NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3368 OF 2019
(Arising out of S.L.P.(C) No.34883 of 2016)
Anant Shankar Bhave ….Appellant(s)
VERSUS
Kalyan Dombivli Municipal
Corporation ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 26.10.2016 passed by the High Court
of Bombay at Mumbai in Second Appeal No.160 of
2016 whereby the High Court dismissed the second
appeal filed by appellant herein.
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3. A few facts need mention for the disposal of this
appeal, which involves a short point.
4. The appellant is the plaintiff and the respondent
is the defendant in the civil suit out of which this
appeal arises.
5. The dispute relates to the land bearing Survey
No.61, Hissa No.1, admeasuring about 493 sq. yards
Survey No. 61 (P) admeasuring about 1441 sq. yards
situated at Mauje Kalyan Adharwadi Dombivali (MH)
(hereinafter referred to as “the suit land”).
6. The appellant (plaintiff) filed a civil suit against
the respondent Municipal Corporation for claiming
the following relief:
“The Hon’ble Court may be pleased to declare
that the act of changing the alignment of the
street line affecting the land bearing Survey
No.61, Hissa No.1 admeasuring about 493 sq.
yards, Survey No.61(P) admeasuring about
1441 sq. yards along with a structure/house
standing upon it bearing Municipal Ali No.61,
House No.14 situated at Mauje Kalyan,
Adharwadi within the limits of Kalyan
Dombivali Municipal Corporation is illegal,
void and ultravires of the Act.
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The Hon’ble Court may be pleased to declare
that the defendants without following the
due process of law and without following the
provisions of the Acts, shall not construct
road from the suit property. The Hon’ble
Court may be further pleased to issue
permanent injunction against the defendants
and to maintain perfect status quo in respect
to the suit property.”
7. The respondent denied the appellant's claim and
contested the suit. By judgment/decree dated
12.08.1999, the Trial Court decreed the appellant's
suit. The respondent felt aggrieved and filed first
appeal (No.76/1999) before the First Appellate Court.
8. By its judgment dated 29.02.2000, the First
Appellate Court allowed the appeal, set aside the
judgment/decree dated 12.08.1999 of the Trial Court
and dismissed the appellant's suit. The appellant
(plaintiff) felt aggrieved and filed Second Appeal in the
High Court of Bombay.
9. By impugned judgment, the High Court
dismissed the second appeal and affirmed the
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judgment/decree dated 29.02.2000 of the First
Appellate Court which has given rise to filing of the
present appeal by way of special leave by the plaintiff
in this Court.
10. So, the short question, which arises for
consideration in this appeal, is whether the High Court
was justified in dismissing the appellant's second
appeal.
11. Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
inclined to dispose of this appeal with the following
observations and liberty granted to the parties.
12. In our considered opinion, the appellant has filed
a misconceived suit and claimed therein improper
reliefs.
13. The real grievance of the appellant should have
been that he was the owner of the suit land and,
therefore, the defendant (respondent) had no right to
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interfere on the suit land and nor had any right to
construct any road or any type of construction without
following a due process of law on the suit land.
14. First, the appellant was required to prove his
ownership over the suit land qua the respondent;
Second, he was required to prove that the respondent
has either entered on the suit land or is trying to enter
upon the suit land with a view to construct the road
on his land or is intending to make some construction
without following the due process of law in acquiring
the suit land and paying adequate compensation to
the appellant for the suit land.
15. The appellant, however, did not come to the
Court for claiming the aforementioned reliefs and nor
he proved the aforementioned facts and instead
claimed improper reliefs as mentioned above.
16. In our view, the proper reliefs, which we have set
out above alone, could have settled the controversy in
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relation to the suit land between the parties and not
the one raised in these proceedings. We also find that
these issues were not tried in these proceedings for
want of proper pleadings and the evidence.
17. It is for these reasons, though we are inclined to
dismiss the appeal finding no merit therein but grant
liberty to the appellant (plaintiff) to file a fresh civil suit
against the respondent to claim the proper reliefs in
relation to the suit land, which we have mentioned
above, by properly pleading and adducing evidence in
support of his case in accordance with law.
18. We, however, make it clear that while trying the
suit, the findings recorded by the Courts below in the
present proceedings will not come against any party
and nor will operate res judicata against any party. In
other words, the issues raised in the fresh suit will be
tried independently on the basis of the pleadings and
evidence adduced therein.
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19. With these observations and the liberty granted,
the appeal fails and is hereby dismissed.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHESHWARI]
New Delhi;
April 02, 2019
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