Judgment:
B.P. Dharmadhikari, J.
1. The original defendants have by this Second Appeal challenged the reversing judgment dated 22.12.1989 delivered by the IInd Additional District Judge, Nagpur in Regular Civil Appeal No. 503/1984. By that judgment while setting aside the dismissal of Regular Civil Suit No. 31/1978, filed by the present respondents in the Court of 3rd Joint Civil Judge, Junior Division, Nagpur; the Lower Appellate Court permanently restrained the appellants from erecting any structure over the portion lying to western side of the plaintiffs' plot No. 20A in Khasara No. 54 of Sakkardara Road, Mouza Sakkardara, Tahsil and District. Nagpur. The suit was filed by the respondent contending that to the West of his plot No. 20A there is 80 feet vide public road and present appellants have started construction over the said road illegally. The suit was dismissed by the trial court after observing that the plaintiff could not establish that said construction undertaken by the defendants in any way constitute invasion of his legal right. It found that as per report of Commissioner, there was no road existing on West side of plot No. 20A. The Lower Appellate Court while reversing this judgment found that the original defendants accepted that there was 60 feet vide road adjacent to the West of the plot purchased by her husband and the said road later on became 80 feet vide and it ran over her plot No. 20. It further found that the said plot No. 20 of defendant was acquired by the Nagpur Improvement Trust for construction of 80 feet vide road. It further found that in some other litigation the Hon'ble High Court permitted Nagpur Improvement Trust to start demolition work of structures on acquired land and therefore, the plaintiff was entitled to get road frontage for his plot on Western side.
2. This Appeal has been admitted on 30.03.1992 on the following substantial question of law:
Whether as a consequence of the decision in 1992 Mh.L.J. P.179, there is a substantial change in the circumstances owing to which the relief of permanent injunction granted to the respondent requires to be reconsidered?.
During final hearing of the Second Appeal, the appellants moved Civil Application No. 1100/2008, for framing additional substantial questions of law. The application was opposed by the respondents/plaintiffs by filing reply affidavit. After hearing the parties on 13.02.2008, 5 more questions came to be framed as additional substantial questions of law. Those questions are as under:
2. Whether the suit filed by the respondent No. 1 [original plaintiff] was not maintainable in law since the same was improperly constituted and whether the same suit was liable to be dismissed for non-joinder of necessary parties such as Nagpur Improvement Trust, Nagpur Municipal Corporation and Town Planning Authority?
3. Whether the Appellate Court erred in jurisdiction in allowing the appeal on such improperly constituted suit for want of necessary parties?
4. Whether respondent No. 2 [original plaintiff] has any legal right to maintain the suit or to the reliefs claimed in the suit and he has no locus standi at all and he has claim any reliefs in the suit against the appellants-original defendants?
5. Whether judgment of 1st Appellate Court in Regular Civil Appeal No. 503/1984 is vitiated on the grounds of non-consideration of the material documents on record i.e. the inspection report of the Commissioner appointed by the trial Court in the original suit?
6. Whether the judgment of the 1st Appellate Court is vitiated on the ground of placing undue and unwarranted reliance on the inadmissible evidence about alleged acquisition of plot No. 20 belonging to the original defendant No. 1, without there being any pleading to this effect contained in the original plaint and disregarding the material on record/evidence?.
3. In this background I have heard Senior Advocate Shri R.B. Pendharkar, with Advocate Shri Hedau for appellants/defendants and Advocate Shri B.N. Mohta, for respondent/plaintiff. The appellant No. 2[i], 2[j] and 2[k] who were minors have attained majority during pendency of this Second Appeal. Learned Senior Advocate had sought leave to carry out necessary amendment in this respect. Advocate Shri B.N. Mohta, has no objection. Leave to amend is accordingly granted. Necessary amendment be carried out immediately.
4. Senior Advocate Shri Pendharkar, has contended that there was no legal right or injury pleaded and demonstrated by the plaintiff and suit was merely based upon surmises to prevent alleged future loss. The plaintiff did not produce any sanctioned building plan of his structure and also did not produce any sanctioned layout in which his plot No. 20A or plot No. 20 of the present appellants/original defendants was situated. It is contended that the finding of the Lower Appellate Court that plot of the present appellants was acquired by the Nagpur Improvement Trust is without any pleading and as such evidence which has come on record in that respect cannot be looked into. He has placed reliance upon the judgment of Hon'ble Supreme Court reported at : [1987]3SCR552 (Vinod Kumar Arora v. Smt. Surjit Kaur).
It is further argued that the Sakkardara Street Scheme framed by Nagpur Improvement Trust itself has been quashed, and as such the very basis on which the entire edifice of the case of the respondent/plaintiff stood has been lost. He also states that after the quashing of the scheme, Nagpur Improvement Trust has accepted development charges of Rs. 2640/-from appellant No. 2 and hence the contention of the plaintiff that there is 80 feet vide road on west side of his plot, is itself incorrect. He further states that original plaintiff - Atul, avoided to enter witness box and the appellants have challenged his ownership of plot No. 20A and also status to maintain such suit. He states that while opposing the suit defendants called upon plaintiff to produce sanction building plan, not only through their written statement but also otherwise, but no such sanctioned plan has come on record. He points out that there is material on record which shows that there was no sanction either to the plot or structure of the plaintiff and report of Court Commissioner (Exh.45), demonstrated that the plaintiff had committed encroachment on plot No. 20. He states that provisions of Section 41 of the Specific Relief Act, are not correctly construed by the Lower Appellate Court. According to him, the plaintiff did not approach the court with clean hands, suppressed material particulars, avoided to produce documents, encroachment upon plot of defendants and also did not enter witness box. He contends that in such circumstances, considering the facts as also nature of the suit, it was necessary for the respondents/plaintiff to join planning authority i.e. Nagpur Improvement Trust or Nagpur Municipal Corporation as necessary parties. He invites attention to the evidence on record to substantiate his stand, and also to various judgments of the Hon'ble Apex Court and of this Court to support the issues raised by him.
5. As against this, Advocate Shri B.N. Mohta, for respondent/ plaintiff has stated that purchase of plot No. 20-A by plaintiff is not in dispute and existence of road on its western side is also clearly mentioned in his sale deed. He further states that perusal of said sale deed [Exh.52] and its comparison with sale deed [Exh.95] of defendants, clearly show that all arguments advanced above are misconceived. He states that the total area of plot No. 20A purchased by the defendants was 2700 sq.ft. and it has been acquired completely by the Nagpur Improvement Trust. He further states that on west of plot No. 20-A there is public road and therefore plaintiffs have constructed shop blocks on that side and are entitled legally to have frontage on public road. He invites attention to the layout plot Exh.54 and also the Exh. 55. He also invites attention to representation made by all residents in this respect vide Exh.56. He contends that there was no need of plea that land of defendant was acquired by Nagpur Improvement Trust, because there was specific plea that on west side of the plot No. 20A there was a public road and not plot No. 20. He further invites attention to the material on record to show that the original owner of plot No. 20 - Sitabai accepted receipt of land acquisition notice and also receipt of compensation amount from Nagpur Improvement Trust. He also invites attention to the fact that before the Lower Appellate Court, application under Order 18 Rule 17 was also made by the appellant to show that entire plot No. 20 was not acquired and therefore, to recall witness to allow the defendant to adduce evidence in that respect, but that application was rejected on 22.12.1989, after noticing that entire plot No. 20 was acquired. He further states that alleged encroachment recorded by the Commissioner in Exh.45, was objected to by the present respondent by filing objection Exh.47, but that has not been considered. He further states that subsequent purchaser and present appellant No. 2 did not file any separate written statement and did not come with a case that plot No. 20 or any portion thereof was constituted and recognized as a regular plot by the Nagpur Improvement Trust and there was no case that any such plot by town planning & was released in favour of the defendant. He further states that the High Court judgment reported at 1992 Mh.L.J. 179 (Bharat Maganbhai Kheta v. Nagpur Improvement Trust), does not apply in the present facts where possession was already taken and compensation was accepted. He also attempts to points out how the other judgment relied upon by the appellants are not applicable & relevant.
6. Learned Senior Advocate, in his brief reply has stated that the arguments and objections about cross examination conducted without plea has not been answered and no legal right has been made out. He argues that this Court can even interfere with the concurrent findings of fact, if it is found that conclusions are based on inadmissible evidence & pleas. He further states that alleged representation [Exh.56], is not proved because none of the signatories thereto have been examined and its contents are also not proved in accordance with law. He further states that the judgment of this Court in the case of Bharat Kheta (supra), is the judgment in rem, because it quashes the entire notification for acquisition. He further points out that there was a prayer for spot inspection made vide Exh.21 by the subsequent purchaser, but in view of the Commissioner's report at Exh.45, the Lower Court rejected it. He contends that in view of this order, the arguments about objection to Exh.45, is misconceived.
7. Thus the position which emerges on record reveals that the original plaintiff/present respondent is owner of plot No. 20A and plot No. 20 of present appellant is on its western side. The map & report of Commissioner shows that there is 60 ft. road on western side of plot No. 20. On east of the plot No. 20A, there is 20 ft. wide road. The case of the respondent/plaintiff is of obstruction to his user and passage to 80 ft. wide road which according to the plaintiff exists on western side of the plot No. 20A. In other words, according to the plaintiff, there is no plot No. 20 on Western side, but 80 feet wide road. Both the courts have relied upon the spot inspection report & map drawn by Shri G.D. Deshpande, Advocate appointed as commissioner for that purpose. Though the plaintiff has objected to some portion of this spot inspection report on the ground that the encroachment of plaintiff on plot of defendant mentioned therein is not correct, I find that, that by itself is not sufficient to discard this document. After mentioning the dimensions of plot No. 20 A, the Commissioner has mentioned that on front i.e. on east of plot No. 20A there is 20 ft. wide road. On west of plot No. 20A there is plot No. 20 not separated by any fencing with a tal (i.e. fuel wood depot) and shed erected on it by the plaintiff. Plot No. 20A ad-measures North-Sough 40 feet and East West 40 feet. This is in accordance with the sale deed of the respondent/plaintiff. Plot No. 20 ad- measures North-Sough 40 feet or 41 feet and East West 30 feet on North side and 35 feet on South side. This is not as per the proved sale deed Ex. 95 of plot No. 20 in favour of the defendant. It is to be noted that said sale deed is dated 13.03.1965 i.e. prior in point of time then the sale deed of respondent/plaintiff. In it East-West length on northern side is mentioned as 60 feet and 71 feet on southern side. It is further mentioned that on its eastern side there is space left for 60 feet wide road, while on west there was government way [pandhan]. It therefore does not mention plot No. 20A on its eastern side. Exh.52 is the sale deed dated 22.01.1970 executed in favour of the respondent, in which it is mentioned that plot No. 20A admeasuring 40 x 40 feet, has been sold to plaintiff. In it 20 ft. wide road is mentioned on its east, while on west it is mentioned that there is vacant land of about 10 ft. and thereafter 80 feet wide road. Thus plot No. 20 sold by very same vendor on 13.03.1965 to the original defendant is not mentioned in this sale deed Exh.52.
8. Perusal of map of spot inspection drawn by the Commissioner reveals the position as reflected in his report. Plot No. 20 of present Appellant/Aefendants is situated on western side of plot No. 20A of respondent/plaintiff. One Keshao Govindrao Maske relative of defendant No. 1 Sitabai was examined as defendant.s witness No. 2. He has prepared a map Exh.83, which according to him is the layout map of the society. This map again show the position which is appearing from the map drawn by the Court Commissioner. The map drawn by him Exh.83, shows that the government pandhan on west of plot No. 20. Plot Nos. 17 to 24 are in one line adjacent to the pandhan. On Eastern side of these plots are plot Nos. 17A to 24A, and further beyond these plots 17A to 24A on their east is 20 ft. wide road. The evidence which has come on record either of plaintiff or defendant reveals that neither the layout of the society was sanctioned nor any structure on any plot was sanctioned. The father of plaintiff Pundlik who stated that he purchased the plot and he was owner thereof also accepted that he did not obtain any permission from Nagpur Improvement Trust before undertaking any construction. He stated that Exh.45 map drawn by the commissioner is not correct and there is 80 ft. wide road on spot. He further stated that the layout has been sanctioned in 1981. His other witness Krishnarao Umathe who executed sale deed Exh.52 in favour of the plaintiff stated in examination-in-chief, that plot No. 20 was under 80 feet wide road. He further stated that there was no sanction of Nagpur Improvement Trust to his layout. Witness No. 3 for plaintiff stated that his house is also not sanctioned by Nagpur Improvement Trust.
9. Sale deeds mentioned above do not show that plot No. 20 or 20A were in any sanctioned layout. Exh.52 sale deed of plaintiff is executed by three private persons. Same is the position even in the Exh.95. Both these sale deeds mention that plots were laid out in land Khasara No. 54 and those plots were sold. There is no map accompanying any of these sale deeds. Exh.56, a document on which the plaintiff has placed reliance clearly shows that alleged signatories thereto purchased the plots in field survey No. 54 area 2 Acres 99 Decimals, which was a private layout. The signatories have mentioned that plot Nos. 20A to 24A where purchased by them and on its west there is 80 feet road of Nagpur Improvement Trust. The said road was under Sakkardara Street Scheme of Nagpur Improvement Trust sanctioned by the State Government and all of them have constructed on their plots. They have stated that after their plots, there was open land of about two feet or six feet for slope of road and then there was 80 feet wide road. They have further stated that said land between their plots and 80 feet wide road has been illegally sold by some persons and those purchasers were trying to take possession. The persons making representation alleged that they would loose advantage of frontage of 80 feet wide road in case such purchasers were allowed to take possession or allowed to construct and thereby suffer serious prejudice and loss. Though the appellant/defendant has contended that this document is not proved, I find that this document can be used against the respondent/plaintiff only to gather that the layout in which the respondent/plaintiff purchased plot was not sanctioned layout and plaintiff's plot was also therefore not sanctioned. It cannot be forgotten that purchase of plot No. 20 by present appellants is 5 year earlier then the purchase of plot No. 20A by the present respondent/plaintiff.
10. The defendants/ appellants have always contended that there was no sanction plan of house of original plaintiff. The plea is specifically raised in written statement and thereafter on number of occasions. It is to be noticed that a person has got right to use public way or public street and therefore he can obtain injunction to restrain anybody who obstructs him in that user. : AIR1969AP136 (Movva Butchamma v. Movva Venkateshwararao and Ors.), is the Division Bench judgment which holds that right of public to pass and re-pass extended over every inch of street and as such the plaintiff there was found entitled to mandatory injunction for removal of obstruction without proof of special damage. Similar view is also taken by the Hon'ble Gujarat High Court in judgment reported at : AIR1983Guj119 (Prabhudas Kalyanji and Ors. v. Haji Hasan Haji Yusuf Maklal). The Gujarat High Court has referred to the judgment of Allahabad High Court reported at : AIR1975All341 (Bhagwanti v. Jiuti), and noticed that any person who has a house abutting a public road or a land is entitled to road or lane from the house and no person or authority can destroy that right. AIR 1988 SC 1988 (Sodan Singh v. New Delhi Municipal Committee and Anr.), in paragraph No. 15, considers the user of public street and the Hon'ble Apex Court has held that the right of user of every part of public street was subject to reasonable restrictions in public interest. I am not concerned in the present matter with the details thereof, but what is important is that the obstruction must be in user of a public street or way. Here also alleged existence of 80 feet wide public road on western side & obstruction in its user is mentioned as cause of action by the plaintiff.
11. As already observed above, both the plaintiff and the defendants have purchased their respective plots in private layout prepared in field survey No. 54. As the respondent/plaintiff approached the court and wanted injunction, burden was upon him to show that his plot was legal and on west side of his plot there existed public road or public street. Section 41 of the Maharashtra Land Revenue Code deals with uses to which agricultural land may be put and it does not permit use of any agricultural field for preparation of layout for residential purpose. Section 42 contemplates obtaining of a permission for non agricultural purpose/use and it also prohibits user of land assessed for one non-agricultural purpose for any other non-agricultural purpose. Erecting of a building which is not farm building is a non. agricultural purpose. Section 44 prescribes procedure for conversion of use of land and Section 45 prescribed penalty for using land without permission. In facts of present case, no conversion of agricultural land survey No. 54 and permission for its user for non agricultural purpose has been pleaded or proved.
12. It is admitted position that the said land was sought to be acquired by the Nagpur Improvement Trust for its Sakkardara Street Scheme. The provisions of Nagpur Improvement Trust vide its Section 2(1) states that words and expressions not defined in Nagpur Improvement Trust Act as having meaning assigned to them in City of Nagpur Corporation Act, 1948. City of Nagpur Corporation Act, 1948 defines public street in Section 5[42], as one which is prepared or maintained out of municipal or public funds, or one which is declared as such under the provisions of Section 311 of the Corporation Act. Section 311 is the power of Commissioner to declare street as public street. Street has been defined in Section 5[48] to mean any road, lane, galli, passage, pathway etc., which is accessible to public whether permanently or temporarily and it also includes every vacant space though it may be private property, obstructed wholly or partly by any gate etc. if it is used by persons as a means of access to or from any public place for through fare. Part VI which deals with lands, buildings and streets speaks of Town Planning scheme vide its Section 271. Under provisions of Maharashtra Regional and Town Planning Act, 1966 for separate parts of city of Nagpur earlier there were two planning authorities, one was Nagpur Improvement Trust and the other was Nagpur Municipal Corporation. Section 2[21] of the Maharashtra Regional and Town Planning Act, defines plot to mean a portion of land allotted in ones ownership and numbered and shown as one plot in town planning scheme. Section 43 which appears in Chapter IV deals with control of development and use of land included in development plans, points out restrictions on development of lands and requirement of prior permission for undertaking any development work including building activity. The details of every provision made by this enactment are not necessary for present purpose because plaintiff and all his witness have accepted that they do not have any building plan sanctioned by the competent Authority. In other words plot No. 20A purchased by the plaintiff or his construction thereupon is not legal and in accordance with the provisions of any of these Acts.
13. It is to be noted that the contention of respondent/plaintiff is that 80 feet wide road has been prescribed under the Sakkardara Street Scheme on western side of his plot No. 20A. The evidence on record does not show any legal plot No. 20A. The judgment of Division Bench mentioned above i.e. in the case of Bharat Kheta [supra], has quashed the Sakkardara Street Scheme. The Hon. Division Bench has found in paragraph No. 30 that the said scheme as framed was under Section 34 and not Section 31 of the Nagpur Improvement Trust Act. Division Bench therefore accepted the contention of land owners that notification was ultra-vires Section 31. In paragraph No. 39 the Hon. Division Bench allowed two writ petitions by quashing the acquisition proceedings as also notification, except to the extent of land surrendered voluntarily for the purpose of construction of Ring Road in accordance with the interim orders passed by the High Court. Other writ petitions have been fully allowed. The judgment therefore, clearly shows that Sakkardara Street Scheme was found to be ultra vires and hence unconstitutional. The area of plot No. 20 purchased by the original defendant vide sale deed Exh.95, has already been mentioned above. The area available to the western side of plot No. 20A has also come on record vide Exh.45. This part of the report of Court Commissioner has not been demonstrated to be incorrect or perverse, and therefore, needs to be accepted. It is also to be seen that from subsequent purchaser of plot No. 20 i.e. appellant No. 2 Nagpur Improvement Trust has accepted the development charges of Rs. 2640/-on 20.11.1981. At that time this litigation was going on and Sakkardara Street Scheme was in force. Appellant No. 1 has further stated that existing plot No. 20 is about 1300 sq. ft. and his name has been recorded in Corporation records by correcting mutation entries, as also in Revenue records. It is not necessary for me to go into all these details and niceties because the respondent/ plaintiff has not established his legal right to use the alleged 80 feet vide public road situated allegedly on western side of his plot No. 20A. The records demonstrate that on western side of plot No. 20A, there existed plot No. 20 which was purchased by the original defendant long before the plaintiff purchased his plot No. 20A. The East-West length of said plot No. 20 as per the sale deed is already mentioned above and said sale deed discloses existence of 60 feet vide road on its eastern side and a government pandhan [way] on its western side. But again all this was in illegal and unauthorised layout. This situation raises several disputed questions which are still unanswered on record.
14. The original defendant Sitabai has accepted receipt of summons from Land Acquisition Officer and she further accepted that there was 60 feet wide road which has later on became 80 feet wide and said road runs through her plot. Her witness D.W.2 - Keshao Maske also accepts receipt of notice from Land Acquisition Officer and filing of claim statement before the said officer for claiming compensation. He also accepted that Sadashivrao husband of Sitabai got compensation of Rs. 5000/-. He stated that Nagpur Improvement Trust has acquired half of plot No. 20 for 80 feet wide road. He also accepted that some portion of plot No. 20 has gone into 60 feet wide road. The present appellant No. 2 and original defendant No. 3 in examination-in-chief stated that some portion of plot No. 20 had gone in 60 feet wide road. D.W. 4 Rambhau Mate, has stated that after Nagpur Improvement Trust cancelled the acquisition, plots were given to the plot holders by the Nagpur Improvement Trust and development charges have been accepted from plot holders. It is therefore, clear even in evidence of defendant there is nothing to show that entire land of plot No. 20 was acquired by the Nagpur Improvement Trust. Once the Sakkardara street scheme was quashed, the status of alleged 80 feet wide road in town planning scheme or any other similar legal scheme has not been brought on record by the respondent/plaintiff. Thus mere contention that present appellants received compensation from Nagpur Improvement Trust is not sufficient to hold that the appellants have ceased to be owners of entire plot No. 20, situated on western side of plot No. 20A. Learned Senior Advocate, has invited attention to the communication dated 28.10.1993 issued by the Building Engineer to one Shri H.T. Kale, wherein it has been mentioned that the layout in Khasara No. 54 of mouza Sakkardara is unauthorised and hence building plan cannot be sanctioned. However, as rightly objected by Shri B.N. Mohta, Advocate such communication cannot be looked into for the first time by this Court.
15. Learned Senior Advocate has relied upon the judgment of Hon'ble Apex Court in the case of Vinod Kumar Arora (supra), particularly paragraph No. 11 to urge that as there was no plea of acquisition by the Nagpur Improvement Trust, admission given by the defendants in their cross examination in this respect cannot be looked into. It is no doubt true that in paragraph No. 11 the Hon'ble Apex Court has held that pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case. In the said case before the Hon'ble Apex Court when the appellant entered the witness box, he deposed contrary to his stand in written statement and this shift in his stand went unnoticed before the lower statutory authorities. Here, the grievance of respondent/plaintiff was that on western side of his plot No. 20A there existed only 80 feet wide road and plot No. 20 was not in existence. Acquisition of complete plot No. 20 by the Nagpur Improvement Trust as alleged by him is the reason for 80 feet wide road coming into existence. The judgment therefore has no application in the present facts.
16. : AIR2000Bom34 (SNP Shipping Services Pvt Ltd. v. World Tanker Carrier Corporation), is the ruling of this Court pressed into service by the appellants to contend that a party withholding any material information from the court of law can be thrown out of court if it constitutes abuse of process of law. In the present facts, the suit came to be filed in the year 1978 when the Sakkardara Street Scheme was still in vogue. It is not in dispute that as per the said scheme, 80 feet wide road had been prescribed in khasara No. 54 on western side of plot No. 20A of the plaintiff. Plot No. 20 of appellant/defendant was partially covered under the said 80 feet wide road. Both the plaintiffs and defendants have purchased plots in unauthrosied layout & both sail in same boat. Therefore find that the ruling has no application in the present facts. AIR 1936 Lah 567 (Jeswant Singh v. Shiromani Gurudwaras Prabandhak Committee) and AIR 1940 Lah 69 (Bhansingh v. Narinjansingh and Ors.) are pointed out to substantiate the stand that respondent/plaintiff did not approach the Court with clean hands. It appears that the respondent/plaintiff did not point out illegal nature of layout or legal status of his plot or his raising of construction without obtaining sanction etc., in his plaint. But then for reasons mentioned above, I find that the appellant/defendant was also similarly placed and hence this ruling does not in any way help the case of present appellant. 2007 [3] All.M.R. 86 (Municipal Council Pusad v. Kundanlal Mohanlal Jaiswal) is pointed out by learned Senior Advocate to contend that it was for the respondent/plaintiff to make out a case of legal right in his favour and for that purpose to point out certain basic facts like legal nature of layout, his plot and structure. : (2007)8SCC493 (Harichand v. Dharampal Singh Baba) is pressed into service to state that there was no lawful right in the original plaintiff Atul to maintain such suit. The contention is Atul did not enter witness box and his father Pundlik claimed to be the owner of plot No. 20A. Perusal of sale deed Exh.52 shows that the plaintiff Atul was about 5 years old and his mother acted as his guardian when sale deed was obtained on 22.1.1970. His father Pundlikrao has entered witness box and claimed title in himself. Considering the nature of the suit it is apparent that he was acting in the interest of estate of recorded owner & original plaintiff Atul. Nothing has been brought on record to show that there was any hostility between father and son. In any case, the argument itself is misconceived in present facts and the above ruling of the Hon'ble Apex Court particularly, the ratio in paragraph No. 7 thereof has no relevance here. (2004) 13 SCC 750 (Mukund Balkrishna Kulkarni v. Kulkarni Powder Metallurgical), has been pointed out to show that the High Court can interfere with the findings of facts when the same are wholly irrational or arrived at without taking into consideration the matters which were relevant or on consideration of irrelevant or legally in-admissible evidence. The other side also has not disputed this jurisdiction available to the High Court under Section 100 of Code of Civil Procedure.
The appellant have also pointed out the judgment reported at 1967 Mh.L.J. 65 (In the matter of Mr. D and Mr. S. Advocates), to contend that proof of signature of executants on Exh.56 does not amount to proof of writing of the body of the document and the truth and contents of the document can be only proved by the executant. In view of consideration of said document above, I do not find it necessary to dwell more on this aspect. : AIR2004SC175 (Narbada Devi Gupta v. Birendra Kumar Jaiswal) is relied upon again for the same purpose. In the present case exhibit number 56 has been given to the document in evidence of plaintiff witness No. 1 Pundlik. He has not identified the signatures there upon and he has also not spoken about its contents. The signatories to Exh.56 have not been examined at all. Exh.56 is only a xerox copy containing blank at the place where it is to be addressed to any authority and containing only two signature at its end leaving other 7 spaces earmarked for signing blank. The document has not been formally proved and is used only to note that even as per the said document produced by the plaintiff the layout appears not legally sanctioned one.
Learned Senior Advocate has also relied upon judgment of Division Bench of this Court reported at : 2007(5)BomCR436 (Rashtriya Mill Mazdoor Sangh v. Empress Mills Nagpur) in support of his contention that planning authority i.e. Nagpur Improvement Trust and Nagpur Municipal Corporation were necessary parties to this suit. There cannot be any debate about the ratio laid down by the Hon. Division Bench. However, in the present facts when it is not the case of the plaintiff that layout was duly sanctioned or his plot was duly sanctioned or construction undertaken by him is as per the sanctioned plan duly approved by any planning authority, I find that the said authorities were neither necessary nor proper parties. In any case their position would have been at the most that of a witness and nothing more in the present controversy.
17. Advocate Shri B.N. Mohta, has relied upon the judgment of Hon'ble Apex Court reported at 2000(3) Mh.L.J. 1 (Municipal Council Ahmednagar v. Shah Hyder Beig and Ors.), to state that after final award in Land Acquisition proceedings is passed no writ petition can be filed challenging the acquisition. In the present facts however, the plaintiff has not brought on record any such final award and as is apparent from the Division Bench judgment in the matter of Bharat Kheta (supra), the street scheme and notification of acquisition were itself quashed by the Hon'ble Division Bench of this Court, as unconstitutional. The ruling therefore has no application here.
18. The judgment of Lower Appellate Court impugned in this second appeal shows that the lower appellate court has not considered whether the street in relation to which the plaintiff was claiming right was a public street or not. It does not consider whether the layout in which the plot No. 20A or plot No. 20 are located was sanctioned in accordance with the law or not. It has also not read sale deed of defendant Exh,.95 and sale deed of plaintiff Exh.52 in contradistinction. It also lost sight of the fact that sale deed of defendant was 5 years earlier in point of time than the sale deed of plaintiff. It has only given importance to the fact that existence of 80 feet road has been proved by the respondent/plaintiff. The said fact by itself does not cloth the respondent/plaintiff with any right unless and until it is established that it was a public street or a street abutting his plot No. 20A. The record shows that on eastern side of his plot there exists another road of 20 feet width. Ex. 45 on record also shows that plaintiff has encroached beyond his plot on western side i.e. on land of plot No. 20. However Ex. 45 mentions that on west of plot No. 20 there is 60 feet wide road. The learned lower appellate court has then considered the judgment of this Court in Appeal No. 27/1978, in which facts reveals that the Nagpur Improvement Trust had acquired some portion from Khasara No. 54 and 55 for the purpose of construction of 80 feet road. Some persons had built structures on plot No. 17 and 18 and High Court only protected those structures till it became essential for the Nagpur Improvement Trust to demolish all other structures. The learned lower appellate court has interpreted this to mean that High Court permitted Nagpur Improvement Trust to start demolition work when ever it was necessary for construction of 80 feet wide road. The learned lower appellate court has held that this judgment of High Court delivered on 24.07.1981 revealed that plot nos.17 and 18 along with other plots were acquired by the Nagpur Improvement Trust for Sakkardara Street Scheme i.e. 80 feet wide road. As plot nos. 17 to 20 are in one & same row, lower appellate court concluded that plot No. 20 was also acquired and therefeore, nothing remained with owner Sitabai i.e. the present appellant. It then proceeded to consider the right of plaintiff to restrain the defendants from carrying out construction over the disputed area. It found that the plaintiff had legal right to have a road frontage from western side & it therefore, allowed the appeal and decreed the suit. It is thus apparent that the provisions of various laws which need scrutiny to find out such legal right in the plaintiff have not been gone into. Had plaintiff shown a sanctioned layout plan or a town planning scheme in force to show 80 feet wide public road on the west of his plot No. 20A, the situation would have been entirely different. Unfortunately the plaintiff has failed to bring on record any such material. In the circumstances, it is difficult to sustain the judgment delivered by the lower appellate court and the same deserves to be quashed and set aside.
19. With the result, the judgment of the trial court dated 03.08.1984 is restored. However, it is to be noted that by judgment of this Court reported at 1992 Mh.L.J. 179 (supra-Bharat Kheta v. N.I.T.), Sakkardara Street Scheme itself has been quashed. This quashing is about 3 years after the decision of lower appellate court. Suit itself was instituted in 1978 i.e. 14 years prior to this High Court judgment. Nothing has been brought on record by any of the parties to show the position prevailing thereafter. Basically it was for the respondent/plaintiff to explain the prevailing situation. He has failed to do so. But then public interest & valid provisions made in the town planning scheme cannot be allowed to be defeated by some lapses committed by the plaintiff or by defendants and hence it is necessary to leave competent planning authority free to act in furtherance thereof as per law.
20. In the circumstances, Second Appeal is allowed. The question No. 1 as formulated above is answered in affirmative i.e. in favour of the present appellant and against the respondent/plaintiff. Similarly, the Question Nos. 2 & 3 are answered in negative i.e. against the appellant. Question No. 4 i.e. first part about plaintiff proving legal right to maintain such suit is answered in negative i.e. in favour of present appellants as plaintiff has failed to prove any such legal right in him. But its later part is answered in his favour by holding that plaintiff possessed necessary locus to file the suit. Question Nos. 5 and 6 are answered in affirmative i.e. in favour of the appellants and against the respondent by holding that lower appellate court erroneously construed the inspection report at Exh.45 and also overlooked the evidence admissible on record in the shape of sale deed Exhs. 95 and 52. There is no material on record to hold that complete plot No. 20 purchased by the original defendant/Sitabai vide sale deed Exh.95 was acquired by Nagpur Improvement Trust. Also there is no material brought on record to show existence of 80 feet wide public road on western side of his plot No. 20 by plaintiff or to show invasion of his any legal right to its use.
21. In view of the answer to above questions, the judgment dated 22.12.1989 delivered by the Additional District Judge, Nagpur in Regular Civil Appeal No. 503/1984 is hereby quashed and set aside. The judgment and decree dated 3.8.1984 delivered by the 3rd Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit No. 31/1978 is hereby restored. However, this judgment does not in any way prohibit the local body or government or town planning authorities in implementing the sanctioned town planning scheme, if any, in accordance with law. Similarly the appellant/defendant is free to construct on his plot No. 20 only if such plot is legally recognised and in terms of plan sanctioned by competent planning authority.
22. Second Appeal is allowed accordingly. However, in the circumstances of the case, there shall be no order as to costs.