Mr. Rohinton H. Taraporwala v. Mr. Rajendra Vishnu Kelkar & Ors.

Judgment

1. The above Second Appeal takes exception to the judgment and order dated 29th September, 2009 passed by the learned District Judge-1, Thane by which the Appeal filed by the Appellant herein

i.e. the original Plaintiff being Regular Civil Appeal No. 45 of 2003 came to be dismissed and resultantly, the decree of dismissal of the suit passed by the trial Court in Regular Civil Suit No. 34 of 1991 came to be confirmed.

2. There is a concurrent finding recorded by both the Courts below as regards the fact that the Plaintiff has no title to the suit property. 1 of 10

3. The controversy in the above proceeding is as regards Survey No. 15A Hissa No.3, situated at village Malyan, Taluka Dahanu District Thane. Survey No. 15-A was divided into 4 parts as follows: Survey No. Hissa No. 15 15 15 15 A-1 (pt) A-3 (pt) A- (pt) A (pt) Area A - G 0-25 0-06 0-35-5 0-06-5

4. Insofar as 15-A/3 is concerned, it admeasures 6.5 R. One Zabur Machhi was declared as deemed owner of the said property and 32(M) Certificate under the Bombay Tenancy and Agricultural Lands Act, 1949 (the BTAL Act for short) came to be issued to him on 23th May, 1969. In the said certificate, apart from Survey No. 15-A/3, other Survey Numbers i.e. Survey No. 16, Hissa 5 and 6, Survey No. 16 Hissa 8 and 9, the Appellant herein claimed to have purchased the suit land bearing survey No.15-A/3 from one Ramesh Machhi. It appears that the said Ramesh Machhi, on the Respondents herein seeking to develop the property in question, had filed a suit being Regular Civil Suit No. 35 of 1987. The said suit thereafter came to be withdrawn. The said Ramesh Machhi thereafter, along with the Appellant herein, filed the instant Suit being Regular Civil Suit No. 43 of 1991. Significantly the said Ramesh Macchi filed purshis in the said suit withdrawing himself as Plaintiff No.1. Thereafter, with a 2 of 10 view to continue the suit in question, an Agreement to Sale in favour of the Plaintiff i.e. the Appellant above named was executed by the power or attorney of the heirs of the said Zabur Machhi and the thumb impression purported to be of one Kisan who is one of the heirs of Zabur Machhi was also affixed. What is significant to note is that the agreement was executed on 11th June, 1991. The suit in question was filed on 14th June, 1991, after which the said Ramesh Machhi had withdrawn himself as Plaintiff No.1; the Plaintiff no.2 i.e. the present Appellant had no locus to continue the suit however therefore he got the Sale Deed executed on 24th April, 1992 so as to continue with the said suit.

5. The suit in question i.e. Regular Civil Suit No. 43 of 1991 as was filed by the Appellant herein was for perpetual injunction restraining the Defendants i.e. the Respondents herein from carrying out construction in the suit property. It appears that later on, in view of the fact that the construction had progressed, the suit was amended so as to include a prayer for mandatory injunction for removal of the construction and for being handed over the possession.

6. Parties went to trial and adduced evidence in support of their respective cases. 3 of 10

7. Since the portion of land out of the said Survey No.15-A was acquired for the Dahanu-Jawhar Road, an Award passed in that respect was relied upon to contend that the acquisition was in respect of Survey No. 15-A/2 and that the Plaintiff's grievances in the suit was in respect of Survey No. 15-A/3. It appears that the issue as regards the existence of Survey No. 15-A/2 was agitated before the revenue authorities by the Plaintiff. The said issue was carried right up to the State Government in an Appeal filed by the Plaintiff, which ultimately culminated in the order being passed by the State Government that there was no land bearing Survey No.15-A/2 in existence. The trial Court, referred to the said orders passed by the revenue authorities in that respect. The trial Court also took into consideration the Plaintiff's own evidence that since the year 1958 only 6 Gunthas of land was in possession of Zabur Machhi and his further admission that he could not get the 7/12 extracts of the land -Survey No.15-A/2. The trial Court, therefore, on the basis of the said material on record and especially considering the fact that 32M Certificate issued to Zabur Machhi was in respect of Survey No.15- A/3, concluded that there was wrong mention of Survey No.15-A/2 in the Award in respect of the acquisition of land, when in fact the land acquired was Survey No.15A/3. The trial Court, therefore, held that in view of the fact that the said Zabur Machhi was divested of his title 4 of 10 to Survey No.15-A/3 , the Plaintiff could not have purchased any land from the said Zabur Machhi. The trial Court, therefore, by the judgment and order dated 19th March, 2003, held that the Plaintiff had not proved his title to the suit property and therefore dismissed the suit in question.

8. Aggrieved by the dismissal of the suit, the unsuccessful Plaintiff filed an Appeal being Regular civil Appeal No. 45 of 2003. The Lower Appellate Court, on re-appreciation of the material on record, confirmed the findings of the trial Court insofar as the claim of the Plaintiff to the land in question was concerned. The lower Appellate Court, apart from observing that the said Zabur Machhi was divested of the title to the land in question on it being acquired for the Dahanu Jawhar Road, also adversely commented in respect of the manner in which the sale deed was got executed by the Plaintiff. The lower Appellate Court has inter alia held that the sale deed was executed notwithstanding the fact that the power of attorney in favour of one Gustad Sherlar Hormusji was cancelled by the heirs of the said Zabur Machhi in respect of which a notice was given in the local newspapers. A notice was also given of the cancellation of Agreement of Sale in favour of the Plaintiff. The lower Appellate Court also found it unusual that though it was for the tenant i.e. Zabur Rama Machhi or his heirs to obtain the order for permission 5 of 10 to sell the property in question which was required under the Bombay Tenancy and Agricultural Land Act, it was the Plaintiff who had approached the concerned authority for permission to sell the said property, without joining Zabur Rama Machhi or his representatives to the said proceedings. This according to the lower Appellate Court, dis- entitled the Plaintiff to any reliefs. The lower Appellate Court has taken into consideration the proceedings before the revenue authorities which ultimately culminated in the order of the State Government where in the plea of existence of Survey No.15- A/2 has been rejected by the State Government.

9. In so far as the evidence which was sought to be relied upon by the Plaintiff i.e. the MAP prepared by the TILR, the said aspect has been dealt with by the Courts below by observing as to why the said Map could not be said to be proved and therefore could not be taken into consideration. The lower Appellate Court, therefore, by the impugned judgment and order dated 29th September, 2009 has confirmed the decree of dismissal passed by the trial Court.

10. It is sought to be contended by Shri Patil, the learned counsel appearing on behalf the Appellant that the material piece of evidence in the form of Map prepared by the TILR for the purpose of acquisition has not been taken into consideration by the Courts 6 of 10 below. It is further sought to be contended that it does not stand to reason as to why only survey No. 15A/1 and 15/A-3 would exist without there there being Survey No. 15-A/2. The learned counsel would contend that it was not for the Civil Court to enter into the domain of deciding the legality and validity of an Award passed under the Land Acquisition Act and thereafter correct the Award even if there is mistake.

11. Per contra, it is submitted by Shri Bagwe, the learned counsel appearing for the Respondents herein i.e. the Defendants to the said suit that the fact that there is a mistake in the Award can ex-facie be seen from the Award that is passed by co-relating it with the 32(M) Certificate which was issued to the protected tenant- Zabur Machhi. The learned counsel would contend that the revenue authorities having recorded a consistent finding as regards non existence of Survey No.15-A/2, on the basis of which, a finding has been recorded by the Courts below no fault could be found with the orders passed by the Courts below.

12. In so far as the first contention of the learned counsel for the Appellant as regards the non consideration of the Map prepared by the TILR at the time of acquisition of land is concerned, the reasons for the same have been mentioned in the judgments of the Courts 7 of 10 below. The Map in question was not one which was prepared in the usual course of business by the State but it was specially prepared for the purpose of acquisition of the land and therefore the presumption under Section 83 of the Evidence Act was not available. If that be so, then the Map was required to be proved in accordance with law. That was not done as the said Map was sought to be proved by a witness from the said office who had not prepared the said Map and was also not in a position to state as to on what basis it was prepared. The Courts below were therefore right in observing that the said document could not be taken into consideration as the same was not proved in accordance with law.

13. The next contention of the learned counsel that the Courts below could not have gone into the legality and validity of the Award passed by the land acquisition officer. Insofar as the said contention is concerned, the issue before the Courts below was only as regards the identity of the land covered by the said Award and not any other aspect. The Courts below, in view of the issue that had arisen in the suit, were well within their powers to adjudicate upon the said issue. In my view therefore there is no substance in the said contention of the learned counsel for the Appellant. As regards the finding of the Courts below of the mistake 8 of 10 committed by the land acquisition officer in referring to a wrong survey number in the Award. As rightly contended by Shri Bagwe the learned counsel appearing for the Respondents, the said Zabur Machhi who was a protected tenant was declared as deemed owner in respect of 6.5 R of land. The Award discloses that the subject matter of the acquisition is Survey No.15A/2, however, in terms of the certificate under section 32(M) of BTAL Act granted to the said Zabur Machhi, the land in respect of which he was declared as deemed owner, was survey No.15A/3. Moreover, the mistake in the Award can also ex-facie be seen from the fact that the land bearing Survey No.15-A/3 being the subject of the 32(M) Certificate could only be the subject of a restriction under the BTAL Act and not Survey No.15A/2 which was mentioned in the Award, therefore the mentioning of Survey No.15-A/2in the Award was obviously a mistake.

14. Though the matter has not been considered from this aspect by the Courts below, in my view, the aforesaid aspect further cements the finding of the Courts below recorded on the basis of the orders passed by the revenue authorities that Survey No.15-A/2 was not in existence and what was acquired was Survey No.15-A/3. It is in the said context, that the Courts below have held that there is wrong mention of Survey Number in the Award passed under the Land Acquisition Act and instead of Survey No.15-A/3, which was 9 of 10 acquired, Survey No.15A/2 was wrongly mentioned. As regards the last submission of the learned counsel, in my view, both the Courts below have recorded findings of fact based on the material on record. The said findings of fact are also based on the orders passed by the quasi judicial authorities under the Land Revenue Code and the BTAL Act. In my view, therefore, the above Second Appeal does not raise any substantial question of law for consideration of this Court, the same is accordingly dismissed.

15. In view of the dismissal of the Second Appeal, the Civil Application does not survive and is accordingly disposed of as such. (R. M. SAVANT, J.) 10 of 10