Bombay High Court
Abdur Rahman Anjaria And Another vs Haider Ali Mohd Kallu Shah And Anohter on 8 July, 2015
Author: Roshan Dalvi
Bench: Roshan Dalvi
(1) (7) NMSL 421/15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Amk
NOTICE OF MOTION (L) NO. 421 OF 2015
IN
SUIT (L) NO. 135 OF 2015
Shri Abdul Rahman Anjaria & Anr. .. Plaintiffs
Vs.
Mohammad Kallu Ibrahim Shah & Anr. .. Defendants
AND
NOTICE OF MOTION (L) NO. 424 OF 2015
IN
SUIT (L) NO. 137 OF 2015
Shri Abdul Rahman Anjaria & Anr. ig .. Plaintiffs
Vs.
Haider Ali Mohd. Kallu Shah & Anr. .. Defendants
Mr. Raj Patel a/w. Mr. P. S. Ganeshmurthy i/b K. V. Aiyar & Associates for the
Plaintiffs.
Ms. Rina Pujara i/b Raji Subramanian for Defendant No.1.
Mr. Amol Kharat i/b Mohan Rao for Defendant No.2.
Mr. R. L. Mishra i/b M/s. M. V. Kini & Co. for the BEST.
Ms. Geeta Shastri, AGP for the State.
CORAM : MRS. ROSHAN DALVI, J.
Date of reserving the Order : 29.06.2015
Date of pronouncing the Order : 08.07.2015
ORDER
1. The plaintiffs are the same in both the suits. Defendant No.1 are different in both the suits. Defendant No.2 is the same in both the suits.
2. The plaintiffs claimed to have purchased two separate properties from defendant No.1 in both the suits. Defendant No.1 in both the suits claim to have sold the suit property to defendant No.2.
3. The suit properties are adjacent properties. The plaintiffs claim ::: Downloaded on - 08/07/2015 23:58:52 ::: (2) (7) NMSL 421/15 two approximately square pieces of land in Suit (L) No. 135 of 2015 and two rectangular pieces of land flanking the two other pieces of land in Suit (L) No. 137 of 2015. All the four properties are on a narrow strip of land between the admitted properties of BEST and the Eastern Express Highway. The property of BEST earlier belonged to M/s. Godrej & Boyce Co. (Godrej).
It came to be acquired by the Government for BEST and a part of the suit property came to be acquired for Central Railway as proposed Wadala Goods Railway. There is no mention in the plaint about any acquisition. The plaintiffs would contend that the suit properties are on private land. The land belonged to defendant No.1 who are different persons in both the suits and the plaintiffs purchased from these two different owners of land. The plaintiffs have sought to execute two separate Memoranda of Understanding (MOUs) entered into by and between the plaintiff and defendant No.1 executed on the same day with defendant No.1 in both the suits along with two powers of attorney. The plaintiffs have challenged the further MOUs in both the suits executed by defendant No.1 in favour of defendant No.2 as not binding upon the plaintiffs. Consequently the plaintiffs have prayed for specific performance of the MOUs executed by them.
4. The plaintiffs have applied for the relief of injunction against the transfer and alienation of the suit property and the appointment of Court Receiver in the Notices of Motion.
5. Both the MOUs dated 07.08.2013 in the above suits are unregistered documents on inadequate stamp paper. The plaintiffs would not be entitled to rely upon those documents at all or claim any relief thereunder in view of the inadequacy of stamp.
6. However that is not all. The plaintiffs claim relief for the land shown in the sketch plan Exhibit B to the plaint. The aforesaid four plots of land admeasure 2500 sq. mtr. & 3200 sq. mtr. in Suit (L) No. 135 of 2015 and 11300 sq. mtr. & 4800 sq. mtr. in Suit (L) No. 137 of 2015 totalling to ::: Downloaded on - 08/07/2015 23:58:52 ::: (3) (7) NMSL 421/15 21800 sq. mtr. The suit property though a large land for being claimed by the plaintiff is a small part of Survey No. 65 in Vikroli, Mumbai. For such a large land a mere MOU on a stamp paper of Rs.500/- lends itself to extreme suspicion before the Court. This was more so because the suit lands constitute a narrow but long strip of land between BEST Colony and Eastern Express Highway. It is shown to be adjoining the compound wall of BEST. It is admittedly open land prone but encroachment, trespass, usurpation and consequent misappropriation by encroachers or trespassers.
7. The peculiar situation of the land required this Court to not only refuse the reliefs in favour of the plaintiff but also to see the title of defendant No.1 in both the suits who are predecessors-in-title of the plaintiff.
Consequently the Court called upon the parties to produce their documents of title to trace their title as also the revenue record to show in whose name the suit property stood.
8. In Suit (L) No. 135 of 2015 two unregistered and insufficiently stamped sale deeds have been produced. The first sale deed is dated 13.04.1982 between one Shahabuddin Khan and Ibrahim Shah. The consequent sale deed is dated 14.02.1991 between Ibrahim Shah and defendant No.1 in Suit (L) No. 135 of 2015. The parties would have the Court believe that the title to the suit property has been traced till 1982. However who was the owner even prior to 1982 may require to be noted. That was admittedly Godrej. In fact, the plaintiff would claim that his predecessor-in-title was in possession of the suit land earlier belonging to Godrej. To that end one copy letter addressed to Godrej by defendant No.1 in Suit (L) No. 135 of 2015 dated 11.05.1994 sent by registered post is also produced. The registration slip and the postal acknowledgment would show the letter received by the Godrej on 12.05.1994. The letter shows that defendant No.1 is the occupier and user of a certain land admeasuring 2500 sq. mtr. & 3200 sq. mtr. between BEST Colony and Eastern Express Highway and request for a grant of long lease of 99 years. The plaintiff would claim ::: Downloaded on - 08/07/2015 23:58:52 ::: (4) (7) NMSL 421/15 that pursuant to such a request it is proved that defendant No.1 was in possession of the entire suit land; at least till 1994 if not before. Incidentally there has been acquisition of the land of Godrej under Survey No. 65 since 1970 for the aforesaid two acquiring bodies and hence even if a letter in 1994 is received by Godrej at the office of their company, it would not be and is not replied by Godrej and remained at that. Such is the position of defendant No.1 in Suit (L) No.135 of 2015 shown to Court only upon the Court's query.
9. In Suit (L) No. 137 of 2015 one undated copy letter of defendant No.1 addressed to the Tahasildar and received by the Tahasildar on 20.05.1994 is produced. It relates to assessment of NA Taxes on CTS No. 1 Part (without showing any survey number) in Vikhroli village "12000 sq. mtr." is mentioned in another ink in the subject matter of the letter which appears to be an interpolation. The letter sets out that defendant No.1 in Suit (L) No. 137 of 2015 is in use, occupation and enjoyment of the above property and requests NA assessment. Defendant No.1 in Suit (L) No.137 of 2015 has not shown how he acquired title from any other party. He has written a letter dated 13.08.1994 to Godrej requesting long lease of 99 years for the entire of the property purportedly in his use and occupation the "12000 sq. mtr." claimed by him upon the interpolation is seen to be arithmetically erroneous if his claim of measurement of the suit property, as shown above, is to be believed. Such letter would go the same way as in Suit (L) No. 135 of 2015.
10. Upon such a case the parties have produced the revenue record as directed by the Court. One mutation entry shows the name of one Ganpat Koli (who has nothing to do with defendant No.1 in either of the cases) to have claimed the entire land admeasuring 2905728 sq. mtr. in the entire of Survey No. 65. The remark column shows that the entry is cancelled. The 7/12 extract of the entire Survey No. 65 shows 2855.692 acres belonging to Godrej. Part of the land is shown to be acquired under two separate ::: Downloaded on - 08/07/2015 23:58:52 ::: (5) (7) NMSL 421/15 acquisition proceedings of 1970 and 1973. There is no mention of any predecessor-in-title of the plaintiff even as an occupant in respect of any part of Survey No.65. The property register card of the suit property itself which is a part of Survey No. 65 and which is CTS No. 1A1 admeasuirng 31680.5 sq. mtr. shows the acquisition for Vikhroli Trombay Arterial Siding, Central Railway made under an acquisition order dated 23.09.1998. Upon acquisition the possession of the land came to be handed over to Central Railway on 22.10.1986 (which document is produced by the Government as shall be stated presently.) The property register card for Survey No. 65/1A shows the holder of the land to be Mumbai Upnagar, Zilla Andheri in 1984 and later BEST from 1988. Further entries in the property register card show the earlier entries being cancelled when the aforesaid names came to be entered. These are shown to be entered upon acquisition of land from Godrej.
11. It is, therefore, seen that the suit land never belonged to defendant No.1 in either of the suits and defendant No.1 could not have agreed to convey the suit property or otherwise allow the plaintiff to develop the suit property at all since none can convey a better title than what he himself has.
12. Once the Court satisfied itself that the suit land belonged to the Government, the Court directed the Prothonotary & Senior Master, High Court, Bombay to issue letters to inform the State of Maharashtra as also the acquiring bodies being the BEST and Central Railway etc. about the above suits. The Court demanded to know what steps the acquiring bodies had taken for the protection and use of the respective parts of the properties of Survey No.65 (part), CTS 1A (part) got acquired by the Government for them. The Court impounded the documents produced by the plaintiff.
13. The BEST as also the Central Railway have filed their respective reports.
::: Downloaded on - 08/07/2015 23:58:52 ::: (6) (7) NMSL 421/1514. The BEST has claimed that 152168.50 sq. mtrs. of land was acquired for BEST from Godrej by the State Government under bearing land bearing Survey No. 65 (part) CTS 1 (part) in 1972. Consequently the BEST claims that the said land vested in the undertaking. The Central Railway claimed a part of the land for its railway siding, Wadala Goods Railway in 1979. The BEST further claims that 1860 sq. mtrs. of the said land came to be excluded to be reserved for Central Railway which reservation has been later deleted and the possession of the BEST has been reinstated. The BEST claims to have developed the area acquired for it as a bus depot, bus station, staff quarter etc.
15. The property adjoining the suit properties is admitted to belong to BEST. The suit land is seen to be claimed from the compound wall of the property of BEST. The property register card in respect of the suit property and the orders passed for acquiring the suit property do not show any land of Godrej not acquired abutting Western Express Highway. The claim of BEST that the Suit lands were also acquired under the same acquisition stands to reason.
16. It may be noted that once a land is acquired and possession thereof is taken, the land vests in the acquiring body under Section 16 of the Land Acquisition Act, 1882 which was then applicable. The vesting would, therefore, continue until the land is de-acquired or the acquisition is removed. The State Government has filed its report showing the orders passed in respect of the acquisition of the Survey No. 65 CTS 1A, 1A1, 1B & 1B1. As a reply to the case of BEST, the plaintiffs would claim that CTS 1A1 has been acquired for the Central Railway and not BEST. That determination is not for this Court to consider . The Court has to protect the land of a public body against wanton trespass and encroachment. It does not matter whether it belongs to the Central Railway or continues to belong to BEST. The Court has seen that the land never belonged to defendant No.1 or any ::: Downloaded on - 08/07/2015 23:58:52 ::: (7) (7) NMSL 421/15 other person through whom the plaintiff would claim but belonged to Godrej and was acquired.
17. The suit land is described in Exhibit A to the plaint being the schedule describing the suit property as CTS No. 1 (part) in both the above suits. Only after the State Government showed the precise sub-division of CTS 1 (part) as 1A, 1A1, 1B & 1B1 that it has been argued on behalf of the plaintiffs that the plaintiffs claim CTS 1A1. Neither the averments in para 1 of the plaint nor the schedule Exhibit A to the plaint in both the suits make any claim to CTS 1A1. Hence the contention is seen to false and mischievous and appears to be an attempt to claim the same land albeit under another CTS number as BEST has strongly sought to oppose the plaintiffs' action and the Central Railway has not itself sought to use the acquired land.
18. The Notices of Motion reached hearing initially on 23.03.2015. The plaintiffs' total lack of legal right in the unregistered and inadequately stamped MOUs and the power of attorney came to be seen and the title of defendant No.1 was to be ascertained. The Notices of Motion in both the suits came to be adjourned for production of the documents to trace the title as also for obtaining the revenue records. On 17.04.2015 upon seeing the revenue record and the earlier unregistered sale deeds shown to Court for tracing the plaintiffs' title the Court issued letters through the Prothonotary & Senior Master inter alia to the State of Maharashtra as also the BEST. The Notices of Motion came to be adjourned to 27.04.2015. The State of Maharashtra was represented on 27.04.2015 pursuant to notice issued by the Prothonotary & Senior Master of the Court informing the State Government of the claim in this suit as directed. As late as on that day the plaintiffs produced various photographs to allege that a fence is being put up on the suit property by Godrej. It has transpired that the BEST has sought to fence the suit property of which title is claimed by the BEST and which is shown to belong to BEST as per revenue records.
::: Downloaded on - 08/07/2015 23:58:52 ::: (8) (7) NMSL 421/1519. The plaintiffs as also defendant No.1 have filed further affidavit- in-reply on 27.04.2015 later to show the alleged possession of defendant No.1 in the suit property (which was not the claim of the plaintiffs in the suit initially). That claim is made upon documentary evidence. It would be interesting to consider such documentary evidence. It is weight of quantity without the value of quality.
20. Each of the documents is after 1993-94. All the documents relate to a structure, a tank, a water pipe, a well etc. Nothing whatsoever relates to any open land aside from the extent of the land claimed by the plaintiff in both the suits. The documents reflect encroachment on the side of BEST society building. The shanty or structure is shown to be against the wall of BEST society building. Some of the documents are fairly conceded not to be in respect of the suit properties and not showing the suit properties at all. Some of the documents make complaint about some other encroachment. The documents, at best, show one garage near the compound wall of Casuarina Society. Notice relating to construction of the garage and inspection of the material in the garage shows a completely unauthorized structure being put up for which action is taken by municipality whilst it was being put up itself under Section 354A of the MMC Act. The address of defendant No.1 in both the suits in the respective documents show their structure "near" the aforesaid society. The documents are for grant of license for a garage, shop and for the construction of structure. The notices of MMC are for erection of shanty, construction of water tank, extension of structure with bamboo framework and tarpaulin roof etc. "with intention to construct" a structure. It would, therefore, show that even the structure was not fully constructed until the date of the notice.
21. The plaintiffs have later sought to produce photographs which they call the gate to the suit property. The photographs show a poster on two bamboo poles near the encroachment showing a garage on the suit property. The gate is not the gate to the suit property itself. The makeshift ::: Downloaded on - 08/07/2015 23:58:52 ::: (9) (7) NMSL 421/15 gate would not serve the purpose it is purported to serve. The various photographs produced by the plaintiffs show large vacant open land over which the BEST is now stated to be putting up a fencing.
22. The documents would, at best, show the encroachment made by defendant No.1 and putting up a garage and construction near the wall of the BEST society building but would have nothing to do with the open piece of land between the compound wall of BEST building and Eastern Express Highway admeasuring 21800 sq. mtrs. claimed in the above suits.
23. These documents do not also show any adverse possession prima facie made out by defendant No.1 to even acquire title by prescription to vest the suit land to be able convey the title to the plaintiffs. Even upon combining the period of unauthorized occupation of defendant No.1 with the period of occupation or possession claimed by the plaintiff, the statutory period of acquisition of title by prescription is not attained in respect of the suit land. Neither defendant No.1 in both the suits nor the plaintiffs could, therefore, claim title and be entitled to the reliefs sought for protection of the suit property.
24. What are the structures for which even a modicum of possession is shown is required to be noted. The sketch plan prepared by a private architect annexed as Exhibit B to the plaint shows a few structures in the North-East corner of the land in a triangular portion partly outside what is claimed to be the suit property leaving the entire other area completely open as claimed by the plaintiffs in both the suits. These structures are shown only in one of the properties claimed in Suit (L) No. 137 of 2015. No structure at all is shown in the suit properties in Suit (L) No. 135 of 2015 at all. Most of the documents relied upon by the plaintiffs are relating to the defendant in Suit (L) No. 135 of 2015 which, in the plaintiffs' plan itself, shows no structures. Even the structures shown in the plan of the private architect are not the structures shown in the printed plan itself. They are ::: Downloaded on - 08/07/2015 23:58:52 ::: (10) (7) NMSL 421/15 separately drawn in blue colour outline. Hence the structures are seen not to have been in existence when the initial plan was prepared.
The learned Govt. Pleader has produced before the Court the government plan relating inter alia to the suit property which shows one structure claimed in the suit in the aforesaid triangular portion which is stated to be the encroachment of the plaintiffs.
25. The entire exercise of the plaintiffs as also defendant No.1 is, therefore, to deprive the true owner of its property. The letters written by defendant No.1 in both the suits claiming encroachment of other parties to the police as also the Government Authorities and the letters written to other government bodies merely appears to create false evidence to claim possession and even such possession is not in respect of the suit land to claim title.
26. The plaintiff has not shown any prima facie case of being granted any reliefs upon any legal rights in the above suits. Defendant No.1 claims that he has transferred the suit property to defendant No.2. This would be a further act of a party neither having possessory title, nor title by prescription, nor title acquired upon a conveyance (the sale deeds in favour of defendant No.1 in Suit (L) No. 135 of 2015 being unregistered and inadequately stamped) to defeat the rights of lawful owners.
27. It may be mentioned that the exercise of ascertaining the true factual position of the land prima facie seen to be belonging to a public body but claimed by the plaintiffs has been done by the Court. Aside from stating that defendant No.1 has entered into a later agreement with defendant No.2, the Advocate separately representing defendant No.1 in both the suits has not challenged the claim of the plaintiffs.
28. It is prima facie seen that the suit lands belong to the public body BEST but is sought to be claimed by a private encroachers. The plaintiffs have not made out any case for protection of any portion of the suit ::: Downloaded on - 08/07/2015 23:58:52 ::: (11) (7) NMSL 421/15 properties in either of the suits whatsoever. The plaintiffs' claim is seen to be false. In fact the acts of the plaintiffs and defendant No.1 in both the suits prima facie demonstrate their collusion to obtain orders of injunction of the Court which is liable to be misused against other parties. The reliance of the plaintiffs upon the documents of defendant No.1 in both the suits and the stoic and tacit silence of defendant No.1 to that end speak volumes. The alleged passing of the title to defendant No.2 must follow the case of defendant No.1.
29. Both the Notices of Motion deserve to be dismissed with compensatory costs. However in addition to refusing any reliefs to the plaintiffs, directions to all the parties to the suit to maintain status quo require to be passed so that none can claim any rights upon any part of the suit properties.
30. Hence the following order:
(a) All the parties to the suit being the plaintiff, defendant No.1 and defendant No.2 shall maintain status quo in respect of the suit properties pending the trial.
(b) It may be clarified that the fencing being put up on the suit land may be put up by BEST, prima facie seen to be the true owner of the suit land.
(c) The plaintiff shall pay costs of the above Notices of Motion fixed at Rs.50,000/- each to the State Legal Aid of the Maharashtra State Legal Services Authority.
(d) Both the Notices of Motion are disposed of accordingly.
(ROSHAN DALVI J.) ::: Downloaded on - 08/07/2015 23:58:52 :::