Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 1284 OF 2018
IN
L.C. SUIT NO. 9166 OF 1999
Smt. Indramani Badrinarayan Tiwari & Ors. .. Plaintiff
Versus
M/s Vishwambar Trust & Ors. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 13th December, 2018
Mr. Sasidharan, Ld. adv. for the plaintiff.
Mr. Pandey, Ld. adv. for defendant no.2.
Mr. Datta Pawar, ld. adv. for defendant no.11.
Mr. Kamble, adv. for defendant no.10/BMC.
O R D E R
1. This Nm is taken out by defendant no. 2 for dismissal of the
suit in the light of judgment of the Hon'ble Apex court in the case
between State of Haryana Vs. Mukesh Kumar and Ors. reported in
(2011) 10 SCC 404. Mr. Ashok Singh CA of defendant no. 2 has filed
his affidavit in support of N/m contending that plaintiff has filed this
suit for declaration of ownership over suit property by way of adverse
possession. It is observed by Hon'ble Apex Court that " a person
pleading adverse possession has no equities in his favour since he is
trying to defeat the rights of the true owner. It is for him to clearly
plead and establish all facts necessary to establish adverse possession.
Though the law of adverse possession was gotten from the British, it is
important to note that English Courts were taking a very negative view
towards the law of adverse possession. The English law was amended
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and changed substantially to reflect the changes, particularly in light of
the view that property was a human right adopted by the European
Commission."
2. it is mentioned in the affidavit that while delivering above
referred Judgment, the Hon'ble Apex Court directed Union of India to
immediately consider and seriously deliberate either abolition of law of
adverse possession or any alternate to make suitable amendments in
said law. According to defendant no. 2 adverse possession allows a
trespasser a person guilty of a tort or even crime in the eye of low to
gain legal title to land which he has illegally possessed for 12 years.
Doctrine of adverse possession has troubled a great many legal minds
and Hon'ble Apex Court opined that if protectors of law become the
grabbers of the property, people will be left with no protection and
there would be total anarchy in the entire country.
3. Defendant no. 2 contended that suit No. 1973/2010 was
filed by plaintiffs for declaration on the basis of adverse possession.
However in said suit the Hon'ble High Court brought it to notice of
plaintiff that suit for declaration on the basis of adverse possession is
not maintainable. Thereafter said suit came to be withdrawn. Hence
according to defendant no. 2 this suit is also not maintainable on the
basis of law of adverse possession.
4. Plaintiff has filed his reply contending that N/m is false
hence not maintainable. This N/m is taken out in collusion with
defendant no. 11 and said collusion is apparent because another N/m
was filed by defendant 11. In this suit plaintiff has already filed
affidavit of examinationinchief with documents. Defendants are trying
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to prolong the matter and now they have taken out N/m with intention
to protract hearing of the suit. It is contention of plaintiff that only
relief of declaration on the basis of adverse possession is not claimed in
the plaint but other several prayers are also made and thereby
opportunity must be given to the plaintiff to adduce evidence at least in
respect of such other prayers. It is denied that as per observations of
the Hon'ble Apex Court this suit is not maintainable because of other
prayer from plaint. Hence plaintiff has prayed to reject the N/m.
5. I have heard advocates for defendant nos. 2 and 11 and
Plaintiff at length. According to advocates for defendant nos. 2 and 11
in view of observations of Hon'ble Supreme Court in the case between
State of Haryana Vs. Mukesh Kumar and Ors. Reported in (2011) 10
SCC 404, the plaint for declaration of ownership on the basis of adverse
basis is not maintainable. Advocates for defendant nos. 2 and 11 also
referred order passed by the Hon'ble High Court in Suit No. 1973/2010
and argued that in said suit, Hon'ble High Court brought it to notice of
plaintiff that suit for declaration on the basis of adverse possession is
not maintainable. Thereafter said suit came to be withdrawn. It is
further argued that disputed agreement dated 14.07.1961 and MA
order are filed on record and on the basis of those documents it
becomes clear that Mahatam Singh was not owner of suit property but
defendant no. 1 was owner of suit property.
8. Plaintiffs advocate argued that this N/m is taken out after
plaintiff has filed affidavit of evidence and after documents filed by
plaintiff are exhibited. It is argued that besides declaration by way of
adverse possession, other reliefs are also claimed by plaintiff in this suit
hence suit cannot be dismissed without giving chance to plaintiff to
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adduce his evidence.
9. After giving serious consideration to the arguments
advanced at bar, I have perused the plaint prayer clause (a) which is in
respect of for plaintiff's declaration as owner of suit property on the
basis of adverse possession. Plaintiff has also prayed for mandatory
injunction against defendant no. 2 for direction to him for demolition
of all unauthorised constructions including hoardings from suit
property. Further plaintiff has alternatively prayed for mandatory
injunction directing defendant no. 10/BMC to remove all unauthorised
structures and hoardings from suit property. As such besides
declaration on the basis of adverse possession plaintiff has also sought
reliefs of mandatory injunction against defendant nos. 2 and 10. I
have perused the issues framed by my learned predecessor at Exh. 7.
By first issue Court has casted the burden on the shoulders of plaintiff to
prove that they have become owner of suit property by way of adverse
possession. The issues Exh. 7 further show that the burden of proving
the fact the constructions on suit property are unauthorised is also
casted on the shoulders of plaintiffs. On the contrary issue no. 4 shows
that burden of proving the fact that defendant no. 2 is possessing suit
property is casted on the shoulder of defendant no. 2. Even if, the
plaint for declaration on the basis of adverse possession is not
maintainable, plaintiffs total claim cannot be dismissed because it is
necessary to give plaintiff opportunity to prove his claim for mandatory
injunction. In such circumstances, in view of the Order passed by
Hon'ble High Court in appeal No. 1973/2010 this Court can point out
that plaintiff's claim for declaration on the basis of adverse possession is
not maintainable and this Court can point out plaintiffs to think for
deleting prayer clause (a) from the plaint and further for deleting the
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pleadings from the plaint made in respect of relief of declaration on the
basis of adverse possession. However, at this stage, when plaintiff has
filed the affidavit of evidence long back on 06.07.2015, neither plaint
can be rejected nor plaintiff's total claim can be dismissed without
giving opportunity to plaintiff to prove at least his case in respect of
mandatory injunction. Further this suit is filed in the year 1999 and
according to defendant no. 11 the conveyance of suit property was
executed in favour of defendant no. 11 on 12.12.2005. As such alleged
conveyance between defendant no. 1 and defendant no. 11 is the
conveyance executed in the pendency of this suit and on this ground
also when defendant no. 1 has introduced defendant no. 11 to the title
of suit property by executing alleged conveyance deed, I find that Nm
cannot be allowed. Hence I proceed to pass following order.
O R D E R
1. N/m No.1284/18 stands disposed of/ dismissed.
(K.P.Nandedkar)
Judge,
City Civil Court,
13/12/2018 Gr.Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
21/12/2018 01.30pm Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 13/12/2018
Judgment/order signed by P.O on 21/12/2018
Judgment/order uploaded on 21/12/2018
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