Law Web: Whether court can give injunction to plaintiff if he fails to prove his legal right?

The judgment of Lower Appellate Court impugned in this second

appeal shows that the lower appellate court has not considered whether the

street in relation to which the plaintiff was claiming right was a public

street or not. It does not consider whether the layout in which the plot

no.20A or plot no.20 are located was sanctioned in accordance with the law

or not. It has also not read sale deed of defendant Exh,.95 and sale deed of

plaintiff Exh.52 in contradistinction. It also lost sight of the fact that sale

deed of defendant was 5 years earlier in point of time than the sale deed of

plaintiff. It has only given importance to the fact that existence of 80 feet

road has been proved by the respondent / plaintiff. The said fact by itself

does not cloth the respondent / plaintiff with any right unless and until it is

established that it was a public street or a street abutting his plot no.20A.

The record shows that on eastern side of his plot there exists another road

of 20 feet width. Ex. 45 on record also shows that plaintiff has encroached

beyond his plot on western side i.e. on land of plot no. 20. However Ex. 45

mentions that on west of plot no. 20 there is 60 feet wide road. The

learned lower appellate court has then considered the judgment of this

court in Appeal No. 27/1978, in which facts reveals that the Nagpur

Improvement Trust had acquired some portion from Khasara no.54 and 55

for the purpose of construction of 80 feet road. Some persons had built

structures on plot no.17 and 18 and High Court only protected those

structures till it became essential for the Nagpur Improvement Trust to

demolish all other structures. The learned lower appellate court has

interpreted this to mean that High Court permitted Nagpur Improvement

Trust to start demolition work when ever it was necessary for construction

of 80 feet wide road. The learned lower appellate court has held that this

judgment of High Court delivered on 24.07.1981 revealed that plot nos.17

and 18 along with other plots were acquired by the Nagpur Improvement

Trust for Sakkardara Street Scheme i.e. 80 feet wide road. As plot nos. 17

to 20 are in one & same row, lower appellate court concluded that plot

no.20 was also acquired and therefeore, nothing remained with owner

Sitabai i.e. the present appellant. It then proceeded to consider the right of

plaintiff to restrain the defendants from carrying out construction over the

disputed area. It found that the plaintiff had legal right to have a road

frontage from western side & it therefore, allowed the appeal and decreed

the suit. It is thus apparent that the provisions of various laws which need

scrutiny to find out such legal right in the plaintiff have not been gone into.

Had plaintiff shown a sanctioned layout plan or a town planning scheme in

force to show 80 feet wide public road on the west of his plot no.20A, the

situation would have been entirely different. Unfortunately the plaintiff

has failed to bring on record any such material. In the circumstances, it is

difficult to sustain the judgment delivered by the lower appellate court and

the same deserves to be quashed and set aside.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

SECOND APPEAL No. 105 OF 1992.

Dr. Narendra s/o Chirkutrao Balpande.

VERSUS

Atulkumar s/o Pundalikrao Atkar.

CORAM : B.P. DHARMADHIKARI, J.

Dated : 1st April, 2008.

Citation:2008(3) ALLMR497

1. The original defendants have by this Second Appeal challenged

the reversing judgment dated 22.12.1989 delivered by the IInd Additional

District Judge, Nagpur in Regular Civil Appeal No.503/1984. By that

judgment while setting aside the dismissal of Regular Civil Suit No.

31/1978, filed by the present respondents in the Court of 3

rd Joint Civil

Judge, Junior Division, Nagpur; the Lower Appellate Court permanently

restrained the appellants from erecting any structure over the portion lying

to western side of the plaintiffs' plot no.20A in Khasara no.54 of Sakkardara

Road, Mouza Sakkardara, Tahsil and District – Nagpur. The suit was filed

by the respondent contending that to the West of his plot no.20A there is

80 feet vide public road and present appellants have started construction

over the said road illegally. The suit was dismissed by the trial court after

observing that the plaintiff could not establish that said construction

undertaken by the defendants in any way constitute invasion of his legal

right. It found that as per report of Commissioner, there was no road

existing on West side of plot no.20A. The Lower Appellate Court while

reversing this judgment found that the original defendants accepted that

there was 60 feet vide road adjacent to the West of the plot purchased by

her husband and the said road later on became 80 feet vide and it ran over

her plot no.20. It further found that the said plot no.20 of defendant was

acquired by the Nagpur Improvement Trust for construction of 80 feet vide

road. It further found that in some other litigation the Hon'ble High Court

permitted Nagpur Improvement Trust to start demolition work of structures

on acquired land and therefore, the plaintiff was entitled to get road

frontage for his plot on Western side.

2. This Appeal has been admitted on 30.03.1992 on the following

substantial question of law :

'Whether as a consequence of the decision in 1992

Mh.L.J. P.179, there is a substantial change in the

circumstances owing to which the relief of permanent

injunction granted to the respondent requires to be

reconsidered ?”

During final hearing of the Second Appeal, the appellants moved Civil

Application No. 1100/2008, for framing additional substantial questions of

law. The application was opposed by the respondents/plaintiffs by filing

reply affidavit. After hearing the parties on 13.02.2008, 5 more questions

came to be framed as additional substantial questions of law. Those

questions are as under :

“2. Whether the suit filed by the respondent no.1

[original plaintiff] was not maintainable in law

since the same was improperly constituted and

whether the same suit was liable to be dismissed for

non-joinder of necessary parties such as Nagpur

Improvement Trust, Nagpur Municipal Corporation

and Town Planning Authority ?

3. Whether the 1

st Appellate Court erred in

jurisdiction in allowing the appeal on such

improperly constituted suit for want of necessary

parties ?

4. Whether respondent no.2 [original plaintiff] has

any legal right to maintain the suit or to the reliefs

claimed in the suit and he has no locus standi at all

and he has claim any reliefs in the suit against the

appellants-original defendants ?

5. Whether judgment of 1

st Appellate Court in Regular

Civil Appeal No.503/1984 is vitiated on the

grounds of non-consideration of the material

documents on record i.e. the inspection report of

the Commissioner appointed by the trial Court in

the original suit ?

6. Whether the judgment of the 1

st Appellate Court is

vitiated on the ground of placing undue and

unwarranted reliance on the inadmissible evidence

about alleged acquisition of plot no.20 belonging to

the original defendant no.1, without there being

any pleading to this effect contained in the original

plaint and disregarding the material on record

/evidence ?”

3. In this background I have heard Senior Advocate Shri R.B.

Pendharkar, with Advocate Shri Hedau for appellants/defendants and

Advocate Shri B.N. Mohta, for respondent/plaintiff. The appellant no.

2[i], 2[j] and 2[k] who were minors have attained majority during

pendency of this Second Appeal. Learned Senior Advocate had sought

leave to carry out necessary amendment in this respect. Advocate Shri B.N.

Mohta, has no objection. Leave to amend is accordingly granted. Necessary

amendment be carried out immediately.

4. Senior Advocate Shri Pendharkar, has contended that there was

no legal right or injury pleaded and demonstrated by the plaintiff and suit

was merely based upon surmises to prevent alleged future loss. The

plaintiff did not produce any sanctioned building plan of his structure and

also did not produce any sanctioned layout in which his plot no.20A or plot

no.20 of the present appellants/original defendants was situated. It is

contended that the finding of the Lower Appellate Court that plot of the

present appellants was acquired by the Nagpur Improvement Trust is

without any pleading and as such evidence which has come on record in

that respect cannot be looked into. He has placed reliance upon the

judgment of Hon'ble Supreme Court reported at AIR 1987 SC 2179 (Vinod

Kumar Arora .vrs. Smt. Surjit Kaur).

It is further argued that the Sakkardara Street Scheme framed by

Nagpur Improvement Trust itself has been quashed, and as such the very

basis on which the entire edifice of the case of the respondent/plaintiff

stood has been lost. He also states that after the quashing of the scheme,

Nagpur Improvement Trust has accepted development charges of Rs.

2640/- from appellant no.2 and hence the contention of the plaintiff that

there is 80 feet vide road on west side of his plot, is itself incorrect. He

further states that original plaintiff – Atul, avoided to enter witness box and

the appellants have challenged his ownership of plot no. 20A and also

status to maintain such suit. He states that while opposing the suit

defendants called upon plaintiff to produce sanction building plan, not only

through their written statement but also otherwise, but no such sanctioned

plan has come on record. He points out that there is material on record

which shows that there was no sanction either to the plot or structure of the

plaintiff and report of Court Commissioner (Exh.45), demonstrated that the

plaintiff had committed encroachment on plot no. 20. He states that

provisions of Section 41 of the Specific Relief Act, are not correctly

construed by the Lower Appellate Court. According to him, the plaintiff did

not approach the court with clean hands, suppressed material particulars,

avoided to produce documents, encroachment upon plot of defendants and

also did not enter witness box. He contends that in such circumstances,

considering the facts as also nature of the suit, it was necessary for the

respondents/plaintiff to join planning authority i.e. Nagpur Improvement

Trust or Nagpur Municipal Corporation as necessary parties. He invites

attention to the evidence on record to substantiate his stand, and also to

various judgments of the Hon'ble Apex Court and of this Court to support

the issues raised by him.

5. As against this, Advocate Shri B.N. Mohta, for respondent/

plaintiff has stated that purchase of plot no.20-A by plaintiff is not in

dispute and existence of road on its western side is also clearly mentioned

in his sale deed. He further states that perusal of said sale deed [Exh.52]

and its comparison with sale deed [Exh.95] of defendants, clearly show that

all arguments advanced above are misconceived. He states that the total

area of plot no.20A purchased by the defendants was 2700 sq.ft. and it has

been acquired completely by the Nagpur Improvement Trust. He further

states that on west of plot no.20-A there is public road and therefore

plaintiffs have constructed shop blocks on that side and are entitled legally

to have frontage on public road. He invites attention to the layout plot -

Exh.54 and also the Exh. 55. He also invites attention to representation

made by all residents in this respect vide Exh.56. He contends that there

was no need of plea that land of defendant was acquired by Nagpur

Improvement Trust, because there was specific plea that on west side of the

plot no.20A there was a public road and not plot no.20. He further invites

attention to the material on record to show that the original owner of plot

no,.20 – Sitabai accepted receipt of land acquisition notice and also receipt

of compensation amount from Nagpur Improvement Trust. He also invites

attention to the fact that before the Lower Appellate Court, application

under Order 18 Rule 17 was also made by the appellant to show that entire

plot no.20 was not acquired and therefore, to recall witness to allow the

defendant to adduce evidence in that respect, but that application was

rejected on 22.12.1989, after noticing that entire plot no.20 was acquired.

He further states that alleged encroachment recorded by the Commissioner

in Exh.45, was objected to by the present respondent by filing objection

Exh.47, but that has not been considered. He further states that subsequent

purchaser and present appellant no.2 did not file any separate written

statement and did not come with a case that plot no.20 or any portion

thereof was constituted and recognized as a regular plot by the Nagpur

Improvement Trust and there was no case that any such plot by town

planning & was released in favour of the defendant. He further states that

the High Court judgment reported at 1992 Mh.L.J. 179 (Bharat Maganbhai

Kheta .vrs. Nagpur Improvement Trust), does not apply in the present facts

where possession was already taken and compensation was accepted. He

also attempts to points out how the other judgment relied upon by the

appellants are not applicable & relevant.

6. Learned Senior Advocate, in his brief reply has stated that the

arguments and objections about cross examination conducted without plea

has not been answered and no legal right has been made out. He argues

that this Court can even interfere with the concurrent findings of fact, if it is

found that conclusions are based on inadmissible evidence & pleas. He

further states that alleged representation [Exh.56], is not proved because

none of the signatories thereto have been examined and its contents are

also not proved in accordance with law. He further states that the

judgment of this Court in the case of Bharat Kheta (supra), is the judgment

in rem, because it quashes the entire notification for acquisition. He further

points out that there was a prayer for spot inspection made vide Exh.21 by

the subsequent purchaser, but in view of the Commissioner's report at

Exh.45, the Lower Court rejected it. He contends that in view of this order,

the arguments about objection to Exh.45, is misconceived.

7. Thus the position which emerges on record reveals that the

original plaintiff / present respondent is owner of plot no.20A and plot

no.20 of present appellant is on its western side. The map & report of

Commissioner shows that there is 60 ft. road on western side of plot no.20.

On east of the plot no.20A, there is 20 ft. wide road. The case of the

respondent / plaintiff is of obstruction to his user and passage to 80 ft. wide

road which according to the plaintiff exists on western side of the plot

no.20A. In other words, according to the plaintiff, there is no plot no.20 on

Western side, but 80 feet wide road. Both the courts have relied upon the

spot inspection report & map drawn by Shri G.D. Deshpande, Advocate

appointed as commissioner for that purpose. Though the plaintiff has

objected to some portion of this spot inspection report on the ground that

the encroachment of plaintiff on plot of defendant mentioned therein is not

correct, I find that, that by itself is not sufficient to discard this document.

After mentioning the dimensions of plot no.20 A, the Commissioner has

mentioned that on front i.e. on east of plot no.20A there is 20 ft. wide road.

On west of plot no.20A there is plot no.20 not separated by any fencing

with a tal (i.e. fuel wood depot) and shed erected on it by the plaintiff. Plot

no.20A ad-measures North-Sough 40 feet and East West 40 feet. This is in

accordance with the sale deed of the respondent / plaintiff. Plot no.20 admeasures

North-Sough 40 feet or 41 feet and East West 30 feet on North

side and 35 feet on South side. This is not as per the proved sale deed Ex.

95 of plot no.20 in favour of the defendant. It is to be noted that said sale

deed is dated 13.03.1965 i.e. prior in point of time then the sale deed of

respondent / plaintiff. In it East-West length on northern side is mentioned

as 60 feet and 71 feet on southern side. It is further mentioned that on its

eastern side there is space left for 60 feet wide road, while on west there

was government way [pandhan]. It therefore does not mention plot no.

20A on its eastern side. Exh.52 is the sale deed dated 22.01.1970 executed

in favour of the respondent, in which it is mentioned that plot no.20A admeasuring

40 x 40 feet, has been sold to plaintiff. In it 20 ft. wide road is

mentioned on its east, while on west it is mentioned that there is vacant

land of about 10 ft. and thereafter 80 feet wide road. Thus plot no.20 sold

by very same vendor on 13.03.1965 to the original defendant is not

mentioned in this sale deed Exh.52.

8. Perusal of map of spot inspection drawn by the Commissioner

reveals the position as reflected in his report. Plot no.20 of present

appellant / defendants is situated on western side of plot no.20A of

respondent / plaintiff. One Keshao Govindrao Maske relative of defendant

no.1 Sitabai was examined as defendant’s witness no.2. He has prepared a

map Exh.83, which according to him is the layout map of the society. This

map again show the position which is appearing from the map drawn by

the Court Commissioner. The map drawn by him Exh.83, shows that the

government pandhan on west of plot no.20. Plot nos. 17 to 24 are in one

line adjacent to the pandhan. On Eastern side of these plots are plot nos.

17A to 24A, and further beyond these plots 17A to 24A on their east is 20

ft. wide road. The evidence which has come on record either of plaintiff or

defendant reveals that neither the layout of the society was sanctioned nor

any structure on any plot was sanctioned. The father of plaintiff Pundlik

who stated that he purchased the plot and he was owner thereof also

accepted that he did not obtain any permission from Nagpur Improvement

Trust before undertaking any construction. He stated that Exh.45 map

drawn by the commissioner is not correct and there is 80 ft. wide road on

spot. He further stated that the layout has been sanctioned in 1981. His

other witness Krishnarao Umathe who executed sale deed Exh.52 in favour

of the plaintiff stated in examination-in-chief, that plot no.20 was under 80

feet wide road. He further stated that there was no sanction of Nagpur

Improvement Trust to his layout. Witness no.3 for plaintiff stated that his

house is also not sanctioned by Nagpur Improvement Trust.

9. Sale deeds mentioned above do not show that plot no. 20 or 20A

were in any sanctioned layout. Exh.52 sale deed of plaintiff is executed by

three private persons . Same is the position even in the Exh.95. Both these

sale deeds mention that plots were laid out in land Khasara no.54 and those

plots were sold. There is no map accompanying any of these sale deeds.

Exh.56, a document on which the plaintiff has placed reliance clearly shows

that alleged signatories thereto purchased the plots in field survey no.54

area 2 Acres 99 Decimals, which was a private layout. The signatories have

mentioned that plot nos. 20A to 24A where purchased by them and on its

west there is 80 feet road of Nagpur Improvement Trust. The said road was

under Sakkardara Street Scheme of Nagpur Improvement Trust sanctioned

by the State Government and all of them have constructed on their plots.

They have stated that after their plots, there was open land of about two

feet or six feet for slope of road and then there was 80 feet wide road.

They have further stated that said land between their plots and 80 feet wide

road has been illegally sold by some persons and those purchasers were

trying to take possession. The persons making representation alleged that

they would loose advantage of frontage of 80 feet wide road in case such

purchasers were allowed to take possession or allowed to construct and

thereby suffer serious prejudice and loss. Though the appellant / defendant

has contended that this document is not proved, I find that this document

can be used against the respondent / plaintiff only to gather that the layout

in which the respondent / plaintiff purchased plot was not sanctioned

layout and plaintiff’s plot was also therefore not sanctioned. It cannot be

forgotten that purchase of plot no. 20 by present appellants is 5 year earlier

then the purchase of plot no. 20A by the present respondent / plaintiff.

10. The defendants/ appellants have always contended that there

was no sanction plan of house of original plaintiff. The plea is specifically

raised in written statement and thereafter on number of occasions. It is to

be noticed that a person has got right to use public way or public street and

therefore he can obtain injunction to restrain anybody who obstructs him in

that user. AIR 1969 Andhra Pradesh 136 (Movva Butchamma .vrs. Movva

Venkateshwararao and others), is the Division Bench judgment which holds

that right of public to pass and re-pass extended over every inch of street

and as such the plaintiff there was found entitled to mandatory injunction

for removal of obstruction without proof of special damage. Similar view is

also taken by the Hon'ble Gujarat High Court in judgment reported at A.I.R.

1983 Guj. 119 (Prabhudas Kalyanji and others .vrs. Haji Hasan Haji Yusuf

Maklal). The Gujarat High Court has referred to the judgment of Allahabad

High Court reported at AIR 1975 All. 341 (Bhagwanti .vrs. Jiuti), and

noticed that any person who has a house abutting a public road or a land is

entitled to road or lane from the house and no person or authority can

destroy that right. AIR 1988 SC 1988 (Sodan Singh .vrs. New Delhi

Municipal Committee and another), in paragraph no.15, considers the user

of public street and the Hon'ble Apex Court has held that the right of user

of every part of public street was subject to reasonable restrictions in public

interest. I am not concerned in the present matter with the details thereof,

but what is important is that the obstruction must be in user of a public

street or way. Here also alleged existence of 80 feet wide public road on

western side & obstruction in its user is mentioned as cause of action by the

plaintiff.

11. As already observed above, both the plaintiff and the defendants

have purchased their respective plots in private layout prepared in field

survey no.54. As the respondent/plaintiff approached the court and wanted

injunction, burden was upon him to show that his plot was legal and on

west side of his plot there existed public road or public street. Section 41 of

the Maharashtra Land Revenue Code deals with uses to which agricultural

land may be put and it does not permit use of any agricultural field for

preparation of layout for residential purpose. Section 42 contemplates

obtaining of a permission for non agricultural purpose/use and it also

prohibits user of land assessed for one non-agricultural purpose for any

other non-agricultural purpose. Erecting of a building which is not farm

building is a non – agricultural purpose. Section 44 prescribes procedure

for conversion of use of land and section 45 prescribed penalty for using

land without permission. In facts of present case, no conversion of

agricultural land survey no.54 and permission for its user for non-

agricultural purpose has been pleaded or proved.

12. It is admitted position that the said land was sought to be

acquired by the Nagpur Improvement Trust for its Sakkardara Street

Scheme. The provisions of Nagpur Improvement Trust vide its section 2(l)

states that words and expressions not defined in Nagpur Improvement

Trust Act as having meaning assigned to them in City of Nagpur

Corporation Act, 1948. City of Nagpur Corporation Act, 1948 defines

public street in section 5[42], as one which is prepared or maintained out

of municipal or public funds, or one which is declared as such under the

provisions of Section 311 of the Corporation Act. Section 311 is the power

of Commissioner to declare street as public street. Street has been defined

in section 5[48] to mean any road, lane, galli, passage, pathway etc., which

is accessible to public whether permanently or temporarily and it also

includes every vacant space though it may be private property, obstructed

wholly or partly by any gate etc. if it is used by persons as a means of access

to or from any public place for through fare. Part VI which deals with

lands, buildings and streets speaks of Town Planning scheme vide its

section 271. Under provisions of Maharashtra Regional and Town

Planning Act, 1966 for separate parts of city of Nagpur earlier there were

two planning authorities, one was Nagpur Improvement Trust and the other

was Nagpur Municipal Corporation. Section 2[21] of the Maharashtra

Regional and Town Planning Act, defines plot to mean a portion of land

allotted in ones ownership and numbered and shown as one plot in town

planning scheme. Section 43 which appears in Chapter IV deals with

control of development and use of land included in development plans,

points out restrictions on development of lands and requirement of prior

permission for undertaking any development work including building

activity. The details of every provision made by this enactment are not

necessary for present purpose because plaintiff and all his witness have

accepted that they do not have any building plan sanctioned by the

competent Authority. In other words plot no.20A purchased by the plaintiff

or his construction thereupon is not legal and in accordance with the

provisions of any of these Acts.

13. It is to be noted that the contention of respondent / plaintiff is

that 80 feet wide road has been prescribed under the Sakkardara Street

Scheme on western side of his plot no.20A. The evidence on record does

not show any legal plot no.20A. The judgment of Division Bench

mentioned above i.e. in the case of Bharat Kheta [supra], has quashed the

Sakkardara Street Scheme. The Hon. Division Bench has found in

paragraph no. 30 that the said scheme as framed was under section 34 and

not section 31 of the Nagpur Improvement Trust Act. Division Bench

therefore accepted the contention of land owners that notification was

ultra-vires section 31. In paragraph no.39 the Hon. Division Bench allowed

two writ petitions by quashing the acquisition proceedings as also

notification, except to the extent of land surrendered voluntarily for the

purpose of construction of Ring Road in accordance with the interim orders

passed by the High Court. Other writ petitions have been fully allowed.

The judgment therefore, clearly shows that Sakkardara Street Scheme was

found to be ultra vires and hence unconstitutional. The area of plot no.20

purchased by the original defendant vide sale deed Exh.95, has already

been mentioned above. The area available to the western side of plot

no.20A has also come on record vide Exh.45. This part of the report of

Court Commissioner has not been demonstrated to be incorrect or perverse,

and therefore, needs to be accepted. It is also to be seen that from

subsequent purchaser of plot no.20 i.e. appellant no.2 Nagpur Improvement

Trust has accepted the development charges of Rs. 2640/- on 20.11.1981.

At that time this litigation was going on and Sakkardara Street Scheme was

in force. Appellant no.1 has further stated that existing plot no.20 is about

1300 sq. ft. and his name has been recorded in Corporation records by

correcting mutation entries, as also in Revenue records. It is not necessary

for me to go into all these details and niceties because the respondent /

plaintiff has not established his legal right to use the alleged 80 feet vide

public road situated allegedly on western side of his plot no.20A. The

records demonstrate that on western side of plot no.20A, there existed plot

no. 20 which was purchased by the original defendant long before the

plaintiff purchased his plot no. 20A. The East-West length of said plot

no.20 as per the sale deed is already mentioned above and said sale deed

discloses existence of 60 feet vide road on its eastern side and a government

pandhan [way] on its western side. But again all this was in illegal and

unauthorised layout. This situation raises several disputed questions which

are still unanswered on record.

14. The original defendant Sitabai has accepted receipt of summons

from Land Acquisition Officer and she further accepted that there was 60

feet wide road which has later on became 80 feet wide and said road runs

through her plot. Her witness D.W.2 – Keshao Maske also accepts receipt

of notice from Land Acquisition Officer and filing of claim statement before

the said officer for claiming compensation. He also accepted that

Sadashivrao husband of Sitabai got compensation of Rs. 5000/-. He stated

that Nagpur Improvement Trust has acquired half of plot no.20 for 80 feet

wide road. He also accepted that some portion of plot no.20 has gone into

60 feet wide road. The present appellant no.2 and original defendant no.3

in examination-in-chief stated that some portion of plot no.20 had gone in

60 feet wide road. D.W. 4 Rambhau Mate, has stated that after Nagpur

Improvement Trust cancelled the acquisition, plots were given to the plot

holders by the Nagpur Improvement Trust and development charges have

been accepted from plot holders. It is therefore, clear even in evidence of

defendant there is nothing to show that entire land of plot no.20 was

acquired by the Nagpur Improvement Trust. Once the Sakkardara street

scheme was quashed, the status of alleged 80 feet wide road in town

planning scheme or any other similar legal scheme has not been brought on

record by the respondent / plaintiff. Thus mere contention that present

appellants received compensation from Nagpur Improvement Trust is not

sufficient to hold that the appellants have ceased to be owners of entire plot

no.20, situated on western side of plot no.20A. Learned Senior Advocate,

has invited attention to the communication dated 28.10.1993 issued by the

Building Engineer to one Shri H.T. Kale, wherein it has been mentioned

that the layout in Khasara no.54 of mouza Sakkardara is unauthorised and

hence building plan cannot be sanctioned. However, as rightly objected by

Shri B.N. Mohta, Advocate such communication cannot be looked into for

the first time by this court.

15. Learned Senior Advocate has relied upon the judgment of

Hon'ble Apex Court in the case of Vinod Kumar Arora (supra), particularly

paragraph no.11 to urge that as there was no plea of acquisition by the

Nagpur Improvement Trust, admission given by the defendants in their

cross examination in this respect cannot be looked into. It is no doubt true

that in paragraph no.11 the Hon'ble Apex Court has held that pleadings of

the parties form the foundation of their case and it is not open to them to

give up the case set out in the pleadings and propound a new and different

case. In the said case before the Hon'ble Apex Court when the appellant

entered the witness box, he deposed contrary to his stand in written

statement and this shift in his stand went unnoticed before the lower

statutory authorities. Here, the grievance of respondent / plaintiff was that

on western side of his plot no.20A there existed only 80 feet wide road and

plot no.20 was not in existence. Acquisition of complete plot no.20 by the

Nagpur Improvement Trust as alleged by him is the reason for 80 feet wide

road coming into existence. The judgment therefore has no application in

the present facts.

16. 2000 (2) Mh.L.J. 570 (SNP Shipping Services Pvt Ltd. vrs. World

Tanker Carrier Corporation), is the ruling of this Court pressed into service

by the appellants to contend that a party withholding any material

information from the court of law can be thrown out of court if it

constitutes abuse of process of law. In the present facts, the suit came to be

filed in the year 1978 when the Sakkardara Street Scheme was still in

vogue. It is not in dispute that as per the said scheme, 80 feet wide road

had been prescribed in khasara no.54 on western side of plot no.20A of the

plaintiff. Plot no.20 of appellant / defendant was partially covered under

the said 80 feet wide road. Both the plaintiffs and defendants have

purchased plots in unauthrosied layout & both sail in same boat. I

therefore find that the ruling has no application in the present facts.

AIR 1936 Lahore 567 (Jeswant Singh .vrs. Shiromani

Gurudwaras Prabandhak Committee) and AIR 1940 Lahore 69 (Bhansingh

.vrs. Narinjansingh and others) are pointed out to substantiate the stand

that respondent / plaintiff did not approach the Court with clean hands. It

appears that the respondent / plaintiff did not point out illegal nature of

layout or legal status of his plot or his raising of construction without

obtaining sanction etc., in his plaint. But then for reasons mentioned

above, I find that the appellant / defendant was also similarly placed and

hence this ruling does not in any way help the case of present appellant.

2007 [3] All.M.R. 86 (Municipal Council Pusad .vrs. Kundanlal

Mohanlal Jaiswal) is pointed out by learned Senior Advocate to contend

that it was for the respondent / plaintiff to make out a case of legal right in

his favour and for that purpose to point out certain basic facts like legal

nature of layout, his plot and structure. 2007 (8) SCC 493 (Harichand

..vrs... Dharampal Singh Baba ) is pressed into service to state that there

was no lawful right in the original plaintiff Atul to maintain such suit. The

contention is Atul did not enter witness box and his father Pundlik claimed

to be the owner of plot no.20A. Perusal of sale deed Exh.52 shows that the

plaintiff Atul was about 5 years old and his mother acted as his guardian

when sale deed was obtained on 22.1.1970. His father Pundlikrao has

entered witness box and claimed title in himself. Considering the nature of

the suit it is apparent that he was acting in the interest of estate of recorded

owner & original plaintiff Atul. Nothing has been brought on record to

show that there was any hostility between father and son. In any case, the

argument itself is misconceived in present facts and the above ruling of the

Hon'ble Apex Court particularly, the ratio in paragraph no.7 thereof has no

relevance here.

(2004) 13 SCC 750 (Mukund Balkrishna Kulkarni .vrs. Kulkarni

Powder Metallurgical), has been pointed out to show that the High Court

can interfere with the findings of facts when the same are wholly irrational

or arrived at without taking into consideration the matters which were

relevant or on consideration of irrelevant or legally in-admissible evidence.

The other side also has not disputed this jurisdiction available to the High

Court under section 100 of Code of Civil Procedure.

The appellant have also pointed out the judgment reported at

1967 Mh.L.J. 65 (In the matter of Mr. D and Mr. S. Advocates), to contend

that proof of signature of executants on Exh.56 does not amount to proof of

writing of the body of the document and the truth and contents of the

document can be only proved by the executant. In view of consideration of

said document above, I do not find it necessary to dwell more on this

aspect.

2003 (8) SCC 745 (Narbada Devi Gupta .vrs. Birendra Kumar

Jaiswal) is relied upon again for the same purpose. In the present case

exhibit number 56 has been given to the document in evidence of plaintiff

witness no.1 Pundlik. He has not identified the signatures there upon and

he has also not spoken about its contents. The signatories to Exh.56 have

not been examined at all. Exh.56 is only a xerox copy containing blank at

the place where it is to be addressed to any authority and containing only

two signature at its end leaving other 7 spaces earmarked for signing blank.

The document has not been formally proved and is used only to note that

even as per the said document produced by the plaintiff the layout appears

not legally sanctioned one.

Learned Senior Advocate has also relied upon judgment of

Division Bench of this Court reported at 2007 (5) Mh.L.J. 701 (Rashtriya

Mill Mazdoor Sangh .vrs. Empress Mills Nagpur) in support of his

contention that planning authority i.e. Nagpur Improvement Trust and

Nagpur Municipal Corporation were necessary parties to this suit. There

cannot be any debate about the ratio laid down by the Hon. Division Bench.

However, in the present facts when it is not the case of the plaintiff that

layout was duly sanctioned or his plot was duly sanctioned or construction

undertaken by him is as per the sanctioned plan duly approved by any

planning authority, I find that the said authorities were neither necessary

nor proper parties. In any case their position would have been at the most

that of a witness and nothing more in the present controversy.

17. Advocate Shri B.N. Mohta, has relied upon the judgment of

Hon'ble Apex Court reported at 2000(3) Mh.L.J. 01 (Municipal Council

Ahmednagar .vrs. Shah Hyder Beig and others), to state that after final

award in Land Acquisition proceedings is passed no writ petition can be

filed challenging the acquisition. In the present facts however, the plaintiff

has not brought on record any such final award and as is apparent from the

Division Bench judgment in the matter of Bharat Kheta (supra), the street

scheme and notification of acquisition were itself quashed by the Hon'ble

Division Bench of this Court, as unconstitutional. The ruling therefore has

no application here.

18. The judgment of Lower Appellate Court impugned in this second