KAKUBHAI KANJI Vs. VIDYAVATI SHANKARLAL GUPTA

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated 19th April 1988 in Suit No. 917 of 1972 on the file of the City Civil Court at Bombay. Respondents 1 and 2 have filed cross objections against some of the findings of the trial Court. I have heard the learned Counsel appearing for both the sides.

(2.) Respondents 1 and 2 filed a suit against the appellants, third defendant and others for certain reliefs. For the purpose of convenience and easy reference the parties are referred to in this judgment as per their rank in the Court below. The plaintiffs case is as follows :--- Plaintiffs and defendants 2 and 3 are the co-owners of the property in dispute viz., plot bearing No. 29-A admeasuring 1786 sq.yds. situated at Daftary Road, Malad (East), Bombay. The entire Plot No. 29 was purchased by plaintiffs and defendants 2 and 3 from the previous owners under registered sale deed dated 27th May, 1959. The land was subdivided into sub-plot Nos. 29-A, 29-B, 29-BI, 29-B2 and 29-B3: The other portions were sold and the plaintiffs and the other two co-owners have retained plot No. 29-A. The plaintiffs are not aware of any action taken by the first defendant Corporation under the provisions of the Maharashtra Regional and Town Planning Act, 1966 except the one impugned notice recently received which is dated 14th January, 1972. The plaintiffs are not bound by service of any notice on defendants 2 and 3. The plaintiffs were entitled to receipt of notice for preparation of a scheme under the said Act. The plaintiffs had no opportunity to object to the town planning scheme. The first defendant Corporation appears to have proceeded with the finalisation of the town planning scheme and awarded it illusory compensation regarding the suit property. For the first time plaintiffs came to know of the scheme when they received the notice dated 14th January, 1972 purporting to be notice under section 89 read with section 165 of the said Act calling upon plaintiffs to vacate the suit property within 7 days. It is now learnt that the suit property has been required for allotting the same to private individuals which cannot be called as "public purpose". Since no notices were served on the plaintiffs, the scheme prepared by the first defendant to include the suit property violates fundamental rights of the plaintiffs guaranteed under Articles 14, 19 and 31 of the Constitution of India. Alternatively, it is pleaded that even if the scheme is not violative, the first defendant is not entitled to enforce the impugned notice dated 14th January, 1972. By amending the plaint, the plaintiffs have now pleaded that after the said notice dated 14th January, 1972 and during the pendency of the suit more than 12 years have elapsed, and therefore, plaintiffs possession is perfected by adverse possession and defendants Nos. 1 and 4 to 6 have lost whatever rights they had by virtue of section 27 of the Limitation Act. Defendants 4 to 6 to whom the suit property is said to have been allotted have not taken steps for getting possession of the suit property within 12 years as required by law, and their rights are lost under section 27 of the Limitation Act. It is alleged that the threatened action of the first defendant to evict plaintiffs under notice dated 14th January, 1972 is illegal and unconstitutional. Plaintiffs were not given any opportunity of being heard before issuing such a notice. The suit property is not required for any public purpose, but it is being demanded for being given to defendants Nos. 4 to 6 who are private individuals. On these allegations, the suit is filed for a declaration that the notice dated 14th January, 1972 be declared as illegal, void and not binding on the plaintiffs and for a permanent injunction to restrain defendants from taking any action in furtherance of the said notice.

(3.) The first defendant is the City Corporation and it is also the town planning authority for Bombay City. Its defence is that the suit is not maintainable for want of statutory notice under section 527 of the Bombay Municipal Corporation Act. The allegations that the plaintiffs were not at all aware of the scheme and that they have not received any notice are denied. That as per the records when the town planning scheme, Malad No. 1 came into force on 31st December. 1969 recorded owners of the suit property were only defendants 2 and 3. It is not admitted that the plaintiffs are the joint owners of the suit property along with defendants 2 and 3. That all the required notices have been issued to defendants 2 and 3. Whatever rights the plaintiffs had are extinguished after the town planning scheme came into force on and from 31st December, 1969. The notice dated 14th January, 1972 has been issued according to rules. It is pleaded that part of the land bearing plot No. 27 belonging to defendants 4 to 6 was acquired for the purpose of forming a road in the scheme and the suit plot was allotted to them. An enquiry had been conducted by the Arbitrator and he has determined the compensation for the suit plot at Rs. 28,576/-. Since the plot had been allotted in favour of defendants 4 to 6, it is the duty of the first defendant to put them in possession of the suit plot, and therefore, the notice dated 14th January, 1972 was issued to the plaintiffs under section 89 of the Act. Since the plaintiffs name did not appear in the revenue record, no notice was given to them. The scheme prepared by the First defendant is a valid scheme. There was no necessity for earlier notice to the plaintiff prior to the notice dated 14th January, 1972. After plaintiffs amended the plaint, the first defendant filed additional written statement denying the allegations made in the amended plaint. It is also stated that defendants 4 to 6 have filed a suit against the Corporation bearing No. 6701 of 1972 for possession of the suit plot, but first defendant could not give possession of the suit plot to them in view of order of injunction obtained by the plaintiffs in the present suit. Hence it is denied that plaintiffs have perfected title by adverse possession or the rights of the defendants are lost under section 27 of the Limitation Act.