SHAILADEVI DAMODARPRASAD BHADANI Vs. HARISHCHANDRA ANANT PANDIT

JUDGEMENT

(1.) ADMIT. By consent of the parties, appeal from order taken up on Board and heard finally. The order passed by the Civil Judge, Senior Division, Thane dated 5-10-2004 is challenged in the present appeal from order. The trial Court has dismissed the application filed under Order 39, Rules 1 and 2 of Civil Procedure Code by the appellants, who were the plaintiffs in the trial Court in special Civil Suit No. 199 of 2004.

(2.) THE facts involved in the present appeal are as follows: the appellants, who are the Bhadani family members, claim that their predecessor and Jhariram Bhadani purchased property in village Panchpakhadi, thane bearing Survey Nos. 427 to 435 and 485 admeasuring about 68 acres. This purchase was made in the year 1950. It appears that Suit No. 221 of 1960 was filed by one branch of Bhadani family against another. It appears that the joint family properties were divided amongst the parties to the suit and consent terms were filed before the Court on 19-3-1971. A decree was accordingly drawn up. Under the decree Shri Damodhar Prasad Bhadani, the predecessor of the appellants became entitled to Survey No. 431 admeasuring 1 acre and 24 gunthas and part of Survey No. 432 admeasuring 13 acres 37. 7 gunthas. The appellants claimed that this land fell on the boundary between the Thane Municipal Corporation (for short, 'tmc') and the Bombay Municipal Corporation. In 1974, the development plan of the city of Thane was published and the survey numbers were changed. A part of the Survey No. 432 was shown as site No. 38 and was reserved for open space. Another part of survey No. 432 was shown as Site No. 79, reserved for a primary school. According to the appellants, the reserved area aggregated to 19200 sq. mtrs. out of the entire land which comprises the' suit property. It appears that the reservation was removed and the area was included in site numbers 38 and 79. In 1987, some other properties of the Bhadani family, under reservation, was dereserved. In 1991, the State Government declared the reservation of the suit property as having lapsed. The appellants were permitted to convert the user of the suit property from industrial to residential. Plans were submitted to behalf of the appellants to the TMC for development of 19200 sq. mtrs. of the suit properly by constructing three buildings. These plans were sanctioned and occupation certificate was granted in respect of the building numbers 1, 2 and 3. It appears that the amended plans were submitted by the appellants for a proposal to construct the 4th building or 14 floors plus stilts.

(3.) IT appears that on 10-2-2003, a civil suit was filed against the appellants being Suit No. 77 of 2003 purportedly in public interest for an injunction against the appellants from carrying out further work on the suit property. On 24-3-2003, the Thane Municipal Corporation, that is respondent No. 27, issued a notice against the appellants for carrying out construction of a building without proper sanction. According to the appellants, this building was being built on their land by respondent No. 25 and it was only because a notice was issued to them by the TMC that they realised that respondent No. 25 had already constructed the building 'nishad' consisting of ground plus five storeys and were in the process of constructing another building on the appellants' land. It appears that despite the appellants calling upon the BMC to furnish the copies of the plans sanctioned in favour of respondent No. 25 they were not furnished these plans by the BMC that is respondent No. 26. However, on 24-3-2003, the appellants were informed by the BMC that the property which was being developed by respondent No. 25 fell within the jurisdiction of Mumbai. On 23-8-2003, the Civil Judge, Senior Division, Thane passed an order in the suit filed by one Ganesh Sawant confirmed the ex-parte injunction granted against the appellants from carrying out further work on the suit property. This order was challenged by the appellants in this court in Appeal from Order No. 768 of 2003. The appellants had denied the allegations of Ganesh Sawant that they were developing their property contrary to the Development Control Rules and the development plan and in a manner which would be hazardous to health. In November 2003, this Court directed the Taluka Inspector of Land Records, Thane that is respondent No. 29 (TILR), to carry out measurements of the suit property and to file a report to enable the appellants to obtain the occupation certificate. The TILR submitted his report and came to the conclusion that the storm water drain (naz/a), which the appellants claim ran through their property, did not form part of the boundary between Mumbai and Thane. This Court by an order dated 8-3-2004 set aside the interim relief granted by the trial Court. This court directed the appellants to file an undertaking to complete the remaining construction at their own risk and not to claim equities in respect of the construction. Third party purchasers were directed to be informed of the pending litigation. The Apex Court has confirmed this order on 6-5-2004.