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Non-reportable

IN THE SUPREME COUR OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 19552 OF 2013

Deo Kalya Patil & Ors.  …Petitioners

Versus

Nagindas Shamjibhai Shah Thr. Lrs. & Ors. …Respondents

J U D G M E N T

Chelameswar, J.

1. The petitioners herein are the plaintiffs in suit No .632 of  

2010 on the file of the Special Civil Judge (Senior Division),  

Thane and the respondents are the defendants therein.  For  

the sake of convenience they are referred to in this judgment  

as they are in the suit.  The suit is filed with the prayers as  

follow:-

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(a) it  be  declared  that  the  suit  lands  were  agricultural  lands  on  1.4.1957;

(b) if be declared that the predecessor-in-title – Kalya Padya Patil  of the Plaintiffs was lawfully in possession and cultivating the  suit lands on 1.4.1957 as tenant thereof and consequently had  become the deemed purchaser thereof and the Plaintiffs being  the heirs of said Kalya Padya Patil are therefore entitled to the  benefits conferred upon him by the provisions of B.T. & A.L.  Act.

(c) It be declared that the Sale transactions that took place after the  Tillers  Day  i.e.  dated  22.3.1960,  21.10.1963  and  30.5.1964  which were recorded in the Mutation Entry Nos. 357, 466 and  467 respectively, are illegal, bad in law, void ab-initio and not  binding upon the Plaintiffs.

(d) It be declared that the proceedings i.e. Tenancy Case No. 22 of  1964 and 23 of  1964 initiated  by the  predecessor-in-title  of  Defendant Nos. 1 to 6 were not maintainable hence, the orders  dated  30.1.1965  passed  in  the  said  proceedings  are  without  jurisdiction, nullity and not binding upon the Plaintiffs.

(e) It  be  declared  that  the  Plaintiffs  being  the  heirs  of  the  said  Kalya Padya Patil  (since  deceased)  are  entitled  to  the entire  compensation which was wrongly awarded by the CIDCO to  the Defendant Nos. 1 to 6.

(f) It  be  declared  that  the  Plaintiffs  being  the  heirs  of  the  said  Kalya Padya Patil (since deceased) are entitled to the allotment  of land/plots as per the 12.5% scheme framed by the CIDCO.

(g) The  Hon’ble  Court  may  be  pleased  to  issue  perpetual  injunction to restrain the Defendant No. 7, its servants, agents,  officers, etc. from allotting lands under 12.5% scheme by it in  favour of Defendant No. 1 to 6 or any person claiming under  them.

(h) Pending  the  hearing  and  final  disposal  of  this  suit  and  injunction  application,  the Hon’ble Court  may be pleased to  grant an Ad-Interim Injunctions in terms of clause (g) above.

(i) To award any other relief this Hon’ble Court may deem fit and  proper in the circumstances of the case.

(j) To award the cost of the suit.”

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2. Along with the suit, the plaintiffs filed an application for  

injunction  against  the  7th defendant  (City  and  Industrial  

Development  Corporation)  from  allotting  any  land  under  a  

scheme said to have been propounded by the 7th defendant in  

favour  of  any  one  of  the  defendants  or  persons  claiming  

through the defendants.  By an order dated 23.12.2010 of the  

trial  court,  the  injunction  as  prayed  for  was  granted.  The  

defendants appealed to the High Court.   The said appeal was  

disposed of by setting aside the order of the trial court with a  

further direction:  

“16…..that the original Defendant No. 7 CIDCO is at  liberty to  scrutinize the application made by the original Defendant Nos. 1 to  6/Appellants  before me and in the event  the CIDCO decides  to  allot  the land under 12.5% scheme in their favour and issues an  Allotment  letter,  that  order  and direction  of  the CIDCO and all  steps in furtherance thereof shall abide by the outcome of this civil  suit, namely, Special Civil Suit No. 632 of 2010.”

along with certain observations, the details of which may not  

be necessary for the present purpose.

3. Aggrieved by the same, the plaintiffs preferred the instant  

SLP.

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4. The litigation has a long and checkered history.  It is the  

admitted  case  that  both  the  parties  claim  their  respective  

rights  in  the  suit  scheduled  property  through  a  common  

predecessors in interest Ibrahim Shahabuddin and Mariamba  

Mohammed.   The plaintiffs  claim that  their  predecessor in  

title  one  Kalya  Padya Patil  (for  short  “Kalya Patil”)  was the  

tenant of the suit scheduled property.  The plaintiffs do not  

describe  what  exactly  is  their  relationship  with  Kalya  Patil  

either in the cause title or in the body of the plaint (copy of the  

plaint is placed on the record of this Court), except saying that  

they are the “heirs and legal representatives of Kalya Patil who  

died on 27.7.1963”.    

5. It is the case of the plaintiffs that Kalya Patil’s name is  

entered  as  a  protected  tenant  in  the  concerned  revenue  

records “the plaintiff states that in the survey that took place in 1946, the said Kalya  

Patil (deceased) was found in possession of following 14 survey numbers forming part of  

suit  lands….....    Accordingly,  his  name  was  mutated  in  the  revenue  records  as  a  

protected tenant by effecting Mutation Entry No. 289.”

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6. It is also the case of the plaintiffs that the predecessor in  

interest of the defendants one Mavjibhai Gohil “had purchased certain  

lands  along  with  the  suit  lands  in  1944  from  Ibrahim  Shahabuddin  and  Mariamba  

Mohammed.”

7. On 30th June, 1964, the suit scheduled property along  

with other properties was acquired under the provisions of the  

Maharashtra Industrial Development Act.

8. In the year 1977, the plaintiffs filed tenancy application  

No.  23  of  1979  seeking  enquiry  under  Section  32G of  the  

Bombay  Tenancy  and  Agricultural  Lands  Act,  1948  

(hereinafter referred to as the “Tenancy Act”).  The said case  

was dismissed on 11.12.1980.   Plaintiffs carried the matter in  

Appeal  No.  2/1981  unsuccessfully.   By  an  order  dated  

25.2.1983,  the said appeal  was also  dismissed.   The whole  

process is described in the plaint at para 30 as follows:-

“The  Plaintiff  state  that  the  said  case  No.  23/79  was  dismissed on 11.12.1980 by the Additional Tehsildar.   The  Plaintiffs,  therefore,  filed  Tenancy  Appeal  No.  2  of  1981  before  the  Sub-Divisional  Officer.    The  Sub-Divisional  Officer dismissed the Appeal on 25.2.1983.   The Plaintiffs,  thereafter, filed Tenancy Application No. 202 of 1983 before  the  Maharashtra  Administrative  Tribunal.   The  Hon’ble  Tribunal allowed the Revision by its order dated 9.12.1985  

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and set aside the orders dated 11.12.1980 and 25.2.1983 and  directed  that  question  of  tenancy  of  the  Plaintiffs  be  determined from the  year  1977.    In  short  the  matter  was  remanded for fresh enquiry in respect of tenancy rights of the  Plaintiffs.” (Plaint)

9. The  order  of  the  Maharashtra  Administrative  Tribunal  

dated  9.12.1995  was  challenged  by  the  predecessors  in  

interest of the defendants in Writ Petition No. 3446 of 1986.

“32.    The  Plaintiffs  state  that  the  said  Nagindas  Shah  (deceased),  Smt.  Jayalaxmi  (deceased)  and  Rasikabai  challenged  the  said  order  dated  9.12.1985  by  filing  Writ  Petition No. 3446 of 1986.   On 24th August, 2000, the said  petition was disposed of finally by the Hon’ble Mr. Justice  T.K. Chandrashekhar Das.   The Plaintiffs file copy of the  Judgement  and  Order  24.8.2000  and  shall  rely  upon  the  same.    The Hon’ble High Court remanded the matter back  to the Tahsildar for fresh enquiry as to decide what was the  character  of  the  suit  land  on  1.4.57.    The  Defendants  predecessor-in-title therefore filed Special Leave Petition in  the Hon’ble Supreme Court, which was dismissed.”  

10. In view of the Order passed by the High Court on 24th  

August,  2000,  remanding  the  matter  for  fresh  enquiry,  the  

Tehsildar by his Order dated 12.8.2002 held that the plaintiffs  

are the protected tenants of the suit land as on 1.4.1957.  The  

defendants carried the matter in Appeal No. 163 of 2002 in the  

Court of the Sub-Divisional Officer, Thane.  The said appeal  

was allowed on 8.5.2003.

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11. Aggrieved by the said appellate order, the plaintiff carried  

the matter in revision Application No. 292/B/2003 before the  

Commissioner,  Konkan  Division,  Mumbai.   Along  with  the  

revision,  the plaintiffs sought a stay of  the operation of  the  

appeal  order  dated  8.5.2003  when  the  interim  order  was  

declined.    Plaintiffs preferred a writ petition No. 6116 of 2003  

challenging the said order.  The High Court, by its order dated  

2.12.2003, directed the District Commissioner to consider the  

said  application  on  merits  while  directing  the  stay  of  the  

execution of the appellate order dated 8.5.2003 in favour of  

the defendants.  The Commissioner, once again considered the  

case on merits in obedience to the order of the High Court,  

and stayed the order dated 8.5.2004.  Challenging the same,  

the plaintiff again filed another Writ Petition No. 5652 of 2004.  

During the pendency of the said writ petition, on 14.7.2004  

the High Court directed that no land be allotted in favour of  

the  defendants  pursuant  to  the  scheme  dated  16.12.1990,  

referred to supra.   

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12. On 18.12.2009, the revision No. 292/B/2003 came to be  

dismissed.   As a consequence, writ petition No. 5652 of 2004  

also came to be dismissed holding that in the background of  

the above-mentioned intensely contested facts, writ petition is  

not an appropriate remedy and granted liberty to the plaintiffs  

to file a suit.   Hence Suit No. 632 of 2010.

13. In the said suit, the plaintiffs filed an application under  

Order XXXIX Rule 1 & 2 CPC with a prayer as follows:

“It is, therefore, prayed pending hearing and disposal of this  Suit and this Application, the Hon’ble Court may be pleased  to  issue  ad-interim  ex-parte  injunction  against  the  Defendant  No.7,  its  servant,  agents,  officers,  etc.  from  allotting any land under 12.5% scheme to Defendant No.1 to  6 or any person claiming under them.”  

14. By  an  order  dated  23.12.2010,  the  learned  Jt.  Civil  

Judge,  S.D.,  Thane  allowed  the  application.   The  operative  

portion of the order reads as follows:

“37) The  foregoing  facts  would  make  it  clear  that  many  more  questions  have  been  raised  in  the  dispute,  which  require  adjudication  on  its  own  merits  for  which  there  definitely exists a prima-facie case and the triable issues.

The question raised by plaintiffs, have its concern with  legal rights and its declaration, for the reasons of which at  this juncture, no interference can jumped at that the wrong,  if  any,  would  be  capable  of  being  compensated  in  money  terms.   But  as  the  question  of  legal  rights  and  legal  character  is  involved  in  the  dispute,  the  only  logical  

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interference  prevails  at  this  juncture  that  in  the  event  of  withholding the relief  probability cannot be ruled out that  intermediate damages would be caused to plaintiffs.

Parties are litigating for years together right from the  year 1963 onwards till date.  And during crucial period of  such litigation, suit property was ordered to be preserved in  status-quo so as to protect the rights and interests of the  rightful persons.  Such rights are yet to be finally decided,  for which present suit is claimed to have instituted.  This  being  the  factual  position,  no  interference  surfaces  in  a  fashion that granting the relief would anyway have adverse  effect of any sort, especially on defendants No.1 to 6, who  claim  themselves  to  be  beneficiaries  under  the  scheme,  particularly  when  plaintiffs  also  claim  entitlement  to  the  similar  benefit  which is  claimed by defendants No.1 to  6.  And being so, unless and until legal status and character of  the persons competent and entitled to declaration of rights  sought herein, is not so finally declared, any action on the  part of defendant No.7 would amount to unnecessary haste,  not at all warranted in available situation, for the reasons of  which  balance  at  this  juncture  definitely  tilts  in  plaintiffs  favour.   As such,  the  points are replied  accordingly,  with  order to follow:

ORDER

1. Application Exh.5 is allowed.

2. Defendant No.7 is temporarily restrained from making  allotment  of  land under  12.5% scheme  in  favour  of  Defendants No.1 to 6 until disposal of main suit.”  

15. Aggrieved by the same, the defendants carried the matter  

in  appeal  to  the  High  Court  of  Bombay  which  came  to  be  

allowed  by  the  order  impugned  herein.   The  High  Court  

noticed various proceedings reiterated by the plaintiffs without  

success and opined that the Courts below ignored the said fact  

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while granting the injunction.  The relevant portion of the said  

order reads as follows:

“14. To my mind, there is a serious issue which needs to be  tried as to whether the status as claimed and the declaration  sought can be given in the facts and circumstances by the  Civil  Court.   As  held  this  issue  cannot  be  ignored  and,  equally, maintainability of the proceedings.  The Plaintiffs do  not dispute that their predecessor has not been successful in  obtaining that declaration.  The last order in the list of dates  and  events,  namely,  that  of  the  Maharashtra  Revenue  Tribunal  dated  8th December,  2009  records  all  findings  against the original Plaintiffs.  

15. When such serious issues were raised with regard to  the maintainability of the proceedings and after checkered  litigation, then, the Trial Court should not have restrained  the CIDCO from making allotment of the land under 12.5%  in favour of  the Appellants/Original  Defendant Nos.1 to 6  until  disposal  of  the  main  suit.   There  is  nothing  in  the  impugned  order  which  would  enable  me to  hold  that  the  original Plaintiffs have made out a strong prima facie case,  that  the balance  of  convenience  is  in their  favour  or  that  irreparable  loss  and  injury  would  be  caused  to  them  if  merely  the  CIDCO  processes  the  application  of  the  Defendant Nos.1 to 6/Appellants before me and makes any  allotment in their favour.”  

16. The plaintiffs in their pleadings of Suit No.632 of 2010 at  

para 19 have admitted that in the prior proceedings initiated  

by the predecessors-in-title of the plaintiffs Deo Kalya, Rama  

Kalya, Halya Kalya and Smt. Barkibai Kalya made statements  

to  the  effect  that  their  names  were  wrongly  entered  in  the  

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revenue records through oversight.  The said paragraph reads  

as follows:

“In  order  to  deprive  the  plaintiffs  from  participating  in  acquisition proceedings and claiming proportionate share in  the compensation, the predecessors in title of defendants to  1 to 6 without having locus and valid title deliberately filed  Tenancy Case No.22/64 against Rama Kalya Patil and four  others and 23/64 against Deo Kalya Patil to seek negative  declaration that they were not concerned with the 49 Acres  of  the  suit  lands.   In  the  said  proceedings  the  predecessors  in  title  of  Defendants  1  to  6  by  taking  undue  advantage  of  their  poverty  and  illiteracy managed to procure depositions of Deo  Kalya,  Rama  Kalya,  Halya  Kalya  and  Smt.  Barkibai Kalya on 23.1.1965 against their own  interest  to  the  effect  that  their  names  were  wrongly entered in the revenue records through  oversight. The Tenancy Awal Karkun without holding any  enquiry accepted depositions of the said persons as it is and  deleted their names by his orders dated 30.1.1965.  Copies  of the depositions are filed herewith and the plaintiffs shall  rely  upon  the  same.   The  copies  of  the  Orders  dated  30.1.1965  are  filed  herewith  and  the  plaintiffs  shall  rely  upon the same.”  

17. We do not wish to examine the implication of the said  

statement as such examination by this Court at this stage is,  

in  our  opinion,  likely  to  adversely  effect  the  rights  of  the  

parties in the suit one way or the other but it is a relevant  

factor  which  ought  to  be  kept  in  mind  before  granting  an  

interim order, such as the one passed by the trial Court.

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18. Shri  Dushyant  Dave,  learned  senior  counsel  for  the  

plaintiffs submitted that since the Tenancy Act is meant for  

protecting the interest of the tenants, the High Court (by the  

impugned  judgment)  ought  not  to  have  interfered  with  the  

interim injunction granted by the trial Court.

19. In response, Shri Harish N. Salve, learned senior counsel  

for the defendants submitted that the plaintiffs have already  

parted  with  their  rights  by  assigning  their  rights,  title  or  

interest,  whatever  they  assert  in  the  disputed  property,  in  

favour of  a third party for  a consideration of  an amount of  

Rs.8,39,14,001/-.

20. In our  opinion,  the  petition  such as  the  one  on hand  

ought to have been dismissed on the simple ground that  it  

arises out of an interlocutory order during the pendency of the  

suit.  The legality of such interlocutory order has already been  

considered  by  an  appellate  Court  which  is  a  constitutional  

Court.  But in matters where the stake is huge, such as the  

one on hand, passionate arguments are advanced before this  

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court giving an impression that something really untoward has  

happened  in  the  matter  inducing  the  Court  to  undertake  

detailed examination.

21. On a closer examination, we do not find any reason to  

interfere with the impugned order.   Special Leave Petition is  

therefore, dismissed.

………………………….J.                                                               (J. Chelameswar)

……………………..….J.                                 (A.K. Sikri) New Delhi; October 15, 2014

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