NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL No.3368 OF 2019 (Arising out of S.L.P.(C) No.34883 of 2016)

Anant Shankar Bhave ….Appellant(s)

VERSUS

Kalyan Dombivli Municipal  Corporation                     ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.  

1. Leave granted.

2. This  appeal is filed  against the final judgment

and order dated 26.10.2016 passed by the High Court

of  Bombay  at  Mumbai in  Second  Appeal  No.160  of

2016 whereby the High Court  dismissed the second

appeal filed by appellant herein.   

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3. A few facts need mention for the disposal of this

appeal, which involves a short point.

4. The appellant is the plaintiff and the respondent

is the  defendant in the civil suit out  of  which this

appeal arises.  

5. The dispute relates to the land bearing  Survey

No.61, Hissa No.1, admeasuring about 493 sq. yards

Survey No. 61 (P) admeasuring about 1441 sq. yards

situated at Mauje Kalyan Adharwadi Dombivali  (MH)

(hereinafter referred to as “the suit land”).

6. The appellant (plaintiff) filed a civil  suit against

the respondent ­  Municipal  Corporation  for  claiming

the following relief:

“The Hon’ble Court may be pleased to declare that the act of changing the alignment of the street line affecting the land bearing Survey No.61, Hissa No.1 admeasuring about 493 sq. yards, Survey No.61(P) admeasuring about 1441 sq. yards along with a structure/house standing upon it bearing Municipal Ali No.61, House No.14 situated at Mauje Kalyan, Adharwadi within the limits of Kalyan Dombivali Municipal Corporation is illegal, void and ultra­vires of the Act.

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The Hon’ble Court may be pleased to declare that the defendants without following the due process of law and without following the provisions of the  Acts, shall not construct road from the suit property. The Hon’ble Court may be further pleased to issue permanent injunction against the defendants and to maintain perfect status quo in respect to the suit property.”  

7. The respondent denied the appellant's claim and

contested the suit. By judgment/decree dated

12.08.1999, the Trial  Court decreed the appellant's

suit. The respondent felt aggrieved and filed first

appeal (No.76/1999) before the First Appellate Court.  

8. By its judgment dated 29.02.2000, the First

Appellate Court allowed the appeal, set aside the

judgment/decree dated 12.08.1999 of the Trial Court

and dismissed the appellant's suit. The appellant

(plaintiff) felt aggrieved and filed Second Appeal in the

High Court of Bombay.  

9. By impugned judgment, the High Court

dismissed the second appeal and affirmed the

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judgment/decree dated 29.02.2000 of the First

Appellate Court which has given rise to  filing of  the

present appeal by way of special leave by the plaintiff

in this Court.  

10. So, the short question, which arises for

consideration in this appeal, is whether the High Court

was justified in dismissing the appellant's second

appeal.

11. Having heard the learned counsel for the parties

and on  perusal of the record of the case,  we are

inclined to  dispose  of this  appeal  with the following

observations and liberty granted to the parties.

12. In our considered opinion, the appellant has filed

a misconceived suit and claimed therein improper

reliefs.  

13. The real grievance of the appellant should have

been that he  was the owner of the suit land and,

therefore, the defendant (respondent) had no right to

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interfere  on the suit land and nor had any right to

construct any road or any type of construction without

following a due process of law on the suit land.

14. First, the appellant  was required to prove his

ownership over the suit land  qua  the respondent;

Second, he was required to prove that the respondent

has either entered on the suit land or is trying to enter

upon the suit land with a view to construct the road

on his land or is intending to make some construction

without following the due process of law in acquiring

the  suit land and paying  adequate  compensation to

the appellant for the suit land.

15. The appellant, however, did not come to the

Court for claiming the aforementioned reliefs and nor

he proved the aforementioned facts and instead

claimed improper reliefs as mentioned above.  

16. In our view, the proper reliefs, which we have set

out above alone, could have settled the controversy in

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relation to the suit land between the parties and not

the one raised in these proceedings.  We also find that

these  issues were not tried  in  these proceedings  for

want of proper pleadings and the evidence.

17. It is for these reasons, though we are inclined to

dismiss the appeal finding no merit therein but grant

liberty to the appellant (plaintiff) to file a fresh civil suit

against the respondent to claim the proper reliefs in

relation to the  suit land,  which  we  have  mentioned

above, by properly pleading and adducing evidence in

support of his case in accordance with law.  

18. We, however, make it clear that while trying the

suit,  the findings recorded by the Courts below in the

present proceedings will  not  come against any party

and nor will operate res judicata against any party.  In

other words, the issues raised in the fresh suit will be

tried independently on the basis of the pleadings and

evidence adduced therein.

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19. With these observations and the liberty granted,

the appeal fails and is hereby dismissed.     

                                    .………...................................J.                                    [ABHAY MANOHAR SAPRE]                                       

    …...……..................................J.              [DINESH MAHESHWARI]

New Delhi; April 02, 2019

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