First Appeal No. 1424 of 2004, Civil Application No. 221 of 2013 in F.A. No. 1424 of 2004, Civil Application No. 3962 of 2006 in First Appeal No. 1424 of 2004, Civil Application No. 44 of 2008 in First Appeal No. 1424 of 2004, Civil Application No. 2163 of 2013 in First Appeal No. 1424 of 2004, Civil Application No. 4436 of 2013 in First Appeal.... Case: Shivram Mahadev Shinde and Ors. Vs Maharashtra Housing & Area Development Authority and Ors.. High Court of Bombay (India)
| Case Number | First Appeal No. 1424 of 2004, Civil Application No. 221 of 2013 in F.A. No. 1424 of 2004, Civil Application No. 3962 of 2006 in First Appeal No. 1424 of 2004, Civil Application No. 44 of 2008 in First Appeal No. 1424 of 2004, Civil Application No. 2163 of 2013 in First Appeal No. 1424 of 2004, Civil Application No. 4436 of 2013 in First Appeal... |
| Counsel | For Appellant: Kevic Setalvad, Senior Advocate, Deepak Chitnis, Daisy Dubhash, Awais Ahmedji and Mangesh Parte i/b. Deepak Chitnis Chiparirkar & Co., Advocate and For Respondents: P.D. Anklesaria, Senior Advocate and Aparna Murlidharan i/b. P.G. Lad, Advocate |
| Judges | Mridula Bhatkar, J. |
| Issue | Indian Penal Code 1860, (IPC) - Section 179; Land Acquisition Act, 1894 - Sections 11, 16, 17, 17(1), 18; Maharashtra Land Revenue Code, 1966 - Sections 20, 22; Transfer of Property Act, 1882 - Sections 4, 6(a) |
| Judgement Date | December 23, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
Mridula Bhatkar, J.
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This Appeal is directed against the judgment and order dated 20th September, 2004 passed by the learned Judge of the City Civil Court thereby dismissing the Short Cause Suit No. 1357 of 1979. The original plaintiff No. 1 Shivram Mahadev Shinde claiming adverse possession against the Government, filed a suit for possession and injunction in respect of land admeasuring 25 acres and 12.34 gunthas bearing Survey No. 29 (Part), 30-C, 30-D, 41/1 (Part), 41/2, 41/3 and 41/4 (Part), 41-B/1, 42-B/2 and Plot Nos. 1 to 11-12 (Part) of private scheme No. "A" at Village Pahadi, Goregaon Taluka, Borivali, Mumbai.
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It is the case of the plaintiff No. 1/Shivram Shinde that he was in possession of the suit land since 1944. He has entered into an agreement with one Jagan Babu Thakur on 15th June, 1949 for cultivating the land for two years, i.e., from 15th June, 1949 to 14th June, 1951 (Exhibit 6). On 9th April, 1970 Tahsildar of Village Pahadi issued notice that in the year 1956 that the original plaintiff had encroached upon the land and cultivated para grass. It is his case that panchnama was conducted by Talati, which shows that the land was in possession of the plaintiff/appellant, so he paid the penalty for that and continued to do so. He entered into Sale Deed with plaintiff No. 2 in the year 1955 of the suit land. It is also a case of the plaintiff No. 1 that he had lodged written complaint to P.S.I. on 5th January, 1979 against MHADA board and Tahsildar. On 26th August, 1979 the appellant entered into an agreement with one Devraj Gundecha/plaintiff No. 2 and sold the said land by registered agreement of sale. Therefore, the plaintiff/appellant claimed that he is in possession of the suit land without any interruption since last more than 30 years and claimed declaration of title by way of adverse possession and also injunction against the defendants. The written statement was not filed by the State, but it was filed by MHADA/defendant No. 1 who denied that the plaintiff No. 1 was in possession of the land. All the averments made and contentions raised by the plaintiff are denied by the defendants in the written statement. It is contended that the State of Maharashtra is the owner of the land and has acquired this land for MHADA for the purpose of constructing houses for public. He submitted that the award was passed of the said land and name of Government of Maharashtra and MHADA were entered in the record of rights of the said land. It was further specifically denied that appellant is having a hostile and open possession since last 30 years, however, the Government has sent a notice in the year 1970 demanding penalty for unauthorized occupation by the plaintiff. The fact of possession of the entire land for 30 years is also denied. It is further contended that the plaintiff is not cultivating para grass on the entire land and the suit be dismissed.
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After considering the pleadings in the plaint and the written statement, the trial Court framed issues and gave findings as follows:
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The plaintiffs have examined one witness PW-1 Ramakant Yashwant Desai. The original plaintiff Shivram Shinde was not alive when the matter reached for evidence. So witness Mr. Desai, who claimed to be present at the time of transactions by plaintiff No. 1 and the actions taken by the plaintiff in respect of suit property, gave evidence. The Government did not file written statement and did not examine any witness. However, MHADA filed its written statement, cross-examined the witness of the plaintiff and also examined witnesses D.W. Rajendra Kotecha on their behalf. After considering the oral as well as documentary evidence of both the parties, the trial Court answered the issues as above. The trial Court dismissed the suit with costs. Being aggrieved by the said judgment and order, this Appeal is filed.
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The points of determination are - (i) Whether the appellants/original plaintiffs have perfected title by adverse possession and entitled to reliefs as prayed? (ii) Whether the learned trial Judge has erred in appreciating evidence to decide plaintiffs' claim of adverse possession.
Submissions of the appellants
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The learned counsel Mr. Setalvad for the appellants submitted that the suit is for the adverse possession and the possession of the appellants is in fact admitted by the Government. The appellant is in possession of the suit premises since 1944. By notice dated 9th April, 1970, the Tahsildar demanded penalty from the appellants by showing encroachment by them from 1956. The learned counsel submitted that the appellants have adduced documentary evidence to show that the appellants are in possession of the suit property at least from 15th June, 1949. He relied on the agreement entered into by the original plaintiff Shivram Shinde with Jagan Babu Thakur dated 15th June, 1949 for cultivation of para grass for a period of two years from 15th June, 1949 to 14th June, 1951 (Exhibit 6). He relied on Agreement of Sale dated 25th April, 1955 (Exhibit 7) between Shivram Shinde and Devraj Gundecha for 11 acres of land. He further relied on judgment dated 11th September, 1959 in Case No. 535/P/1969 (Exhibit 8) which was given against the plaintiff by the Court of Presidency Magistrate, 24th Court, Borivli. He submitted that these documents establish that original plaintiff was in possession of the suit premises at that relevant time. He further relied on other documents, i.e., a letter of Tahsildar dated 9th April, 1970 (Exhibit 9) for unauthorized cultivation of grass stating that there is encroachment since 1956. He pointed out that original plaintiff Shivram Shinde sent letter to Tahsildar, Borivali on 20th January 1978, which is marked at Exhibit 10, very specifically claiming adverse possession. Thereafter on 4th April, 1978 Tahsildar recorded the statement of Shivram Shinde which is marked at Exhibit 11. Pursuant to that correspondence, a panchnama of the spot was drawn on 11th April, 1978 (Exhibit 12). Thereafter on 11th April, 1978 original plaintiff entered into Supplementary Agreement of 25 acres of the land by way of rectification of the earlier agreement dated 25th April, 1955 wherein the area of suit land was mentioned as 11 acres (Exhibit 13). He further submitted that on 25th January, 1979 Shivram Shinde/original plaintiff made written complaint to P.S.I. against MHADA board and Tahsildar (Exhibit 14) and on 26th August, 1979 original plaintiff entered into Agreement of Sale with Devraj Gundecha (Exhibit 15). He submitted that all the agreements are registered on 26th September, 1979 and Power of Attorney was executed by Shivram Shinde in favour of Gundecha Builders (Exhibit 16). He pointed out that Power of Attorney (Exhibit 16) was signed by Ramakant Desai (PW-1) as witness and thus, his evidence is authentic and supported by this document. Shivram Shinde died in 1982 after filing of the suit. His death certificate dated 23rd September, 1982 (Exhibit 17) is produced. After death of Shivram Shinde, his minor son Dhanesh and wife were brought on record. The learned senior counsel argued that no effective cross is taken on the documents by the defendants. He submitted that Government was aware that the plaintiff was in possession of the land and it was open, hostile and continuous possession. The Government though relied on number of documents especially on Section 4 notice and award under Land Acquisition Act, no documentary evidence is produced by either by Mhada or Government. The Government did not file written statement to show that the Government was not interested in the property and was fully aware that the plaintiff is having his long possession. The evidence of plaintiff is uncontroverted by the defendants. Though it was claimed that award was passed on 6th September, 1951 it was not placed on record. He submitted that though it was contended in the written statement and said on oath by the witness of the defendants that the State has taken possession of the land at the time of acquisition, nothing is placed on record to show physical or symbolic possession was taken by MHADA. Moreover, actual physical possession is contemplated under the acquisition. He further submitted that the learned Judge of the Trial Court has committed an error in rejecting the case of the plaintiff on the ground of adverse possession. The learned Judge did not properly examine the documentary and oral evidence produced by the plaintiffs to show that they are in hostile and continuous possession since 1944. The defendants failed to produce documents in support of their claim of acquisition and passing award, therefore, fact of acquisition should not have been accepted by the trial Court.
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Mr. Setalvad argued that when Contempt Petition No. 131 of 2010 was filed, settlement talks continued between the parties. The Government has introduced a policy known as 60:40 policy, i.e., to offer 40% of the share to the occupants and use 60% for development by MHADA. The petitioners have received a letter from the Chief Officer of MHADA on 29th August, 2001. In response to that, the appellants sent letter on 17th September, 2001. Another letter dated 18th October, 2001 was sent by MHADA. The letter dated 19th October, 2001 was sent by the lawyer of plaintiff to MHADA showing the willingness to accept the proposal. MHADA prepared an office note on 29th August, 2008 in respect of settling the matter by availing of 60:40 policy. However, thereafter the respondents committed contempt, as the talks were not materialized and on 3rd December, 2012 a contempt notice was sent by Chitnis Vaiti, lawyer of the petitioner. However, the said notice is not replied by the respondents. As on today, the respondents did not deny taking forceful possession of the northern portion of the property and thus, they have committed clear contempt of Court. He relied on the reply dated 8th March, 2013 filed by Vandana Georikar...
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