Bombay High Court
Gajanan Harihar Pandhe & 2 Others vs The City Of Nagpur Corporation on 13 July, 2017
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
sa330.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 330 of 2003
1. Gajanan son of Harihar Pandhe,
aged 79 years,
occupation - Retired,
resident of Swawalambinagar,
Nagpur.
2. Chandrakand son of Harihar
Pandhe,
aged 70 years,
occupation - Landlord,
3. Arvind son of Harihar
Pandhe,
aged 66 years,
occupation - Retired,
nos. 2 and 3 residents of
Dake Layout, Ward No.70,
Dharampeth, Nagpur. ..... Appellants.
Org. Plffs.
Versus
The City of Nagpur Corporation,
through its Commissioner,
::: Uploaded on - 15/07/2017 ::: Downloaded on - 16/07/2017 00:21:47 :::
sa330.03
2
Civil Lines Office,
Nagpur. ..... Respondent.
Org. Deft.
*****
Mr. A. S. Jaiswal, Senior Adv., with Ms. Jaiswal, Adv., for the
appellants.
Mr. S.M. Puranik, Adv., for respondent.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 13th July, 2017
ORAL JUDGMENT:
01. This Second Appeal has been heard on the following substantial question of law:-
"Whether it could be said on the basis of clause 5 of agreement executed between the parties on 18.05.1951 that the defendant was entitled to the possession of the suit property or was in possession of the same when clause 5 of the agreement specifically stipulated that the plaintiff would reserve and maintain the spaces marked and shown in the sanctioned layout map (suit property) as park and Temple as well as roads, lanes, drains and other works and the plaintiff would hand over the roads, drains and other works to the defendant if and when called upon to do so by the defendant or the Corporation?"
02. The appellants are the original plaintiffs who claim to be ::: Uploaded on - 15/07/2017 ::: Downloaded on - 16/07/2017 00:21:47 ::: sa330.03 3 joint owners of Plot admeasuring 3150 sq. ft. situated at Dake Layout, Dharampeth, Nagpur. According to the plaintiffs, this property initially belonged to one Smt. Radhabai. On 18th May, 1951, a layout was prepared which was sanctioned by the Nagpur Improvement Trust on the basis of which a Layout Plan was prepared. As per this plan, certain area was reserved for park and a temple. The plaintiffs claim to be successors-in-interest of the original owner. According to them, on 14th August, 1989, the officials of the Nagpur Municipal Corporation sought to disturb their possession by claiming ownership in the Municipal Corporation. After giving notice dated 12th September, 1989, the plaintiffs filed the suit for a declaration that the defendant through its officers, servants or agents should not disturb the possession of the plaintiffs with regard to the suit property.
03. The respondent-defendant filed its Written Statement and took the plea that on 18th May, 1951, the agreement in question with the predecessor of the plaintiffs was entered into . It was denied that the plaintiffs were owners of the suit land and they had no right of exclusive use of the same.
04. After the parties led evidence, the trial Court recorded a finding that the suit property was initially owned by Radhabai and the ::: Uploaded on - 15/07/2017 ::: Downloaded on - 16/07/2017 00:21:47 ::: sa330.03 4 layout had been sanctioned on 18th May, 1951. It was, however, held that the defendant was in possession of the suit property and, therefore, no relief could be granted to them. The suit was accordingly dismissed. The appellate Court affirmed the finding of the trial Court as regards ownership of the property, but dismissed the appeal, holding that the defendant alone was entitled to use the land in question. Hence this appeal.
05. Shri A.S. Jaiswal, learned Senior Counsel for the appellants, submitted that ownership of the plaintiffs had been duly proved and said finding was recorded by both the Courts. Referring to the agreement at Exh.46, he submitted that while sanctioning the layout, the park and temple were reserved as public utility spaces. Under Clause 5 of the agreement, the original owner had agreed to earmark the area of the park and the temple with a further condition that the roads, lanes, drains and other works would be executed in the manner prescribed by the defendant. According to him, ownership of the plaintiffs continued, subject to aforesaid areas being earmarked as public utility spaces. He, therefore, submitted that the defendant could not claim exclusive use over the aforesaid property as these plots had not been acquired by the defendant. He submitted that the agreement at Exh.46 was binding on both the parties and, therefore, ::: Uploaded on - 15/07/2017 ::: Downloaded on - 16/07/2017 00:21:47 ::: sa330.03 5 they were expected to act according to it. He submitted that the finding recorded by both the Courts with regard to exclusive right of the defendant is contrary to the agreement.
06. Shri S.M. Puranik, learned counsel for the original defendant, supported the impugned judgments. According to him, the plaintiffs had no exclusive right to utilize the suit property. The pubic utility spaces as earmarked were required to be utilized only for the purpose that was mentioned in the agreement. No injunction could have been granted against the defendant as it was the planning authority and the layout had been sanctioned subject to providing public utility spaces.
07. I have heard the learned counsel for the parties and I have perused the records of the case.
08. In so far as ownership of the suit land is concerned, both the Courts have held that the predecessor of the plaintiffs had proved that she was the owner of the same and that the defendant had not acquired said land. The only question, therefore, is with regard to the respective rights of the parties in terms of agreement dated 18th May 1951. As per this agreement at Exh.46 and Clause 5 thereof, the predecessor of the plaintiff had agreed to reserve and maintain a park ::: Uploaded on - 15/07/2017 ::: Downloaded on - 16/07/2017 00:21:47 ::: sa330.03 6 and temple as shown in the sanctioned layout map. She had further agreed to permit the defendant to carry out necessary works in that regard. This agreement at Exh.46 continues to bind the parties even today. In the light of this agreement dated 18th May, 1951 by which the layout was sanctioned and certain areas were reserved for public utilities, it is clear that the respective rights of the parties would be governed by the same.
09. Both the Courts committed an error by holding that by virtue of this agreement, the entire property vested in the defendant. There is no such clause to that effect in the agreement. The property has also not been acquired by the defendant. In that view of the matter, the substantial question of law as framed is answered by holding that the parties would be governed by the agreement dated 18th May, 1951 [Exh.46] while conducting their affairs.
10. In view of aforesaid, the following order is passed:-
ORDER [a] The judgment of the trial Court in Regular Civil Suit No. 1887 of 1989 as well as judgment of the ::: Uploaded on - 15/07/2017 ::: Downloaded on - 16/07/2017 00:21:47 ::: sa330.03 7 appellate Court in Regular Civil Appeal No. 244 of 1992 are quashed and set aside.
[b] It is declared that the plaintiffs are entitled for a decree of permanent injunction against the defendant in terms of Agreement dated 18th May, 1951 at Exh.46. It is held that the rights of the parties would be governed by the Agreement dated 18th May, 1951 [Exh.46].
[c] It is clarified that the plaintiffs shall not prevent members of the general public from using the park and temple, subject to reasonable restrictions.
11. Second Appeal is allowed. Decree accordingly. No order as to costs.
Judge
-0-0-0-0- |hedau| ::: Uploaded on - 15/07/2017 ::: Downloaded on - 16/07/2017 00:21:47 :::