PHILOMENA JOHN DSOUZA Vs. BRIJ BIHARI NAYAR

JUDGEMENT

(1.) HEARD both sides. This is defendants' appeal challenging the order passed in Notice of Motion No. 3446 of 1991 in S. C. Suit No. 4387 of 1991 whereby the motion taken out by the respondents-plaintiffs was made absolute in. terms of prayer (b) except bracketed portion, that is "and remaining thereupon and from removing coconuts, plants, trees, vegetables and any other material therefrom". Respondents-plaintiffs motion was made absolute also in terms of prayer (c) except the bracketed portion.

(2.) FEW facts which are relevant for the purpose of disposal of this appeal from order are as follows ,:-The present respondents-plaintiffs filed S. C. Suit No. 4387 of 1991 for claiming declaration that the entry made by the talathi on 7 /12 extract of the suit property i. e. Survey No. 247 Hissa No, 3 and Survey No. 247 Hissa No. 4; Manori, malad, Bombay in respect of Defendant No. 1 is bad in law, illegal and void and the same is required to be deleted. Further prayer in the plaint is that the 4th defendant be ordered to carry out the survey and demarcation of the suit property i. e. Survey No. 2477, Hissa Nos. 3 and 4, Manori, malad and an injunction was claimed restraining the defendant from entering upon the suit property i. e. Hissa No. 247 Survey nos. 3 and 4, Manori, Malad.

(3.) THE plaintiffs have claimed that on 30th April, 1996 the suit property i. e. Hissa Nos. 3 and 4, Survey No, 247, Manori, Malad was purchased in the name of minor son of the plaintiffs viz. Ashok Nayar. After purchasing this property, an application was filed for entering name of Ashok Nayar in the Kabjedar column. The mutation proceedings were held and in that predecessor-in-title of the present appellants herein who are defendants, raised an objection and on 12th july, 1968 after hearing both the sides the Revenue Authority i. e. Talathi of Borivali held that the purchaser-Ashoka Nayar is in actual possession of this land. He also held that the payment of land revenue for the years 1966/67, 1967/68 that is after the purchase of the property is made by the second plaintiff and since Ashok was an agriculturist and he has a right to purchase the land in question since the transaction is valid one, the Mutation Entry No. 1382 was certified on 12th July, 1968.