Finalization of a town planning scheme extinguishes original ownership rights and transfers property to local authorities, necessitating compliance with legal acquisition procedures for valid claims.

JUDGMENT :

SHAILESH P. BRAHME, J.

1. Heard both sides finally.

2. This appeal was admitted on 26.02.2001 and ground Nos.I, II, III, V, VI, VII and VIII were recorded to be substantial questions of law involved in the appeal. Both sides mainly addressed substantial questions of law mentioned in ground Nos.I, II, III, V, VI. No any other substantial question of law is pressed into service by the parties.

3. Appellants are original defendant Nos.3 and 4 who are challenging judgment and decree in Regular Civil Suit No.913 of 1989 passed by Joint Civil Judge Senior Division, Ahmednagar on 17.01.1995 which is confirmed by judgment and decree dated 09.12.1998 by Additional District Judge, Ahmednagar in Regular Civil Appeal No.80 of 1995. Parties are referred to by their original status.

4. Plaintiffs are granted relief of declaration that they are owners of the suit property. The defendants are directed to remove encroachment on the suit property and to deliver vacant possession thereof to the plaintiffs. Appellant No.1 is directed to furnish account of income fetched from the suit property.

5. The plaintiffs claim to be owner of City Survey No.1269, 1270, 1271 and 1282 which are converted into plot Nos.76, 136, 135, 134 respectively, situated within Municipal limits of Ahmednagar city, Dane Dabara. The suit plots were purchased by Fakir Mohamed Hafiz on 04.07.1899 and the plaintiffs inherited them. They found that suit plots were encroached by third persons by erecting temporary stalls. On making inquiry, it revealed that the suit plots were reserved for parking of bullock carts (Gadi Tal) in town planning scheme of 1928. It further revealed that without resorting to due procedure of law of either acquisition or payment of compensation, defendant No.2/the then Municipal Council grabbed possession. It inducted third persons by executing lease deeds in their favour and was deriving profits unauthorisedly. The plaintiffs issued notices to the appellants and others on 18.12.1987 for releasing the suit plots which was not replied. The reservation was claimed to have been lapsed.

6. The suit was contested by defendants by filing written statement. It is contended to be barred by time. Ownership of respondent Nos.1 to 5 was disputed. It is contended that Civil Court had no jurisdiction. No notice was issued under Section 80 of the CIVIL PROCEDURE CODE . It is further contended that suit plots were included in the town planning scheme under the BOMBAY TOWN PLANNING ACT of 1915 (hereinafter referred to as “Act” for sake of brevity and convenience) and reserved for cart parking. Arbitrator was appointed and compensation of Rs.3,001/- was determined.

7. Predominant plea of the defendants was that suit plots vested in the local authority due to finalization of town planning scheme vide resolution dated 07.05.1928. A notification to that effect was published in the gazette. It is contended that nobody from the plaintiffs approached the defendants for receiving compensation of 3,001/-. It is further contended that the reservation could not lapse under Section 127 of Maharashtra Regional Town Planning Act.

8. Plaintiffs adduced oral evidence of three witnesses. The defendants did not adduce any oral evidence. The correspondence between City Survey Office and the Local Authority are placed on record. Notification dated 07.05.1928 under