ORDINARY ORIGINAL CIVIL JURISDICTION v. The Municipal Corporation of Greater

Judgment

: 3rd April, 2012 27th April,2012 JUDGMENT CORAM : MRS. ROSHAN DALVI, J.

1. The Plaintiffs (BPT) has sued for declaration that the BPT has been and continues to be the owner of the suit property prescribed in Exh. A to the plaint with the building standing thereon and enjoys right, title and interest therein as owner and lessor and for declaration that such right, title and interest of the BPT as owners could not be validly and legally sold by Defendant Nos.1 & 2, Mumbai Municipal Corporation (MMC) and that the certificate of sale dated 10th July, 1973 issued by M.M.C. is invalid, illegal and null and void so far as regards the ownership rights of the BPT therein and also that the said certificate of sale purporting to convey in right, title and interest of the BPT is illegal, invalid and void and that the said certificate of sale be rectified excluding the BPTs right,title and interest therein. The defendants are the lessees of the BPT. 2 Suit No.1131_1978 Defendant No.4 is the occupier of the premises. Defendant Nos.5 & 6 as lessees are required to pay municipal taxes in respect of the premises occupied by them which ran in arrears. MMC sought to auction the suit property to recover the arrears.

2. The BPT contends that the rights of the lessees in the suit property could have been auctioned for non payment of municipal taxes. The possession and occupation of the lessees or any other occupant being the sub-lessee or otherwise could have been sold and conveyed to the purchaser of leasehold interest and the possession of the lessee could have been so transferred to such purchaser upon recovery of municipal taxes then in arrears. However, the ownership rights of the BPT could never have been transferred to such auction purchaser.

3. The BPT has set out how a tenancy agreement came to be

executed on 8th May, 1945 in favour of defendant Nos.5 & 6 which tenancy came to the terminated by notice issued upon defendant Nos.5 & 6 on 10th August, 1961. A decree dated 10th July,1964 granted vacant and peaceful possession to the BPT as also the order for payment of arrears of property taxes until possession was delivered to the BPT. The BPT sought to execute the decree by writ of possession under Section 21 Rules 35 & 36 of the Civil Procedure Code. The defendant No.4, claiming to be the sub-tenant of the defendant Nos.5 & 6, obstructed the execution. The BPT took out Chamber Summons for removal of the obstruction.

4. The Defendant Nos. 5 & 6, the BPTs lessees, failed to pay 3 Suit No.1131_1978 property taxes and other taxes then amounting to Rs.13,619.78 requiring the MMC to issue a warrant of attachment dated 12 th January, 1973 to attach the property for payment of municipal property taxes and urban immovable property taxes amounting to Rs.13,573,78. The MMC issued notice for auction sale for recovery of arrears of taxes of one Beharilal Manalal, confirming parties to the original tenancy agreement executed in favour of the defendant Nos.5 & 6 by BPTs on 8th May, 1945. The Notice showed that the Free BPT Land tenure together with the buildings thereon was to be sold. The said land was described to the schedule to the warrant of attachment issued by the MMC on 12th January, 1973. BPT was informed by the MMC to obtain possession from the occupier of the land who claimed to be the sub-tenant of the lessee, defendant No.4 herein, and to collect from the tenant directly the amount mentioned by their letter dated 15th September, 1972 being the arrears of property taxes under the bills specified therein. Copies of the warrant of attachment were pasted on the suit property, on the notice board of the MMC as also the notice board of the BPT.

5. The BPT claimed to have sent a letter dated 8th June, 1973 of their attorneys to the MMC. The BPT put on record that they had sued their lessee for recovery of possession of the property and also arrears of compensation of property taxes which suit was decreed in 1979 and which was being executed when it was obstructed by the occupier who claimed to be the sub-lessee. The BPT required the MMC to withdraw the notice and in the alternative to inform the intending purchaser that the property was subject to litigation and a decree of possession was passed in favour of BPT. The BPT also 4 Suit No.1131_1978 informed in the said letter that the purchaser be informed that he may be given a fresh lease on the usual terms and conditions relating to payment of deposit of premium and compensation at the then revised rate.

6. It is BPT’s case that the letter was read out at the auction sale and auction purchaser was put to notice of what the BPT stated therein.

7. Defendant No.3 was the successful bidder and the auction purchaser. He is stated to have been paid and has purchased the property for Rs.73,000/-. He initially made payment of Rs.18,250/- and was issued a receipt in that behalf. He thereafter made payment of Rs.54,750/- and has been issued a receipt in that behalf. He is also issued a certificate of sale dated 10th July, 1973. The certificate of sale dated 10th July, 1973 shows Free BPT Land tenure together with the buildings thereon being suit property having been sold to defendant No.3 for price of Rs.73,000/-. The BPT has challenged the said sale to the extent that it shows Free BPT Land tenure. The BPT claims that only the leasehold interest could have been sold as the lessees and/or the occupiers were liable to pay property taxes to the MMC for failure of which their leasehold interest could alone have been attached and sold. BPT claims that their attorney’s letter dated 8th June, 1973 specified their ownership rights as also the leasehold interest of the lessees and/or the occupiers and consequently the error on the part of MMC in showing free hold tenure public notice, warrant of attachment as also certificate of sale is invalid, void and bad, so far as it excludes the BPTs ownership right, title and interest in the suit property. 5 Suit No.1131_1978

8. It is the BPT's case that they informed the MMC in that behalf. The MMC accepted the error and rectified it by issuing a rectification certificate dated 19 th November, 1973 . That certificate was challenged by the auction purchaser defendant No.3 in Writ Petition No.52 of 1974.

9. The defendant No.3 claims that the BPT had notice of the warrant of attachment which was interalia pasted on the premises of the BPT and which was served upon the BPT. The BPT also had notice of public advertisement. Defendant No.3 claims that BPT had not objected to defendant No.3 the description of the property as Free BPT Land tenure as described in the public notice and warrant of attachment and consequently, the BPT cannot challenge the certificate of sale. This contention was upheld in the Writ Petition in the order dated 26th July, 1976 and hence rectification certificate of the MMC dated 19th November, 1973 was set aside.

10. Consequently, the BPT has sued for the aforesaid declarations and the ancillary reliefs.

11. It is also contended by the defendant No.3 that BPT was party to the said Writ Petition as Respondent No.3 thereof and was heard and consequently, the suit filed by the BPT for setting aside a certificate of sale and for the necessary declarations of its title and the issue of the certificate of sale is barred by principles of res- judicata. 6 Suit No.1131_1978

12. BPT obtained the decree of possession and payment of arrears and compensation against the lessees. BPT sought to execute the decree which was obstructed by the occupant claiming to be the subtenant. The Auction purchaser had taken out chamber summons No.527 of 1973 in Suit No.65 of 1963 under the provisions of Order 21 Rule 16 of the Civil Procedure Code to substitute themselves as the BPTs to execute the decree obtained by the BPT. By an order dated 23rd August, 1978 of Justice Bharucha, as he then was, it was held in that Chamber Summons that auction purchaser, defendant No.3 herein had become entitled to execute the decree against the obstructionists.

13. The defendant No.3 contends that the issues in the suit have been directly and substantially discussed in aforesaid Writ Petition as also aforesaid chamber summons. That Petition and application having been heard and finally decided by the Court, when BPT was represented and heard in that application also, the claim of the BPT in this suit is barred by principles of res judicata.

14. Based upon the respective contentions of the BPT auction purchaser the following issues have been framed by Justice Upasni on 25th October, 1996, which are answered as follows: ISSUES 1 Whether the Plaintiffs (BPT) prove that they are the owners of the piece or parcel of land admeasuring 1098 5/9 sq.yds. together with the building thereof situate at Elphinstone estate, Bombay, as alleged in para 3 of the Plaint. (bracket supplied) Yes 7 Suit No.1131_1978 2 Whether the plaintiffs prove that by Warrant of Attachment dated 12th January, 1973 the Deputy Municipal Commissioner for Greater Bombay wrongfully attached the said property as alleged in para 8 and para 25(1) of the plaint. 3 Whether the Plaintiffs prove that the right title and interest of the Trustees was not attached by the said Warrant of Attachment or the right title and interest of the Trustees was never intended to be attached under the said Warrant of Attachment as alleged in para 8 and 25(1) of the plaint. 4 Whether the plaintiffs prove that the property taxes claimed or demanded from the Trustees were not payable by the Trustees or that the property taxes could not have been claimed or demanded from them by the 1st Defendant, as alleged in para 9 of the plaint. 5 Whether the plaintiff prove that on the date and at the time of auction sale on 12th June, 1973, one Shri A.D. Vasaigara, Asstt. Estate Manager of the Trustees, attended personally and/or that he read out the letter dated 8th June 1973 at or just before the auction was held and intimated to the intending bidders the contents thereof, as alleged in para 11 of the plaint. 6 Whether the Plaintiffs prove that at the said auction the said Shri A.D. Vasaigara requested the representative of the 3rd Defendant to sign a copy of the letter dated 8th June, 1973, in token of having read out the same, or that the said person refused to sign it, as alleged in para 11 of the plaint.

7. Whether the plaintiffs prove that the Certificate of Sale dated 10th July, 1973, does not in fact or in any event convey the right title and interest of the trustees as lessors of the said property or effect the Certificate of Sale thereof, as alleged in para 11 of the plaint. Yes Yes Yes Yes Yes Yes 8 Suit No.1131_1978 8 Whether the Plaintiffs prove that if the said Certificate purports to sell or convey the right title and interest of the trustees as lessors of the said property, the sale is illegal or invalid, or bad in law or null and void or of no legal effect, as alleged in para 11 of the plaint. Yes

9. Whether the plaintiffs prove that Defendant Nos.1 and 2 have failed and neglected to duly rectify the said certificate of sale as alleged in para 19 of the plaint. Does not required to answered. 10 Whether the plaintiffs prove that the auction sale by the 1st and 2nd Defendants is invalid for the reasons alleged in para 22 and 25(a) of the plaint? 11 Whether the plaintiffs prove that the said property could only be sold with the previous sanction of the Central Government, as alleged in para 25(a) of the plaint. 12 Whether the plaintiffs prove that the amounts claimed as arrears of property taxes in the said Warrant of Attachment were not due and payable by the Plaintiffs to Defendant No.1 by virtue of Sec.145 of the Bombay Municipal Corporation Act, as alleged in para 25(b) of the plaint. 13 Whether the plaintiffs prove that their liability to pay property taxes did not arise before the said auction, as alleged in para 25(d) of the plaint. 14 Whether the plaintiffs prove that the right title and interest of the Plaintiffs in the said property is vested in them by statue and could not, therefore, have been attached or sold under Section 202,203,206 and 212 of the Bombay Municipal Corporation Act, as alleged in para 25(1) of the Plaint. Yes Yes Yes Yes Yes 15 Whether the Plaintiffs prove that they are entitled to any of the reliefs claimed in the suit as prayed for or otherwise. Yes As per final order 16 Whether Defendant Nos.3 & 4 prove that the suit is bad for misjoinder of parties, as alleged in para 1 of the Written Statement. No 9 Suit No.1131_1978 17 Whether the said defendants prove that the suit is barred by the law of limitation as alleged in para 2 of the Written Statement. 18 Whether the said Defendants prove that prayers (a) to (e) of the plaint cannot be granted as declarations and orders prayed for therein as these have already finally been decided against the plaintiffs in various proceedings in this Hon’ble Court and in Writ Petition No.32 of 1974, as alleged in para 3 of the Written Statement. 19 Whether the said Defendants prove that the plaintiffs are estopped from contending that the sale of the said property by the 1st and 2nd Defendants is invalid in view of their conduct prior and subsequent to the sale, as alleged in para 4 of the Written Statement. 20 Whether the said Defendants prove that the contentions urged in para 24 of the plaint on the basis of Sec.145 of the Bombay Municipal Corporation Act and Sec.36 of the Bombay Port Trust Act are res judicata, or principles analogous thereto, as alleged in para 29 of the Written Statement. 21 Whether the suit is maintainable for want of property statutory notice under the BMC Act. No No No No Yes even in the absence of Notice.

15. The parties have led oral evidence of the respective witnesses, most of which would stand excluded by the documentary evidence. The parties have relied upon and produced several documents most of the which are admitted documents and are interpreted by counsel on behalf of the parties themselves. (Documents D.1 to D.12 are tendered by MMC, Documents D.13 to D.30 are tendered by auction purchaser.) 10 Suit No.1131_1978 The issues in the suit are necessarily required to be decided upon the interpretation of these documents. ISSUE NOS.1 TO 8,10,12 & 13.

16. The fact that the BPT was the owner of the suit property cannot and is not disputed. Whether or not the BPT continues to be the owner is the only aspect with which the parties are at issue.

17. The BPT as the owner of the land had entered into lease/early tenancy agreement No.230 dated 5th May, 1945 in favour of defendant Nos.5 & 6. That lease has been admittedly terminated by notice given by the BPT to defendant Nos.5 & 6 dated 10th August,

1961. Consequent thereupon the suit No.65 of 1963 came to be filed by BPT for ejectment of defendant Nos.5 & 6. The suit came to be decreed on 10th July, 1964. BPT was ordered to be given vacant and peaceful possession of the suit property as also arrears of the property taxes which become due and payable upon the default committed by lessee being defendant Nos.5 & 6. BPT sought execution of the decree under Order 21 Rule 35 & 36 of Civil Procedure Code. Defendant No.4 herein obstructed the execution of the decree claiming to be sub- tenant of defendant Nos.5 & 6. BPT applied for removal of obstruction by the Chamber Summons taken out in the above Suit on 12th November,1965. Neither party has shown the Court the order passed in that Chamber Summons. The obstructions of defendant No.4, however, was not shown to have been removed then.

18. The lessees and or occupiers/obstructionists had run up 11 Suit No.1131_1978 arrears of municipal and property taxes. The MMC sought to attach the suit property.

19. The suit property belonged to the BPT. It was leased to defendant Nos.5 & 6. Defendant No.4 was the occupier. The occupier was liable to pay property taxes which remained unpaid. Hence that leasehold interest of the lessees and or occupiers could have been attached and sold. 20 On 15th September, 1972 the MMC issued their letter, relied upon by auction purchaser and marked Art.D2, setting out the taxes payable under the bills of MMC issued to the tenants/lessees of the BPT which remained unpaid then aggregating to Rs.11961.18 and requested BPT to ask the tenant to pay same.

21. This was in view of the fact that the tenants/occupiers were required to pay property taxes of the land owned by the BPT, under Section 145 of the MMC Act, as contained in Section 36 of the Bombay Port Trusts Act (BPT Act.) The BPT was required to pay only the taxes mentioned therein. It would be apt to set out Section 36 of the BPT Act which runs thus: 36(1) The Board shall pay annually, on the thirtieth day of September, to the Municipal Corporation of the City of Bombay, in lieu of the general tax leviable by the said Corporation in respect of the property or some portion of the property, vested in the Board, which would otherwise be liable to be assessed to the said tax, a sum ascertained in the manner provided in sub- sections (2) and (3). (2) The rateable value of the buildings and lands in the city vesting in the Board in respect of which the said tax would be leviable from the Board shall be fixed from time to time by the (Central Government). The said value shall be fixed with a 12 Suit No.1131_1978 general regard to the provisions contained in the City of Bombay, Municipal Act, 1888, concerning the valuation of property assessable to property taxes, at such amount as the (Central Government) shall deem to be fair and reasonable. Every such decision of the (Central Government) shall hold good for a term of five years, subject only to proportionate variation, if in the meantime the number or extent of the buildings and lands vesting in the Board materially increases or decreases. (3) The sum to be paid annually to the Corporation by the Board shall be (nineteen-twentieths) of the amount which would be payable by an ordinary owner of building or lands in the city, on account of the general tax on a rateable value of the same amount as that fixed under sub-section (2).

22. BPT, therefore, contends that U/s.36 of the BPT Act the BPT is required to make only an annual lump sum payment to the municipality in lieu of general tax as mentioned therein which is to the extent of 19-20 times of the amount payable by ordinary owner of the building or lands on rateable value to be fixed from time to time by the Central Government.

23. Hence the aforesaid letter dated 15th September, 1972 relied upon by Defendant No.3, the auction purchaser himself is evidence of the fact that the BPT was the owner of the suit land and was accepted as such.

24. There were no arrears of taxes payable by BPT to MMC. Hence the ownership rights in the land of BPT could not have been sold by MMC. No such notice is given by MMC. No such case is made out by MMC. The property taxes and other municipal taxes payable by the lesses or the occupiers were in arrears. They were required to pay them. Since these taxes were not paid, the MMC sought to 13 Suit No.1131_1978 auction the suit property. The MMC could never auction BPTs ownership rights in this land. The MMC could not auction the leasehold interest of Defendant Nos.5 & 6 in the suit land.

25. The auction sale was to be held on 12th June, 1973. That was to be of the leasehold interest in that land of the BPT leased to defendant Nos.5 & 6 and occupied by the defendant No.4.

26. MMC issued a public advertisement notice for auction sale in Times of India dated 12th May, 1973 which has been marked Art.P3 & D4 by consent. The public notice is relied upon by all the parties. It gives particulars of the suit land as “Free BPT Land tenure.....”

27. The MMC also issued a warrant of attachment dated 12th January, 1973. It similarly describes the land in the schedule. It has been marked Art.P2 & D1 by consent. It is relied upon by all the parties.

28. The warrant of attachment came to be proclaimed by beat of Thali in front of the suit property. A copy of warrant of attachment came to be pasted on the suit property, and on the notice boards of the MMC and the BPT office. The property came to be attached in the presence of a certain persons mentioned in note of attachment which has been relied upon by the auction purchaser and marked Art.B-3.

29. Public notice in Times of India dated 12th May, 1973 itself shows the assesses to be Beharilal Manalal and another. This fact is 14 Suit No.1131_1978 averred in Paragraph 4 of the plaint which is not denied by auction purchaser. The averments in paragraph 4 of the plaint show that Beharilal Manalal and another were originally assignees of the previous leasees of the suit property and co-parceners of the HUF. The said Beharilal Manalal were the confirming parties in the agreement of tenancy dated 8th May, 1945. The Written Statement of auction purchaser shows lack of awareness of that fact, its non admission and the fact that it is irrelevant. The fact, however, is not seriously disputed. The agreement of tenancy remains a part of a admitted documents. It shows the liability for the payment of property taxes by the assignees of the property on record of the MMC. Successors-in-title of the assignees, defendant Nos.5 & 6 would thereafter be liable to pay property taxes, failing which the occupier of the property would be required to pay property taxes or suffer the attachment and sale of the property which he occupied.

30. BPT upon being informed of the auction sale, through their attorneys sent letter dated 8th June, 1973 to the MMC. A copy of the letter has been produced by BPT as Art.P4. The original letter has been produced in evidence by MMC and has been marked Art. D5. The execution of the letter is not denied. It is the case of the BPT that it was read out to the auction purchaser at the time of auction. That fact is also not denied.

31. The letter makes interesting reading. It sets out the auction sale under Section 206 of the MMC Act. It makes a reference to the assesses Beharilal Manalal and another HUF assignees of the BPT who were on the record of MMC. It sets out that BPT are the 15 Suit No.1131_1978 owners of the land sought to be auction, which is the suit land in paragraph 1 thereof. It reference to the public notice in Times of India dated 12th May, 1973 and the fact that the property would be put up for auction on 12th June, 1973 for the arrears of taxes of Beharilal Manalal. It mentions above the filing of the suit No.65 of 1963 against the lessees of the BPT and the decree obtained by the BPT for possession and arrears of compensation and property taxes dated 10th July, 1974. It also mentions about the obstruction of defendant No.4. It calls upon the MMC to withdraw the notice and in the alternative to instruct the intending purchaser that the property was subject to the litigation and the decree for possession has been obtained and that the purchaser is likely to be evicted in execution of the decree. Further without prejudice to aforesaid it mentions that the purchaser may be informed that the BPT would execute a fresh lease in their favour on the usual terms and conditions relating payment of deposit from time to time and compensation at the revised rate.

32. This letter is the corner stone of the litigation. It is at the centre stage of rights claimed by the BPT and denied by the auction purchaser. This letter was admittedly read out at the auction. The original letter of the attorneys of the BPT produced by the auction purchaser marked Art.D5 shows the endorsement that it was requested to read out the letter to the bidders at the time of sale. The endorsement is dated 9th June, 1973, a day after the letter.

33. The copy of the letter dated 8th June, 1973 which is produced by the BPT and marked Art.P4 shows the original endorsement of all the auction purchaser thus: 16 Suit No.1131_1978 Seen the above letter. I/we also agree to pay the P.T. Dues and premium amounting to Rs.41,425.52 till 31st May,1973 and to pay revised compensation of Rs.514.96 per member from the date of transfer till the F.P.6 is turned over to me/us on lease. As regards the terms and conditions of the lease of F.P.6, I have seen the same. The BPTs has led evidence of P.W.2, their officer, Shri A.D. Vasaigara, who deposed about the execution of the letter dated 8 th June, 1973, its receipt by MMC and the fact that he had attended and read out the letter at the auction sale when Defendant No.3 was present. This oral evidence is corroborated by the copy of the letter produced by BPT along with the endorsement made therein as also the original letter produced by the MMC. Both the letter and the copy are produced from genuine sources and shows the letter sent and received by the two public authorities in the regular course of the business and conduct. The very contents of the letter and the copy being old, tattered and torn show their age. BPT's case about the notice given to Defendant No.3, the auction purchaser, about the ownership rights of the BPT in the suit property is, therefore, fully made out, whatever may have been the error in the public notice, or the warrant of possession or sale.

34. The auction purchaser, therefore, had notice of specific of claim of the BPT that BPT was the owner of the land which was sought to be purchased by them. The auction purchaser also obtained notice of the previous litigation in respect of the land which they were about to purchase and, therefore, knew exactly their position with 17 Suit No.1131_1978 regard to property under litigation that they sought to purchase. The without prejudice offer of the BPT who was the owner of the land was also made known to the auction purchaser. Hence auction purchaser knew that the owner of the land would execute a fresh lease on the usual terms and conditions of the payment of deposit from time to time and compensation at the then revised rate. The auction purchaser was, therefore, required to pay port trust dues and premium then amounting to Rs.4142.52 and also to pay compensation of Rs.519.95 p.m. from the date of the transfer till the plot was handed over over on lease. They also had notice of terms and conditions of the lease. It would, therefore, imply that they would not only be lessees of BPT accepting the BPT as owners of the suit land, but they would execute the lease on the terms and conditions set out by the BPT which was seen by them.

35. The letter excludes no doubt as the to the position of the parties. The auction purchasers being accepted as the lessees, the auction purchasers would accept also the title of the lessor. In fact, they are estopped from denying the title under the principle of estoppel set out in section 116 of the Indian Evidence Act, which runs thus :

116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given. 18 Suit No.1131_1978

36. In any event, ownership itself decides various inalienable rights in a property. These are enumerated in Salmond on Jurisprudence by P.J. Fitzgerald in the 12 th volume at Pg.246-247 right to possess, the right to use and enjoy and to alienate and even destroy the property owned. The right is indeterminate. It is stated thus : Thirdly, the owner has the right to consume, destroy or alienate the thing. The rights to consume and destroy are straightforward liberties. The right to alienate, i.e. the right to transfer his rights over the object another, involves the existence of a power. …... A non-owner even though he has possession, cannot normally transfer the rights of ownership over a thing to another; for the law acts on the principle nemo dat quod non habet. Fourthly, ownership has the characteristic of being indeterminate in duration. The position of an owner differs from that of a non- owner in possession in that the latter's interest is subject to be determined at some future set point, whereas the interest of the owner can endure theoretically for ever. …... the owner's interest is perpetual being determined neither by any set point nor by the owner's death,....

37. The auction purchaser purchased suit property for Rs.73,000/-. The auction purchaser paid Rs.18,250/- being the first 25% of the purchase price and obtained the provisional receipt dated 12th June, 1973 which is produced by the auction purchaser and marked Art.D.6 and further receipt for Rs.54,750/- for balance price being receipt dated 3rd July, 1973 which is also produced by the auction purchaser and marked Art.D.7 along with their letter dated 3rd July, 1973.

38. The MMC sent to the auction purchasers the draft 19 Suit No.1131_1978 certificate of sale in respect of the above properties upon the payment of the purchase price under their letter dated 3rd July, 1973 which has been produced by the auction purchaser and marked Art.D.8. The auction purchaser was required to pay Rs.8,300/- towards stamp duty and registration charges in respect of the certificate of sale. The copy of the draft certificate annexed to the letter dated 3 rd July, 1973 has not been produced. However, the certificate of sale dated 10 th July, 1973, which is an admitted document, has been relied upon by both the parties. The certificate of sale was corrected by MMC upon being shown the correct position by BPT which came to be challenged and which challenge was upheld in the absence of the suit for declaration of title in the Civil Court.

39. In the face of the aforesaid letter dated 8th June, 1973, the auction purchasers were put to notice of the ownership rights of BPT and accepted no matter what was the content of the certificate of sale issued by the MMC showing the suit land as Free BPT Land tenure knocked down to auction purchaser at the price of 73,000/-.

40. BPT has, therefore, to challenge the certificate of sale as the issuing authority is held not to be allowed to issue the certificate of sale as per the ownership rights that had prevailed. The BPT indeed was the owner of the suit land. Central Government had not sanctioned the sale. BPT was not liable to pay municipal or property taxes. BPT was liable to pay the taxes only as specified in Sec.36 of the BPT Act. The municipal and property taxes were payable by the assignees of the suit property, who was shown as the assesses in the MMC record and, therefore, also their successor-in- title. The auction purchaser had notice of the ownership rights of the BPT. Merely by any other party or authority stating otherwise, the ownership rights in 20 Suit No.1131_1978 a land can never be otherwise as in law. The certificate of sale has to be set aside in a title declaration suit only by the Civil court. Consequently, issue Nos.1 to 8,10,12 & 13 are answered in the affirmative. ISSUE NO.9.

41. Defendant Nos.1 & 2 rectified the certificate of sale. Defendant Nos.1 & 2 accepted the case of the BPT. Defendant Nos.1 & 2 have not defended the suit. In fact they have produced the documents relating to the sale being marked B.1 to B.12 in evidence. The issue, therefore, does not survive and, therefore, not required to answered. ISSUE NOS.11 & 14.

42. U/s.26 of the BPT Act, Central Government sanction is required for any sale or lease of the BPT land. The Section 26 runs thus:

26. The Board shall, for the purposes of this Act, have power to acquire and hold moveable and immoveable properpty, whether within or without the limits of the Port of City of Bombay; and shall also have power to lease, sell or otherwise convey any moveable or immoveable property which may have become vested in or been acquired by them: Provided that no sale of immoveable properpty and no lease of any such property for a term exceeding (thirty years) shall be valid unless such sale or lease shall have been made with the previous sanction of the (the Central Government).

43. The sanction of the Central Government is not shown to have been obtained hence the suit property which initially admittedly belonged to the BPT could not have been sold by the MMC. Hence issue Nos.11 & 14 are answered in the affirmative. 21 Suit No.1131_1978 ISSUE NO.16.

44. The BPT has sued MMC and its officer, auction purchaser the occupier and previous lessees. These are necessary parties to the suit. Hence the suit is not barred by misjoinder of parties. Hence issue No.16 is answered in the negative. ISSUE NO.17.

45. The sale of the suit property was held on 12 th June, 1973 as stated in the public advertisement dated 12th May, 1973. The certificate of sale was issued by MMC to Defendant No.3 despite the BPTs letter dated 8th June, 1973 admittedly received by the MMC. MMC corrected its error by issuing rectification certificate dated 19th November, 1973. That came to be challenged by defendant No.3 in the aforesaid Writ Petition No.52 of 1974. The challenge was sustained. A suit on title was not filed by BPT until then because the sale was not challenged by MMC. The rectification certificate came to be set aside on 26th July,1976 though there was no dispute between the title holder and the certificate issuing authority.

46. It is consequent upon the rectification having been set aside that the cause of action accrued to BPT to file the suit in the Civil Court for declaration of its title. That suit came to be filed within three years of that cause of action having accrued. It is filed on 10th July, 1978. The suit is, therefore, within period of limitation. Issue No.17 is, therefore, answered in the negative. ISSUE NOS.18,19 & 20.

47. The defendant No.3 has claimed that BPT was heard in the Writ Petition. The Writ Petition related to the certificate of sale. The issues in this also relate to the certificate of sale. Those issues 22 Suit No.1131_1978 have been finally decided in the Writ Petition and hence the suit is barred by principle of Res Judicata U/s.11 of the Civil Procedure Code.

48. The Writ Petition dealt only with the certificate of sale and did not deal with and could not have dealt with the declaration of title which only the Civil Court can deal with. The rectification of the certificate of sale was set aside because defendant No.3 was not represented and rectification took place by and between the BPT and MMC. Writ Petition can only decide on the premise that the sale took place. The advertisement for the sale as also warrant of attachment showed freehold tenure which was to be sold. That could have been sold rightly or wrongly. Writ Petition could not take in to account the knowledge, if any, of defendant No.3 to the facts brought on record by the BPT in its letter dated 8th June, 1973. Only the Civil Court can decide that aspect upon oral evidence of what transpired at the time of sale that took place on 12th June, 1973. Consequently, those matters in dispute were not decided in the Writ Petition. They could be decided only this suit and are to be decided for the first time based upon the admitted and factual position relating to the sale and the title of BPT. It is only in this suit the Court can consider the evidence of P.W. 2 as to how defendant No.3 was informed about the BPT's title which in law vested in the BPT in any case.

49. Defendant No.3 has also contended that the Chamber Summons taken out by defendant No.3 for stepping into the shoes of BPT to execute the decree obtained by BPT against its previous lessees, in which the BPT was heard and defendant No.3 was held entitled to execute the decree against the obstruction further barred this suit under principles or Res judicata and estoppel. 23 Suit No.1131_1978

50. The allowance to execute the decree also does not determine the title. The title has to be determined in law. No party can be deprived of title rightfully vested in law. The declaration of said title cannot be granted in Chamber Summons, but only in title suit filed in the Civil Court.

51. The aspect of title has not been determined. Hence the suit is not barred by principles of Res judicata and the BPT is not estopped from contending that the sale of the suit property to defendant Nos.1 & 2 is invalid interalia also under Section 26 of the BPT Act for want of Central Government sanction. Consequently, the issue Nos.18,19 & 20 are answered in the negative. ISSUE NO.21

52. There is no dispute between the BPT and MMC, Defendant Nos. 1 & 2. MMC accepted the BPT's case and acted thereupon. There is nothing that could have been settled between BPT and MMC pursuant to the notice being issued. MMC has not even sought to enforce the statutory notice. Hence Issue No.21 is answered in the affirmative, even if the statutory notice has not been sent to MMC.

53. Hence the following order. Suit is decreed in terms of prayers a,b,c,d,e & i. ( ROSHAN DALVI, J.)