PAUL VAZ Vs. ELIZABETH FERNANDES

JUDGEMENT

(1.) THIS is a suit under O, 21, Rule 103 of the Civil Procedure Code where by the plaintiffs are seeking a declaration of their title and possession of the suit land bearing Survey No. 141, Hissa No. 4, situate at Kole Kalyan in Greater Bombay.

(2.) ACCORDING to the plaintiffs, the land in suit along with several other properties belonged to Dominie Vaz, the father of plaintiffs Nos. 1 and 2, who dies on 29th April 1928 and they are claiming title to the suit land under a will dated 2nd November 1927 left by their father. The 3rd plaintiff is the wife of the 1st plaintiff and has been joined as a formal party to the suit. The plaintiffs' case is that Dominie Vaz had a son by name Maurice Vaz by his predeceased wife and the said Maurice Vaz, their step-brother unauthorisedly and without having any title thereto purported to sell the said land to one Michael Jerome Miranda by a conveyance dated 4th January 1938. Michael Jerome Miranda sold it to one Pribhan Vishram by a conveyance dated 16/18th March 1940 Pirbham Vishram sold the said land to one Batliwala by a conveyance dated 23rd October 1958 and Batliwala in his turn sold the said land to the 1st defendant by a conveyance dated 27th November, 1958, According to the plaintiffs, all these deeds did not transfer any ownership in the suit land to the respective purchasers thereunder, inasmuch as Maurice Vaz himself had no title to the suit land and that the deeds in favour of Batliwala and the 1st defendant were passed during the pendency of High Court Suit No. 523/54. The plaintiffs' case further is that in 1954 they discovered that Pirbhan Vishram was in possession of the suit land claiming title thereto under a conveyance from Michael Mirands (who claimed title from Maurice Vaz) and hence instituted Suit No. 523/54 against Pirbhan Vishram and others for declaration of their title and possession of the said land bearing Survey No. 141, Hissa No, 4 decree for possession of the suit land was passed in plaintiffs' favour. on 16th November 1959 against Pirbhan Vishram. In execution of the decree a warrant of possession was issued but on 15th June 1961 Defendent No. 1 obstructed and refused to hand over possession of the land on the ground that she was in possession in her own right. On 6th July 1961 the plaintiffs took out a chamber summons for removal of obstruction, but Defendant No. 1 contended that she was a bone fide purchaser of the said land under a conveyance dated 27th November 1958 executed in her favour by Batliwala. On 17th July 1961 this Court dismissed the said chamber summons. The plaintiffs have, therefore filed the present suit within one year of the passing of the said order. The plaintiffs have prayed for a declaration of their title and also possession of the suit land from the Defendants. The 2nd defendant has been impleaded as he happens to be the husband of the 1st defendant and has also held himself out to be the owner of the suit land in certain applications, which he has made to the Municipal Corporation.

(3.) APART from raising several defences on merits, including one of adverse possession for more than 12 years. the Defendants have contended that this Court has no jurisdiction to entertain and try the suit, inasmuch as the suit is one for declaration of title and possession of land, the market value of which as stated in the plaint, is Rs. 5,000/- and as such the same ought to have been filed in the Bombay City Civil Court.