JAIRAJ ESTATE Vs. GEETABAI PUKHRAJ VYAS & ORS

JUDGEMENT

(1.) The original defendant no.3 has preferred this appeal against the order passed by the Civil Judge Senior Division on Application Exhibit 5 in the Special Civil Suit No. 1398 of 2007 restraining the defendant no.1 Municipal Corporation from issuing commencement or completion certificates to the defendant nos.3, 3a to 3d and 6 to 20 or anybody claiming through them based on the issuance of TDR and from accepting revised layout map if any, in respect of the suit property till the final disposal of the suit. The original plaintiff nos.1 and 2 are the respondent nos.1 and 2 before this Court. For the sake of convenience the parties may be referred to as per their original status in the suit.

(2.) Admittedly, the land Survey No.659/15 admeasuring 1 Hector 45 R situated at Bibwewadi, Munjeri and two other lands originally belonged to the Government and they were Inam Lands. One Girdharilal Oza had acquired the rights of Mirashi Tenant (permanent tenant) over the said lands prior to 1953. The Inam was abolished in 1953. However, Girdharilal Oza moved the Government for the purpose of re-grant of the land. Meanwhile, Tulshiram Vyas and one Mohanlal Dharmawat, who is defendant no.5 had entered into some agreement for sale of the said land with Girdharilal Oza. Said Tulshiram and Mohanlal Dharmawat filed the Suit No.116 of 1968 against Girdharilal Oza for the specific performance of the contract of the sale of land. On 10-12-1973 the said parties submitted consent terms, on the basis of which decree was passed in favour of Tulshiram and Mohanlal Dharmawat. As per the Consent Terms and the decree, Girdharilal Oza was to obtain re-grant of the land from the Government within six months failing which Tulshiram Vyas and Mohanlal Dharmawat were to take steps for re-grant and thereafter, the sale deed could be executed in their favour. Admittedly, till before 1999, no steps were taken by any of the parties for the purpose of re-grant of the land. On 6-7-1999 defendant no.8 Mishrilal Oza, who is son of Girdharilal Oza, as a Manager of Oza Joint Family got the land re-granted on new and impartible tenure. It was made clear in the order of re-grant that the said property could be sold to Dharmawat and Vyas families only after obtaining necessary permission from the Government.

(3.) One Pukhraj Vyas was son of Tulshiram Vyas. The plaintiff Geetabai Vyas is a widow of said Pukhraj Vyas and the plaintiff no.2 Santosh Vyas and defendant no.4 Laxmikant Vyas are sons of plaintiff Geetabai and the deceased Pukhraj Vyas. According to the plaintiffs, shortly before filing of the suit in the year 2007, they had come to know that the land was re-granted and attempts have been made to transfer the property to the defendant no.3, who is appellant before this Court by entering into some suspicious and mysterious transactions in conspiracy among all the defendants and the plaintiffs were being deprived of their rights in the suit property. According to them, in view of the consent decree in Suit No.116 of 1968, they are entitled to get sell deed of the land and they are also entitled to seek partition and their share in the said land as co-owners. According to them, their ancestor Tulshiram Vyas and the defendant no.5 Mohanlal Dharmawat had equal shares and, therefore, the plaintiffs are entitled to get half share in the property. For the sake of this appeal, it will not be necessary to give all the minute details about the allegations made in the plaint. Suffice to state that with the said contentions, plaintiffs filed the suit basically for the partition of the said land and for their shares and they also sought declaration that any transfer by the defendant no.4 to 20 in favour of the defendant no.3 was illegal and not binding on them. They also sought declaration and perpetual injunction restraining the defendant no.1 Corporation from sanctioning any plan or map for construction of any building on the said land or on the basis of this TDR, which was or might have been granted by the Corporation in lieu of the said land. Plaintiffs also filed application Exhibit 5 for temporary injunction restraining the defendant nos.1 and 2 from allowing the defendant no.3 to use the said land or the TDR on any building or any other land. They also sought temporary injunction restraining the defendant no.1 from granting commencement certificates and completion certificates of the buildings, which might have been or may be commenced by the defendant no.3 or anybody on behalf of the defendant no.3.