Bombay High Court
Vishwas Yeshwantrao Navalkar And Ors vs State Of Maharashtra Thr.Government ... on 12 August, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:33176
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 817 OF 2024
Vishwas Yeshwantrao Navalkar and Ors. ... Appellants.
Versus
State of Maharashtra and Ors. ... Respondents.
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Mr. Vikas Murudkar, for the Appellants.
Mr. A.R.Patil, AGP for the Respondent-State.
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Coram : Sharmila U. Deshmukh, J.
Date : August 12, 2024
P. C. :
1. Being aggrieved by the judgment dated 18th December, 2021
passed by the Civil Court in S.C. Suit No.6988 of 2006 dismissing the
suit, the original Plaintiff is before this Court. For the sake of
convenience, the parties are referred to by their original status before
the Trial Court.
2. The facts of the case are that the S.C. Suit No.6988 of 2006 was
instituted by the Plaintiff seeking the following relief:
"(a) It be declared by this Hon'ble Court that the construction
work started on the suit plot bearing CTS No.1/404, Plot of
land situated at 63, Tardeo Road, Tardeo Division, known as
Dadarkar Estate Compound adm. 11,263.56 sq. mtrs; which
property is more particularly described in the Schedule
annexed herewith as Exhibit 'A' on the basis of the Lease
Deed executed between the Defendant No.4 to 10 as well as
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the construction work started on the basis of permission
dated 07.10.1978 bearing No.C/ULC/SR-XXVII/6845 and/or
any amendment thereto granted by the Defendant No.2 be
cancelled and the same may be revoked being illegal and void
transaction took place between Defendant Nos. 4 to 10.
(b) Pending the hearing and final disposal of the suit, the
Defendant No.2 be ordered and directed to revoke/suspend
the orders granting permission to construct the buildings
which are at present under construction on the suit property
more particularly described in Exhibit 'A' hereto.
(c) Pending the hearing and final disposal of the suit, the
Defendant No.3 be ordered and directed to revoke and/or
cancel the plans sanctioned and/or amended by the
Defendant No.3 in respect of the buildings which at present
are under construction on the said suit property more
particularly described in Exhibit 'A' hereto.
(d) Pending the hearing and final disposal of the suit, the
Defendant No.4 to 6 be restrained by an order of injunction
of this Hon'ble Court from undertaking/ proceeding further
with the construction of new building work on the said suit
property more particularly described in the Exhibit 'A'
hereto."
3. The case of the Plaintiff was that the suit property was
originally owned by one Benabai Mukundrao Dadarkar who expired on
8th August, 1959 and had executed a Will dated 15 th May, 1956
bequeathing the property in favour of her three sons i.e. Dattaram
alias Dattatray, Jaywantrao and Vasantrao in equal proportions. The
executors appointed under the Will dated 15 th May, 1956 were
granted probate on 17th July, 1961 by this Court. Subsequently, in the
year 1977, Dattatray expired and on 8th September, 1986, Jaywantrao
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expired. Both Dattatray and Jaywantrao were unmarried and died
intestate. Vasantrao had legal heirs, who are impleaded as the
Defendants in the suit. The case of the Plaintiff was that a lease was
executed by Jaywantrao and Vasantrao in favour of the Chief
Promoter of Jaywant Co-operative Housing Society devising the
property for term of 98 years. The plaintiff's case was that being the
sister of the deceased Dattatrya and Jaywantrao, she was entitled to a
share in the property as Dattatray and Jaywantrao had expired
intestate. The Plaintiff had filed Suit No.4538 of 1994 praying for
letters of administration in respect of the property of the deceased
which was dismissed as against which the Appeal is pending. Based on
the said fact and claiming right in the property the suit came to be
filed.
4. The Defendant Nos.1 and 2 filed their written statement stating
that the permission granted by the Defendant Nos.1 and 2 in the year
1978 to the Defendant Nos.4 to 10 is already acted upon and hence
the suit has become infructuous. They have also questioned the locus
of the Plaintiff to institute the present suit and also objected on the
ground of limitation.
5. The Defendant No.5-Jaywant Co-operative Housing Society filed
its written statement raising the issue of limitation stating that in the
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earlier suit filed for letter of administration, the interim relief was
rejected. It was stated that the property belongs to Defendant No.5
under two agreements of the year 1981 and 1985. The property was
transferred by the lease-deed executed by Jaywantrao and Vasantrao
on 8th May, 1980. Pursuant thereto, the Corporation has granted
permission for development of the suit property and subsequently
the Defendants started construction in the suit property. The
tenements were constructed and the Plaintiff was aware of the
construction going on on the said property but did not challenge
during the period of limitation.
6. The suit also came to be resisted by the Defendant No.6
contending that there is no challenge to the lease-deed dated 8 th May,
1980 executed by Jaywantrao and Vasantrao in favour of the
Defendant No.4 and that the Defendant No.4 has expired and the
legal heirs were not brought on record. It was contended that the suit
is barred by limitation. The Defendant Nos.7A and 7B admitted the
written statement filed by the Defendant Nos.8 and 9, that they are
the legal heirs of the deceased-Jaywantrao and Vasantrao. It was
stated that the Plaintiff had no share in the property of the deceased
brother. The suit was objected on the ground of being barred by
limitation.
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7. The parties led evidence. Trial Court on the appreciation of
evidence held that the Competent Authority had held that Ramabai
i.e. the Plaintiff is having no share and interest in the suit property and
that she does not have locus to challenge the same. The Trial Court
further held that the NOC given by the Municipal Corporation has not
been challenged by the Plaintiff. The Trial Court further held that no
notice under Section 80 of the CPC is issued to Defendant no.1 and 2
prior to the institution of the suit. As regards limitation, the Trial
Court held that in the year 1994, when the suit was filed before this
Court, the Plaintiff was aware of the lease-deed as well as the
development agreement executed by the Defendant Nos.4 and 5 and
no relief was sought within a period of three years from the date of
knowledge and held that the suit is barred by limitation.
8. Heard Mr.Murudkar, learned counsel for the Appellant and
Mr.Patil, learned AGP for the Respondent-State.
9. Mr.Murudkar, learned counsel appearing for the Plaintiff would
advance only two submissions, firstly, that the suit could not have
been dismissed as the Plaintiff had applied for letter of administration
of the suit property which suit was dismissed and the Appeal filed by
the Plaintiff is pending before this Court and, secondly, that in the
cross-examination of the Defendant No.2-Corporation, the witnesses
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admitted that the office of MMC does not have the file consisting of
permission granted by the Collector dated 7th October, 1978.
10. Considered the submissions and perused the records.
11. Notably in the said suit, there is no relief sought as regards the
declaration of the right, title and interest of the Plaintiff in the suit
property and the suit is filed in the year 2006 challenging the
construction permission which has been given on 7 th October, 1978 by
the Additional Collector and Competent Authority. The Plaintiff claims
to have a share in the suit property through her two brothers i.e.
Dattatray and Vasantrao who had died intestate and were unmarried
at the time of their death and being the sister, she has a right, title
and interest in the property. Admittedly, under the Will executed by
Benabai i.e. her mother, the property was bequeathed to her three
sons i.e. Dattatray, Vasantrao and Jaywantrao. The present suit has
been filed restricting the challenge only to the permission dated 7 th
October, 1978 which was granted by the Collector for the
development of the suit property. There is no declaration of
ownership which is sought in the present suit and the only challenge is
to the development and the construction permission.
12. The case of the Plaintiff is that the development agreement
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dated 2nd November, 1981 was invalid. The fact remains that
Vasantrao and Jaywantrao had executed a lease-deed as well as a
power of attorney in favour of Defendant No.4. There is no challenge
either to the development agreement or the lease-deed which was
executed in favour of the Defendant No.4. Even if it is accepted that
the Plaintiff has right in the property as the legal heir of the deceased
Dattatray and Jaywantrao, it was necessary firstly to seek an
appropriate declaration as regards the right, title and interest of the
Plaintiff in the suit property and secondly to challenge the
development permission as well as the lease-deed executed by
Vasantrao and Jaywantrao in favour of the Defendant No.4. It is only
upon such substantial relief being granted that any challenge would
lie to the permission dated 7 th October, 1978 granted by the
Defendant No.2. It is well settled that the proceedings seeking letter
of administration for administration of the estate does not deal with
the right, title and interest of the parties in the property and for that
the appropriate remedy is to file a substantive suit seeking
declaration of right, title and interest which has not been done in the
present case.
13. The other factor which assumes importance is that the
permission of the year 1978 has been challenged by filing a suit in the
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year 2006. It is not disputed that in the year 1994 when the
Application was made for letters of administration, the Plaintiff was
aware of the permission which was granted and despite thereof had
failed to file the suit within the limitation of three years.
14. The Trial Court on the basis of the evidence has rightly held that
the suit is barred by limitation, as firstly, no relief has been sought in
respect of the development agreement as well as the lease-deed and
secondly, that there is no challenge to the same within the prescribed
period of limitation. The permission dated 7 th October, 1978 is sought
to be challenged on the ground that the same is illegal and void
transaction. For the purpose of seeking any relief in respect of the
permission being illegal and void, it was necessary first to conclusively
establish the right, title and interest of the Plaintiff in the suit
property and to challenge the development agreement and the lease-
deed which has not been done in the present case.
15. In light of the above, merely relying upon the cross-examination
of the witness of the Corporation that the Corporation does not have
the file consisting the permission granted by the Collector dated 7 th
October, 1978 does not assist the case of the Plaintiff.
16. In view of the discussion above, there is no merits in the Appeal,
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Appeal stands dismissed.
17. In view of the disposal of the Appeal, Civil/Interim Applications,
if any, taken out in this Appeal, does not survive and same is disposed
of.
[Sharmila U. Deshmukh, J.]
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Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 20/08/2024 10:39:23
