From the above it is clearly discernible that the N.A.
order does not give any entitlement of right or title to the plaintiffs in the suit open space. Needless to state that the open space belongs to one Dyanesh Kamlakar Samant as per the revenue record. Therefore it is beyond any reasonable doubt that the Plaintiffs are ranked encroachers in respect of the suit structures as well as the suit open space. The N.A. assessment order itself states that an application was made by Plaintiff Nos. 1 and 2 along with two others seeking to levy assessment in respect of the structures and the open space used by both for commercial purpose. The provision of section 45 of the MLRC
Act clearly envisage that it pertains to penalty for so using the land without permission of the Collector. The contents of the N.A. order levied penalty to the extent of ten times of the fine of the annual commercial assessment for the use of the structures and the open space. To construe that the N.A. order puts the Plaintiffs in settled possession and confers title on the Plaintiffs in respect of the open space is a fallacy and an erroneous proposition of law adopted by the Plaintiffs in their submissions. Such a position cannot be countenanced by the Court which requires to look at documentary evidence of title or existence of the names of the Plaintiffs in the primary revenue record pertaining to the suit land. In absence of any documentary evidence of title, the Plaintiffs' case of settled position and having right, title and interest conferred on the Plaintiffs by the N.A. order dated 26.01.2005 stands rejected.{Para 12}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO.4532 OF 2021
WITH
INTERIM APPLICATION (ST) NO.4533 OF 2021
Ramesh R. Pandey Vs Municipal Corporation of Greater Mumbai
CORAM : MILIND N. JADHAV, J.
PRONOUNCED ON : MAY 18, 2021
Heard.
2. By the present Appeal against Order the Appellants
(original Plaintiff Nos. 1,2 and 3) have challenged the order dated
10.02.2021 passed by the City Civil Court at Dindoshi dismissing the
Notice of Motion No. 438 of 2021 in L.C.Suit No. 149 of 2021 filed by
the Appellants. The sole respondent is the Municipal Corporation of
Greater Mumbai. For the sake of convenience the parties shall be
referred to as Plaintiffs and Defendant. Plaintiffs have also filed
Interim Application bearing No. 4533 of 2021 seeking injunction
against the Defendant - Corporation from carrying out further
construction of the toilet block in the open portion in front of the suit
premises.
3. Before we advert to the submissions made by the
respective parties, it will be apposite to briefly state the relevant facts.
3.1. Plaintiffs are owners of structures bearing Census No.
RXC-85-1/1, RXC-84-1/1 and RXC-18-1/1A standing in survey No.
221, CTS No. 532 (pt), Ganpat Patil Nagar, Kandar Pada, near I.C.
Colony, Dahisar (West), Mumbai - 400068. There is an open space
admeasuring 15000 sq.ft. in front of these structures abutting the
Dahisar Link road which is vacant. In the plaint filed by the Plaintiffs
this open space is referred to as the suit premises and it is claimed that
the suit premises belong to the Plaintiffs. The censused structures of
the Plaintiffs are referred to as suit structures. The suit is filed for
injunction u/s 38 of the Specific Relief Act, 1963. It is contended in
the plaint that the Plaintiffs are in use, occupation and possession of
their respective structures and the open space in front of the suit
structures. Though it is stated in the plaint that the Corporation had
initiated action against the Plaintiff's structures u/s. 351 of the
Mumbai Municipal Corporation Act, 1888 (hereinafter for brevity
referred to as the "M.M.C. Act") the Plaintiffs succeeded in setting
aside the notices issued u/s 351. However, all facts stated in respect
of the structures or any litigation pertaining to action u/s 351 is not
relevant for the purpose of the present case.
3.2. Plaintiffs have contended that their suit structures are
used as godowns since the last several years. It is stated that the suit
open space in front of the suit structures of Plaintiff Nos. 1 and 2 are
levied to N.A. tax alongwith the suit structures and that Plaintiff Nos. 1
and 2 are paying N.A. tax to the concerned authority. Plaintiffs have
referred to and relied upon the N.A. order dated 26.01.2005 which I
shall deal with later.
3.3. Plaintiffs have contended that the open space is in
exclusive possession of the Plaintiffs since the last several years and is
used by the Plaintiffs for parking of their vehicles for loading and
unloading goods from the suit structures. It is stated that some
portion of the open space was acquired for the widening of the Link
road. If that be the case then the Plaintiffs should have placed on
record the details of acquisition so as to enable the Plaintiffs to claim
right, title and entitlement to the suit open space. This has admittedly
not been done.
3.4. The Defendant Corporation wanted to construct a public
toilet on some portion of the open space. The construction of this
public toilet was initiated by a Public Notice dated 28.01.2020 and
objections were received from aggrieved persons till 04.02.2020. This
notice was specifically pasted on the suit structures of the Plaintiffs
and there is no denial of this fact. The Corporation has followed the
due process of law in ensuring that the public toilet is constructed
under the ‘Swacch Bharat Mission Scheme’ initiated by the Urban
Development Department and as per the SBM (Urban) Guidelines para
4.3.2 for construction of household toilets, beneficiary household
would be targeted under this scheme irrespective of whether they live
in authorized / unauthorized colonies or notified / non-notified slums.
Further, the construction of this public toilet having 16 toilet seats
would benefit approximately 2250 users residing in Galli No. 14 of
Ganpat Patil Nagar, Dahisar West. At present there are only 15 public
toilet seats in operation and service for the use of the aforesaid
population.
3.5. The Corporation is carrying out the construction of the
toilet block at Galli No. 14 being the planning authority and obligated
to make arrangement for toilet for the slum dwellers as also to control
spread of contagious diseases in the said area. The Corporation has
obtained the necessary remarks from the Maharahstra Coastal Zone
Management Authority for construction of the said public toilet,
remarks regarding whether the proposed location falls under CRZ- I or
CRZ-II have been given by the Executive Engineer (D.P.) R/North,
remarks / requirement of the public toilet as given by the Assistance
Engineer (S.W.M.) department of the Corporation, letters addressed by
the State Government seeking clarification from the Central
Government, letters received from the Director, SBM, Ministry of
Urban Development interpreted to mean that under the SBM (Urban)
Guidelines NOC is not required for construction of toilets and most
importantly the revenue record pertaining to the proposed site where
the toilet block is being constructed which shows that Mr. Dyanesh
Kamlakar Samant is the owner of the suit open space and does not
have any reference to the names of any of the Plaintiffs herein.
3.6. In the aforesaid background, Plaintiffs have approached the
Court by filing the original suit stating that the Corporation is
constructing the toilet block without following due process of law on
the following grounds :-
(i) The Defendants are not following the principles of
natural justice;
(ii) The Defendants officers have failed to acquire the
suit open space;
(iii) That it is the pertinent to note that the suit open
space is in exclusive possession of the Plaintiffs;
(iv) It is pertinent to note that the suit open space is
levied to N.A. Tax and the Plaintiffs are paying N.A.
Tax to the Concerned Authority;
(v) It is pertinent to note that the suit open space is
used for parking vehicles by the Plaintiffs;
(vi) The Defendants are acting illegally and highhandedly
at the instance of the Local Corporator
and Local Politician;
(vii) The Defendants are not disclosing the permissions
issued for the constructing of the said toilet blocks
on the suit open space;
(viii) It is pertinent to note that the proposed toilet blocks
to be constructed on the suit open space will block
the frontage of the Plaintiffs in respect of the suit
structures.
(ix) It is also pertinent to note that the said toilet blocks
will not only cause nuisance to the Plaintiffs but the
light and air of the Plaintiffs to the suit structures
will be completely blocked.
3.7. Out of the aforesaid grounds the primary grounds are
ground Nos. (iv), (v), (vii), (viii) and (ix).
4. The trial court considered the draft Notice of Motion filed
by the Plaintiffs seeking temporary injunction to restrain the
Corporation from carrying out any construction in the suit open space
and passed a reasoned and speaking order on 10.02.2021 dismissing
the said Motion. The present Appeal from Order assails the order
dated 10.02.2021 passed by the trial court.
5. Mr. Pradeep Thorat, learned counsel appearing for the
Plaintiffs has at the outset drawn my attention to paragraph Nos. 13
and 14 of the plaint and contended that the Plaintiffs are in settled
possession of the suit open space i.e. the suit open space is in the
exclusive possession of the Plaintiffs since last several years and by the
current act of construction of the toilet block, the Plaintiffs are sought
to be dispossessed by the Corporation without following due process
of law; Plaintiff Nos. 1 and 2 are paying the Non Agricultural tax in
respect of the suit structures as well as the suit open space since the
year 1971. He submitted that at page No. 68 of the paper book the
N.A. order dated 27.01.2005 passed by the Additional District Dy.
Collector, MSDA, Bandra (E), Mumbai states that the name of Plaintiff
No.1 i.e. Ramesh R. Pandey and Plaintiff No.2 - Diwakar R. Thakur
show that they are in unauthorized use and occupation of the
commercial structures admeasuring 212 sq. mtr. and 272 sq.mtr. and
open land admeasuring 244 sq.mtr. and 314 sq.mtr. for which N.A.
assessment has been levied and on the basis of which they claim to be
the owner of the suit open land. He submitted that once the Plaintiffs
show that they are in settled possession of the suit property and if the
Municipal Corporation admits so in its affidavit-in-reply, injunction
should have been granted by the trial court. He has drawn my
attention to paragraph No. 9 of the affidavit-in-reply filed by the
Corporation to contend that there is categorical statement made by the
Corporation stating that the Plaintiffs are paying N.A. assessment for
the suit open space and are in possession of the suit open space and
are using the same for commercial purpose. On the basis of this
statement, Mr. Thorat has vehemently contended that the Corporation
has admitted possession of the Plaintiffs and thus cannot dispossess
the Plaintiffs from the suit open space.
6. The next ground agitated by Mr. Thorat is that the
Corporation has not followed the due process of law and has not taken
possession of the suit open space from the Plaintiffs as is required
under the law. He stated that the public notice dated 20.01.2020
seeks construction of the toilet block at Galli No.14 whereas the same
is now been constructed in the open space adjoining the entrance gate
to Galli No.14. Thus the original site has been further shifted towards
the South and is being constructed at a different location. He
submitted that the exact place where the toilet block is required to be
constructed is completely uncertain and is not borne out by the record.
He has referred to and relied upon the photographs which show the
entrance to Galli No.14 and the exact location towards the south
where the toilet block construction is undertaken by the Corporation
to buttress his submission.
7. PER CONTRA, Ms. Madhuri More, learned counsel
appearing for the Corporation has drawn my attention to the affidavitin-
reply dated 27.01.2021 filed by Mr. Amit Y. Koyande, Sub Engineer,
Maintenance Department, R/N Ward of the Defendant - Corporation
before the trial court and has refuted the case of the Plaintiffs. She
submitted that the N.A. order dated 26.01.2005 relied upon by the
Plaintiffs does not entitle the Plaintiffs to claim ownership of the suit
structures as well as the suit open space as described by the Plaintiffs
in the plaint. Plaintiff Nos. 1 and 2 along with two other parties have
been described as encroachers and have been directed to pay N.A.
taxes till the structures shall be removed by the Municipality or the
State Government and most importantly paragraph Nos. 2 and 3 of
the said order the N.A. order confirm that the said order does not
confirm any right, title or interest in the land to the encroacher i.e.
Plaintiff Nos. 1 and 2. It is further clarified in the order that payment
of N.A. assessment does not mean any regularization u/s 47(b) of the
Maharashra Land Revenue Code, 1966 (for short "M.L.R.C."). She
submitted that the bare reading of the N.A. order cannot entitle the
Plaintiffs to claim ownership and title and thus the Plaintiffs' case fails
in the first instance on title. She submitted that the suit structures and
the suit open space are not precisely and properly defined in the suit
plaint and thus in the absence of specific details pertaining to the suit
open space, the suit open space in relation to each Plaintiffs and the
specific area of the toilet block which is being constructed, the suit
filed by the Plaintiffs is not maintainable.
7.1. In respect of following due process of law, Ms. More has
submitted that para Nos.7, 11, 12 and 13 of the affidavit-in-reply filed
by the Corporation before the trial court lists the procedure adopted by
the Corporation and there is no infirmity in construction of the toilet
block in the suit open space. She submitted that it is pertinent to note
that the Plaintiffs have never objected to the public notice and more
specifically the requisite distance of 2 mtrs. has been maintained from
the Plaintiff's structures as required by law. She submitted that before
passing the impugned order the trial court by its interim order dated
22.01.2021 appointed a Court Commissioner to visit the site and to
ascertain the distance between the toilet block and the Plaintiffs' suit
structures as well as the width of the area i.e. open space in front of
the suit structures. The Court Commissioner submitted his report
dated 22.01.2021 stating that there is a distance of 5 ft. 2 inches, 5 ft.
4 inches and 6 ft. 4 inches in so far as Plaintiff No.1's structure is
concerned and a distance of 6.1 inches in so far as Plaintiff No.2's
structure is concerned. She submitted construction of the public toilet
block does not disturb the suit structures of the Plaintiffs; suit
structures are used as godowns; there is ample space behind the suit
structures from where the actual loading and unloading of the goods
take place; the front open space is not used for any loading and
unloading of the goods; the front open space belongs to the ownership
of Mr. Dyanesh Kamlakar Samant being the owner as recorded in the
record of rights and revenue record and who has not objected to the
construction of the toilet block on a portion of survey No. 221 (pt)
towards the southern side of the entrance gate to Galli No.14; the
objection relating to the precise location of the construction of the
toilet block is stated to be rejected as the same does not justify any
countenance whatsoever since the toilet block is constructed at the
mouth of Galli No.14 which is for the benefit of 2250 slum dwellers of
Ganpat Patil Nagar; the public toilet block will have 60 toilet seats as
the presently available 15 toilet seats are found to be inadequate; the
public toilet block is being constructed under the Swacch Bharat
Mission of the Ministry of Urban Development for the benefit of the
beneficiaries i.e. slum dwellers; Plaintiffs are not the owners of the
open space and merely on the basis of the N.A. order cannot claim to
be owners of the open space; Plaintiffs are ranked encroachers on the
open space as stated in the N.A. order and thus cannot be treated as
owners.
8. Mr. Thorat in his rejoinder submissions submitted that the
contents of para No. 12 of the impugned order be considered. He
submitted that the Plaintiffs have made a statement before the trial
court that they are ready and willing to construct the public toilet
block at their own expenses towards the rear side of the suit
structures. This contention of the Plaintiffs has been rejected by the
trial court in paragraph No. 12 of the impugned order. He submitted
that this Court be pleased to reconsider the same in the light of the
submissions advanced on behalf of the Plaintiffs.
9. Submissions made by the parties are on pleaded lines.
Perused the material on record and pleadings.
10. At the outset Plaintiffs have pitched their case to the
extent that on the basis of the N.A. order dated 26.01.2005 they are
the owners of the suit structures as well as the suit open space. On
page No. 74 of the paper book there is a rough sketch annexed by the
Plaintiffs. This rough sketch shows that the suit structures occupied by
Plaintiff Nos. 1 to 3 is next to Galli No. 14, the open space in front of
the suit structures and the Link Road abuts the open space. Roughly
there is a demarcation which shows that the construction of the toilet
block in front of the structures belonging to Plaintiff No.2 and Plaintiff No.3; there is an open space between the entrance of Galli No. 14 and the starting point of the toilet block towards the Northern side.
Similarly, there is substantial open space left out from the end point of
the toilet block towards the southern side. The toilet block abuts and
adjoins the Link Road. Plaintiffs have claimed title to the structures
(which is not relevant here) and the open space. A bare reading of the
N.A. order in fact goes against the Plaintiffs' case of entitlement. The
N.A. order though reads that the suit open space is in possession of the
Plaintiffs and being used by the Plaintiffs, it is on their request that
N.A. assessment has been levied as they are using the said structures
and open space. It cannot be construed that the Plaintiffs are the
owners of the suit structures as well as the open space by any stretch
of imagination or by application of any principle of law. The N.A.
order states that "the construction is without prior permission of
Collector u/s 44 of the Maharashtra Land Revenue Code, 1966. The
land is therefore liable to pay penalty u/s 45 of M.L.R.C. 1966. It
further states that encroacher should pay N.A. Assessment at the above
mentioned rate till the N.A. rates are revised or the structure shall be
removed by Municipality, Demolition squad of State Govt. or any other
Govt. body whichever is earlier. It is further stated that this order does
not confirm any right, title or interest in the land to the encroacher. It
is clarified that payment of N.A. Assessment and fine does not mean it
is regularized u/s 47(b) of M.L.R.C., 1966."
11. For the sake of convenience the relevant portion of the
N.A. order is extracted as below:
"OFFICE OF THE ADDITIONAL DISTRICT DY. COLLECTOR,
MUMBAI SUBURBAN DISTRICT ADMINISTRATIVE BUILDING,
9TH FLOOR, GOVT. COLONY, BANDRA (E), MUMBAI - 400 051
--------------------------------------------------------------------------------------------
No. ADC/LND/E/2426A
Date : 27/01/2005
Read :-
1. Application from Shri. Louis Itur Vaity & Others 3 dated 26/5/2004
2. This office Surveyor's report dated 29-05-2004
3. The Revenue and Forest Department Govt. Circular No. NAA/1090/PK-16/
L-2 dated 17-7-1992
4. Powers u/s 45 of M.L.R.C. - 1966 delegated by Collr. BSD vide order No.
AOM/122 dated 12/5/72
ORDER
.................
.................
The Construction is without prior permission of Collector u/s 44 of the
Maharashtra Land Revenue Code, 1966. The land is therefore liable to pay
penalty u/s 45 of M.L.R.C. 1966.
Show cause notice in this case was issued to Occupant / Applicant and the
hearing was fixed on 6-10-2004 @ 3.00 p.m. The applicant was present and
argued that they are ready to pay N.A. Tax but their financial position is not
sound, therefore requested to waive the penalty.
.................
1. That the Encroacher should pay N.A. Assessment at the above mentioned
rate till the N.A. Rates are revised or the structure shall be removed by
Municipality Demolition Squad of State Govt. or any other Govt. Body
whichever is earlier.
2. This Orders does not confirm any right, title or interest in the land to the
Encroacher.
3. It is clarified that payment of N.A. Assessment and find does not mean it is
regularized u/s 47(b) of M.L.R.C., 1966
4. Occupant should pay N.A. Assessment to Tahsildar (N.A.) Borivali I/II.
Additional District Deputy Collector
Mumbai Suburban District"
12. From the above it is clearly discernible that the N.A.
order does not give any entitlement of right or title to the plaintiffs in
the suit open space. Needless to state that the open space belongs to
one Dyanesh Kamlakar Samant as per the revenue record. Therefore it
is beyond any reasonable doubt that the Plaintiffs are ranked
encroachers in respect of the suit structures as well as the suit open
space. The N.A. assessment order itself states that an application was
made by Plaintiff Nos. 1 and 2 along with two others seeking to levy
assessment in respect of the structures and the open space used by
both for commercial purpose. The provision of section 45 of the MLRC
Act clearly envisage that it pertains to penalty for so using the land
without permission of the Collector. The contents of the N.A. order
levied penalty to the extent of ten times of the fine of the annual
commercial assessment for the use of the structures and the open
space. To construe that the N.A. order puts the Plaintiffs in settled
possession and confers title on the Plaintiffs in respect of the open
space is a fallacy and an erroneous proposition of law adopted by the
Plaintiffs in their submissions. Such a position cannot be
countenanced by the Court which requires to look at documentary
evidence of title or existence of the names of the Plaintiffs in the
primary revenue record pertaining to the suit land. In absence of any
documentary evidence of title, the Plaintiffs' case of settled position
and having right, title and interest conferred on the Plaintiffs by the
N.A. order dated 26.01.2005 stands rejected.
13. The Plaintiffs' reliance on the averments made by the
Corporation in paragraph No. 9 of having accepted the possession of
the Plaintiffs in respect of the open land cannot be construed literally
as it appears. The possession of the Plaintiffs is derivative from the
N.A. order dated 26.01.2005 which is alluded to herein above. Thus,
no right, title or interest is created in the Plaintiffs in respect of suit
open land.
14. The submissions relating to following the due process of
law in construction of the public toilet block as advanced by the
Plaintiffs also stand to be rejected in limine. The submissions that the
original toilet block was to be constructed at Galli No. 14 and the same
is now being constructed at the mouth of Galli No. 14 and not near the
entrance gate of Galli No. 14 cannot be countenanced in as much as
the Municipal Corporation being the planning authority, a feasible and
suitable place for the toilet block whether it is at Galli No.14 or near
the entrance of Galli No.14 will be taken into account keeping in mind
the utility and use of the said public toilet block for the benefit of the
beneficiaries / users and more specifically the slum dwellers. The
construction of the public toilet block will be beneficial to the slum
dwellers of Ganpat Patil Nagar residing at Galli No.14. At present
there are only 15 public toilet seats for approximate 2250 users at
Galli No. 14 and the construction of the present public toilet block
having 60 toilet seats would be certainly beneficial. Thus the
submission of the Plaintiffs relating to change in the precise location of the construction of the public toilet block stands rejected.
15. The Plaintiffs have referred to and relied upon the
photographs pertaining to the construction of the public toilet block. A
mere glance at the photographs clearly show that as alleged by the
Plaintiffs the toilet block is not covering the entire open space which is
between the Plaintiff's structure and the Link road. Despite the toilet
block being constructed there is adequate open space which is left
open. The Plaintiffs have relied upon the decision in the case of Rame
Gowda (Dead) by LRS. vs. M. Varadappa Naidu(Dead) by LRS. and
Anr.1 to agitate that under the provisions of the Specific Relief Act, if
an occupant is in settled possession, he cannot be dispossessed
without recourse to law. In the said case the Plaintiffs and the
Defendant both claimed to be the owners of two adjoining pieces of
land and the real dispute between them was about the demarcation of
the common boundary of the two pieces of land. In that context the
land in possession of the Plaintiffs was referred to as the suit land and
the Plaintiffs raised construction over the said suit land which was
objected by the Defendant. In the trial court the Plaintiffs filed a suit
for title and possession whereas in the present case the Plaintiffs have
1 2004(1)SCC 769
conveniently not filed any suit for title primarily because the plaintiffs
are aware that their suit for title cannot be based upon the N.A. order.
There is no other documentary piece or evidence with the Plaintiffs to
prove their title. In the above context, the learned counsel has placed
reliance on para Nos.8 and 9 of the above judgement which are
extracted as under :
"8. It is thus clear that so far as the Indian law is concerned the
person in peaceful possession is entitled to retain his possession and in order
to protect such possession he may even use reasonable force to keep out a
trespasser. A rightful owner who has been wrongfully dispossessed of land
may retake possession if he can do so peacefully and without the use of
unreasonable force. If the trespasser is in settled possession of the property
belonging to the rightful owner, the rightful owner shall have to take
recourse to law; he cannot take the law in his own hands and evict the
trespasser or interfere with his possession. The law will come to the aid of a
person in peaceful and settled possession by injuncting even a rightful owner
from using force or taking law in his own hands, and also by restoring him in
possession even from the rightful owner (of course subject to the law of
limitation), if the latter has dispossessed the prior possessor by use of force.
In the absence of proof of better title, possession or prior peaceful settled
possession is itself evidence of title. Law presumes the possession to go with
the title unless rebutted. The owner of any property may prevent even by
using reasonable force a trespasser from an attempted trespass, when it is in
the process of being committed, or is of a flimsy character, or recurring,
intermittent, stray or casual in nature, or has just been committed, while the
rightful owner did not have enough time to have recourse to law. In the last
of he cases, the possession of the trespasser, just entered into would not be
called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person
without title which would entitle him to protect his possession even as
against the true owner. The concept of settled possession and the right of the
possessor to protect his possession against the owner has come to be settled
by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors.
Vs. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The
State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of
Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In
Munshi Ram & Ors.'s case (supra), it was held that no one, including the true
owner, has a right to dispossess the trespasser by force if the trespasser is in
settled possession of the land and in such a case unless he is evicted in the
due course of law, he is entitled to defend his possession even against the
rightful owner. But merely stray or even intermittent acts of trespass do not
give such a right against the true owner. The possession which a trespasser is
entitled to defend against the rightful owner must be settled possession,
extending over a sufficiently long period of time and acquiesced to by the
true owner. A casual act of possession would not have the effect of
interrupting the possession of the rightful owner. The rightful owner may reenter
and re- instate himself provided he does not use more force than is
necessary. Such entry will be viewed only as resistance to an intrusion upon
his possession which has never been lost. A stray act of trespass, or a
possession which has not matured into settled possession, can be obstructed
or removed by the true owner even by using necessary force. In Puran Singh
and Ors.'s case (supra), the Court clarified that it is difficult to lay down any
hard and fast rule as to when the possession of a trespasser can mature into
settled possession. The 'settled possession' must be (i) effective, (ii)
undisturbed, and (iii) to the knowledge of the owner or without any attempt
at concealment by the trespasser. The phrase 'settled possession' does not
carry any special charm or magic in it; nor is it a ritualistic formula which can
be confined in a strait-jacket. An occupation of the property by a person as an
agent or a servant acting at the instance of the owner will not amount to
actual physical possession. The court laid down the following tests which
may be adopted as a working rule for determining the attributes of "settled
possession" (SCC p.527, para 12):
i) that the trespasser must be in actual physical possession of the property
over a sufficiently long period;
ii) that the possession must be to the knowledge (either express or implied)
of the owner or without any attempt at concealment by the trespasser and
which contains an element of animus possidendi. The nature of possession of
the trespasser would, however, be a matter to be decided on the facts and
circumstances of each case;
iii) the process of dispossession of the true owner by the trespasser must be
complete and final and must be acquiesced to by the true owner; and
iv) that one of the usual tests to determine the quality of settled possession,
in the case of culturable land, would be whether or not the trespasser, after
having taken possession, had grown any crop. If the crop had been grown by
the trespasser, then even the true owner has no right to destroy the crop
grown by the trespasser and take forcible possession.
16. From the reading of the aforesaid paragraphs of the
judgement and applying the facts to the present case what
distinguishes the present case is that the N.A. order dated 27.01.2005
speaks for itself; the relevant contents of the N.A. order have been
reproduced in paragraph No. 10 herein above. The same are clear
and unambiguous. The N.A. order does not confer any right, title or
interest on the Plaintiffs. The Plaintiffs are ranked encroachers as
certified by the N.A. order. The Plaintiffs have been levied N.A. tax
and penalty for using the land which does not belong to them. The
Plaintiffs are aware about the same. Therefore on the basis of the N.A.
order the Plaintiffs cannot construe themselves to be in settled
position. In the various judgements which are referred to in the
aforesaid case decided by the Supreme Court, it is seen that the
original suit filed by the parties was for declaration of title and
injunction to protect their possession. In the present case the Plaintiffs
have not filed any suit for declaration of title and have merely filed a
suit for injunction. Therefore, the facts of the case referred to and
relied upon by the Plaintiffs are clearly distinguishable. The Plaintiffs
have also referred to and relied upon the judgement dated 19.09.2011
passed in L.C.Suit No. 1304 of 2010 and 1303 of 2010. L.C. Suit No.
1303 of 2010 was filed by Plaintiff No.2 whereas L.C. Suit No. 1304 of
2020 was filed by Plaintiff No.1 to challenge the notices u/s 351 issued
by the Corporation for demolition of their unauthorised structures
only. The Plaintiffs led evidence in the trial court and produced
several documents pertaining to the existence of the censused
structures since 1976 and thus sought protection of the structures
from the action of the Corporation. The trial court in the above two
suits held that the Plaintiffs were entitled to perpetual injunction in
respect of the suit structures only. The suit property i.e. suit structures
is described in para No.3 of the above judgement. There is no whisper
about the suit open space in the above judgement so as to enable the
Plaintiffs to claim any right, title or entitlement in respect of the same.
17. In view of the above discussions and findings the Appeal
from Order (ST.) No. 4532 of 2021 fails and is dismissed with no order
as to costs.
18. In view of the dismissal of the Appeal from Order (ST.)
No. 4532 of 2021, Interim Application (St.) No. 4533 of 2021 does not
survive and is disposed of as dismissed.
[ MILIND N. JADHAV, J. ]
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