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2013 Supreme(Bom) 2404
In the High Court of Bombay at Aurangabad
S.S. SHINDE, J.
Ramchandra Dagadulal Bangad & Others
Versus
Municipal Council, Osmanabad, Through its Chief Officer & Another
Writ Petition No.8400 of 2013
Decided on : 03-12-2013
For the Petitioners:Sanjay Natu, holding for T.M. Tandale, Advocate.
For the Respondents:R1, R.N. Dhorde, Senior Counsel i/b R.V. Naiknavare, Advocate, R2, P.P. More, A.G.P.
The court emphasized the importance of evidence in supporting claims of ownership and possession, and considered the conduct of the parties in previous proceedings as relevant to the current case.
Headnote:
Municipal Council - Property Ownership Dispute - Maharashtra Municipal Councils, Nagar Panchayat and Industrial Township Act, 1965 - Section 88(f), Section 100(a) - The court considered the claim of the petitioners for ownership and possession of the suit properties in light of the sale deed dated 04/02/1953 and will deed dated 17/08/1970. The court also examined the findings and observations made in previous suits and appeals, and the conduct of the parties in those proceedings. The court found that the petitioners' claim was not supported by the evidence and their shifting status from tenant to encroacher disentitled them from seeking interim relief. The court also considered the balance of convenience and the public interest involved in the development of the suit property by the Municipal Council. The court concluded that the writ petition lacked merit and was rejected.
Fact of the Case:
The petitioners, original plaintiffs, filed a suit for declaration of ownership and possession of suit properties, along with an application for temporary injunction. The application was rejected by the trial court and the appeal was also dismissed. The petitioners then filed a writ petition challenging the judgment and order of the lower courts.
Finding of the Court:
The court found that the petitioners' claim was not supported by the evidence and their shifting status from tenant to encroacher disentitled them from seeking interim relief. The court also considered the balance of convenience and the public interest involved in the development of the suit property by the Municipal Council. The court concluded that the writ petition lacked merit and was rejected.
Issues: The main issues revolved around the ownership and possession of the suit properties, the conduct of the parties in previous proceedings, and the balance of convenience in granting interim relief.
Ratio Decidendi: The court's decision was based on the lack of evidence supporting the petitioners' claim, their shifting status from tenant to encroacher, and the balance of convenience in favor of the Municipal Council's development plans.
Final Decision: The writ petition was rejected, and the prayer for continuation of the order for status-quo was also rejected.
Rule. Rule made returnable forthwith. With the consent of the parties, the petition is taken up for final disposal.
2. This writ petition is filed challenging the judgment and order dated 14/08/2012 passed below Exhibit-5 in Regular Civil Suit No.408 of 2012 by Joint Civil Judge, Senior Division, Osmanabad which is confirmed by the Adhoc District Judge-1, Osmanabad in Misc. Civil Appeal No.100 of 2012 by its judgment and order dated 23/09/2013.
3. The petitioners herein, are the original plaintiffs. The plaintiffs who are brothers inter-se have filed R.C.S. No.408 of 2012 for declaration that, they are the owners of the suit properties described in Schedule 'A' to 'C' in para-1 of the plaint by virtue of sale deed dated 04/02/1953. They have also sought for a declaration that, defendant No.1 Municipal Council is a rank trespasser on the suit properties described in Schedule 'B' & 'C' and further declaration that, construction of building of Shopping Malls on the said schedule 'B' & 'C' properties are illegal and none of the defendants have any right to own, occupy or possess the suit properties. They have also prayed for a mandatory injunction against defendant No.1 for removal of encroachment on suit Schedule 'B' & 'C' properties by demolishing building etc., and for handing over vacant and peaceful possession of said two properties. The plaintiffs have also prayed for a perpetual prohibitory injunction against the defendants restraining them from interfering with or disturbing the possession of plaintiffs in the suit schedule 'A' property and further from creating third party interest in schedule 'B' & 'C' properties.
Along with the suit, the plaintiffs have also filed an application at Exhibit5 for temporary injunction praying therein, for restraining defendant No.1, his servants, agents etc., from causing any sort of obstruction to their possession in the suit schedule 'A' property till final decision of the suit. The plaintiffs have also prayed for a temporary injunction restraining defendant No.1 from creating any third party interest in the suit schedule 'B' & 'C' properties.
4. It is the case of the petitioners that, said application was heard and rejected by the Joint Civil Judge, Senior Division, Osmanabad. Being aggrieved thereby, the petitioners herein, filed Misc. Civil Appeal No.100 of 2012 which came to be rejected by the Adhoc District Judge-1, Osmanabad by its judgment and order on 23/09/2013. Hence this writ petition.
5. Learned Counsel appearing for the petitioners submits that, there is no proof of acquisition of suit properties by defendant No.1 under Section 88(f) of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Township Act, 1965 (for short, "Act of 1965"). It is further submitted that, the record in respect of suit property does not indicate that, the respondent Municipal Council, Osmanabad is owner of the suit property. It is further submitted that, the petitioners are having possession over the suit property described in Schedule 'A' since last 60 years and in case possession of the petitioners is not protected till disposal of the suit, it will cause irreparable loss to petitioners. It is submitted that, Zumbarlal Jagannath Bangad, grandfather of the petitioners, purchased suit property in schedule 'A' under unregistered sale deed dated 04/02/1953 and they are claiming ownership and possession over the suit property under unregistered sale deed dated 04/02/1953 and by way of will deed dated 17/08/1970. It is submitted that, the District Court, Osmanabad in R.C.A. No. 64 of 2007, restrained respondent No.1 to take possession of the Schedule 'A' property without following due procedure of law under Section 88(f) and 100(a) of the Act of 1965, still respondent No.1 failed to prove that, it acquired suit properties under recognized mode as contemplated under section 88(f) of the Act of 1965. It is submitted that, title documents i.e., sale deed dated 04/02/1953 and will dee
