SALASAR ESTATE DEVELOPERS LLP Vs. RUFINA WALTER GOMES

JUDGEMENT

(1.) Heard Mr. Tulzapurkar, learned Senior Advocate along with Mr. Shiralkar, learned Advocate for Petitioners in WP/15436/2023, Mr. Patil, learned Advocate for Petitioners in WP/1124/2024 and Mr. Deshpande, learned Advocate for Respondents in both Writ Petitions. Both Petitions challenge the same set of common orders and are heard together and disposed of by this common judgment finally by consent of parties.

(2.) Writ Petition No. 15436/2023 is filed by Salasar Estate Developers LLP who is Defendant No. 2 in the Suit filed by Plaintiffs which is Regular Civil Suit No. 954/2016. Writ Petition No. 1124/2024 is filed by heirs of one Martha Joseph Gomes who are arrayed against Defendant No. 1 in the Suit proceedings. Reliefs prayed for in the Suit are at page Nos. 217-220 of the Writ Petition wherein Suit plaint has been annexed. Defendant No. 4 is supporting the Plaintiffs in the Trial Court. Suit proceeds on the basis that suit property being New Survey No. 180, Hissa No. 4, area admeasuring 7850 sq. mtrs. Situated at Village Navghar, Bhayandar (E), Taluka and District Thane belong to the Plaintiffs and Defendant No. 4. Suit is filed for declaration, partition, demarcation, possession and permanent injunction by Plaintiffs. Paragraph No. 2 of the Suit plaint proceeds on the basis of a family tree wherein Plaintiffs claim to be successors-in-title of one Shelya Pavlu Gomes who expired intestate according to Plaintiffs. Cause of action stated in Suit plaint is to have occurred in the month of July 2014 when Plaintiff No. 2 claims to have visited the suit property and learnt that construction was started on the suit property. Suit is therefore filed in the year 2016. Just before filing of Suit proceedings, Plaintiffs had approached the SDO for mutation of their names in the Revenue Record pertaining to the Suit property. They were directed to approach the Competent Authority. According to Plaintiffs Mutation Entry No. 1932 was mutated fraudulently by misrepresentation before the Revenue Officer, since as per Mutation Entry No. 1934, after demise of the late Pavlu Shelya Gomes, Plaintiffs' names were mutated by Mutation Entry No. 1934, but the same course was not followed while mutating their names qua Mutation Entry No. 1932 and therefore a fraud was committed. Plaintiffs would aver that Mutation Entry No. 1932 was therefore challenged by them before the Competent Authority in RTS proceedings unsuccessfully before the Competent Authorities and against that dismissal, statutory appeal is pending. It needs to be stated that this Mutation Entry is of the year 1965 and it was challenged by Plaintiffs in the year 2016. It is claimed by Plaintiffs that suit property is ancestral property belonging to Shelya Pavlu Gomes and Plaintiffs are the only legal heirs entitled to the same. Rather Plaintiffs have virtually disowned the two other legal heirs / branches of Shelya Pavlu Gomes. Such is the sum and substance of the Suit plaint.

(3.) Exh. 5 is filed by Plaintiffs which is allowed by order dtd. 10/6/2019. In Misc. Civil Appeal proceedings, learned Appellate Court by order dtd. 22/6/2023 dismissed the Miscellaneous Civil Appeal by concluding that Plaintiffs being legal heirs of Pavlu Shelya Gomes have right, title and interest in the Suit property and have proved prima facie case. Both orders below Exh. 5 are challenged before me in two separate Writ Petitions which are referred to herein above since injunction is placed upon Defendant No.2 who is developing the suit property.