When suit for partition will become barred by limitation?

As far as prayer (b) by which plaintiff seeks declaration that plaintiff is

owner or is entitled to 50% share in right, title and interest in the deceased

father's   property   described   in   the   suit   is   concerned,     Article­58   would   be

applicable to this prayer also.  It is not in dispute that there was a consent award

in respect of the dispute having arisen after demise of father between plaintiff

and defendant No.1 which award was declared on 15th April 1986.  In the said

consent award, dispute between the plaintiff and defendant No.1 in respect of

the property of the deceased father was settled on the terms recorded therein.

Decree in terms of the said award admittedly came to be passed in 1991.  Article

106   of   the   Limitation   Act   provides   for   period   of   12   years   limitation   for   a

distributive   share   of   the   property   of   intestate   against   other   person   illegally

charged with the duty of distributing the estate.  Time begins under Article 106

when the legacy and share becomes payable or deliverable.  Under Article 110 of

schedule­I of the Limitation Act, suit has to be filed within 12 years by a person

excluded   from   joint   family   property   to   enforce   a   right   therein   which   time

commences when the exclusion becomes known to the plaintiff.  Even if it is the

case of the plaintiff that he was deprived of property of the deceased father by

first defendant is concerned,   Article­106 of schedule­I to the Limitation Act

would be attracted.   Consent award was declared on 15th April 1986.  Decree in

terms of consent award was passed in 1991 whereas suit is filed on 6th  April

2011.  Prayer (b) thus in my view is on the face of it barred by law of limitation.  

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

 ORDINARY ORIGINAL CIVIL JURISDICTION 

SUIT NO. 808 OF 2011

Naresh Lachmandas Aswani  

V

 Haridas alias Hardas Lachmandas

  

     CORAM : R.D. DHANUKA, J.

   

    Dated: 18th OCTOBER, 2013

Citation: 2016 (4) ALLMR 286

By an order dated 26th  July, 2012 passed by this court, two issues

were framed under section 9A of the Code of Civil Procedure, 1908 in Notice of

Motion NO. 1157 of 2011.  In view of the issues framed under section  9A of the

Code of Civil Procedure, 1908 to be tried as jurisdictional issue, both parties were

given opportunity to lead oral evidence on the jurisdictional issues framed by this

court. Learned counsel have addressed on those issues which are answered by

this court in the later part of the judgment. 

2. Plaintiff is the brother of defendant no.1.  defendant Nos.2 and 3 are

the companies incorporated under the provisions of the Companies Act, 1956.

According to the plaintiff, defendant nos. 2 and 3 have been impleaded as party

defendants as they were unlawfully claiming their purported respective rights

and/or claims in the suit property consisting of  immoveable property situated in

Mumbai and described in Ex.A to A­2 of the plaint.  

3. The plaintiff and the 1st defendants are the sons of Mr. Lachmandas

S.Aswani who died intestate at  Mumbai on 18th October, 1985 leaving behind

him the plaintiff and defendant no.1, wife of the said deceased and three married

daughters.  According to the plaintiff, the suit property was the property of the

said deceased Mr. Lachmandas at the time of his death on 18th October, 1985 and

the same then devolved upon his legal heirs including plaintiff and defendant

no.1.  Dispute arose between the legal heirs after demise of the said deceased in

respect of the suit property which dispute was referred to arbitration.  On 15th

April, 1986 the learned arbitrator made a consent award which award was filed

in this court on 9th September, 1991 and consent decree was passed in terms of

the said consent award.

4. It is the case of the plaintiff that till 1962, one Mr.Joseph Henry

Pereira was the owner of the suit property which devolved upon his son Mr.Noel

Richard Pereira upon the death of the said Mr.Joseph Henry Pereira in the year

1962.  In the month of November 1963, the said Mr.Noel Pereira granted three

plots of land forming the suit property together with the structures standing

thereon   by   executing   three   lease   deeds   all   dated   27th  November,   1963   to

Mr.Lachmandas S.Aswani for 98 years.

                                                        

5. It is the case of the plaintiff that in the year 2004, the plaintiff saw a

board of Dheeraj Constructions put up on the suit property.  It is the case of the

plaintiff that the said leases were not terminated by any of the parties and were

subsisting and in force and were binding upon the defendants.  It is the case of

the plaintiff that in the month of September, 2004, plaintiff learnt that the name

of his father was not to be found recorded in the property card pertaining to the

suit property and the name of one Mr.Yusuf Ahmed was recorded as the owner in

the   property  card  in  respect  of   the  suit   property.     Plaintiff   thereafter   made

enquiries with the office of the Sub­Registrar of assurances by writing letters,

sending notices in the year 2004 and 2005 and obtained copies of some of the

documents executed between Mr.Noel Pereira and Mr.Yusuf Ahmed in respect of

the suit property.

6. The plaintiff  thereafter made an application  to enter  his name as

lessee in the property card which request was refused by the City Survey Office.

Plaintiff filed an appeal before the Superintendent of Land Records being Appeal

(58   of   2007).     Superintendent   of   Land   Records     entered   the   name   of   the

deceased as lessee of the suit property.  Copy of the said order was received by

the plaintiff on 31st May, 2008.  Defendant no.3 filed appeal (264 of 2009) before

the Superintendent of Land Records and impugned the order dated 31st  May,

2008.   Defendant no.3 relied upon a Deed of Conveyance dated 17th  January,

2007 executed by Mr.Yusuf Ahmed in favour of defendant no.3 conveying the

reversionary  rights of the said deceased  Mr.Lachmandas S.Aswani in favour of

defendant no.3.  The defendant no.3 succeeded in Appeal (264 of 2009) and got

its name entered in the property card on 8th December, 2009.  Order dated 31st

May, 2008 passed by the City Survey Office came to be set aside.  Appeal filed by

the plaintiff against the order of Superintendent of Land Records came to be

dismissed by the Deputy Director of Land Records.  Plaintiff challenged the said

order by filing revision application before the learned Revenue Minister.

7. In the year 2007, plaintiff filed three suits bearing nos 362, 363 and

364 of 2007 in Bombay City Civil Court at Dindoshi for cancellation of Letter of

Intent dated 12th October, 2003 issued by the Secretary, Slum Rehabilitation and

Development Authority (hereinafter referred to as 'SRA') for a direction to the

Additional Collector, Mumbai and for order and direction that Mr.Neol Pereira,

Mr.Yusuf   Ahmed,   M/s.Housing   Development   and   Improvement   Pvt.   Ltd.   be

directed to remove themselves from the suit property.  All these suits are pending

before the Bombay City Civil Court.

8.  It is the case of the plaintiff that in the month of December, 2009,

plaintiff came to know that in the month of July 2006 defendant no.2 had filed a

suit being suit no. 2000 of 2006 against defendant no.3 herein in this court.  In

the month of January, 2010, plaintiff took out Chamber Summons (61 of 2010)

in the said suit for his impleadment.

9. It is the case of the plaintiff that the plaintiff is entitled to ½ share in

the right, title and interest of the deceased  Mr.Lachmandas S.Aswani in the suit

property and is joint owner of the suit property with defendant no.1.  On 10th

March, 2011, plaintiff filed this suit interalia praying for a declaration that leases

granted under three lease deeds are in force subsisting and binding upon the

defendants   and   for   a   declaration   that   the   plaintiff   is   the   owner   of   and   is

otherwise entitled to one half share in the right, title and interest of the said

deceased in the suit property and is entitled to partition of the said property by

metes   and   bounds   and   to   be   put   in   separate   possession,   for   an   order   that

defendant no.1 to render true and correct accounts of his acts and actions in

respect of the suit property.  Plaintiff also seeks an order and direction against

defendants  to  deliver  up the  Deed of  Assignment  dated  28th  January, 2005,

Conveyance Deed dated 27th  January, 1992 executed by and between Mr.Noel

Pereira and Mr.Yusuf Ahmed and Conveyance Deed dated 27th  January,2007

executed by and between Mr.Yusuf Ahmed and defendant no.3 to this court and

also   cancellation   of   those   documents   for   an   order   and   direction   against

defendant nos.2 and 3 to handover peaceful and vacant possession of the suit

property.  

10. Defendant no.2 has filed written statement in the said suit.  defendant

no.3 filed a Notice of Motion (1157 of 2011) in this suit for deciding the issue of

bar of inherent jurisdiction of this court under section 42 of the Maharashtra

Slum Area ( Improvement, Clearance and Redevelopment) Act, 1971 as also

issue of limitation as jurisdictional issues under section 9A of the Code of Civil

Procedure.  By an order dated 26th July, 2012 this court framed following issues

which are answered in this order and judgment :­

Sr.No. ISSUES  FINDING

1 Whether   inherent   jurisdiction   of   this   court   is

barred   under   section   42   of   Maharashtra   Slum

Area   (Improvement,   Clearance   and

Redevelopment) Act, 1971 ?

As per Order

2 Whether the suit is barred by law

of limitation ?

As per Order

11. The plaintiff through his learned counsel stated that the oral evidence

was required in the matter.  This court accordingly directed the plaintiff to file

affidavit in examination in chief with regard to the said two issues and also to file

affidavit of documents if any required.

12. Pursuant to the said order passed by this court, plaintiff filed affidavit

in   lieu   of   examination   in   chief   dated   19th  November,   2012   and   also   filed

additional affidavit dated 1st July, 2013 alongwith four documents.  By an order

dated   26th  July,   2013   passed   by   this   court,   this   court   marked   those   three

documents as exhibits subject to the proof of contents with the clarification that

the defendants would be entitled to cross examine the witness to disprove the

contents thereof and marked one document as exhibit subject to the proof of

contents.  The witness Mrs.Jyotika Aswani is wife of the plaintiff and had claimed

to be constituted attorney of the plaintiff.  The said witness was cross examined

by   the   learned   senior   counsel   appearing   for   the   defendant   no.3.     Other

defendants did not appear at the time of recording evidence or at the stage of

arguments.  Defendant no.3 did not examine any witness and made a statement

that it did not propose to examine any witness.

Submissions of Mr.Patwardhan, learned counsel for the plaintiff :­

13. It is submitted that under section 9A of the Code of Civil Procedure,

1908, court has authority to frame issue of jurisdiction only.  It is submitted that

issue of limitation raised by the third defendant is not a jurisdictional issue and

cannot be framed under section 9A and thus cannot be tried as preliminary issue.

It is submitted that issue of jurisdiction has to be decided on the basis of the

averments made in the plaint.  All disputes of civil nature are to be heard by Civil

Court.  It is submitted that in the plaint of this proceedings, there is no reference

to any scheme framed by Slum Redevelopment Authority (SRA).   Suit is for

declaration that   lease deeds being in force and subsisting and for declaration of

ownership of the right, title and interest of the plaintiff in the suit property.  It is

submitted that suit is for partition and share of the plaintiff in those properties

which rights cannot be whittled away by SRA.  

14. Mr.Patwardhan   submits   that   under   the   provisions   of   Maharashtra

Slum Area ( Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter

referred to as the 'Slum Act') issue regarding partition and share in the property

of the deceased father of plaintiff and defendant no.1 cannot be decided by

authority or tribunal under section 42 of the Slum Act.  It is submitted that the

authority and tribunal has no jurisdiction to decide such partition dispute. Such

reliefs can be granted only by a civil court and not by authority and/or tribunal

and only this court has jurisdiction to entertain, try and dispose of the present

suit filed by the plaintiff.  

15. On issue of limitation raised by the third defendant, it is submitted by

Mr.Patwardhan, learned counsel appearing for the plaintiff that defendant no.3

has made positive assertion in affidavit in support of Notice of Motion that claims

made by the plaintiff are  barred by law of limitation.  Defendant no.3 thus was

bound to lead oral evidence to prove such positive assertion made in the affidavit

in support of Notice of Motion.  Since no oral evidence is laid by defendant no.3,

this court shall draw adverse inference against the third defendant and shall

reject the plea of limitation raised by the defendants.  It is submitted that this

court has recorded that oral evidence will have to be laid which order  has not

been challenged by the third defendant.  Third defendant has to prove its case on

its own merit and cannot rely upon the evidence of the witness examined by the

plaintiff.  defendant no.3 could lead oral evidence after closer of evidence of the

plaintiff.  Since no evidence has been laid by the 3rd defendant, issue of limitation

framed by this court has to be answered in favour of the plaintiff. 

16. In support of his submission that adverse inference has to be drawn,

Mr.Patwardhan, learned counsel placed reliance on the judgment of the Supreme

Court in case of  Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others

reported in AIR 1968 SC 1413.  Paragraph (5) of the said judgment reads thus :­

5. On behalf of the appellant reference was made to the

Area Book, Ex. 66 of the year 1890. The entry shows the name of

Laxmibai widow of Govind Gopal Ketkar under the heading" "

(name of the person). Exhibit 67 is the entry from the Phalani

Book for the year 1897 and shows the land as "Kilvacha Dongar"

and   under   the   column   "blekps   ukao"   is   shown   the   name   of

Laxmibai widow of Govind Gopal. Exhibit 68 is of the same year

from, the revision Phalani containing similar entry with the map

attached.   In   Exhibit   70   the   name   of   Laxmibai   is   shown   as

"Khatedar" for the year 1906. In the remarks column there is an

entry "one built well, one pakka built masjid, one Dargah, one

tomb. Exhibit 71 is an entry for the year 1915 from Akar Phod

Patrak and in the column of "Kabiedar the name of Rukminibai

Hari appears with regard to plot 134. Thereafter, in the record of

rights for the year 1913) Ex. 76, the name of the predecessor of the

appellant is shown. On the basis of these entries it was submitted

by   Mr.   Gokhale   that   the   ownership   of   the   plot   was   with   the

appellant   and   not   with   the   Dargah.   But   shore   are   important

circumstances in this case which indicate that the appellant is not

the   owner   of   Survey   plot   No.   134.   Exhibits   64   and   65   are

significant in this connection. Exhibit 64 is an entry from the "Sud"

in Marathi for the year 1858 in connection with Survey plot No.

134 (Revisional Survey Number). The original Survey number of

this plot was 24 and it was known as "Kilyacha Dongar". The total

area is shown to be 249 acres and 24 Gunthas. It is shown as

'Khalsa' land. Kharaba is shown as 89 acres 24 Gunthas and the

balance of the area is shown as 160 acres. In the last column the

name   of   the   cultivator   is   not   mentioned   but   it   is   shown   as

"Khapachi". It is significant that the name of the Ketkar family is

absent from this record. No convincing reason was furnished on

behalf of the appellant to show why his name was not entered in

the "Sud". It is also important to notice that the appellant has

furnished   no   documentary   evidence   to   show   how   his   family

acquired title to the land from the earliest time; there is no sanad

or grant produced by the appellant to show that he had acquired

title to the land. It further appears that the appellant's family did

not assert any title to the land at the time of the survey made in

1858; otherwise there is no reason why its name was not entered

in the "Sud" of the year 1858. It is true that there are a number of

entries subsequent to the years 1890 and 1897 in which the Ketkar

family is shown as the "Khatedar" or the occupant but these entries

are not of much significance since the Ketkar family was in the

fiduciary position of a Manager of the Dargah and was lawfully in

possession of Survey plot No. 134 in that capacity. There is also

another important circumstance that the appellant has no lands of

his own near plot No. 134 and the nearest lands he owns are in

Bandhanwadi which are admittedly 3 1/2 to 4 miles away from

the top of the hill. There is also the important admission made by

the appellant in the course of his evidence that there are 2 or 3

tombs behind the Musaferkhana. He stated further that "there is no

cemetery or burial ground in Survey No. 134". But this evidence is

in direct conflict with the statement of the appellant in the previous

case that "Round about the Dargah many people die every year....

Anyone that died there, whether Hindu, Muslim or Parsee if he has

no heirs is buried there." He also conceded that there is one public

tank known as "Chasmyachi Vihir" near the Dargah and there are

5 wells near the Dargah and five boundary 'Arenas' about one mile

from the Dargah. Lastly, reference should be made to the important

circumstance that the appellant has not produced the account of

the Dargah  income In the course  of his  evidence  the appellant

admitted that he was enjoying the income of plot No. 134 but he

did not produce any accounts to substantiate his contention. He

also admitted that "he had got record of the Dargah income and

that   account   was   kept   separately".   But   the   appellant   has   not

produced either his own accounts or the account of the Dargah to

show as to how the income from plot No. 134 was dealt with. Mr.

Gokhale, however, argued that it was no part of the appellant's

duty to produce the accounts unless he was called upon to do so

and the onus we upon the respondents to prove the case and to

show that the Dargah was the owner of plot No. 134. We are

unable to accept this argument as correct. Even if the burden of

proof does not lie on a party the Court may draw an adverse

inference if he withholds important documents in his possession

which   can   throw   light   on   the   facts  at   issue.   It   is  not,   in  our

opinion, a sound practice for those desiring to rely upon a certain

state of facts to withhold from the Court the best evidence which is

in  their possession  which  could  throw  light  upon the  issues  in

controversy and to rely upon the abstract doctrine of onus of proof.

In   Murugesam   Pillai   v.   Gnana   Sambandha   Pandara

Sannadhi, :MANU/PR/0053/1916  : AIR 1917 PC 6at p. 8 Lord

Shaw observed as follows:

A practice has grown up in Indian procedure of those in possession

of important documents or information lying by, trusting to the

abstract doctrine of he onus of proof, and failing, accordingly, to

furnish to the Courts the best material for its decision With regard

to   third   parties,   this   may   be   right   enough   ­   they   have   no

responsibility for the conduct of the suit but with regard to the

parties thee suit it is, in their Lordships' opinion, an inversion of

sound practice for those desiring to rely upon a certain state of

facts  to  withhold   from   the   Court   the   written  evidence   in  their

possession which would throw light upon the proposition.

This passage was cited with approval by this Court in a recent

decision ­ Biltu Ram v. Jainandan Prasad. Civil Appeal No. 941 of

1965 D/­ 15­4­1968 (SC). In that case, reliance was placed on

behalf   of   the   defendants   upon   the   following   passage   from   the

decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj

Ranjit Singh, at p. 206 : at p. 98:

But   it   is   open   to   a   litigant   to   refrain   from   producing   any

documents   that   he   considers   irrelevant,   if   the   other   litigant   is

dissatisfied it is for him to apply for an affidavit of documents and

he can obtain inspection and production of all that appears to him

in such affidavit to be relevant and proper. If he fail, so to do,

neither he nor the Court at his suggestion is entitled to draw any

inference as to the contents of any such documents.

17. Mr. Patwardhan, placed reliance on the judgment of this court in case

of Laxmibai Rauji since deceased and others vs. Khimji Palan, since deceased

by his heirs and others reported in (2000) Vol. 102(3) Bom.LR 596 in support

of his submission that the plaintiff cannot take advantage of the doctrine of onus

of proof and in support of his submission that the defendant no.3 cannot take

advantage of doctrine of onus of proof and would have to prove the issue of

limitation raised by the third defendant independently.  Paragraph 10 of the said

judgment reads thus :­

10. There   cannot   be   any   quarrel   about   the   legal

proposition canvassed by the learned counsel for the petitioners

that the best available evidence should be placed before the Court.

It is the contention of the learned counsel for the petitioners that

though the petitioners have discharged their initial burden that

the shop premises were closed from road­side and were not in use,

the onus should shift to the defendant­tenant to show that the

shop was actually in use. The principle of burden of proof is based

on the rule i.e. incumbent probation qui dicit, non qui negate to

mean that the burden of proving a fact rests on the party who

substantially asserts the affirmative of the issue and not upon the

party who denies it; for a negative is usually incapable of proof.

In the present case, the plaintiffs came out with a specific pleading

that   on   termination   of   the   ration   shop,   the   defendant­tenant

closed the shop from front but used it for an illegal purpose i.e.

for running a matka den. Unfortunately, the plaintiffs could not

lead any evidence to show that the defendant­tenant was using

the premises for illegal purpose as pleaded. The defendant­tenant

has not only denied this fact but has in terms led evidence to show

that he was running his business. It has further come on record

that the defendant­tenant found that the ration shop was not

profitable   and   he   was  not   successful   in  carrying  on   with   the

grocery business and so he has changed his business to selling of

medicine drugs in retail. To the action brought by the plaintifflandlords

that they are entitled to seek eviction of the defendanttenant

as contemplated under Section  13(1)(k)  of the Bombay

Rent Act, the plaintiffs ought to have discharged their burden as it

is a settled principle of the Law of Evidence that if no evidence is

given by the party on whom the burden is cast, the issue must be

found against him. The facts and circumstances placed on record

by   the   defendant­tenant   clearly   indicate   that   he   has   been

successful   in   rebutting   the   prima   facie   case   made   out   by   the

plaintiffs. Further on the principle enunciated in Section  114(g)

of the Evidence Act, it can be said that the plaintiff cannot take

advantage of the doctrine of onus of proof as it is a settled law

that the plaintiff should stand on his own legs and merely because

the defendant is unable to produce certain documents for which

he has given a plausible explanation and even if this explanation

is not accepted, still it does not dislodge the defendant­tenant as

he has otherwise produced sufficient documents of the period in

question to show that he was doing business in the premises and

the premises were in use for the said purpose.

18. Mr.Patwardhan also placed reliance on the judgment of this court in

case of Niwas Builders vs. Chanchalben Gandhi reported in (2003) 3 Mh.L.J.

312 in support of his submission that the third defendant is bound by its own

pleadings and must fail or succeed on its own pleadings.

19. Mr.Patwardhan placed reliance on the judgment of the Supreme Court

in case of the Rangammal vs. Kuppuswami and another reported in AIR 2011

SC 2344 in support of his submission that if order or proof is misplaced by the

court, judgment of the Court is vitiated.

20. Mr.Patwardhan, learned counsel placed reliance on the judgment of

the   Supreme   Court   in   case   of   the  Alka   Gupta   vs.Narendra   Kumar   Gupta

reported in (2010) 10 SCC 141 in support of his submission that a civil suit has

to   be   decided   after   framing   issues   and   trial   permitting   the   parties   to   lead

evidence on the issues, except in cases where the Code or any other law makes

an exception or provides any exemption.  It is submitted that there are no shortcuts

in the trial of suits, unless they are provided by law. The defendants not

having laid evidence on the issue of jurisdiction, defendants have not discharged

the burden of proof which ought to have discharged by the defendants.

21. Mr.Patwardhan placed reliance on the judgment of this court in case

of Quari Mohammed Zakir Hussain and others vs. Municipal Corporation of

Greater Mumbai and others reported in 2002(2) Bom.C.R. 98 in support of his

submission that a Civil suit can always be maintained to question the order of a

Tribunal created by a statute, even if its order is, expressly or by necessary

implication, made final, if the said Tribunal abuses its power or does not act

under the Act or in violation of its provisions.  It is submitted that this suit is not

barred.   This court has jurisdiction to entertain, try and dispose of the suit.

Reliance is placed on paragraphs 16 and 17 of the said judgment which reads

thus :­

16.  It is well settled that exclusion of the jurisdiction of the Civil Court is not

to be readily inferred but such exclusion must either be explicitly expressed or clearly

implied. It is also well settled that even if the jurisdiction it so excluded the Civil Courts

have jurisdiction is examine into the issues where the provisions of the Act have not

been  complied   with,   or  statutory   Tribunal   has  not   acted   in  conformity   with   the

fundamental judicial procedure. On the other hand, a suit in a Civil Court can always

be maintained to question the order of a Tribunal created by a statute, even if its order

is, expressly or by necessary implication, made final, if the said Tribunal abuses its

power or does not act under the Act but in violation of its provisions. In other words, if

the suit proceeds on the premises that the offending act has been done not in good

faith, then there is no bar for such a suit. This legal position is enunciated in catena of

decisions including MANU/PR/0022/1940, State of Kerala v. N. Ramaswamy Iyer &

Sons,   MANU/SC/0220/1966  :   [1966]61ITR187(SC)   ,   Firm   Seth   Radhakishan

(deceased)   represented   by   Harikishan   v.  Administrative   Municipal   Committee,

Ludhiana, MANU/SC/0187/1963  : [1964]2SCR273 , as well as decision of Kerala

High   Court   in   Secretary,   K.S.E.B.,   Trivandrum   v.  M.   Sainaba,

MANU/KE/0009/1990 : AIR1990Ker50 .

17. Understood thus, what is to be seen is whether the allegations in the

plaint are of such nature that the plaintiff complaints that the offending action is mala

fide and in transgression of the authority. If such are the allegations, then the suit

would obviously not be barred in terms of the bar of jurisdiction provided for under

section 42 of the Act 1971 for, such a suit would be outside the purview of the said

provision because the offending act is alleged to have been committed not in good faith

or intended to be done under the said Act, but for extraneous reasons.

22. Mr.Patwardhan also placed reliance on the judgment passed by High

Power Committee in  Application No.506 of 2011 filed by Starlight Hospitality

Pvt.  Ltd.  and   another   vs.  the  plaintiff   herein,   authority   under   Slums   Act,

defendant no.1 and defendant no.3.  It is submitted that in the said proceedings,

scheme under Slums Act is in question.  

23. In so far as issue of limitation raised by the defendant no.3, learned

counsel for the plaintiff submits that Article 65 would be applicable in the facts of

this case.   It is submitted that according to Article  65 of Schedule I of the

Limitation Act, period of limitation is 12 years from the date when the possession

of the defendants becomes adverse to the plaintiff.  It is submitted that the cause

of action for filing a suit for possession of immoveable property or any interest

therein   based   on   title   would   commence   when   the   plaintiffs   acquire   the

knowledge of any threat of dispossession.  defendant no.1 was given power to

adopt testamentary proceedings.  Only in the year 2004, plaintiff saw the board

of Dheeraj Constructions on the plot in question.  Cause of action thus arose in

the year 2004 when there was a threat  of his right in the property, plaintiff was

not party to any alleged transfer between the original owner and defendant no.3.

24. Mr.Patwardhan placed reliance on the affidavit in lieu of examination

in chief and also additional affidavit.  It is submitted that it has been deposed by

the witness examined by the plaintiff that only in and around in or about 2004,

that the board of Dheeraj Construction was seen to have been put up in the suit

property by some third party not known to the plaintiff.  It has been deposed that

only in the month of December, 2009, plaintiff came to know for the first time

about suit no. 2000 of 2006.  It is submitted that only in the month of December

2009, plaintiff become aware for the first time of the claim or rights and/or

possession of the suit property made by the third defendant being adverse to the

rights of the plaintiff herein.  It is submitted that suit thus filed on 10th January,

2011 is within time and not barred by law of limitation. 

25.  Mr Patwardhan, learned counsel submits that there were no questions

put to the witness examined by the plaintiff that plaintiff had knowledge of the

board in the name of defendant No.3 prior to 2004.   Plaintiff was not party to

any of the documents.  This Court has jurisdiction to entertain and decide each

and every prayer of the plaint.  

26. Mr   Subramanian,   learned   senior   counsel   appearing   on   behalf   of

defendant No.3 on the other hand, invited my attention to the prayers (a) to (h)

of   the   plaint   and   submits   that   if   prayer   (g)   and   (h)   are   barred   by   law   of

limitation, prayer (i) cannot be granted.   Possession was not handed over under

the lease.  There was a deed of conveyance duly registered and entered into in

the   year   1992   which   would   be   a   deemed   notice   to   the   plaintiff   for   filing

appropriate  proceedings challenging the  transaction.   On 27th  January 1997,

conveyance was registered which would be also a deemed notice to the plaintiff.

Reliance is placed on Art.58 of Schedule­I of the Limitation Act in support of the

submission that prayers for declaration would be governed by Art.58.  Period of

limitation of three years would commence when right to sue first accrues.  It is

stated that in the year 1984, father of the plaintiff and first defendant expired.

Right to obtain partition accrued in the year 1984.  Plaintiff has claimed share on

the basis of inheritance on the death of father.  Consent award was made on 15th

April 1986.   Dispute had already arisen in the year 1985 between the family

members of the deceased father of plaintiff and defendant No.1.  On the basis of

consent award dated 15th  April 1986, decree was passed in terms of consent

arbitral award.  It is submitted that in view of the decree passed by this Court in

terms of the award, second suit for partition would not lie.   Learned senior

counsel submits that in any event, decree also would become time barred in the

year 2003.  It is submitted that prayer for declaration thus become time barred

on the basis of documents referred in and annexed to the plaint.   It is submitted

that there is no explanation given by the plaintiff in the plaint on the issue of

limitation.  Even if date of knowledge is considered as 2004 and copies of the

relevant documents are obtained by the plaintiff in the year 2005, three years

expired   in   2007­08.     Learned   senior   counsel   placed   reliance   on   Art.59   of

Schedule­I to the Limitation Act in support of his submission that for cancellation

or setting aside an instrument or decree, period of limitation would be three

years which time would begin to run when the facts entitling the plaintiff to have

decree or instrument cancelled or set aside or the contract rescinded first became

known to him.   It is submitted that suit is thus barred even under Art.59 of

Schedule­I of the Limitation Act 1963.       Learned senior counsel submits that

even according to the plaintiff, in September 2004, knowledge was derived of the

transaction by Yusuf Ahmed.  Three years expired in the year 2007­08.  Prayers

(a)   and   (b)   which   are   for   declaration   are  ex­facie,   thus   barred   by   law   of

limitation.   

27. Learned senior counsel submits that in the arbitral award which is

based on consent of parties, title to property has been given up by the plaintiff.

Under Art.106 of Schedule­I to the Limitation Act, twelve years time is prescribed

for claiming a share in the legacy or for a share of residue bequeathed by a

testator or for a distributive share of the property of an intestate against an

executor or an administrator or some other other person legally charged with the

duty of distributing the estate, which period would begun when the legacy or

share   becomes   payable   or   deliverable.     It   is   submitted   that   the   period   of

limitation would  began in the year 1991 when the decree was passed in terms of

the award.   Even this prayer for distribution of legacy would be thus  ex­facie

barred in view of Art.106 of the Limitation Act.  Reliance is placed on Art.110 of

Schedule­I of Limitation Act which provides for twelve years of limitation for

filing a suit by a person excluded from a joint family property to enforce a right

to share therein which period would begin when the exclusion becomes known

the plaintiff.    Learned senior counsel thus, submits that limitation under Art.110

commenced when decree in terms of award was passed in the year 1991.  Even

according to plaintiff, share of the plaintiff was excluded in the arbitral award.

Learned senior counsel submits that once time begins to run to institute a suit, it

does not stop.    Reliance is placed on Section 9 of the Limitation Act.  

28. It is submitted  by the learned senior counsel that possession was not

given to the father of the plaintiff and defendant No.1 under the lease dated 27th

November 1963.  No steps were taken by the father of the plaintiff and the first

defendant to obtain possession during his life time.   

29. My attention is invited to para 7 of affidavit of Mrs Jyotika Naresh

Aswani, wife of the plaintiff who was examined as a witness and who claimed to

be Constituted Attorney of the plaintiff.   It is submitted that in para 7 of the

affidavit, reliance is placed by the plaintiff on Art.65 of Schedule­I to Limitation

Act 1963.   The only evidence laid by the plaintiff on the issue of limitation is

what is deposed in para 7 of the said affidavit which states that only in or about

2004, the board of one Dheeraj Builders was seen to have been put up on the suit

property by some third parties not known to the plaintiff.  It is stated that in or

about December 2009, plaintiff came to know for the first time about the Suit

No.2000 of 2006 filed by defendant No.2 against defendant No.3 in this Court

claiming rights and possession of the suit property.   Plaintiff took out chamber

summons for amendment in the said suit in the month of January 2010. It is

stated in the affidavit that only in the month of December 2009, plaintiff became

aware of the claims of the defendants made in respect of the suit property being

adverse to the rights of the plaintiff.  

30. Learned senior counsel invited my attention to the cross examination

of the witness examined by the plaintiff in support of the submission that plaintiff

could not discharge the initial burden to prove that claim was within time and

not barred by law of limitation. 

31.  On the issue of limitation, Mr Subramanian, learned senior counsel

placed reliance on the Judgment of Division Bench   of this Court in case of

Royal   Palms   (India)   Pvt.   Ltd.   &   Ors.   Vs.   Bharat   Shatilal   Shah   &   Ors.

Reported in 2009(2) Bom.C.R. 622 in support of his submission that issue of

limitation is issue of jurisdiction  and has to be tried as preliminary issue under

Section 9­A of the Code of Civil Procedure.  Reliance is placed on para 4 of the

said Judgment.  

32. Mr Subramanian also placed reliance on the Judgment of this Court in

case of  Chhabubhai Balkrishna Sutar & Anr. Vs. Panchan Ladha Savala &

Ors. Reported in 2010 (112)(6) Bom. L.R. 2780  in support of his plea and

more particularly on para 15 to 20, 23 and 24 of the said Judgment in support of

his submission that suit filed by the plaintiff is barred by law of limitation.  

33.  Mr   Subramanian,   learned   senior   counsel   placed   reliance   on   the

Judgment of this Court delivered on 14th February 2012 in case of ITC Ltd. &

Ors. Vs. Shri Sukhkarta Finance & Leasing Pvt. Ltd. in Suit No.764 of 2002

and in particular para 32 in support of his submission that plaintiff has to prove

that the suit is filed within time.  It is submitted that plaintiff did not discharge

the onus that suit was within time.  It was not necessary for the third defendant

to lead any oral evidence to prove that suit was not within time.   No adverse

inference thus, can be drawn by the Court against the third defendant for not

leading oral evidence.   

34.  Mr   Subramanian   placed   reliance   on   the   Judgment   of   this   Court

(R.D.Dhanuka, J.) delivered on 8th January 2013 in case of Zee Entertainment

Enterprises Ltd. Vs. Klassic Studios & Films Pvt. Ltd., and in particular paras 20

and 22 in support of his submission that if a party who has been examined has

admitted the correctness of the claims of other side, in cross examination, other

side is not required to lead any oral evidence to prove his claim.   Reliance is

placed on para 20 and 22 of the said Judgment.    

35.  On the issue of jurisdiction of this Court to entertain the claims made

in   this   suit   or   not,   relying   on   Section   42   of   Maharashtra   Slum   Areas

(Improvement, Clearance  & Redevelopment) Act, 1971, learned senior counsel

submits that this Court cannot grant any injunction against the defendant from

implementing the slum scheme.  It is submitted that plaintiff has not challenged

the notice issued by the Slum Authority as well as notification in the present suit.

Prayer (d) is for partition.  No such relief can be granted in view of Section 42 of

the Slum Act and will be hit by the said section.   Even appointment of Court

Receiver will be hit by Section 42.  Learned senior counsel placed reliance on the

Judgment of Division Bench of this Court delivered on 23rd  December 2011 in

Appeal (L) No. 797 in case of Housing Development & Improvement India Pvt.

Ltd. Vs. Narendra L. Aswani & Ors. And in particular para 4 and 5 in support of

his   submission   that     Section   42   specifically   prohibits   the   Civil   Courts   from

exercising any jurisdiction  in respect of any matter which the administrator,

Competent Authority or Tribunal is empowered by or under the said Act, to

determine; no injunction can be granted by any Court or other authority in

respect of any action taken or to be taken in pursuance of any power conferred

by or under the said Act.    Learned senior counsel also placed reliance on an

unreported Judgment of this Court dated 5th April 2011 in Notice of Motion in

Suit (L) No.813 of 2011 in case of  Lokhandwala Infrastructure Pvt. Ltd. Vs.

Dhobighat Compound Rahiwasi Seva Sangh and Ors. and in particular paras 8

& 9 in support of his submission that this Court has no jurisdiction to entertain

the suit in view of Section 42 of the Slum Act in view of the implementation of

slum scheme on the suit plot.  It is submitted that the said judgment of learned

single Judge delivered on 5th  April 2011 is upheld by the Division Bench of this

Court and also Supreme Court.  

36.  In his concluding argument, learned senior counsel submits as far as

prayers (a), (b) and (c ) are concerned, those prayers were given up by the

plaintiff  in the consent award and cannot be reagitated.  Even otherwise those

claims are time barred.       In respect of prayer (d) which is for partition, it is

submitted that the said prayer is by way of execution of part of award which is

also barred by law of limitation in view of the decree in terms of the said award

having been passed in the year 1991.   Reliance is placed on the Judgment of

Supreme Court reported in  (2001) 7 Supreme Court Cases 573 in case of

Hameed Joharan (dead) & Ors. Vs. Abdul Salam (dead)  By Lrs. And Ors.  in

support   of   his   submission   that   for   execution   of   decree,   limitation   would

commence from the date of decree.  Para 11 of the said Judgment is relied upon.

It is submitted that prayer (d) is also hit by Section 42 of the Slums Act.  It is

submitted that as far as prayer (e) and (f) are concerned, no action had been

taken by the plaintiff.  In any even, the said prayers are also barred by law of

limitation.  As far as prayer (g) and (h) are concerned, it is submitted that those

prayers are hit by Art.58 of schedule­I of Limitation Act.   Prayer (i) is hit by

Section 42 of the Slum Act and is also barred by limitation.  It is submitted that

since 1992, predecessor in title of defendant No.3 came in possession of the suit

property.   Cause of action would thus commence from 1992 also.   Since no

action  has  been  taken  by  the  plaintiff   to challenge   the   slum  redevelopment

scheme, any order passed by this Court would hamper the implementation of the

scheme which would be hit by Section 42 of the Slum Act.   Learned senior

counsel distinguished the Judgment of this Court reported in 2002 (2) B.C.R. 19

and placed reliance on paras 8, 9, 16 & 17.   

37. In   rejoinder,   Mr   Patwardhan   learned   counsel   appearing   for   the

plaintiff   submits   that   in   prayer   (e)   of   the   plaint,   plaintiff   has   not   claimed

ownership rights in the suit property.  Plaintiff has claimed share in the leasehold

rights of the deceased father.  Suit is by way of administrative suit.  It is

submitted   that   thus,   suit   is  maintainable  and   there   would   be  no  bar   under

Section   42   of   the   Slums  Act   in   entertaining  this   suit  by   this   Court.      It   is

submitted   that   the   authorities   relied   upon   by   Mr   Subramanian   are

distinguishable in the facts of this case.  It is submitted that if this court comes to

a conclusion that division of suit property by meets and bounds is not possible,

Court can take valuation of the suit property for the consideration and divide the

amount amongst the legal heirs of the deceased.  It is submitted that lease­hold

rights   can   be   partitioned,   valued   and   divided.     As   far   as   other   reliefs   are

concerned, it is submitted that they are consequential reliefs and are within the

jurisdiction of this Court.  It is submitted that reliefs against defendant Nos.2 and

3 are also claimed in this suit with a view to prevent the multiplicity of suits and

to make the decree effective.  Learned counsel submits that witness examined by

the plaintiff has discharged the burden that suit is within time and not barred by

law   of   limitation   by   not   only   leading   oral   evidence   but   also   documentary

evidence.  It is submitted that notice terminating the agreement was not against

the third defendant.  The third defendant was not a party to the said agreement.

Other parties have not challenged the termination.  Learned counsel submits that

merely because execution proceedings are not filed, by the plaintiff, plaintiff

cannot be prevented from filing a suit.  It is submitted that threat to the rights of

the plaintiff came to the knowledge of the plaintiff for the first time in the year

2004.  Suit thus filed in the year 2011 is within time and not  barred by law of

limitation.   It is submitted that further evidence can be laid on the issue of

limitation at the stage of final hearing of the suit.  Learned counsel thus submits

that none of the claims are barred by limitation and this Court has jurisdiction to

entertain, try and dispose of this suit.     

Reasons & Conclusions : 

38.  Issue No.1 : Whether jurisdiction of this court is barred under

Section   42   of     Maharashtra   Slum   Areas   (Improvement,   Clearance     &

Redevelopment) Act, 1971?

It is the case of the third defendant that by notice dated 31st October

1977, Dy. Collector (E & C) and Competent Authority Andheri declared the suit

property   as   slum   under   Section   4(1)   of   the     Maharashtra   Slum   Areas

(Improvement, Clearance  & Redevelopment) Act, 1971 (hereinafter referred as

the Slums Act for short).   It was published in Government Gazzette on 10th

November 1977.  The slum rehabilitation scheme proposed by the Pali Resident

Co. operative Society (proposed) came to be approved.  The said authority issued

Letter of Intent dated 17th  October 1984 in favour of the third defendant as

owner/developer of the suit property under Regulation 33(10) and appendix IV

of the Development Control Regulations and sanctioned the plan on 4th February

2004 for the purpose of slum rehabilitation and commencement certificate came

to be issued on 30th June 2004 in pursuance of the said plans.    It is the case of

the 3rd defendant that third defendant started construction and have completed

substantial work of rehabilitation building and part of other building.  It is the

case of the third defendant that the said slum rehabilitation scheme is being

implemented on the suit property under the provisions of the said Slums Act to

the knowledge of the plaintiff since 1984.   The third defendant has thus raised

an issue in the notice of motion filed by the plaintiff by filing affidavit in reply

that in view of Section 42 of the said Act, this Court has no jurisdiction to

entertain   such   suit   which   is   in   respect   of   the   property   on   which   slum

rehabilitation scheme under the said Act is being implemented.     

39. Mr Patwardhan, learned counsel appearing on behalf of the plaintiff

submits   that   neither   any   authority   nor   any   tribunal   constituted   under   the

provisions of Slums Act have jurisdiction to grant any relief which is prayed by

the plaintiff in this suit.       It is submitted that thus, bar of jurisdiction under

Section 42 of the Slums Act would not apply to this suit and this Court has

exclusive jurisdiction to entertain, try and dispose of this suit.   

40.  Mr Subramanian, learned senior counsel appearing on behalf of third

defendant on the other hand submits that the reliefs prayed by the plaintiff for

declaration of ownership in respect of the suit property, partition by meets and

bounds   and/or   seeking   possession   from   third   defendant   in   respect   of   such

property on which scheme under Slums Act is being implemented and prayer for

appointment of Court Receiver and injunction are barred under Section 42 of the

Slums Act.  Learned senior counsel submits that witness examined by the plaintiff

has admitted in her cross examination that the plaintiff was fully aware of such

scheme being implemented on the suit property since 1984.       Learned senior

counsel placed reliance on an unreported Judgment of this Court in Notice of

Motion in Suit (L) No.813 of 2011 in case of Lokhandwala Infrastructure Pvt.

Ltd. Vs. Dhobighat Compoind Rahiwasi Seva Sangh and Others., in which  this

Court has held that if Slum Rehabilitation Authority is seized of the matter, it is

for   that   authority   to   determine   in   what   manner   the   scheme   should   be

implemented   so   as   to   best   protect   the   public   interest   involved   in   the

rehabilitation of a censused slum.     Paras 8 and 9 of the said Judgment read

thus : 

“8.  Section 42 has been amended so as to substitute the Slum Rehabilitation

Authority instead and in place of an administrator. By the first part of Section 42 it has

been provided that no civil court shall have jurisdiction in respect of any matter which

the Slum Rehabilitation Authority is empowered by or under the Act to determine. By

the second part no injunction can be granted by any court or other authority in respect

of any action taken or to be taken in pursuance of any power conferred by or under the

Act. Now the powers of the Slum Rehabilitation Authority are cast in broad terms. The

authority is empowered to get a Slum Rehabili tation Scheme implemented and to do all

such   other   acts   and   things   as   may   be   necessary   for   achieving   the   objects   of   the

rehabilitation of slums. The purpose and object of the Act is to ensure the proper

rehabilitation of slums. The land owning authority, be it the State Government or as in

the present case the Municipal Corporation also has a vital stake in ensuring that the

purpose and object for which the Scheme is to be implemented is duly fulfilled. The

Slum Rehabilitation Authority has been vested with the jurisdiction and power to ensure

the proper implementation of rehabilitation schemes and to do all other acts and things

necessary for achieving the object of the rehabilitation of the slums. 

9.  The relief that has been sought in the Notice of Motion seeks in prayer

clause (a) the appointment of the Court Receiver as Receiver with a further direction to

permit the Plaintiff to carry the redevelopment. The second relief that is sought is an

injunction restraining the implementation of the development agreement which has

been entered into on 30 September 2009 with defendant No.26 and from the carrying

out of any construction activity on the land. The grant of any such relief will clearly

impinge upon the powers which have been conferred upon the Slum Rehabilitation

Authority. Having regard to the provisions enacted in the second part of Section 42,

noted earlier, it would be inappropriate for the Court to grant an injunction in the

terms as sought. The Slum Rehabilitation Authority is as a matter of fact seized with

the matter and it is for the Authority to determine in what manner the scheme  should

be implemented so as to best protect the public interest involved in the rehabilitation of

a censused slum. The title to the land on which the slum is situated vests in the

Municipal Corporation. The dispute in a case such as the present is not one simpliciter

between a vendor of land and a purchaser who claims specific performance. Neither the

developer nor the proposed society of slum dwellers has any title to the land. The

proposed society represents occupants of hutments some of whom are protected by the

policy of government with reference to the cut off date of 1.1.1995. The state has a vital

interest in the proper implementation of a Slum Rehabilitation Scheme, as does the

land owning body the Municipal Corporation. The Slum Rehabilitation Authority is the

custodian   of   public   interest   and   is   vested   with   wide   statutory   powers.   A   private

contractual agreement between the developer and a proposed society of slum dwellers

cannot   foreclose   the   discharge   of   statutory   functions   by   the   Slum   Rehabilitation

Authority.   The   relief   sought   in   the   Motion   precisely   seeks   to   do   that,   which   is

impermissible in law. For these reasons, I am of the view that no case for the grant of

ad interim relief is made out. Ad interim relief is accordingly refused. The Motion is

made returnable on 13 June 2011.

    

41.  Mr Subramanian, learned senior counsel also placed reliance on the

order passed by Division Bench of this Court on 23rd December 2011 in Appeal

(L) No.797 of 2011 in Notice of Motion No.1157 of 2011 in Suit No.808 of 2011

filed by the third defendant herein against the plaintiff and others arising out of

the ad interim order granted by this Court in notice of motion filed by the

plaintiff herein.  One of the issue raised by the third defendant in the said appeal

was that in view of Section 42 of the Slums Act, no such interim injunction can

be granted by this Court.  Division Bench of this Court, after considering Section

42 of the Slums Act has held that having regard to the provisions of Section 42 of

the Slums Act, prohibiting any Court from granting an injunction in respect of

slum rehabilitation scheme for which LOI was issued by the competent authority

way back in October 2003 and in view of the admissions of the plaintiffs in their

suit as well as affidavit in support of notice of motion about the year in which

they got copies of the relevant documents and when they saw commencement of

construction,   no   case   had   been   made   by   the   plaintiff   for   any   ad­interim

injunction in the suit.  Division Bench of this Court accordingly allowed the said

appeal and set aside the ad­interim injunction granted by the learned single

Judge of this Court in favour of the plaintiff.   Paras 4 & 5 of the said order read

thus : 

“4.         Mr. Subramanian, learned Counsel for the appellant/original  defendant No.3

submits that the land in question admeasuring 1810 sq. mtrs. was occupied by slum

dwellers   and   the   notification   under   the   Maharashtra   Slum   Areas   (Improvement,

Clearance and Redevelopment) Act, 1971 (Slums Act) was issued in the year 1978. The

appellant   was   granted   letter   of   intent   on   17   October   2003   for   constructing

rehabilitation   building   for   98   hutment   dwellers   and   free   sale   building   and   the

commencement certificate was granted on 30 June 2004. It is pointed out that the

plaintiffs are stated to have seen the board of Dheeraj Construction on the site in the

year 2004 and the plaintiffs had made inquiries and got the documents in favour of

defendant No.3 in the year 2005. It is, therefore, submitted that in view of the gross

delay on the part of the plaintiffs in filing the present suit in the year 2011 (on the basis

of the lease in favour of the plaintiffs of the year 1966) the plaintiffs could not have

been granted any ad­interim injunction in respect of the project of slum rehabilitation

under the Slums Act, more particularly when Section 42 of the Act specifically prohibits

the Civil Court from exercising any jurisdiction in respect of any matter which the

Administrator, Competent Authority or Tribunal is empowered by or under the said Act,

to determine; and no injunction can be granted by any court or other authority in

respect of any action taken or to be taken in pursuance of any power conferred by or

under said Act. It is, therefore, submitted that the learned single Judge was in error in

granting any ad­interim injunction on 17 November 2011 or in calling upon defendant

No.3 to file the affidavit as indicated in the further order dated 22 December 2011. 

5.       Having heard the learned Counsel for the parties and having regard to the

provisions of Section 42 of the Maharashtra Slum Areas (Improvement, Clearance and

Redevelopment) Act, 1971 prohibiting any Court from granting an injunction in respect

of slum rehabilitation scheme for which LOI was issued by the competent authority way

back in October 2003 and in view of the admissions of the plaintiffs in their suit as well

as affidavit in support of notice of motion, about the year in which they got copies of the

relevant documents and when they saw commencement of construction, we are of the

view that no case has been made out by the plaintiffs for any ad­interim injunction in

the suit.” 

42. On perusal of prayers (a) to (c) of the plaint, it is clear that plaintiff

seeks   declaration   that   lease   deeds   executed   in   favour   of   his   father   by   the

erstwhile owner are subsisting, in force and binding upon the defendants, seeks

declaration that plaintiff is entitled to 1/8th share in the suit property and seeks

declaration that plaintiff is entitled to partition of the suit property by metes and

bounds.  As far as prayer (e) is concerned, direction is sought against the first

defendant to render true and correct accounts of his acts and actions in the suit

property.  Prayer (f) is for declaration that deeds executed by the first defendant

in favour of other defendants is void and unlawful.  Prayer (g) is for an order and

direction  against defendant Nos.1,2 and 3 for delivery of various documents

entered into in their favour.  Prayer (h) is for cancellation of documents.  In my

view, none of these prayers i.e. (a) to (c ) and (e) to (h)  can be granted by any

of the authorities or tribunal constituted under the provisions of the said Slums

Act.   Under Section 42 of the said Act, only such matters in respect of which

competent   authority,   appellate   authority,   grievance   redressal   committee   or

tribunal   appointed   under   such   Slums   Act   is   empowered   to   determine   those

reliefs, civil court would have no jurisdiction in respect of such matters and not

otherwise.  I am thus not inclined to accept the submission of Mr Subramanian,

learned senior counsel for third defendant that prayers (a) to ( c) and (e) to (h)

of the plaint are outside the jurisdiction of this Court in view of Section 42 of the

said Slums Act.         In my view, prayers (a) to (c ) and (e) to (h) are within

jurisdiction of this Court. 

43.   As far as prayer (d) and (i) by which plaintiff seeks an order and

decree to hand over possession of the suit property to the plaintiff is concerned,

in view of the admitted fact that Letter of Intent had been already issued by the

slum authority and the slum rehabilitation scheme is being implemented on the

suit plot, no such relief for handing over possession of such property can be

granted by civil Court in view of bar under Section 42 of the said Slums Act.  This

Court has no jurisdiction to grant any such relief in terms of prayer clause (d)

and (i) of the plaint.   

44. As far as prayers (j) and (k) which are for appointment of Court

Receiver and injunction respectively are concerned, these prayers are for interim

reliefs.  In any event in view of the order passed by Division Bench of this Court

in the same matter on 23rd  December 2011, these reliefs are also outside the

jurisdiction of this Court in view of bar under Section 42 of Slums Act and are

beyond the jurisdiction of civil court.  Since this Court came to the conclusion

that subject matter of prayers (d), (i), (j) and (k) are beyond the jurisdiction of

this Court, in view of bar under Section 42 of Slums Act and not on the ground of

pecuniary or territorial jurisdiction, plaint in respect of prayers (d), (i), (j) and

(k) cannot be returned for presentation  before proper forum and thus these

prayers are rejected.    

Issue No.2 :  Whether the suit is barred by law of limitation ? 

45. I shall now deal whether prayers (a) to (c ) and (e) to (h) are barred

by law of limitation.   It is the case of the plaintiff that in the month of November

1963, Mrs Noel Pareira who was absolute owner of the suit property had granted

lease for   99 years in favour of Mr Laxmandas Aswani father of the plaintiff,

defendant No.1 and three daughters of the said deceased in respect of the suit

property by executing three lease deeds.      It is the case of the plaintiff that the

said three lease deeds granted in favour of the father of the plaintiff and first

defendant were never terminated by the said Mrs Noel Pareira.  In the year 2004,

the plaintiff saw board of Dheeraj Construction put up on the suit property.  The

plaintiff made an application for certified copy in the year 2005 and obtained

copies of three lease deeds in the year 2005.  In the month of September 2004,

plaintiff came to know that the name of his father was not found in record of

property card in respect of the suit property and name of one Yusuf Ahmed was

found to have been recorded as owner.  The plaintiff thereafter made inquiries

with the office of sub­registrar of assessment and sent notice in the year 2004­05

and applied for copies of the documents entered into between Noel Pareira and

Mr Yusuf Ahmed.   In the year 2005, plaintiff received copies of the deed of

assignment dated 27th January 1992 executed by Noel Pareira in favour of Yusuf

Ahmed.  The plaintiff applied for entering his name as lessee in the property card

before the City Survey Officer which was rejected.     The plaintiff filed appeal

before the Superintendent of Land Record in the year 2007 which was also

rejected.  Plaintiff received an order on 31st May 2008 entering the name of his

father as lessee of the suit property.  Third defendant filed an appeal before the

same authority who succeeded in the said appeal.   Name of the third defendant

was recorded on 29th September 2009 in the property card.  Plaintiff filed appeal

before the Dy. Director of Land Revenue.  The said appeal was rejected on 23rd

February   2010.     Plaintiff   filed   appeal   before   the   Hon'ble   Minister   which   is

pending.  

46.  Plaintiff examined his wife as a witness on the issue of jurisdiction as

well as limitation.  None of the defendants laid any oral evidence.  Before I deal

with the oral evidence on the issue of limitation laid by the plaintiff, I shall also

deal with the other issues on limitation raised by the plaintiff.  

47.  Mr Patwardhan, learned counsel appearing for the plaintiff submitted

that issue of limitation cannot be tried under Section 9A of the Code of Civil

Procedure as jurisdictional issue.  In reply to this submission, Mr Subramanian,

learned senior counsel placed reliance on the Judgment of this Court in case of

Royal Palms (India) Pvt. Ltd. (supra).  Division Bench of this Court in the said

Judgment has adverted to the Judgment of Supreme Court reported in AIR 1969

SC 823 and earlier Judgment of Division Bench of this Court in case of Foreshore

CHS Ltd. Vs. Shri  Praveen D. Desai and others reported in 2009(1) Bom.C.R.

757 and Judgment of Supreme Court in case of Pandurang D. Chougule  Vs.

Maruti   H.   Jadhav)   reported   in   AIR   1966   S.C.   153.     Division   Bench   also

considered   the   earlier   Judgment   of   Division   Bench   in   case   of  Smith   Kline

Beechan   Construction   Vs.   Hindustan   Lever     reported   in   2002   (Suppl)

Bom.C.R. 674  and held that a plea of limitation is a plea which goes to the

jurisdiction of the Court  and it is a plea on law and it is  a settled position in law

that when a suit is barred by limitation, the Court is precluded from proceeding

on merits of the contentions and in fact obliged to dismissed the suit.    It is held

that when an objection to the jurisdiction of the Court to entertain the suit as the

suit is barred by the law of limitation is raised, at the hearing of notice of motion

wherein   interim   order  is   claimed,   the   Court   is   obliged   by   the   provisions  of

Section 9­A of C.P.C. to frame preliminary issue as to the ground raised to the

jurisdiction   of   the   Court   to   entertain   the   suit   and   proceed   to   decide   that

preliminary issue and it is only on decision of that preliminary issue, that the

notices of motion  can be taken up for final decision.    I am respectfully bound

by the decision of Division Bench of this Court and of the view that issue of

limitation raised by the defendant is a jurisdictional issue and once such issue is

raised, Court is obliged under the provisions of Section 9­A of Code of Civil

Procedure to frame the preliminary issue   on the plea of limitation.         In my

view, there is no substance in the submission made by Mr Patwardhan, learned

counsel appearing for the plaintiff that issue of limitation is not a jurisdictional

issue and would not fall under Section 9­A of C.P.C.  Relevant part of paragraph

4 of the said Judgment in case of Royal Palms v. Bharat S. Shah (supra) reads

thus : 

  ….    “  It is thus clear that non­compliance by the learned Single Judge with the

provisions of section 9A will be a material irregularity which would vitiate the order.

The question whether an objection that the suit is barred by the law of limitation is an

objection to the jurisdiction of the Court for the purpose of section 9A of C.P.C. has been

decided by the Division Bench of this Court in its judgment in the case of Foreshore CHS

Ltd. v/s Shri Praveen D. Desai and ors., reported in 2008(6) All MR 600. The Division

Bench has relied on the judgment of the Constitution Bench of the Supreme Court in the

case of Pandurang D. Chougule v/s Maruti H. Jadhav, reported in AIR 1966 SC 153

holding that the plea of limitation is plea of law concerned with the jurisdiction of the

Court. Thereafter, the Division Bench of this Court in the above referred judgment has

observed thus :­ 

"18. The moment, the issue of jurisdiction is raised under section 9­A of the

Code of Civil Procedure, the said issue should be decided at first, and not to

be adjourned to a later date. The main reason is that if the Court comes to

finding that it does not have jurisdiction vested in it in law, then no further

enquiry is needed and saves a lot of valuable judicial time. In fact, section 9­

A itself mandates that when an objection to the jurisdiction of the Court to

entertain such a suit is taken by any of the parties, the Court will have to

decide the issue expeditiously and in no case to be adjourned to the hearing

of the suit. 

19. A Division Bench judgment of our High Court in Smith Kline Beechan

Cons v/s Hindustan Lever, 2003 Vol (105) 2 Bom.L.R. 547 : 2002(1) All

MR 1043 has categorically held that it is not sufficient that the Court has

territorial or pecuniary jurisdiction or jurisdiction in relation to the subject

matter of the suit but if the suit is barred by any statute, the Court will have

no authority to hear and decide the same. The said judgment clearly holds

that the use of the word ’jurisdiction’ is used in a wider sense under section

9­A which would include the bar to maintainability of the suit i.e. to say any

statutory bar to the maintainability of the suit. Section 3 of Limitation Act

clearly mandates the Court to dismiss the suit if the same is barred by

limitation.

20.To put it in other words, if the suit is barred by Limitation, the Court has

no jurisdiction to entertain it and the Court is duty bound to dismiss the

same, and the parties cannot confer jurisdiction by consent.

21.It is explicitly clear that a plea of limitation is a plea which goes to the

jurisdiction of the Court and it is a plea on law, and it is a settled position in

law that when a suit is barred by limitation, the Court is precluded from

proceeding on the merits of the contentions and in fact obliged to dismiss the

suit."

It is clear from the law laid down by the Division Bench in its aforesaid judgment that

when an objection to the jurisdiction of the Court to entertain the suits as the suits are

barred by the law of limitation is raised, at the hearing of notices of motion wherein

interim order is claimed, the Court is obliged by provisions of section 9A of C.P.C. to

frame preliminary issue as to the ground raised to the jurisdiction of the Court to

entertain the suits and proceed to decide that preliminary issue and it is only on

decision of that preliminary issue, that the notices of motion can be taken up for final

decision. We find that the learned Single Judge has made the order disposing of the

notices   of   motion   even   after   noting   that   one   of   the   objections   raised   was   to   the

jurisdiction   of   the   Court   to  entertain   the   suits  as  they   are   barred   by   the   law  of

limitation, therefore the order made by the learned Single Judge will have to be set

aside and the notices of motion will have to be remitted back to the learned Single

Judge for consideration and decision in accordance with law.”

48.  Next submission on the issue of limitation raised by Mr Patwardhan is

that in view of the positive assertion by defendant No.3 in affidavit filed before

this Court that claims made by the plaintiff are barred by law of limitation,

defendant No.3 was bound to lead oral evidence to prove such positive assertion

made in the affidavit and not having led any oral evidence, this Court shall draw

adverse inference against the third defendant.   In my view, the initial onus to

prove that suit was filed within time was on the plaintiff and thus, plaintiff was

required to lead his evidence first on the issue of limitation.  Since plaintiff has

failed to discharge that initial onus cast on him to prove that suit filed by the

plaintiff was within time, onus of proof is not shifted to defendant No.3.  

49.  I   shall   deal   with   the   issue   as   to   how   the   plaintiff   has   failed   to

discharge his initial onus to prove that suit is within time in the later part of this

Judgment.   In my view, since the plaintiff has failed to prove the initial onus that

suit was within time, defendant No.3 was not bound to lead oral evidence to

prove any such positive assertion made in the affidavit filed before this Court.  In

my view, there is no substance in the submission of Mr Patwardhan that since

defendant No.3 did not lead any oral evidence on the issue of limitation, this

Court shall draw adverse inference against the third defendant and  should reject

the plea of limitation raised by the third defendant.   As far as judgment of

Supreme Court in case of  Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif

(supra) relied upon by Mr Patwardhan, learned counsel for the plaintiff, on this

issue is concerned, it has been held by the Supreme Court that if a party in

possession of best evidence which would throw light on the issue in controversy

withholding   it,   Court   ought   to   draw   an   adverse   inference   against   him

notwithstanding that onus of proof does not lie on him and the party cannot rely

on abstract doctrine of onus of proof or on the fact that he was not called upon to

produce it.    It is not the case of the plaintiff that defendant No.3 withheld any

important document in its possession which would have thrown light on issue of

limitation.  On plain reading of the plaint itself and the oral evidence laid by the

plaintiff's witness, it is clear that plaintiff has failed to prove that the suit filed by

the plaintiff was within time.    The Judgment of Supreme Court in case of Gopal

Krishnaji Ketkar (Supra)  relied upon by the plaintiff is of no assistance to the

plaintiff.  

50.  As far as Judgment of this Court in case of  Laxmibai Rauji (supra)

replied upon by Mr Patwardhan in support of his submission that defendant No.3

cannot take advantage of the doctrine of onus of prove as defendant No.3 should

stand on his own legs and merely because the plaintiff was unable to prove that

the suit was within time as alleged by defendant No.3, defendant No.3 cannot

take advantage of such alleged failure on the part of the plaintiff.   In case of

Laxmibai Rauji (supra), this Court has held that burden of proof is on the party

who substantially asserts the affirmative of the issue and not upon the party who

denies it.   Since initial onus to prove that suit was within time was on the

plaintiff,   plaintiff   ought   to   have   discharge   that   burden   first   and   not   the

defendant.   The Judgment of this Court in case of Laxmibai Ramji (supra) thus

is of no assistance to the plaintiff.   

51. As far as Judgment of Division Bench of this Court in case of Niwas

Builders (supra) relied upon by Mr Patwardhan in support of his submission that

third  defendant  is bound  by its  own  pleadings  and must stand  on  his own

pleadings is concerned, in my view, that Judgment will be of no assistance to the

plaintiff.   The plaintiff is bound by his own pleadings.  If plaintiff has not proved

what is asserted in plaint,  plaintiff must fail.   The Judgment of Division Bench

of this Court in case of Niwas Builders (Supra) is of no assistance to the plaintiff.

52.  As far as Judgment of Supreme Court in case of Rangammal (supra)

relied   upon   by   Mr   Patwardhan,   learned   counsel   appearing   for   plaintiff   is

concerned, it is held by the Supreme court that misplacing the burden of proof

would vitiate the Judgment.   In my view, initial onus of proof that suit was

within time was on the plaintiff.  Plaintiff chose to lead evidence first and rightly

so.    Initial onus of proof was rightly cast on the plaintiff. Question of misplacing

of burden of proof thus, did not arise.  The Judgment of Supreme Court thus in

case of Rangammal is no no assistance to the plaintiff.   

53.  As far as Judgment of Supreme Court in case of Alka Gupta (supra)

relied upon by Mr Patwardhan, learned counsel appearing for plaintiff in support

of  his  submission  that  suit  has to  be   decided  after  framing  issues  and  trial

permitting the parties to lead evidence on the issues, except in cases where the

Code or any other law makes an exception provides any exemption and in the

trial of the suits unless they are provided by law is concerned, in my view, that

Judgment is of no assistance to the plaintiff.  It has been held by the Supreme

Court which has been adverted to by the Division Bench of this Court in case of

Royal Palms (India) Pvt. Ltd. that the issue of limitation is a issue of jurisdiction

and   once   a   party   having   raised   that   issue   at   the   stage   of   interlocutory

proceedings itself, court has to frame such issue of jurisdiction as preliminary

issue under Section 9A of Code of Civil Procedure.       After hearing both the

parties this Court had accordingly framed two issues of jurisdiction including

issue of limitation.   Plaintiff did not make any attempt to discharge his onus of

proof that suit was within time.    By consent of both the parties, parties were

allowed to lead evidence on limitation issue under Section 9A of Code of Civil

Procedure.     Judgment   of   Supreme   Court   relied   by   the   learned   counsel   for

plaintiff in case of Alka Gupta (supra) is of no assistance to the plaintiff.   Law

laid down by the Supreme Court in the said Judgment does not apply to the issue

of jurisdiction raised by defendant No.3,  By consent of parties two  issues were

framed  to be  tried as preliminary issue and both the parties agreed that oral

evidence be laid on those issues.   Submissions have been made on both these

issues by the learned counsel.   

54. On 14th  February 2012 in Suit No.764 of 2002 in case of  ITC Ltd.

(supra), this Court has held that initial onus is on the plaintiff to prove that suit is

within time.  Paragraphs 5 and 32 of the said Judgment which are relevant for

the purpose of deciding this issue read thus :

5.        It is the submission of the Plaintiffs that exfacie the Suit was brought within a

period of 3 years from the dates of the said 6 orders of the U.S. Bankruptcy Court and

is therefore within the period of limitation prescribed by Article 101 of the Limitation

Act,  1963.   The  provisions  of Order  VII  Rule   1(e)  have  also been  complied  with.

According to the Plaintiffs, there exist 2 categories of suits with respect to the burden of

proof on the grounds of limitation.

Category 1:where the Plaintiff under Order VII Rule 6 pleads any 

exemption or extension of time to bring the Suit within limitation. 

Category 2:where on the face of the pleadings in the Plaint, the Suit is 

shown to be within time.

It is submitted that the Suit filed in the instant case falls in the category of Suits which

exfacie have been filed within the period of limitation, and there arises no question of

the Plaintiffs having to lead evidence to prove that the Suit was within the period of

limitation. The present Suit having not been instituted after the expiration of the

period prescribed by the Law of Limitation, the  question of claiming any exemption in

that regard as required by Order VII Rule 6 and of proving the same by leading

evidence does not arise. Similarly Rule 11 of Order VII of the CPC will also not apply to

the facts of the present case, as the cause of action has been disclosed in the Plaint and

the Suit is not barred under any law on the basis of any statement made in the Plaint.

The Plaint does meet the requirements of Order VII Rule 1 and does not fall foul of

Rules 6 and 11 of Order VII.

32.      The defendants have denied/ disputed the genuineness of the said Orders and

the fact that such Orders have indeed been passed by the U.S. Bankruptcy Court. This

establishes beyond any doubt that the defendants have denied/ disputed the fact that

the Suit is filed by the Plaintiffs within the period of limitation. In view thereof, Section

101   of   the   Indian  Evidence   Act   would   also  come   into  play,   which   provides   that

whoever   desires   any   Court   to   give   a   judgment   as   to   any   legal   right   or   liability

dependent on the existence of facts which he asserts, must prove that those facts exist,

and the Plaintiffs are bound to prove the existence of the said 6 Orders passed by the

U.S. Bankruptcy Court to establish their legal right to file the Suit on the basis of the

said 6 Orders. Sections 102 and 103 of the Indian Evidence Act also require the

Plaintiffs to prove the fact asserted by the Plaintiffs namely that the Suit which is filed

on the basis of the said 6 Orders passed by U.S. Bankruptcy Court is filed within the

time prescribed by the Law of Limitation. The ratios laid down by various decisions of

the Hon’ble Apex Court and Hon’ble High Courts including this Court are on the basis

of the facts in the respective cases before the said Courts and there can be no dispute as

regards the said ratios laid down therein. However in light of the facts of the present

case and the reasons set out herein, I do not agree with the submissions of Plaintiffs

that it is for the defendants to first establish that the Suit is filed beyond the period of

limitation and that the Plaintiffs be granted permission to lead evidence in rebuttal. I

also do not agree with the submissions of the Plaintiffs that for the purpose of deciding

the issue of limitation, Suits should be categorized as Category 1 and Category 2 Suits

and that in Suits which are, on the face of the pleadings time barred (Category 1), the

burden is upon the Plaintiffs to show that the Suit is not time barred and in cases

where the suit is exfacie within time (Category 2), once the Plaintiff has complied with

the provisions of Order VII Rule 1 of the CPC, if the defendants want to nonsuit the

Plaintiffs on the ground of limitation, the burden is on the defendants to establish that

the Suit is in fact time barred. As set out hereinabove, the defendants are not parties to

the U.S. Court proceedings and therefore have no knowledge of the U.S. Court Orders

and proceedings. The defendants have challenged the genuineness of the said 6 U.S.

Court Orders and have not admitted the fact that the said 6 Orders are passed by the

U.S. Bankruptcy Court. The Plaintiffs are therefore bound to prove the said 6 Orders

and   establish   that   the   Suit   is   filed   within   the   period   prescribed   by   the   Law   of

Limitation  inter   alia  as  required   u/s.101   of   the   Indian  Evidence   Act,   1872.   The

Plaintiffs are thus incorrect in their submissions that the present Suit falls under what

they choose to describe as Category 2 Suits and that it is for the defendants to establish

that the Suit is in fact time barred.  

55.  I   am   thus   not   inclined   to   accept   submission   of   Mr   Patwardhan,

learned counsel for the plaintiff that onus of proof that suit was barred by law of

limitation   was   on   the   defendant   and   the   defendant   ought   to   have   laid   his

evidence first before the plaintiff would have examine his witness in support of

his plea that suit is within time and not barred by law of limitation.    

56. In so far as submission of Mr Patwardhan that since the defendant did

not lead his evidence on the issue of limitation, defendant cannot say that suit be

dismissed on the ground of limitation, merely on the basis of cross examination

of the plaintiff's witness is concerned, Mr Subramanian, learned senior counsel

appearing for defendant No.3, in my view is right in placing reliance on the

Judgment  of  this   Court  delivered  by  R.D.Dhanuka,J.,on  8th  January  2013  in

Arbitration Petition No.556 of 2012 in case of  Zee Entertainment Enterprises

Ltd.   (supra) and in particular paragraphs 20 and 22 of the said Judgment in

which it has been held that if witness examined by the party in cross examination

admitted the liability to the other party, such other party having proved his claim

by cross examination is not liable to examine any witness.  Paragraphs 20 and 22

of the said Judgment read thus : 

20.  In my view, the award does not deal with the material and crucial

evidence forming part of the cross examination of the witness of the respondent which

records the admission on the part of the respondent having received debit notes and

contents thereof and also having admitted the receiptthe payment stated in the said

documents. In view of the fact that the learned arbitrator was considering the debits

and credits claimed by both parties, the petitioner who was claiming adjustment/set off

by way of debit notes from the amount payable to the respondent was entitled to prove

its claim for adjustment/set off even by cross examination of the witness examined by

the respondent. Once, the respondent witness has admitted the correctness of the claims

made by the petitioner, it was in my view not necessary for the petitioner to examine

any other witness to prove its claim once again. In my view, the learned arbitrator has

thus proceeded on erroneous basis and has not considered the material and crucial

evidence in the impugned award and has not dealt with the written submissions at all.

The learned arbitrator has not proceeded with the matter in the correct direction in the

impugned award on this issue. In my view the reliance thus placed by the respondent on

the judgment of Supreme Court in case of  Iswar Bhai C. Patel  (supra),  Vidhyadhar

(supra) is misplaced. In my view facts of the said case before the Supreme Court are

clearly distinguishable in the facts of this case. This court thus in such circumstances

can interfere with award under Section 34 of the Act.

22.  In my view, since the witness examined by the respondent had admitted

the liability of the respondent and also having admitted the receipt of payment from the

petitioner through the Association to directors, artists and technicals, the petitioner was

not   bound   to   examine   any   other   witness   independently   to   prove   such

claims/adjustments once again, once having it proved by cross examination of the

witness of the respondent. In my view, the learned arbitrator has disallowed this claim

contrary  to  law  and  the  award   thus  shows a manifest  error  of law.   The  learned

arbitrator has not considered any part of the oral evidence led by the petitioner or cross

examination of the witness examined by the respondent as well as detailed written

submissions filed by the petitioner in the impugned award at all. The impugned award

is in violation of principles of natural justice and this part of the award is thus deserves

to be set aside.

57.  Upon querry raised by this Court, Mr Patwardhan learned counsel

appearing for plaintiff submits that Article 65 of Schedule­I to Limitation Act

would be attracted to the facts of this case.  It is submitted that for filing a suit

for possession  of immovable  property or any interest therein  based on title,

period of limitation is 12 years and time commences when the possession of the

defendant becomes adverse to the plaintiff.  It is submitted that the plaintiff came

to   know   for   the   first   time   in   the   year   2004   that   board   of   M/s   Dheeraj

Constructions was put upon on the suit property which date was the date of

knowledge of plaintiff of possession of the third party on the suit property which

was adverse  to the interest of the plaintiff and thus suit filed in the year 2011 is

within the period of limitation.   No other article of Limitation Act 1963 has been

relied upon by Mr Patwardhan  in support of submission that any of the prayers

in the suit are within time.    

58.   On the issue of limitation, with the assistance of the learned counsel

appearing   for   the   plaintiff   and   defendant   No.3,   I   have   considered   the   oral

evidence led by the plaintiff through her witness, it is revealed that father­in­law

of the witness expired in the month of October 1985.  Witness has deposed that

she was not aware of the facts about the steps taken by her father­in­law in

respect of the suit property.  She has deposed that her father­in­law had entered

into agreement with Rizvi Land Development Pvt. Ltd. in respect of the suit

property.   On 5th September 1984, declaration was sought by the plaintiff and

for cancellation of document only in the year 2011.  Answer in cross examination

and in particular para 5 of the evidence recorded on 26th July 2013 is contrary to

the deed of assignment and arbitral award.     Witness has admitted that her

father­in­law was not in physical  possession of the suit property but was in

symbolic possession but could not produce any document by which her father­inlaw

 was   put  in   symbolic   possession   of  the  suit   property.    Witness  has   also

admitted that she was not aware whether her father­in­law was put in possession

of the suit property.       Witness also could not say as to when her father­in­law

was put in symbolic possession.   In para 6 of cross examination, witness has

deposed that she was not aware that assignment dated 27th November 1992 was

a registered document.   Witness has however, pleaded ignorance as to when suit

property was declared as slum.   It is also admitted that plaintiff ascertained

rights in the suit property for the first time in the year 2004.  It is also admitted

that father­in­law of the said witness had acquired the suit property which was

already occupied by slum and the plaintiff had asked for possession of his share

in the property only by filing this suit.   Public notice was issued in 2004 for

asking possession.   

59.    In para 7 of the evidence, it is admitted that the witness came to

know about assignment dated 27th  January 1992 between Richard Pareira and

Yusuf Ahmed in the year 2005.  It is also admitted by the witness that plaintiff

was aware that he had share in the property of his father­in­law when he expired

in 1985.   Witness has admitted about her knowledge that slum development

scheme was being implemented on the suit property.       Witness has however

avoided to reply about the date of knowledge since when slum development

scheme was being implemented on the suit property.       It is admitted by the

witness that she has visited the suit property in last seven years.   It is also

admitted that plaintiff did not file any suit against the legal heirs of Richard

Pereira in City Civil Court.   In para 8 of the evidence, it is admitted by the

witness that in 2004, she noticed the board of Dheeraj Builders and started

collecting papers in respect of the suit property.  It is also admitted that she has

obtained copy of indenture of assignment in the year 2005­2006.   It is revealed

that after the demise of father of the plaintiff, legal heirs were brought on record

in the City Civil Court.  I have also perused the photocopies of the plaint filed by

the plaintiff in City Civil Court Bombay which were taken on record and marked

as Exhibits­2 to 4 respectively.  It is admitted by the witness that defendant No.3

has filed written statement as well as affidavit in reply to the notice of motion.

Witness admitted that arbitral award was made on 15th  April 1986 in which

decree was passed on 9th September 1991.    Witness has also admitted that the

said award as well as decree was relating to the suit property and in the said

award, undivided share of the plaintiff in the suit property and other properties is

specified.  It is also admitted that the said arbitral award was a consent award

signed by the parties including the plaintiff.     In para 6 of the evidence, it is

admitted by the witness that plaintiff did not take any steps personally and

appointed defendant No.1 as administrator of the property and has answered

that she did not remember whether her husband took any steps to assert any

rights under the said decree passed in the year 1991.  

60.  In para 7 of the cross examination witness admitted that in the year

2004, slum rehabilitation scheme was being implemented in the suit property.

Mr   Subramanian,   learned   senior   counsel   is   right   in   his   submission   that   the

                                                                                              

witness   examined   by   the   plaintiff   is   married   in   the   year   1982   and   had   no

personal knowledge of the facts between 1963 and 1982.  Learned senior counsel

is right in his submission that even if three years period is considered from the

date of filing suit in City Civil Court, which was in 2007, this suit is ex­facie

barred by law of limitation. In my view, limitation once starts running it does not

stop.  Perusal of oral evidence referred aforesaid clearly indicates the knowledge

of the plaintiff about adverse title, interest and possession of the defendants

much prior to three years of filing this suit.   

61.  On perusal of prayer (a) of the plaint, it is clear that the plaintiff seeks

a declaration that the lease granted under lease deeds in favour of his father on

27th  November 1963 are in force, subsisting and binding upon the defendants.

On  perusal   of   the   letter   addressed   by   the   plaintiff   on   15th  September  2004

through his advocate to Rizvi Land Developers, Pvt. Ltd., it is clear that it was the

case of the plaintiff that Rizvi Land Developers Pvt. Ltd. had agreed to purchase

the suit property from the father of the plaintiff.  In the said notice, it is alleged

that after the death of the father, plaintiff and defendant No.1 were co­owner of

the suit plot having 50% share each in it and on several occasions, had  requested

to   M/s   Rizvi   Land   Developers,   defendant   No.2   herein   to   complete   the   said

transaction   by   making   payment   of   the   balance   consideration   with   interest

thereon.   However, defendant No.2 had failed to complete the transaction in

spite of lapse of almost 20 years.  In response to the said letter, defendant No.2

through its advocate replied on 24th September 2004 and informed the plaintiff

that the entire consideration was already paid by defendant No.2 to the father of

the plaintiff during his lifetime.   Deed of assignment dated 25th  January 1985

came to be executed by the father of plaintiff in favour of defendant No.2 and

defendant No.2 was put in possession of the suit plot.    On perusal of the plaint

filed by the plaintiff in this suit and in three suits in Bombay City Civil Court

against the State of Maharashtra and others including Mrs Noel Richard Pereira

and defendant No.3 herein and others, it is clear that it was to the knowledge of

the plaintiff that suit property was declared as slum and plans had been approved

by the authorities.    After demise of father, dispute arose between the parties.

The said disputes were referred to arbitration.   On 15th  April 1986, consent

award was made by the learned arbitrator based on consent terms arrived at

between  the  plaintiff  and defendant  No.1. It is not in  dispute  that  the  said

consent award culminated into decree dated 9th September 1991.  It is stated in

the plaint that suit property was declared as slum by the slum authority on 21st

July 1997.  In paragraph 10 of the plaint in the said suit, it is stated that Mrs

Noel Pereira by a purported deed of conveyance dated 27th  January 1992 had

assigned her rights in respect of the suit plot in favour of Mr Yusuf Ahmed.  The

said purported deed of conveyance was executed without any prior notice to the

plaintiff.    By an order dated 24th July 1992, City Survey Officer had accepted the

representation made by Mr Yusuf Ahmed and passed an order on 24th July 1994

allowing the said application and name of Mr Yusuf Ahmed came to recorded in

property record.  It is stated in the said plaint that Mr Yusuf Ahmed thereafter

entered into some agreement with defendant No.7 in that suit to develop the suit

property.  It is stated in the plaint that The Slum Rehabilitation and Development

Authority had issued letter  of intent dated 17th  October 2003 approving the

proposal for a scheme of rehabilitation of the suit property made by Mr Yusuf

Ahmed and defendant No.3 herein for carrying out development activity on the

suit property.  It is averred in the said plaint that the alleged lease deeds were

still subsisting.  The said suit has been filed on 25th October 2007.  Plaitniff has

applied for cancellation of letter of intent dated 12th October 2003 and to include

the name of the plaintiff in the property card.  Plaintiff has also applied for order

and direction against defendant Nos.2 and 3 herein to remove themselves along

with their family members, servants and agents from the suit plot.  The said suit

is pending.   

62. In my view for considering any such declaration as prayed in prayer

clause (a) of the plaint, Article 58 of schedule­I to Limitation Act 1963 would be

applicable.    On consideration of the plaint, oral evidence led by the plaintiff and

the averments made in the plaint before City Civil Court, it is clear that it was the

claim of the plaintiff that lease deeds executed in favour of the father by the

erstwhile owner was valid and subsisting.  The said suit was admittedly filed in

City Civil Court on 25th October 2007. It is the case of the plaintiff himself in the

notice addressed to defendant No.2 that on several occasions, plaintiff and his

brother had called upon defendant No.2 to complete the deed of assignment

entered into by the father of plaintiff in favour of defendant No.2 in the year

1985.   But defendant No.2 failed to complete the said transaction in last 20

years.     Article   58   provides   for   three   years   limitation   for   filing   a   suit   for

declaration and time to file suit commences when the right to sue first accrues.

In my view, father of the plaintiff and first defendant had already executed the

deed of assignment in favour of defendant No.2 as far back as on 25 January

1985.  In any event, plaintiff himself had asserted in the plaint before City Civil

Court filed in 2007 that plaintiff continued to be lessee of the suit plot.  This suit

is admittedly filed on 6th April 2011 and thus prayer (a) for declaration, in my

view is on the face of it barred by law of limitation. 

63.  As far as prayer (b) by which plaintiff seeks declaration that plaintiff is

owner or is entitled to 50% share in right, title and interest in the deceased

father's   property   described   in   the   suit   is   concerned,     Article­58   would   be

applicable to this prayer also.  It is not in dispute that there was a consent award

in respect of the dispute having arisen after demise of father between plaintiff

and defendant No.1 which award was declared on 15th April 1986.  In the said

consent award, dispute between the plaintiff and defendant No.1 in respect of

the property of the deceased father was settled on the terms recorded therein.

Decree in terms of the said award admittedly came to be passed in 1991.  Article

106   of   the   Limitation   Act   provides   for   period   of   12   years   limitation   for   a

distributive   share   of   the   property   of   intestate   against   other   person   illegally

charged with the duty of distributing the estate.  Time begins under Article 106

when the legacy and share becomes payable or deliverable.  Under Article 110 of

schedule­I of the Limitation Act, suit has to be filed within 12 years by a person

excluded   from   joint   family   property   to   enforce   a   right   therein   which   time

commences when the exclusion becomes known to the plaintiff.  Even if it is the

case of the plaintiff that he was deprived of property of the deceased father by

first defendant is concerned,   Article­106 of schedule­I to the Limitation Act

would be attracted.   Consent award was declared on 15th April 1986.  Decree in

terms of consent award was passed in 1991 whereas suit is filed on 6th  April

2011.  Prayer (b) thus in my view is on the face of it barred by law of limitation.  

64.  As   far   as   prayer   (c)   is   concerned,   plaintiff   seeks   declaration   that

plaintiff is entitled to the partition of the suit property by metes and bounds and

is entitled to be put in separate possession of his 50% share.  In my view, Article

58 would be applicable to such prayer for declaration. Suit having been filed

after three years from the date when the right to sue first accrued.       For the

reasons recorded in respect of prayer (b),  this prayer also in my view is on the

fact of it  barred by law of limitation.  

65. As far as prayer (d) is concerned, plaintiff seeks an order and decree

of partition by metes and bounds and for possession of his 50% share in the suit

property.           In my view this prayer for possession of suit property on which

scheme under Slums Act is under implementation is barred under Section 42 of

the Slums Act.  This Court thus has no jurisdiction to consider such prayer.  I am

thus not dealing with the issue of limitation in respect of this prayer.  

66. As far as prayer (e) is concerned, plaintiff seeks an order and decree

against defendant No.1 to render true and correct accounts of its acts and actions

in respect of suit property.   Even if defendant No.1 is considered as an agent of

the plaintiff, for such relief as claimed in prayer (e) for rendering true and

correct accounts by an agent Article 4 of the Limitation Act would be applicable

which provides for three years time to file a suit by  a principal against agent to

include his conduct or in any event Article 113 which provides for three years

period in respect of the claim to which no other article applies would apply and

time begins when right to sue first accrues.  Consent award was made on 15th

April 1986.  Decree was passed in 1991.  Right to sue if any for rendering true

and correct account by the first defendant arose in the year 1991.   Prayer (e)

thus on the face of it is barred by law of limitation.  

67. As far as prayer (f) is concerned, plaintiff seeks declaration that all the

acts of defendant No.1 or the documents executed by him in favour of defendant

Nos.2 and 3 are void, illegal and unlawful.   Prayer   (g) is for an order and

direction against the defendants to deliver the deed of assignment dated 28th

January 2005 and deed of conveyance dated 27th  January 1992 between Mrs

Noel Pereira and Mr Yusuf Ahmed and Conveyance Deed dated 27th  January

2007 executed between Yusuf Ahmed and defendant No.3 to this Court.  Prayer

(h) is for cancellation of those documents under the direction and supervision of

this Court.   For seeking declaration in terms of prayer (f) Article 58 would be

applicable.  All the three documents referred to aforesaid were executed prior to

three years before the date of filing suit.  Prayer (f) for declaration is thus on the

face of  it barred by law of limitation. For delivery of documents sought in prayer

(g), in my view Article 113 would be applicable.  On perusal of oral evidence and

the documentary evidence, it is clear that right to sue accrued to the plaintiff

much prior to three years before filing of this suit.    Plaintiff was fully aware of

these documents.  Both the deeds of conveyance are registered documents which

amounts to constructive notice.  Prayer (g) is thus, barred by law of limitation.

For the reasons recorded in respect of prayer (g),  prayer (h) which is also for

cancellation of documents is also barred by law of limitation.   

68.  Since I have taken a view that prayer (i) would be beyond jurisdiction

of this Court, in view of Section 42 of the Slums Act, I do not propose to decide

the issue of limitation in respect of this prayer.  

69.   In the result, I pass the following order.  

(a) Suit is dismissed. 

(b) In   view   of   dismissal   of   suit,   notice   of   motion   pending   if   any,   is

dismissed as infructuous.  

(c ) No order as to costs.               

      (R.D.DHANUKA, J.) 

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