- (1.) The suit seeks declaration of ownership of the Plaintiffs and Defendant No.3 of a plot of land and challenges acquisition of the plot by the State Government under the Maharashtra Slum Areas Act, 1971 as vitiated by fraud and prays for directions to the State to restore possession of the plot to the Plaintiffs and Defendant No.3.
(2.) By an order dated 5 December 2011, and as amended by an order dated 4 January 2016, the following issue was framed as a preliminary issue, on the application of Defendant No.5. "(a) Whether Defendant No.5 proves that the present suit is barred by virtue of Section 42 of the Maharashtra Slum Areas (Encroachment and Improvement) Act 1971 - The parties have chosen not to lead any evidence and instead argued the preliminary issue on the pleadings and admitted documents on record. (By a Notice of Motion, Defendant Nos.4 and 5 sought leave to lead evidence on the preliminary issue. By an order of 8 December 2015, that application was rejected by this Court, holding inter alia that the questions involved were pure questions of law and parties had agreed to argue the matter on the basis of the averments in the plaint and provisions of law.) This order disposes of the preliminary issue.
(3.) The Plaintiffs' case may be briefly stated as follows : By an agreement dated 21 December 1960, Defendant No.1, who originally owned the land bearing CTS Nos.40, 40/1, 129 at Vile Parle in Mumbai admeasuring about 3695.70 sq.mtrs. agreed to sell the land to Haji Usman Haji Abdul Karim, the father of the Plaintiffs. Haji Usman Haji Abdul Karim died intestate on 25 November 1966 leaving behind him the Plaintiffs, Defendant No.3 and one Hajrabai Haji Usman as his only legal heirs according to the Sunni Muslim law. By a registered conveyance dated 23 December 1974, Defendant No.1 conveyed the suit land together with structures standing thereon to the Plaintiffs, Defendant No.3 and Hajrabai Haji Usman, after obtaining the requisite permission from the Charity Commissioner, State of Maharashtra. Defendant No.1 also authorised the Plaintiffs to collect all income of the suit property and pay all outgoings. It is the case of the Plaintiffs that since a large number of properties were purchased under the indenture of conveyance with different survey and CTS Nos., certain errors had crept in the schedule of properties appended to the conveyance. These errors included a wrong mention of the area of Survey No.40, Hissa No.1 (CTS No.40), i.e. part of the suit property. Due to these errors, the names of the Plaintiffs were not included in the revenue records including the property card as owners of the property, though the possession of the property was taken over by, and remained with, the Plaintiffs. The Plaintiffs claim that the tenants / occupants of the suit property were paying rent to the Plaintiffs. So also, there were some eviction proceedings launched against tenants / occupants which resulted into decrees of possession in favour of the Plaintiffs. Electricity Bills stand in the name of the Plaintiffs. Eventually, proceedings for acquisition of the suit property were initiated by the State Government through Additional Collector, under the Maharashtra Slum Areas Act, 1971 ("Slum Act"). It is the Plaintiffs' case that without taking any notice of the Plaintiffs' objections, a final notification under Section 14(1) of the Slum Act was issued by the State Government showing Defendant No.1 as the owner of the property. It is the Plaintiffs' case that the Plaintiffs were, thus, deprived of their rights by deliberately referring to wrong records. It is submitted that the Plaintiffs had also executed a rectification deed rectifying the mistakes in the description and areas of land conveyed by the indenture of conveyance dated 23 December 1974. It is the Plaintiffs case that the land was acquired by the authorities fraudulently and in collusion with interested persons by falsely showing it as belonging to Defendant No.1, only to favour such interested persons. Being aggrieved by the declaration of, and decision to acquire, the suit property as slum area, the Plaintiffs filed an appeal, being Appeal No.20 of 2003. The appeal was dismissed by the Maharashtra Slum Tribunal. The order of the Tribunal was challenged before this Court in a writ petition, being Writ Petition No.2584 of 2004. The petition was dismissed by a learned Single Judge of this Court. In the Plaintiffs' challenge to that order before the Division Bench, whilst dismissing the appeal, liberty was reserved unto the Plaintiffs to agitate their grievances relating to the title of the land in appropriate civil proceedings. Apart from initiating various revenue proceedings for amending the revenue records by inclusion of their names therein, the Plaintiffs have asserted their ownership of the suit property and on that basis, challenged the acquisition in the present suit.;