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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE SIDE

APPEAL FROM ORDER NO.944 OF 2004

APPEAL FROM ORDER NO.944 OF 2004

APPEAL FROM ORDER NO.944 OF 2004

IN

REGULAR CIVIL SUIT NO.199 OF 2004

Smt.Shailadevi Damodarprasad

Bhadani & Ors. ... Appellants

V/s.

Shri Harishchandra Anant

Pandit & Ors. ... Respondents

Mr.N.H. Seervai with Mr.R.P. Puniwala and Mr.Y.R. Shah

for Appellants

Dr.V.V. Tulzapurkar i/b M/s.Wadia Gandhy & Co. for

Respondent No.25

Mr.K.K. Singhvi with Mr.J.Xavier for Respondent No.26

Mr.R.S. Apte for Respondent No.27

Mrs.G.P. Mulekar, AGP, for Respondent No.30

CORAM: SMT.NISHITA MHATRE, J.

SMT.NISHITA MHATRE, J.

SMT.NISHITA MHATRE, J.

JUDGMENT RESERVED ON: NOVEMBER 5, 2004

NOVEMBER 5, 2004

NOVEMBER 5, 2004

JUDGMENT PRONOUCNED ON: DECEMBER 17, 2004

DECEMBER 17, 2004

DECEMBER 17, 2004

JUDGMENT:

JUDGMENT:

JUDGMENT:

. Admit. By consent of the parties, Appeal from

Order taken up on Board and heard finally.

. The order passed by the Civil Judge, Senior

Division, Thane dated 5.10.2004 is challenged in the

present Appeal from Order. The trial Court has

dismissed the application filed under Order 39 Rule 1

and 2 of Civil Procedure Code by the appellants, who

were the plaintiffs in the trial Court in Special Civil

Suit No.199 of 2004.

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2. The facts involved in the present appeal are as

follows:

The appellants, who are the Bhadani family members,

claim that their predecessor one Jhariram Bhadani

purchased property in Village Panchpakhadi, Thane

bearing Survey No.427 to 435 and 485 admeasuring about

68 acres. This purchase was made in the year 1950. It

appears that suit No.221 of 1960 was filed by one branch

of Bhadani family against another. It appears that the

joint family properties were divided amongst the parties

to the suit and consent terms were filed before the

Court on 19.3.1971. A decree was accordingly drawn up.

Under the decree Shri Damodhar Prasad Bhadani, the

predecessor of the appellants became entitled to Survey

No.431 admeasuring 1 acre and 24 gunthas and part of

survey No.432 admeasuring 13 acres 37.7 gunthas. The

appellants claimed that this land fell on the boundary

between the Thane Municipal Corporation (for short,

‘TMC’) and the Bombay Municipal Corporation. In 1974,

the development plan of the city of Thane was published

and the survey numbers were changed. A part of the

Survey No.432 was shown as site No.38 and was reserved

for open space. Another part of Survey No.432 was shown

as site No.79, reserved for a primary school. According

to the appellants, the reserved area aggregated to 19200

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sq.mtrs. out of the entire land which comprises the

suit property. It appears that the reservation was

removed and the area was included in site numbers 38 and

79. In 1987, some other properties of the Bhadani