Shrirampur Muncipal Council vs Kishor Babulal Agarawal And Ors
2021 Latest Caselaw 13125 Bom

                                         (1)


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                   931 SECOND APPEAL NO.343 OF 2021

                SHRIRAMPUR MUNCIPAL COUNCIL
                              VERSUS
              KISHOR BABULAL AGARAWAL AND ORS
                                 ...
          Advocate for Appellant : Bedre Vinayak Sudhakar
                               -----

                                 CORAM :       SMT.VIBHA KANKANWADI,J.

                                 DATE :        15th September, 2021.

 PER COURT :-

 1.               Heard        learned   Advocate      for     the      appellant.

Learned Advocate for Respondent No.1 is absent. Learned

AGP appears for Respondent Nos. 2 and 3.

2. Present appellant is original deft.No.3, who

intends to challenge the judgment and decree passed by the

learned District Judge-1, Shrirampur in RCA No. 48/2004

dated 26.3.2010, thereby allowing the appeal fled by the

present Respondent No.1-original plaintif and decreeing the

suit, directing the present appellant to hand over symbolic

possession of the suit property, which is in possession of the

plaintif by executing possession receipt. It is also further

directed that the present appellant should hand over the

actual physical, vacant and peaceful possession of the

extended area of the suit property towards southern side of

the plaintif by executing possession receipt.

3. Present Respondent No.1-original plaintif had

fled Regular Civil Suit No. 39999/1999999 before Civil Judge,

Senior Division, Shrirampur, Dist. Ahmednagar for

possession. The said suit came to be dismissed on

28.4.2004. It was held that the plaintif has failed to prove

that he is entitled to get instant possession of added area to

fnal plot No. 46. in implementation of the down planning

scheme from deft.no.3 -present appellant. It was also held

that the suit was not tenable against deft.No.3 for want of

notice under the Maharashtra Municipalities Act. It was held

that there is legal hindrance in giving possession of that

area to the plaintif. In the appeal, the frst Appellate Court

reversed all the fndings of the Trial Court. It wa also then

held that the Civil Court has jurisdiction to try and entertain

the suit.

4. At the outset, it is to be noted that the present

respondent -original plaintif had come with a case that he is

the owner and possessor of fnal plot No. 46., which is out of

town planning Scheme no.1 before city survey No. 1822-A

admeasuring 4 gunthas with structure standing there on,

bearing Municipal House No.1412. He contended that

though town planning scheme fnal No.1 was fled by the

defendant; yet it is under variation stage. But then he also

asserts that the suit property does not fall under that

proposed variation. Then he has relied on the letter issued

by the Town Planning Authority, who had asked him to

arrange for payment of amount for the betterment charges.

The plaintif contends that he has paid that charges on

20.99.199991. Still deft.No.1 has not handed over the

possession and, therefore, he has fled the suit. He has also

averred in the said suit that deft.No.3 had already handed

over possession of the part of the suit property about ten

years ago to the adjacent land holder fnal plot No.46.. He

contends that the suit property was originally 405.51 mtrs

and it has been increased under the Scheme to 448.40

sq.mtrs. He had made construction in the building with the

permission of the town planning authority; yet when no

action has been taken by deft.No.3, he had no alternative

but to fle the suit.

5. It appears that the suit proceeded against other

defendants. But, deft.No.3 had fled the written statement,

denying all the averments. It was contended by the

deft.No.3 that the construction undertaken by the plaintif is

not stopped. The plaintif has completed the basement and

the ground-foor. Adjacent builders have taken up litigation

and, therefore, additional area cannot be granted. It is

disclosed by the municipality that the plaintif is already

holding the area, which was equivalent to his original plot.

But, there is also statement that the municipality had

declared very small portion of adjacent plot, which has been

allotted to the plaintif but that would be available at the end

of the fnaliiation of the Scheme.

6. As aforesaid, for the fnding recorded by the Trial

Court, the suit came to be dismissed; whereas the Appellate

court has reversed those fndings.

.. At the outset, the question that can be raised

from the perusal of the judgment of the frst Appellate Court

is that he has taken out the appeal registered or suit

registered in respect of another suit, involving the adjacent

landholder in which there is some order passed by this Court

and made it applicable to the appeal before him. Whether

such kind of action is permisible under law ? Merely because

the other plot was from same area, unless it would have

been brought on record that said variation will not afect the

plaintifs plot, whether the order passed by this Court in

another matter could have been made applicable. Without

adopting the procedure under the MRTP Act, whether it could

have been directed by the frst Appellate Court to hand over

the symbolic possession to the plaintif and after the

fnaliiation of the Scheme, fnal order in respect of handing

over of physical possession could have been passed.

Further, the question is also whether, the Civil Court had

jurisdiction to try and entertain the suit and when the Trial

Court has held that the suit sufers from statutory notice,

then, whether the frst Appellate Court could have taken

diferent view in absence of the fact thereof ? Therefore,

defnitely substantial questions of law, as contemplated

under section 100 of CPC, are arising in this case, requiring

admission of the appeal.

8. Following are the substantial questions of law, -

i. Whether the frst Appellate Court was justifed in reversing the decree passed by the Trial Court ?

ii. Whether the suit was maintainable in absence of statutory notice under MRTP Act ?

iii. Whether the Civil Court had jurisdiction to try and entertain the suit in view of bar under Section 1499 of MRTP Act ?

iv. Whether the frst Appellate Court was justifed in considering the judgments and orders

passed in respect of adjoining plot, i.e. RCA No. 4399/19984 and making it applicable to the case in hand to arrive at a conclusion that when the adjoining holder can get the possession the present plaintif would also get it.

99. Issue notice to the respondents after admission of

the Second Appeal.

10. Learned AGP waives notice for Respondent Nos. 2

and 3.

11. Since learned Advocate for Respondent No.1 is

absent, issue notice to respondent No.1, returnable on

12.1.2022.

12. Call R and P.

(SMT. VIBHA KANKANWADI) JUDGE

BDV