ASHOK BHUSHAN,J. - (1.) Leave granted.
(2.) This appeal has been filed by Nagpur Improvement Trust, challenging the judgment dated 14.03.2017 of High Court of Judicature Bombay at Nagpur in Second Appeal No. 122 of 2015, by which judgment the Second Appeal filed by the respondent has been allowed by setting aside the judgment of lower appellate court and restoring the judgment of trial court decreeing the suit.
(3.) Brief facts of the case necessary to be noted for deciding this appeal are: The Nagpur Improvement Trust, the appellant has been constituted under the Nagpur Improvement Trust Act, 1936. For the purposes of Drainage and Sewerage Scheme PartII, notification under Section 39 of the Nagpur Improvement Trust Act, 1936 was issued on 27.11.1953 for acquiring 44.61 acres of land of the respondent. An award was passed on 31.12.1962 determining the compensation of Rs.23,500/ on the basis of compromise, which compensation amount was paid to the respondent and possession was taken over by the appellant of the land. On taking up the possession, the land vested in the appellant, which became the absolute owner. A statutory rule namely, Nagpur Improvement Trust Land Disposal Rules, 1955 was framed in exercise of power under Nagpur Improvement Trust Act, 1936 for disposal of land by the Nagpur Improvement Trust. As per Rule 3 of the Statutory Rules, 1955, one of the mode of transfer of trust land was by direct negotiation with the party. With regard to land admeasuring 44.61 acres as noted above, a policy decision was taken by the Board of the Trust dated 03.05.1968 for disposal of land to the owners on lease by charging the determined premium and the ground rent. The appellant accordingly invited application for reallotment of the land on lease. The respondent filed an application dated 03.09.1975 for reallotment of entire 44.61 acres of land. A decision dated 06.10.1975 was taken to reallot the 44.61 acres to the respondent on the terms and conditions stipulated in the Board Resolution dated 03.05.1968. By letter dated 16.10.1975, the appellant informed the respondent in reference to her application dated 03.09.1975 that land acquired by the Trust may be allotted to her on the terms and conditions as mentioned in the letter. The letter dated 16.10.1975 communicated that amount of consideration for allotment would be 1.5 times of the amount received by them from the Land Acquisition Officer. The lessee can use the land only for Agriculture purposes and the amount of consideration will have to be made in maximum 10 installments. The respondent was required to deposit amount of Rs.3,525/ towards first installment and sign the form of terms and conditions of the allotment, only after that the Trust would be able to take further action in the matter. The respondent in reply to the aforesaid letter wrote back to the appellant on 01.11.1975 requesting to revise the amount of premium payable by her. The respondent wrote further letters, lastly on 02.03.1982, again reiterating her request to reduce the amount. It was further requested that she should be given the land measuring 44.61 acres at the cost of acquisition only. The letter dated 02.03.1982 was replied by the appellant vide letter dated 09.06.1982 allocating land measuring 24 acres out of 44.61 acres. The revised premium for allotment of 24 acres was fixed as Rs.19,230/ and first installment of 10% was requested to be paid immediately and to further accept terms and conditions of allotment. The respondent acknowledged the allotment letter dated 09.06.1982 and communicated her acceptance on 15.06.1982. The respondent accepted the allotment on revised premium. In pursuance of the acceptance of allotment letter dated 09.06.1982 allotting 24 acres of land on terms and conditions mentioned therein, the possession of 24 acres of land was also handed over to the respondent on 11.11.1982. The respondent after taking possession of 24 acres of land again wrote a letter dated 17.06.1983 thanking the appellant for allotment of 24 acres of land and further requesting to release remaining 20.61 acres of land. The appellant wrote on 31.12.1986 to the respondent to pay Rs.4514.95 due from her. The respondent thereafter sent various representations for allotment of remaining 20.61 acres of land. On 09.02.1989, a lease was executed by the appellant in favour of respondent for 24 acres of land as was allotted by allotment letter dated 09.06.1982. The respondent filed a suit ­ Regular Civil Suit No. 2515 of 1989 against the Nagpur Improvement Trust, praying for following reliefs: (a) Declare that the plaintiff is entitled to reallotment of 20.61 acres of her land to her to the exclusion of anybody else as the acquisition of the plaintiff's land for the purpose of defendant's scheme is not required by the defendant for its scheme. (b) Issue a mandatory injunction directing the defendant to reallot 20.61 acres of land out of survey no.9/1, 11 and 9/2 of Mouza Godani, Umrer Road, Nagpur, to the plaintiff and execute a lease indenture accordingly in favour of the plaintiff. (c) Issue mandatory injunction directing the defendant to make the offer of her land admeasuring 20.61 acres of suit land S/Nos.9/1, 11, 9/2 of Mouza Gondhani, Umrer Road, Nagpur to the plaintiffs land is not required by the defendant for its scheme and the defendant a permanently restrained from making offer of plaintiffs remaining suit land to anybody else in any manner and under any pretext. (d) Declare that the plaintiffs suit land i.e. 20.6 acres of land in Survey Nos. 9/1, 11, 9/2 of Mouza Godhani, Umrer Road, Nagpur, has been unnecessarily acquired with malafide intention and that it was never required and needed by the defendant for its drainage and Sewerage Disposal Scheme PartII as firstly notified on 27.11.1983, as per award dated 31.12.1962. (e) Saddle the costs of the suit on the defendant and (f) Grant any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case. The trial court framed following issues: 1) Does the plaintiff prove by abuse of process of law, malafidely and under colorabale exercise of power that defendant has unnecessarily acquired her land? 2) Does she further prove that she has the preferential right to get reallotment of remaining 20.61 acres of land? 3) Does she further prove that she had deposited Rs.4515.95 for allotment of remaining 20.61 acres of land? 4) Does she further prove that defendant is avoiding to reallot her remaining 20.61 acres of land? 5) Whether plaintiff is entitled to get relief as prayed? 6) What order and decree? The trial court held that Issue No. 1 does not survive. Issue No.3 was decided against the plaintiff, however, trial court answered the Issue Nos. 2, 4 and 5 in favour of the plaintiff and decreed the suit holding that plaintiff is entitled for allotment of remaining 20.61 acres of land. Plaintiff was directed to deposit remaining premium amount of Rs.16,295/ along with 10% p.a. interest and the appellant was directed to execute the lease deed of land admeasuring 20.61 acres in favour of the respondent. The appellant aggrieved by the judgment and decree of the trial court filed a Regular Civil Appeal No. 632 of 2007. The District Judge, Nagpur formulated following points for consideration: 1) Whether respondentplaintiff is entitled to allotment of the suit land? 2) Is the suit barred by time? 3) Is the judgment and decree impugned herein call for interference? 4) What order? The learned District Judge held that plaintiff was not entitled for allotment. The District Judge further held that suit filed by the plaintiff was virtually a suit for specific performance of the letter of allotment dated 16.10.1975 and suit having been filed beyond a period of 3 years is barred by time. The District Judge vide judgment dated 26.08.2014 allowed the appeal, set aside the decree of the trial court and dismissed the suit. Against the judgment of the Appellate Court, second appeal was filed by the respondent before the High Court. The High Court framed following two substantial questions of law in the appeal: (1) Whether the lower appellate Court erred in applying and relying on the Nagpur Improvement Trust Land Disposal Rules, 1983, when in fact what was sought to be enforced by the appellant was the order dated 16.10.1975 in consonance with letter/order dated 06.10.1975 passed in terms of Board Resolution dated 03.05.1968, i.e. decision taken by the respondent much prior to the framing of Rules of 1983? (2) Once the Nagpur Improvement Trust, the acquiring body chooses to reallot the land acquired, whether such action of re allotment can be enforced in the Court of Law? The High Court held that plaintiff was entitled for allotment of 20.61 acres of land in view of resolution of the Board dated 03.05.1968. The High Court also held that the Rules namely Nagpur Improvement Trust Land Disposal Rules, 1983 having came into force on 18.05.1983 was not applicable to the Board Resolution dated 03.05.1968 and the decision taken on 06.10.1975 and 16.10.1975. The High Court further held that trial court having not framed any issues regarding limitation, the first appellate Court committed error in holding that the suit was barred by limitation, consequently, the second appeal has been allowed by the High Court, restoring the judgment and decree of the trial court. The Nagpur Improvement Trust being aggrieved by the judgment of the High Court has come up in this appeal. ;