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SPECIAL LEAVE PETITION (CIVIL) NO. 19552 OF 2013 Deo Kalya Patil & Ors. …Petitioners Versus Nagindas Shamjibhai Shah Thr. Lrs. & Ors. …Respondents

Non-reportable
IN THE SUPREME COUR OF INDIA
CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 19552 OF 2013
Deo Kalya Patil & Ors. …Petitioners

Versus

Nagindas Shamjibhai Shah Thr. Lrs. & Ors. …Respondents

J U D G M E N T

Chelameswar, J.

1. The petitioners herein are the plaintiffs in suit No .632 of 2010 on
the file of the Special Civil Judge (Senior Division), Thane and the
respondents are the defendants therein. For the sake of convenience they
are referred to in this judgment as they are in the suit. The suit is
filed with the prayers as follow:-
it be declared that the suit lands were agricultural lands on 1.4.1957;

if be declared that the predecessor-in-title – Kalya Padya Patil of the
Plaintiffs was lawfully in possession and cultivating the suit lands on
1.4.1957 as tenant thereof and consequently had become the deemed purchaser
thereof and the Plaintiffs being the heirs of said Kalya Padya Patil are
therefore entitled to the benefits conferred upon him by the provisions of
B.T. & A.L. Act.

It be declared that the Sale transactions that took place after the Tillers
Day i.e. dated 22.3.1960, 21.10.1963 and 30.5.1964 which were recorded in
the Mutation Entry Nos. 357, 466 and 467 respectively, are illegal, bad in
law, void ab-initio and not binding upon the Plaintiffs.

It be declared that the proceedings i.e. Tenancy Case No. 22 of 1964 and 23
of 1964 initiated by the predecessor-in-title of Defendant Nos. 1 to 6 were
not maintainable hence, the orders dated 30.1.1965 passed in the said
proceedings are without jurisdiction, nullity and not binding upon the
Plaintiffs.

It be declared that the Plaintiffs being the heirs of the said Kalya Padya
Patil (since deceased) are entitled to the entire compensation which was
wrongly awarded by the CIDCO to the Defendant Nos. 1 to 6.

It be declared that the Plaintiffs being the heirs of the said Kalya Padya
Patil (since deceased) are entitled to the allotment of land/plots as per
the 12.5% scheme framed by the CIDCO.

The Hon’ble Court may be pleased to issue perpetual injunction to restrain
the Defendant No. 7, its servants, agents, officers, etc. from allotting
lands under 12.5% scheme by it in favour of Defendant No. 1 to 6 or any
person claiming under them.

Pending the hearing and final disposal of this suit and injunction
application, the Hon’ble Court may be pleased to grant an Ad-Interim
Injunctions in terms of clause (g) above.

To award any other relief this Hon’ble Court may deem fit and proper in the
circumstances of the case.

To award the cost of the suit.”
2. Along with the suit, the plaintiffs filed an application for
injunction against the 7th defendant (City and Industrial Development
Corporation) from allotting any land under a scheme said to have been
propounded by the 7th defendant in favour of any one of the defendants or
persons claiming through the defendants. By an order dated 23.12.2010 of
the trial court, the injunction as prayed for was granted. The defendants
appealed to the High Court. The said appeal was disposed of by setting
aside the order of the trial court with a further direction:
“16…..that the original Defendant No. 7 CIDCO is at liberty to scrutinize
the application made by the original Defendant Nos. 1 to 6/Appellants
before me and in the event the CIDCO decides to allot the land under 12.5%
scheme in their favour and issues an Allotment letter, that order and
direction of the CIDCO and all steps in furtherance thereof shall abide by
the outcome of this civil suit, namely, Special Civil Suit No. 632 of
2010.”

along with certain observations, the details of which may not be necessary
for the present purpose.

3. Aggrieved by the same, the plaintiffs preferred the instant SLP.

4. The litigation has a long and checkered history. It is the admitted
case that both the parties claim their respective rights in the suit
scheduled property through a common predecessors in interest Ibrahim
Shahabuddin and Mariamba Mohammed. The plaintiffs claim that their
predecessor in title one Kalya Padya Patil (for short “Kalya Patil”) was
the tenant of the suit scheduled property. The plaintiffs do not describe
what exactly is their relationship with Kalya Patil either in the cause
title or in the body of the plaint (copy of the plaint is placed on the
record of this Court), except saying that they are the “heirs and legal
representatives of Kalya Patil who died on 27.7.1963”.

5. It is the case of the plaintiffs that Kalya Patil’s name is entered
as a protected tenant in the concerned revenue records “the plaintiff
states that in the survey that took place in 1946, the said Kalya Patil
(deceased) was found in possession of following 14 survey numbers forming
part of suit lands…….. Accordingly, his name was mutated in the revenue
records as a protected tenant by effecting Mutation Entry No. 289.”

6. It is also the case of the plaintiffs that the predecessor in
interest of the defendants one Mavjibhai Gohil “had purchased certain lands
along with the suit lands in 1944 from Ibrahim Shahabuddin and Mariamba
Mohammed.”

7. On 30th June, 1964, the suit scheduled property along with other
properties was acquired under the provisions of the Maharashtra Industrial
Development Act.

8. In the year 1977, the plaintiffs filed tenancy application No. 23 of
1979 seeking enquiry under Section 32G of the Bombay Tenancy and
Agricultural Lands Act, 1948 (hereinafter referred to as the “Tenancy
Act”). The said case was dismissed on 11.12.1980. Plaintiffs carried the
matter in Appeal No. 2/1981 unsuccessfully. By an order dated 25.2.1983,
the said appeal was also dismissed. The whole process is described in the
plaint at para 30 as follows:-

“The Plaintiff state that the said case No. 23/79 was dismissed on
11.12.1980 by the Additional Tehsildar. The Plaintiffs, therefore, filed
Tenancy Appeal No. 2 of 1981 before the Sub-Divisional Officer. The Sub-
Divisional Officer dismissed the Appeal on 25.2.1983. The Plaintiffs,
thereafter, filed Tenancy Application No. 202 of 1983 before the
Maharashtra Administrative Tribunal. The Hon’ble Tribunal allowed the
Revision by its order dated 9.12.1985 and set aside the orders dated
11.12.1980 and 25.2.1983 and directed that question of tenancy of the
Plaintiffs be determined from the year 1977. In short the matter was
remanded for fresh enquiry in respect of tenancy rights of the Plaintiffs.”
(Plaint)
9. The order of the Maharashtra Administrative Tribunal dated 9.12.1995
was challenged by the predecessors in interest of the defendants in Writ
Petition No. 3446 of 1986.

“32. The Plaintiffs state that the said Nagindas Shah (deceased), Smt.
Jayalaxmi (deceased) and Rasikabai challenged the said order dated
9.12.1985 by filing Writ Petition No. 3446 of 1986. On 24th August, 2000,
the said petition was disposed of finally by the Hon’ble Mr. Justice T.K.
Chandrashekhar Das. The Plaintiffs file copy of the Judgement and Order
24.8.2000 and shall rely upon the same. The Hon’ble High Court remanded
the matter back to the Tahsildar for fresh enquiry as to decide what was
the character of the suit land on 1.4.57. The Defendants predecessor-in-
title therefore filed Special Leave Petition in the Hon’ble Supreme Court,
which was dismissed.”
10. In view of the Order passed by the High Court on 24th August, 2000,
remanding the matter for fresh enquiry, the Tehsildar by his Order dated
12.8.2002 held that the plaintiffs are the protected tenants of the suit
land as on 1.4.1957. The defendants carried the matter in Appeal No. 163
of 2002 in the Court of the Sub-Divisional Officer, Thane. The said appeal
was allowed on 8.5.2003.

11. Aggrieved by the said appellate order, the plaintiff carried the
matter in revision Application No. 292/B/2003 before the Commissioner,
Konkan Division, Mumbai. Along with the revision, the plaintiffs sought a
stay of the operation of the appeal order dated 8.5.2003 when the interim
order was declined. Plaintiffs preferred a writ petition No. 6116 of
2003 challenging the said order. The High Court, by its order dated
2.12.2003, directed the District Commissioner to consider the said
application on merits while directing the stay of the execution of the
appellate order dated 8.5.2003 in favour of the defendants. The
Commissioner, once again considered the case on merits in obedience to the
order of the High Court, and stayed the order dated 8.5.2004. Challenging
the same, the plaintiff again filed another Writ Petition No. 5652 of 2004.
During the pendency of the said writ petition, on 14.7.2004 the High Court
directed that no land be allotted in favour of the defendants pursuant to
the scheme dated 16.12.1990, referred to supra.

12. On 18.12.2009, the revision No. 292/B/2003 came to be dismissed. As
a consequence, writ petition No. 5652 of 2004 also came to be dismissed
holding that in the background of the above-mentioned intensely contested
facts, writ petition is not an appropriate remedy and granted liberty to
the plaintiffs to file a suit. Hence Suit No. 632 of 2010.

13. In the said suit, the plaintiffs filed an application under Order
XXXIX Rule 1 & 2 CPC with a prayer as follows:
“It is, therefore, prayed pending hearing and disposal of this Suit and
this Application, the Hon’ble Court may be pleased to issue ad-interim ex-
parte injunction against the Defendant No.7, its servant, agents, officers,
etc. from allotting any land under 12.5% scheme to Defendant No.1 to 6 or
any person claiming under them.”
14. By an order dated 23.12.2010, the learned Jt. Civil Judge, S.D.,
Thane allowed the application. The operative portion of the order reads as
follows:
“37) The foregoing facts would make it clear that many more questions have
been raised in the dispute, which require adjudication on its own merits
for which there definitely exists a prima-facie case and the triable
issues.

The question raised by plaintiffs, have its concern with legal rights and
its declaration, for the reasons of which at this juncture, no interference
can jumped at that the wrong, if any, would be capable of being compensated
in money terms. But as the question of legal rights and legal character is
involved in the dispute, the only logical interference prevails at this
juncture that in the event of withholding the relief probability cannot be
ruled out that intermediate damages would be caused to plaintiffs.

Parties are litigating for years together right from the year 1963 onwards
till date. And during crucial period of such litigation, suit property was
ordered to be preserved in status-quo so as to protect the rights and
interests of the rightful persons. Such rights are yet to be finally
decided, for which present suit is claimed to have instituted. This being
the factual position, no interference surfaces in a fashion that granting
the relief would anyway have adverse effect of any sort, especially on
defendants No.1 to 6, who claim themselves to be beneficiaries under the
scheme, particularly when plaintiffs also claim entitlement to the similar
benefit which is claimed by defendants No.1 to 6. And being so, unless and
until legal status and character of the persons competent and entitled to
declaration of rights sought herein, is not so finally declared, any action
on the part of defendant No.7 would amount to unnecessary haste, not at all
warranted in available situation, for the reasons of which balance at this
juncture definitely tilts in plaintiffs favour. As such, the points are
replied accordingly, with order to follow:

ORDER

Application Exh.5 is allowed.

Defendant No.7 is temporarily restrained from making allotment of land
under 12.5% scheme in favour of Defendants No.1 to 6 until disposal of main
suit.”

15. Aggrieved by the same, the defendants carried the matter in appeal to
the High Court of Bombay which came to be allowed by the order impugned
herein. The High Court noticed various proceedings reiterated by the
plaintiffs without success and opined that the Courts below ignored the
said fact while granting the injunction. The relevant portion of the said
order reads as follows:
“14. To my mind, there is a serious issue which needs to be tried as to
whether the status as claimed and the declaration sought can be given in
the facts and circumstances by the Civil Court. As held this issue cannot
be ignored and, equally, maintainability of the proceedings. The
Plaintiffs do not dispute that their predecessor has not been successful in
obtaining that declaration. The last order in the list of dates and
events, namely, that of the Maharashtra Revenue Tribunal dated 8th
December, 2009 records all findings against the original Plaintiffs.

15. When such serious issues were raised with regard to the
maintainability of the proceedings and after checkered litigation, then,
the Trial Court should not have restrained the CIDCO from making allotment
of the land under 12.5% in favour of the Appellants/Original Defendant
Nos.1 to 6 until disposal of the main suit. There is nothing in the
impugned order which would enable me to hold that the original Plaintiffs
have made out a strong prima facie case, that the balance of convenience is
in their favour or that irreparable loss and injury would be caused to them
if merely the CIDCO processes the application of the Defendant Nos.1 to
6/Appellants before me and makes any allotment in their favour.”

16. The plaintiffs in their pleadings of Suit No.632 of 2010 at para 19
have admitted that in the prior proceedings initiated by the predecessors-
in-title of the plaintiffs Deo Kalya, Rama Kalya, Halya Kalya and Smt.
Barkibai Kalya made statements to the effect that their names were wrongly
entered in the revenue records through oversight. The said paragraph reads
as follows:
“In order to deprive the plaintiffs from participating in acquisition
proceedings and claiming proportionate share in the compensation, the
predecessors in title of defendants to 1 to 6 without having locus and
valid title deliberately filed Tenancy Case No.22/64 against Rama Kalya
Patil and four others and 23/64 against Deo Kalya Patil to seek negative
declaration that they were not concerned with the 49 Acres of the suit
lands. In the said proceedings the predecessors in title of Defendants 1
to 6 by taking undue advantage of their poverty and illiteracy managed to
procure depositions of Deo Kalya, Rama Kalya, Halya Kalya and Smt. Barkibai
Kalya on 23.1.1965 against their own interest to the effect that their
names were wrongly entered in the revenue records through oversight. The
Tenancy Awal Karkun without holding any enquiry accepted depositions of the
said persons as it is and deleted their names by his orders dated
30.1.1965. Copies of the depositions are filed herewith and the plaintiffs
shall rely upon the same. The copies of the Orders dated 30.1.1965 are
filed herewith and the plaintiffs shall rely upon the same.”

17. We do not wish to examine the implication of the said statement as
such examination by this Court at this stage is, in our opinion, likely to
adversely effect the rights of the parties in the suit one way or the other
but it is a relevant factor which ought to be kept in mind before granting
an interim order, such as the one passed by the trial Court.

18. Shri Dushyant Dave, learned senior counsel for the plaintiffs
submitted that since the Tenancy Act is meant for protecting the interest
of the tenants, the High Court (by the impugned judgment) ought not to have
interfered with the interim injunction granted by the trial Court.

19. In response, Shri Harish N. Salve, learned senior counsel for the
defendants submitted that the plaintiffs have already parted with their
rights by assigning their rights, title or interest, whatever they assert
in the disputed property, in favour of a third party for a consideration of
an amount of Rs.8,39,14,001/-.

20. In our opinion, the petition such as the one on hand ought to have
been dismissed on the simple ground that it arises out of an interlocutory
order during the pendency of the suit. The legality of such interlocutory
order has already been considered by an appellate Court which is a
constitutional Court. But in matters where the stake is huge, such as the
one on hand, passionate arguments are advanced before this court giving an
impression that something really untoward has happened in the matter
inducing the Court to undertake detailed examination.

21. On a closer examination, we do not find any reason to interfere with
the impugned order. Special Leave Petition is therefore, dismissed.

………………………….J.
(J.
Chelameswar)
……………………..….J.
(A.K. Sikri)
New Delhi;
October 15, 2014
———————–
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