property did not have any subsisting right, title or interest
over it, then a buyer of such property would not get any right, title
and interest in the property purchased by him for consideration or
otherwise – Such transfer would be an illegal and void transfer –
On facts, appellants failed to substantiate the right, title and interest
of the original holders in the suit land through whom they claim to
derive interest in the suit land, whereas the respondent was able to
prove his subsisting right, title and interest in the suit land – Original
holders parted with the suit land, one through court auction
proceedings in 1942 and the other by direct sale/purchase in 1943
in favour of the purchaser– Furthermore, though the original
holders got back the land by re-grant but they lost all their rights,
title and interest in the suit land on the expiry of 12
years from the
date of re-grant in their favour (assuming the re-grant to be valid)
in 1985 – They again lost their ownership rights due to dismissal of
their two suits – In view thereof, the appellants, have no locus to
claim any interest in the suit land – Thus, the High Court rightly
held that neither the original holders and nor appellants, who
claimed through original holders, had any right to claim any interest
in the suit land – Maharashtra Hereditary Offices Act.
Dismissing the appeals, the Court
HELD: 1.1 It is a settled principle of law that a person can
only transfer to other person a right, title or interest in any tangible
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property which he is possessed of to transfer it for consideration
or otherwise. In other words, whatever interest a person is
possessed of in any tangible property, he can transfer only that
interest to the other person and no other interest, which he
himself does not possess in the tangible property. So, once it is
proved that on the date of transfer of any tangible property, the
seller of the property did not have any subsisting right, title or
interest over it, then a buyer of such property would not get any
right, title and interest in the property purchased by him for
consideration or otherwise.  Such transfer would be an illegal
and void transfer. The appellants have failed to substantiate the
right, title and interest of the original holders (three PATIL) in
the suit land through whom they claim to derive interest in the
suit land, whereas the respondent (plaintiff) has been able to prove
his subsisting right, title and interest in the suit land on the date
of filing of the suit, out of which these appeals arise. The
appellants, therefore, have no locus to claim any interest in the
suit land. [Para 40-42, 39] [790-C-E; 790-A-B]
1.2 The reasons as to why the appellants failed to prove
the subsisting right, title and interest of the original holders
(intending sellers-three PATIL) in the suit land are more than
one. First, the original holders (three PATIL) had filed two suits,in
relation to the suit land
asserting therein their ownership rights
over the suit land against the present plaintiff and other members
of SV but both the suits were dismissed by the Civil Court on
23.11.2004. These dismissal attained finality regardless of the
fact as to on what grounds they suffered dismissal. These
dismissals were binding on the original holder (three PATIL). A
fortiori, these dismissals are binding on the appellants too because
the appellants were claiming through the original holders (three
PATIL). It is for this reason, the original owners did not have any
subsisting right, title and interest in the suit land, which they
could have or/and were capable to transfer to the appellants
whether for consideration or otherwise on the date when they
entered into an agreement of sale of the suit land to the appellants
on 23.03.2001. Second, it cannot be disputed that original holders
(three PATIL) had parted with the suit land long back by legal
mode of transfer, one through Court Auction proceedings in 1942
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and the other by direct sale/purchase on 14.05.1943 in favour of
SV. These rights were then devolved on his legal representatives
by inheritance consequent upon the death of SV. Since then, the
original holders (three PATIL) did not have any subsisting right,
title and interest in the suit land.[Para 46-51] [791-A-F]
1.3 It also cannot be disputed, that the Civil Court had
already recognized the rights, title and interest of the legal
representatives of SV in the suit land in O.S. No.9/1969 filed by
them against the purchaser-Society. This suit was decreed in
favour of legal representative of SV on 26.08.1977 and remained
upheld up to this Court. It is due to these reasons also, all the
rights, title and interest of original holders (three PATIL) in the
suit land stood extinguished. [Para52-53] [791-G-H; 792-A]
1.4 Assuming for the sake of argument that as a result of
the re-grant orders made by the State in favour of the original
holders (three PATIL), the rights, title and interest in the suit
land again reverted to them in 1973 but they failed to exercise
their right of ownership over the suit land for a long time, hence
their right of ownership stood extinguished. It was only after 31
years from the re-grant order, the original holders woke up from
slumber and filed two suits against the plaintiff and other members
of SV in the Civil Court. The two civil suits also suffered dismissal
from the Civil Court on 23.11.2004 and attained finality. [Para
58-59] [792-E-G]
1.5 Whatever so-called rights, title and interest which the
original holders derived from the orders of re-grant in 1973 in
the suit property in their favour, the same stood extinguished by
efflux of time. The reason was that in order to keep such new
rights intact and enforceable, the original holders (three PATIL)
were under a legal obligation to have filed a suit for claiming a
declaration and possession of the suit land and this ought to have
been done by them within 12 years from the date of re-grant, i.e.,
1973. They, however, failed to do so within 12 years and when
they actually tried to exercise their rights by filing the suit in
2004 (after 31 years), by then it was too late to exercise such
rights. By that time, their rights in the suit land stood
extinguished. [Para 60-62] [792-G-H; 793-A-B]
M/S EUREKA BUILDERS v. GULABCHAND S/O VELJEE
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1.6 Section 27 of the Limitation Act deals with
extinguishment of right to property. It says that at the
determination of the period prescribed in the Act for any person
to institute a suit for possession of any property, his right to such
property shall be extinguished. Articles 64 and 65 of the Schedule
provide 12 years period for filing a suit to claim possession of
any immovable property. The period of 12 years prescribed in
these two articles is required to be counted from “the date of
dispossession” (Article 64) and “when the possession of the
defendant becomes adverse to the plaintiff” (Article 65). [Para
63] [793-C-D]
1.7 The original holders failed to file the civil suit against
the plaintiff claiming possession of the suit land on the strength
of their new title namely, re-grant in relation to the suit land,
within 12 years from the date of re-grant and, therefore, by virtue
of Section 27, their all rights, title and interest in the suit land got
extinguished. [Para 64] [793-D-E]
1.8 Neither the original holders (three PATIL) and nor the
appellants could take any benefit of the orders of re-grant dated
31.03.1973 and 01.04.1973 made by the State so as to divest the
legal representatives of SV (plaintiffs) from their rights, title and
interest in the suit land which they had legally acquired through
Court Auction in 1942 and direct purchase of part of the suit land
on 14.05.1943 from the original holders
(three PATIL) in 1942/
43. The plaintiff in alternative can be held to have acquired title
against the original holders by operation of law. The reason is
not far to seek. [Para 65, 68] [793-F; 794-A]
1.9 The plaintiff continued to remain in lawful possession
of the suit land since 1942/1943, first through SV and after his
death through his legal representatives. It is not disputed that
the original holders (three PATIL) were aware of the ownership
rights of SV over the suit land since 1942/1943 as SV got the suit
land by State Auction proceedings and also by direct sale/
purcahse. It was proved that the possession of SV over the suit
land was throughout long, continuous, uninterrupted, open and
peaceful with assertion of ownership from 1942 till 2004 to the
knowledge of the whole world. The facts confirm the possessory
rights, title and interest of the plaintiff in the suit land against
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everyone including the original holders by operation of law. [Para
69-71] [794-B-D]
1.10 A right in the property once extinguished by operation
of law, it cannot be revived unless the law itself provides for its
revival in a particular situation. Such is not the case here. There
is, however, another infirmity in the case of the appellants, which
disentitle them to claim any relief in relation to the suit land. The
appellants, for proving the right of ownership of the original
holders in the suit land, have placed reliance on the orders dated
31.03.1973 and 01.04.1973 of the State by which the State is
alleged to have made re-grant of the suit land in favour of the
original holders (three PATIL). [Para 75-77] [794-G-H; 795-A]
1.11 In the absence of any adjudication of the right of
ownership of the original holders (three PATIL) on the strength
of these two orders by the competent Court as against the other
stakeholders having an interest in the suit land and especially
the legal representatives of SV, it is not possible to give any benefit
of these two orders in favour of the original holders (three PATIL)
in these proceedings. That apart, what is the effect of passing of
the two orders on the rights, title and interest of the purchasers
of the suit land because admittedly, the suit land was sold to the
purchaser (Late SV) prior to passing of these two orders and
whether these orders will ipso facto divest the purchasers of their
rights, title and interest
in the suit land were required to be gone
into by the competent Court after affording an opportunity to such
affected persons.[Para 78-79] [795-B-D]
1.12 The original holders (three PATIL) though filed the
civil suits to get these issues adjudicated against the affected
persons but failed in their attempt to get these issues adjudicated.
In other words, by the time the original holders (three PATIL)
approached the Civil Court, their all rights in the suit land itself
got extinguished on account of efflux of time (31 years). Thus,
the appellants have no case. [Para 80, 81] [795-E-F]
1.13 The High Court was right in holding that neither the
original holders (three PATIL) and nor the appellants, who claimed
through original holders, had any right to claim any interest in
the suit land.  [Para 82] [795-F-G]
M/S EUREKA BUILDERS v. GULABCHAND S/O VELJEE
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4757-
4760 of 2018.
From the Judgment and Order dated 30.09.2015 of the High Court
of Karnataka Dharwad Bench in Regular First Appeal Nos. 100017,
100018, 100016 & 100099 of 2015 (PAR &POS).
Shekhar Naphade, Sr. Adv., R. S. Hegde, Prakash Jawalkar, Ms.
Farhat Jahan Rehmani, Chandra Prakash, Abhikalp Pratap Singh, Rajeev
Singh, Siddharth Dharmadhikari, Prateek Rusia, Advs. for the Appellants.
Basava Prabhu S. Patil, Sr. Adv., Vasant Ron, Balaji Srinivasan,
C. M. Poonacha, Ms. Vaishnavi Subrahmanyam, Ms. Pratikasha Mishra,
Ms. Anindita Srinivasan, G. V. Chandrashekar, N. K. Verma, Ms. Anjana
Chandrashekar, Ranbir Singh Yadav, Raghavendra S. Srivatsa, Venkit
Subramonium T. R., Rahat Bansal, Advs. for the Respondents.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. Leave granted.
2. These appeals arise from the common final judgment and order
dated 30.09.2015 passed by the High Court of Karnataka, Circuit Bench
at Dharwad in R.F.A. Nos.100017 of 2015, 100018 of 2015, 100016 of
2015 and 100099 of 2015, whereby the Division Bench of the High Court
disposed of the appeals by allowing the plaintiff’s appeal and accordingly
modified the finding of the Trial Court as regards the status and the
ownership rights of the plaintiff in the suit land and held that the plaintiff
is the owner of the suit land and is, therefore, entitled to claim his 1/5th
share in it
along with defendants Nos.1 to 4, who are legal representatives
of late Shah Veljee Kanjee.
3. In order to appreciate the issues involved in these appeals, it is
necessary to set out the background facts, which led to filing of the suit
by the predecessor-in-title of respondent Nos.1 and 2 and now
represented by respondent Nos. 1 and 2 against the appellants and
remaining respondents No.3 to 34 herein out of which these appeals
arise.
4. The case has a history of litigation as it would be clear from the
narration of the facts stated hereinbelow. The facts mentioned
hereinbelow are taken from SLP paper books and its list of dates.
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5. The appellants herein are defendant Nos. 18 to 25 (who are
builder, firm and its partners) whereas respondent Nos. 1 and 2 are the
legal representatives of original plaintiff and respondent Nos. 3 to 34 are
proforma defendants in a civil suit (O.S. No.37/2010) out of which these
appeals arise. The contest in these appeals is essentially among the
appellants and respondent Nos. 1 and 2.
6. The dispute relates to a land bearing CTS Nos. 361 and 366 of
CTS Ward No.1 (originally bearing RS Nos. 20/1/& 20/2 admeasuring 3
Acres 20 Guntas and 1 Acre 25 Guntas respectively) situated at Kusugal
Road, Keshwapur, Hubli described in detail in the schedule to the plaint
(hereinafter referred to as “the suit land”).
7. The suit land was a “watan” property under the Maharashtra
Hereditary Offices Act (hereinafter referred to as “the MHO Act”) and
on its repeal in 1961, was governed by the Karnataka Village Abolition
Act, 1961 (hereinafter referred to as “the KVA Act”). 
8. The suit land originally belonged to three persons namely,
Marigouda Patil, Basangouda Patil and Adveppagouda Patil (hereinafter
referred to as “three PATIL”).
9. On 23.10.1915, three PATIL leased out land bearing CTS No.
366 (3 acres 20 guntas) to one Chaturbhuj Ratansi for a period of 50
years whereas the land bearing CTS No. 361 (1 acre 25 guntas) was
permanently leased out to one Kanjee Ghelabhai Shet alias Gujjar on
09.03.1920.
10. In 1942, land bearing CTS No.361 was sold in Court Auction
proceedings and one person by name – Shah Veljee Kanjee purchased
the said land being the highest bidder.
11     On 14.05.1943, Shah Veljee Kanjee purchased another parcel
of land bearing CTS No.366 by direct sale/purchase.   Shah Veljee Kanjee
died on 02.12.1957 leaving behind his widow-Gunwantibai, two major
daughters and four minor sons. By inheritance, the legal representatives
stepped into his shoes and became the joint owners of the suit land.
12. On 19.12.1957, the widow and 2 major daughters of late Shah
Veljee Kanjee sold the suit land to one Gadag Co-operative Cotton Sales
Society Ltd.-defendant No. 17 (hereinafter referred to as the “Society”).
M/S EUREKA BUILDERS v. GULABCHAND S/O VELJEE
DAND [ABHAY MANOHAR SAPRE, J.]
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13. The son of late Shah Veljee Kanjee, who is plaintiff (since
dead) and defendant Nos. 1 to 4 in the present suit out of which these
appeals arise felt aggrieved by the sale dated 19.12.1957 made by their
mother and two sisters in favour of the Society and accordingly filed
civil suit being O.S. No.9/1969 praying therein for a declaration that the
sale made by their mother and two sisters is bad in law and void to the
extent of plaintiff’s share (5/8
th) in the suit land. The mother, two sisters
and the Society contested the suit as defendants.
14. This suit was, however, decreed on 26.08.1977 by the Principal
Civil Judge (Sr. Division) in plaintiff’s favour. It was held that the sale
made by the mother and two sisters of the plaintiff in favour of the
Society is illegal and thus is not binding on the plaintiff to the extent of
his 5/8
th share in the suit land.
15. This decree was challenged by the purchaser (Society) in the
High Court and later in this Court but was not successful. In other words,
the Society lost the legal battle throughout up to this Court and resultantly,
the decree dated 26.08.1977 passed by the Principal Civil Judge (Sr.
Division) in plaintiff’s favour became final.
16. In execution of this decree, the plaintiff and defendant Nos.1-
4, who are the legal representatives of late Shah Veljee Kanjee, were
accordingly placed in joint possession of their shares in the suit land.
17. As mentioned
above, the appellants herein are the builder,
firm and its partners. They claimed to have entered into an agreement
with the original owners (three PATIL) on 23.03.2001 for purchase of
the suit land on certain terms and conditions.
18. In the year 2004, the original owners (three PATIL) claiming
their ownership rights over the suit land filed two civil suits being O.S.
Nos.364 & 365 of 2004 against the legal representatives of Shah Veljee
Kanjee and the Society. The Civil Court dismissed both these civil suits
as barred by time vide judgment dated 29.01.2007. The two dismissals
attained finality because the three PATIL did not pursue the matter further
in appeals to the higher Courts.
19. During interregnum period, there were several rounds of
litigation in civil, revenue and rent courts among the parties and their
representatives.  Similarly some subsequent developments in relation to
the suit land conferring some rights by the State on the parties also took
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place. However, at this stage, it is not necessary to give details of this
litigation and its development.   The same will be referred to at a later
stage while dealing with these submissions.
20. It is basically with the aforementioned background facts, one
son of Shah Veljee Kanjee (respondent No.1 herein (since dead) and
represented by his legal representatives son/daughter as respondent Nos.1
and 2   filed civil suit (O.S.No.37/2010) on 23.02.2010 in the Court of
Principal Civil Judge, Sr. Division at Hubli out of which these appeals
arise against 27 defendants which included the members of Shah Veljee
Kanjee family, their legal heirs, legal representatives of original holders
(three PATIL) and   two intending purchasers/buyers of the suit land,
namely, Society and the other, M/s Eureka builders - a firm and their
partners (appellants herein).
21. The suit was filed for partition and separate possession of
plaintiff’s 1/5th   share in the suit land and also for grant of permanent
injunction restraining the two intending buyers/purchasers of the suit
land from interfering in plaintiff’s possession over the suit land.
22. In substance, the plaintiff (respondent Nos.1 and 2 herein)
had claimed the aforementioned reliefs on the basis of his title over the
suit land which, according to him, was already adjudicated and recognized
in his favour by the Civil Court vide judgment dated 26.08.1977 passed
in O.S. No.9/1969 and it remains upheld up to this Court.
23. So far as other family members of Shah Veljee Kanjee
(defendant Nos. 1 (a) to (c), 2 and 4) are concerned, they filed their
counter claim and admitted the claim set up by the plaintiff in the suit.
24. The suit was mainly contested by appellant No.1 herein i.e.
the Builder (defendant No. 18) on several grounds such as, firstly, the
suit is not maintainable because proper reliefs were not claimed by the
plaintiff; Second, the suit property is not properly valued; Third, the plaint
is insufficiently stamped; Fourth, the suit is barred by limitation.
25. So far as the merits of the claim is concerned, appellant No.1
(defendant No.18) denied the plaintiff’s title over the suit land and averred
inter alia that the original holders of the suit land (three PATIL) with
whom they entered into an agreement to purchase the suit land were
having subsisting right, title and interest in the suit land by virtue of two
re-grant orders (31.03.1973 and 01.04.1973) made by the State in their
M/S EUREKA BUILDERS v. GULABCHAND S/O VELJEE
DAND [ABHAY MANOHAR SAPRE, J.]
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favour under the KVA Act of 1961 on the application of the original
holders (three PATIL) and, therefore, the original holders (three PATIL)
were competent to enter into an agreement to transfer the suit land in
their favour on 23.03.2001.
26. It was also averred that whatever ownership rights in the suit
land which the plaintiff and defendant Nos.1 to 4 were possessing in
their favour stood extinguished on account of the two re-grant orders
dated 31.03.1973 and 01.04.1973 made by the State in favour of the
original holders (three PATIL) and, therefore, in the light of these
subsequent events which came into existence, no decree can now be
passed in favour of plaintiff   and defendant Nos.1 to 4 in relation to the
suit land for any relief on the strength of their title.
27. Issues were framed and parties adduced their evidence. By
judgment/decree dated 07.11.2014, the III Addl. Senior Civil Judge, Hubli
decreed the plaintiff’s suit in part and passed the preliminary decree of
partition and separate possession in relation to the suit land in plaintiff’s
favour as prayed in the suit.
28. The Additional Senior Civil Judge answered almost all the
issues in plaintiff’s favour and held that the plaintiff is entitled for 1/5th
share in the leasehold right in respect of the suit scheduled property and
so also defendant Nos. 1 (a) to (c), 2 and 4 are entitled to claim their 1/
5th share each in leasehold rights in respect of
the suit land along with
the plaintiff.
29. The plaintiff, the legal representatives of defendant Nos. 2, 3
and 4 and defendant No. 17- Society felt aggrieved of certain findings
about the ownership status of the plaintiff in the suit land and accordingly
filed four separate first appeals in the High Court at Bangalore.
30. So far as the present appellants are concerned, they did not
prefer any appeal as they seemed to be satisfied with the judgment of
the Trial Court.
31. By the impugned judgment, the Division Bench disposed of all
the four appeals. The High Court allowed the appeal filed by the plaintiff
and accordingly modified the finding of the Trial Court as regards the
status and the ownership rights of the plaintiff in the suit land and held
that the plaintiff is the owner of the suit land and is, therefore, entitled to
claim his 1/5th share in the suit land along with defendants, who are
legal representatives of late Shah Veljee Kanjee like the plaintiff.
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32. It is against this judgment of the High Court, the appellants
herein (defendant Nos. 18 to 25 - who are builder, firm and its partners)
have felt aggrieved and filed the present appeals by way of special leave
petitions in this Court.
33. Heard Mr. Shekhar Naphade, learned senior counsel for the
appellants and Mr. Basava Prabhu S. Patil, learned senior counsel, Mr.
G.V. Chandrashekhar, Mr. Ranbir Singh Yadav, Mr. Raghavendra S.
Srivastava, learned counsel for the respective respondents.
34. Having heard the learned counsel for the parties at length and
on perusal of the record of the case, we find no merit in these appeals.
In our view, the reasoning and the conclusion arrived at by the High
Court cannot be faulted with. We are, therefore, inclined to uphold the
reasoning and the conclusion arrived at by the High Court by assigning
our reasoning infra.
35. At the outset, we observe that so far as the right, title and
interest of the appellants in the suit land is concerned, the appellants
neither claim and nor do they have a right to claim any right, title and
interest in the suit land in their own rights. In other words, the status of
the appellants in this litigation are that of the intending purchasers of the
suit land from the original holders of the suit land (three PATIL).
36. In our view,   if the original holders (three PATIL) are able to
prove their subsisting right, title and interest over the suit land against
the plaintiff, the appellants
would be able to get the relief in the suit
because they are claiming through original holders (three PATIL). But if
the original holders (three PATIL) are not able to prove their subsisting
right, title and interest over the suit land against the plaintiff, then the
appellants would also loose the case.
37. As mentioned above, the appellant alone was contesting the
suit as defendant No.18. It is not in dispute that original holders (three
PATIL) did not contest the suit. It is also not in dispute that the appellant
was satisfied with the judgment/decree passed by the Trial Court,
therefore, they did not file any appeal in the High Court.
38. It is with these background facts of the case, we have to
examine the question arising in these appeals as to whether the respondent
(plaintiff) was able to prove his subsisting title over the suit land on the
date of filing of the suit and, if so, how, or in the alternative, whether the
M/S EUREKA BUILDERS v. GULABCHAND S/O VELJEE
DAND [ABHAY MANOHAR SAPRE, J.]
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appellants (builder, firm and its partners) were able to prove the subsisting
title of the original holders (three PATIL) over the suit land, if so, how.
39. In our considered opinion, the appellants have failed to
substantiate the right, title and interest of the original holders (three PATIL)
in the suit land through whom they claim to derive interest in the suit
land, whereas the respondent (plaintiff) has been able to prove his
subsisting right, title and interest in the suit land on the date of filing of
the suit, out of which these appeals arise. The appellants, therefore,
have no locus to claim any interest in the suit land.
40. It is a settled principle of law that a person can only transfer
to other person a right, title or interest in any tangible property which he
is possessed of to transfer it for consideration or otherwise.
41. In other words, whatever interest a person is possessed of in
any tangible property, he can transfer only that interest to the other person
and no other interest, which he himself does not possess in the tangible
property.
42. So, once it is proved that on the date of transfer of any tangible
property, the seller of the property did not have any subsisting right, title
or interest over it, then a buyer of such property would not get any right,
title and interest in the property purchased by him for consideration or
otherwise.  Such transfer would be an illegal and void transfer.
43. In such eventuality and subject to any terms and conditions if
agreed between the parties, a buyer will have a right to claim refund of
sale consideration from his seller, which he paid for purchase of the
property under the law of contract.  The reason is that the contract to
purchase has failed and, therefore, the parties have to be restored back
to their original positions, which existed at the time of execution of the
contract.
44. This principle of law may apply inter se the original holders
(three PATIL) of the land and the intending buyers of the suit land with
which we are not concerned in this case because the present litigation
does not arise between these parties and nor we are deciding the inter
se rights of these parties in these appeals.
45. This principle we have mentioned only to clarify the inter se
rights of the parties against each other in relation to the suit land and
especially the right of the appellants against the original holders(three
PATIL) and not beyond it.
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46. In our considered opinion, the reasons as to why the appellants
failed to prove the subsisting right, title and interest of the original holders
(intending sellers-three PATIL) in the suit land are more than one as are
set out by us hereinbelow.
47. First, the original holders (three PATIL) had filed two suits
(O.S. Nos. 364 and 365 of 2004) in relation to the suit land asserting
therein their ownership rights over the suit land against the present plaintiff
and other members of Shah Veljee Kanjee but both the suits were
dismissed by the Civil Court on 23.11.2004.
48. These dismissal attained finality regardless of the fact as to
on what grounds they suffered dismissal. These dismissals were binding
on the original holder (three PATIL). A fortiori, these dismissals are
binding on the appellants too because the appellants were claiming
through the original holders (three PATIL).
49. It is for this reason, we are of the view that the original owners
did not have any subsisting right, title and interest in the suit land, which
they could have or/and were capable to transfer to the appellants whether
for consideration or otherwise on the date when they entered into an
agreement of sale of the suit land to the appellants on 23.03.2001.
50. Second, it cannot be disputed that original holders (three PATIL)
had parted with the suit land long back by legal mode of transfer, one
through Court Auction proceedings in 1942 and the other by direct sale/
purchase on
14.05.1943 in favour of Shah Veljee Kanjee.
51. Since then, the original holders (three PATIL) did not have
any subsisting right, title and interest in the suit land because whatever
rights, title and interest which they had in the suit land, the same were
transferred to Shah Veljee Kanjee through Court Auction proceedings in
1942 and by direct sale/purchase on 14.05.1943. These rights were then
devolved on his legal representatives by inheritance consequent upon
the death of Shah Veljee Kanjee.
52. It also cannot be disputed, as taken note of above, that the
Civil Court had already recognized the rights, title and interest of the
legal representatives of Shah Veljee Kanjee in the suit land in O.S. No.9/
1969 filed by them against the purchaser-Society.  This suit was decreed
in favour of legal representative of Shah Veljee Kanjee on 26.08.1977
and remained upheld up to this Court.
M/S EUREKA BUILDERS v. GULABCHAND S/O VELJEE
DAND [ABHAY MANOHAR SAPRE, J.]
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53. It is due to these reasons also, all the rights, title and interest
of original holders (three PATIL) in the suit land stood extinguished.
54. Now coming to the main argument of Mr. Shekhar Naphade,
learned senior counsel for the appellants, which he pressed in service
with vehemence.
55. Learned senior counsel urged that the original holders of the
suit land (three PATIL) having parted with the suit land in 1942 and
14.05.1943, again got back the suit land by way of re-grant in their favour
by order dated 31.03.1973 in respect of land (CTS No. 361) passed by
the State under KVA Act of 1961 and by other re-grant order dated
01.04.1973 passed by the State in respect of land (CTS No. 366).
56. It was, therefore, his submission that in this way, the title in
the suit land stood reverted to the original holders (three PATIL) from
the dates of these two orders.
57. On this basis, the contention of the learned counsel for the
appellants was that whatever rights, title and interest in the suit land
which the respondent (plaintiff) might have got in 1942 and on 14.05.1943
while acquiring the suit land, the same stood extinguished on account of
re-grant made by the State in favour of original holder (three PATIL) in
1973 by the two orders referred above.
58     We find no merit in this submission for more than one reason.
Assuming for the sake of argument that as a result of the re-grant orders
made by the State in favour
of the original holders (three PATIL), the
rights, title and interest in the suit land again reverted to them in 1973 but
they failed to exercise their right of ownership over the suit land for a
long time, hence their right of ownership stood extinguished.
59. It was only after 31 years from the re-grant order, the original
holders woke up from slumber and filed two suits (O.S. Nos.364 and
365/2004) against the plaintiff and other members of Shah Veljee Kanjee
in the Civil Court. It is not in dispute that the two civil suits also suffered
dismissal from the Civil Court on 23.11.2004 and attained finality.
60. In our considered opinion, whatever so-called rights, title and
interest which the original holders derived from the orders of re-grant in
1973 in the suit property in their favour, the same stood extinguished by
efflux of time.
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61. The reason was that in order to keep such new rights intact
and enforceable, the original holders (three PATIL) were under a legal
obligation to have filed a suit for claiming a declaration and possession
of the suit land and this ought to have been done by them within 12 years
from the date of re-grant, i.e., 1973.
62. They, however, failed to do so within 12 years and when they
actually tried to exercise their rights by filing the suit in 2004 (after 31
years from 1973), by then it was too late to exercise such rights in law.
By that time, their rights in the suit land stood extinguished.
63. Section 27 of the Limitation Act deals with extinguishment of
right to property. It says that at the determination of the period prescribed
in the Act for any person to institute a suit for possession of any property,
his right to such property shall be extinguished. Articles 64 and 65 of the
Schedule provide 12 years period for filing a suit to claim possession of
any immovable property. The period of 12 years prescribed in these two
articles is required to be counted from “the date of dispossession” (Article
64) and “when the possession of the defendant becomes adverse to the
plaintiff” (Article 65).
64. As held supra, the original holders (three PATIL) failed to file
the civil suit against the plaintiff claiming possession of the suit land on
the strength of their new title namely, re-grant in relation to the suit land,
within 12 years from the date of
re-grant and, therefore, by virtue of
Section 27 of the Limitation Act, their all rights, title and interest in the
suit land got extinguished.             
65. In view of these reasons, we are of the considered view that
neither the original holders (three PATIL) and nor the appellants could
take any benefit of the orders of re-grant dated 31.03.1973 and 01.04.1973
made by the State so as to divest the legal representatives of Shah Veljee
Kanjee (plaintiffs) from their rights, title and interest in the suit land
which they had legally acquired through Court Auction and direct
purchase in 1942/43.
66. This issue can be examined from yet another legal angle on
the admitted facts situation arising in the case.
67. It is not in dispute that Shah Veljee kanjee, in the first instance,
acquired legal and valid title in the suit land through Court Auction
proceedings in the year 1942 and second, by direct purchase of the part
of the suit land on 14.05.1943 from the original holders (three PATIL).
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68. In our view, the plaintiff in alternative can be held to have
acquired title against the original holders(three PATIL) by operation of
law. The reason is not far to seek.
69. Admittedly, the plaintiff continued to remain in lawful possession
of the suit land since 1942/1943, first through Shah Veljee Kanjee and
after his death through his legal representatives. It is not in dispute that
the original holders (three PATIL) were aware of the ownership rights
of Shah Veljee Kanjee over the suit land since 1942/1943 as Shah Veljee
Kanjee got the suit land by State Auction proceedings and also by direct
sale/purcahse.
70. In this way, it was proved that the possession of Shah Veljee
Kanjee over the suit land was throughout long, continuous, uninterrupted,
open and peaceful with assertion of ownership from 1942 till 2004 to the
knowledge of the whole world.
71. The aforesaid undisputed facts confirm the possessory rights,
title and interest of the plaintiff in the suit land against everyone including
the original holders (three PATIL) by operation of law.
72.      Mr. Shekhar Naphade, learned senior counsel then referred
the provisions of MHO Act and KVA Act and pointed out the nature of
grant and the re-grant of the suit land made in favour of the original
holders by the State and how it devolved on the holders etc.
73. In our view, this submission need not be dealt with in detail
because it has no relevance in the
light of our findings recorded above
against the appellants.
74. In other words, once the rights of the original holders in the
suit land stood extinguished, this submission does not survive for
consideration on its merits.
75. A right in the property once extinguished by operation of law,
it cannot be revived unless the law itself provides for its revival in a
particular situation. Such is not the case here.
76. There is, however, another infirmity in the case of the
appellants, which disentitle them to claim any relief in relation to the suit
land.
77. As mentioned above, the appellants, for proving the right of
ownership of the original holders (three PATIL) in the suit land,   have
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placed reliance on the two orders dated 31.03.1973 and 01.04.1973 of
the State by which the State is alleged to have made re-grant of the suit
land in favour of the original holders (three PATIL).
78. In our view, in the absence of any adjudication of the right of
ownership of the original holders (three PATIL) on the strength of these
two orders by the competent Court as against the other stakeholders
having an interest in the suit land and especially the legal representatives
of Shah Veljee Kanjee, it is not possible to give any benefit of these two
orders in favour of the original holders (three PATIL) in these
proceedings.
79. That apart, what is the effect of passing of the two orders on
the rights, title and interest of the purchasers of the suit land because
admittedly, the suit land was sold to the purchaser (Late Shah Veljee
Kanjee) prior to passing of these two orders and whether these orders
will ipso facto divest the purchasers of their rights, title and interest in
the suit land were required to be gone into by the competent Court after
affording an opportunity to such affected persons, namely, legal
representatives of late Shah Veljee Kanjee.
80. The original holders (three PATIL) though filed the civil suits
to get these issues adjudicated against the affected persons but failed in
their attempt to get these issues adjudicated. In other words, by the time
the original holders (three PATIL) approached the Civil Court, their all
rights in the
suit land itself got extinguished on account of efflux of time
(31 years) as has been held supra.
81. It is for these reasons also, we are of the view that the
appellants have no case.
82. In our view, therefore, the High Court was right in its reasoning
and the conclusion in holding that the original holders (three PATIL)
having lost all their rights, title and interest in the suit land on the expiry
of 12 years from the date of re-grant in their favour (assuming the re-
grant to be valid) in 1985 and secondly, they again lost their ownership
rights due to dismissal of their two suits (O.S. Nos. 364 and 365 of 2004)
on 23.11.2004, neither the original holders (three PATIL) and nor the
appellants, who claimed through original holders, had any right to claim
any interest in the suit land.                                 
M/S EUREKA BUILDERS v. GULABCHAND S/O VELJEE
DAND [ABHAY MANOHAR SAPRE, J.]

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83. In view of the foregoing discussion, we are of the considered
opinion that looking at the issues involved in this case from any angle,
these appeals have no merits. The appeals thus fail and are accordingly
dismissed.
Nidhi Jain
                              Appeals dismissed.