SAJID ISMAIL Vs. SAIRABI ABDUL GAFFAR SHAIKH

JUDGEMENT

(1.) Heard submissions at the Bar at length. This appeal is against the Judgment and order dated 21-08-2003 passed by Jt. C.J.S.D. Pune, in Special Civil Suit No. 2107 of 1997, decreed in favour of the original plaintiffs-respondents, declaring them as owners of 3/4th share of the suit property i.e. Land survey no. 61/9/1 admeasuring 14 gunthas, situated at Mauje Vanvadi, District Pune, and that agreements between the defendant nos. 1 and 2 in favour of the defendant no. 3 or in favour of the defendant no. 4 dated 23.04.1994 and 04.09.1995 respectively are not binding on the plaintiffs and their undivided share. Defendant nos. 1 to 4 were restrained permanently from carrying out any construction in the suit property and from creating any third party interest or encumbrance on the three-fourth share of the plaintiffs over the suit property. While the defendant nos. 5 to 7 were restrained from sanctioning any plan for construction on the suit property without the consent of the plaintiff nos. 1 and 2 in respect of their three-fourth share. The facts stated are:-

(2.) According to the plaintiffs, Raffique (defendant no. 2) have not even semblance of legal right. He cannot be recognized as legal heir under Muslim Personal law of inheritance of Mohammed Ali or Zulekhabi as claimed by him. After death of Zulekhabi the defendants nos. 1 and 2 moved an application to the Tahasildar, Pune, and without giving any notice to the plaintiffs got their names mutated in the V.F. VII/XII extracts of the suit land on the basis of alleged Will of scribed in Kannada language without any authentic certificate of the translation in official Marathi language. Tahasildar, Pune, had mechanically without holding any inquiry as contemplated under the Maharashtra Land Revenue Code, mutated names of defendant nos. 2 and 3 in the 7/12 extract. The Mutation was challenged by RTS Appeal no. 104 of 1994 before the Sub-Divisional Officer, who by the Judgment dated 30.10.1995 dismissed the appeal. Second Appeal no. 253 of 1997 is pending before the Collector, Pune. Meanwhile, taking undue advantage of mutation entry in their favour, the defendant nos. 1 and 2 entered in the Development agreement in respect of the suit property with defendant nos. 3 and 4 on 24.03.1994 and 13.09.1995 respectively and a Building plan along with VII-XII extract of the suit property was submitted to the Pune Municipal Corporation through Power of attorney holder and developer. The plaintiffs claimed that the agreement between the defendant nos. 2 and 3 on one hand and 3 and 4 on the other hand regarding the development of the suit property is not binding on them. Under the pretext of the Development agreement the defendant nos. 1 to 4 are trying to develop the suit property to the exclusion of the plaintiffs. The defendants have denied the suit claim and claimed interest in the suit property. Defendant no. 4 filed suit for specific performance being Regular Civil Suit No. 1667 of 1995 against the plaintiffs and defendant no. 3 for declaration and injunction seeking to restrain the plaintiffs and the defendant no. 3 from entering in the suit property. Pune Municipal Corporation is not party to the suit but sanctioned the building plan submitted by the defendant no. 4 after payment of huge amount of Rs. 1,71,000/-. According to Pune Municipal Corporation it had verified the title of the suit property and took indemnity Bond and undertaking from the M/s. Allied Constructions. Further according to PMC it is dispute as to title to the suit property inter se between the defendant nos. 1 to 4 and the original plaintiffs. As the defendant nos. 1 to 4 have not complied with certain provisions the Building plan was not finally approved. Municipal Corporation contended that it will follow the order of the Court. Defendant no. 3 claimed that he was put in possession of the suit property under the part performance of the contract and his suit for specific performance is pending against the defendant nos. 1, 2 and 4, which was stayed under section 10 of the Civil Procedure Code.

(3.) During the pendency of this appeal, the parties filed consent terms. By order of this Court dated 24.02.2011, compromise has attained finality. My Brother Judge Shri A.S. Oka recorded compromise as a result of the agreement evidenced by the consent terms (marked 'x' for identification) signed by Appellant Nos. 2 and 3 as well as Respondent Nos. 1-A, 1-B and 2. Since the Appellant No. 1 did not agree with the consent terms (and raised objection to acceptance of the consent terms) his objection was overruled and it was recorded that the consent terms will not bind the Appellant No. 1. Thus we find that there was already a decree binding between Appellant Nos. 2 and 3 and Respondent Nos. 1A, 1-B and 2. The appeal thus remains pending as contest limited between the Appellant No. 1 (now sole appellant) and rest of the parties. Appellant Nos. 2 and 3 were thus transposed as party Respondents at the request of Appellant no. 1. Order XXIII of CPC deals with "Withdrawal and Adjustment of Suits". Rule 3 of Order XXIII speaks about "compromise of suit" which reads as under: