Gajanan Harihar Pandhe & 2 Others vs The City Of Nagpur Corporation
2017 Latest Caselaw 4436 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 330 of 2003


 1.      Gajanan son of Harihar Pandhe,
         aged 79 years,
         occupation - Retired,
         resident of Swawalambinagar,
         Nagpur.

 2.      Chandrakand son of Harihar
         Pandhe,
         aged 70 years,
         occupation - Landlord,

 3.      Arvind son of Harihar
         Pandhe,
         aged 66 years,
         occupation - Retired,

         nos. 2 and 3 residents of
         Dake Layout, Ward No.70,
         Dharampeth, Nagpur.                 .....           Appellants.
                                                           Org. Plffs.


                                   Versus


 The City of Nagpur Corporation,
 through its Commissioner,



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 Civil Lines Office,
 Nagpur.                                          .....        Respondent.
                                                               Org. Deft.



                              *****
 Mr. A. S. Jaiswal, Senior Adv., with Ms. Jaiswal, Adv., for the
 appellants.

 Mr. S.M. Puranik, Adv., for respondent.

                                      *****


                                 CORAM :         A.S. CHANDURKAR, J.

                                 Date       :    13th July, 2017

 ORAL JUDGMENT:

01. This Second Appeal has been heard on the following

substantial question of law:-

"Whether it could be said on the basis of clause 5 of agreement executed between the parties on 18.05.1951 that the defendant was entitled to the possession of the suit property or was in possession of the same when clause 5 of the agreement specifically stipulated that the plaintiff would reserve and maintain the spaces marked and shown in the sanctioned layout map (suit property) as park and Temple as well as roads, lanes, drains and other works and the plaintiff would hand over the roads, drains and other works to the defendant if and when called upon to do so by the defendant or the Corporation?"

02. The appellants are the original plaintiffs who claim to be

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joint owners of Plot admeasuring 3150 sq. ft. situated at Dake Layout,

Dharampeth, Nagpur. According to the plaintiffs, this property initially

belonged to one Smt. Radhabai. On 18th May, 1951, a layout was

prepared which was sanctioned by the Nagpur Improvement Trust on

the basis of which a Layout Plan was prepared. As per this plan,

certain area was reserved for park and a temple. The plaintiffs claim

to be successors-in-interest of the original owner. According to them,

on 14th August, 1989, the officials of the Nagpur Municipal Corporation

sought to disturb their possession by claiming ownership in the

Municipal Corporation. After giving notice dated 12th September,

1989, the plaintiffs filed the suit for a declaration that the defendant

through its officers, servants or agents should not disturb the

possession of the plaintiffs with regard to the suit property.

03. The respondent-defendant filed its Written Statement and

took the plea that on 18th May, 1951, the agreement in question with

the predecessor of the plaintiffs was entered into . It was denied that

the plaintiffs were owners of the suit land and they had no right of

exclusive use of the same.

04. After the parties led evidence, the trial Court recorded a

finding that the suit property was initially owned by Radhabai and the

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layout had been sanctioned on 18th May, 1951. It was, however, held

that the defendant was in possession of the suit property and,

therefore, no relief could be granted to them. The suit was accordingly

dismissed. The appellate Court affirmed the finding of the trial Court

as regards ownership of the property, but dismissed the appeal,

holding that the defendant alone was entitled to use the land in

question. Hence this appeal.

05. Shri A.S. Jaiswal, learned Senior Counsel for the appellants,

submitted that ownership of the plaintiffs had been duly proved and

said finding was recorded by both the Courts. Referring to the

agreement at Exh.46, he submitted that while sanctioning the layout,

the park and temple were reserved as public utility spaces. Under

Clause 5 of the agreement, the original owner had agreed to earmark

the area of the park and the temple with a further condition that the

roads, lanes, drains and other works would be executed in the manner

prescribed by the defendant. According to him, ownership of the

plaintiffs continued, subject to aforesaid areas being earmarked as

public utility spaces. He, therefore, submitted that the defendant

could not claim exclusive use over the aforesaid property as these

plots had not been acquired by the defendant. He submitted that the

agreement at Exh.46 was binding on both the parties and, therefore,

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they were expected to act according to it. He submitted that the

finding recorded by both the Courts with regard to exclusive right of

the defendant is contrary to the agreement.

06. Shri S.M. Puranik, learned counsel for the original defendant,

supported the impugned judgments. According to him, the plaintiffs

had no exclusive right to utilize the suit property. The pubic utility

spaces as earmarked were required to be utilized only for the purpose

that was mentioned in the agreement. No injunction could have been

granted against the defendant as it was the planning authority and the

layout had been sanctioned subject to providing public utility spaces.

07. I have heard the learned counsel for the parties and I have

perused the records of the case.

08. In so far as ownership of the suit land is concerned, both the

Courts have held that the predecessor of the plaintiffs had proved that

she was the owner of the same and that the defendant had not

acquired said land. The only question, therefore, is with regard to the

respective rights of the parties in terms of agreement dated 18th May

1951. As per this agreement at Exh.46 and Clause 5 thereof, the

predecessor of the plaintiff had agreed to reserve and maintain a park

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and temple as shown in the sanctioned layout map. She had further

agreed to permit the defendant to carry out necessary works in that

regard. This agreement at Exh.46 continues to bind the parties even

today. In the light of this agreement dated 18th May, 1951 by which

the layout was sanctioned and certain areas were reserved for public

utilities, it is clear that the respective rights of the parties would be

governed by the same.

09. Both the Courts committed an error by holding that by virtue

of this agreement, the entire property vested in the defendant. There

is no such clause to that effect in the agreement. The property has also

not been acquired by the defendant. In that view of the matter, the

substantial question of law as framed is answered by holding that the

parties would be governed by the agreement dated 18th May, 1951

[Exh.46] while conducting their affairs.

10. In view of aforesaid, the following order is passed:-

ORDER

[a] The judgment of the trial Court in Regular Civil Suit No. 1887 of 1989 as well as judgment of the

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appellate Court in Regular Civil Appeal No. 244 of 1992 are quashed and set aside.

[b] It is declared that the plaintiffs are entitled for a decree of permanent injunction against the defendant in terms of Agreement dated 18th May, 1951 at Exh.46. It is held that the rights of the parties would be governed by the Agreement dated 18th May, 1951 [Exh.46].

[c] It is clarified that the plaintiffs shall not prevent members of the general public from using the park and temple, subject to reasonable restrictions.

11. Second Appeal is allowed. Decree accordingly. No order as

to costs.

Judge

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