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2024 DIGILAW 719 (BOM)

Ravi Bhagwan Gaikar v. Eknath Ziprya Patil

2024-07-02

SHARMILA U.DESHMUKH

body2024
JUDGMENT : Sharmila U. Deshmukh, J. 1. The present Appeal is at the instance of the Obstructionist aggrieved by the judgment dated 11th August, 2010 passed in Civil Appeal No.99 of 2004 rejecting the Appeal filed against the Order dated 24th August, 2004 passed by the Executing Court below Exhibit 47 in Regular Darkhast No.16 of 2000 rejecting the obstructionist's application. FACTUAL MATRIX : 2. The Respondent Nos. 1 to 6 had instituted Regular Civil Suit No.330 of 1987 against the Respondent No.7 seeking declaration that the Respondent No.7 has no right over the suit property i.e. Survey No.13 Hissa No.4 and do not have any right to carry out any construction over the said property and for an order of permanent injunction restraining the Respondent No.7 from carrying out any construction over the suit property and for recovery of possession. The suit property is land bearing Survey No.13/4 situated at village Aashte Golivali, Taluka Kalyan, District Thane. The Trial Court dismissed the suit as against which the Respondent Nos 1 to 6 filed Civil Appeal No.579 of 1996 vide judgment dated 16th November, 1999 which came to be allowed and the Respondent No.7 was directed to handover the possession of the suit land to Respondent Nos. 1 to 6. 3. The Respondent Nos. 1 to 6 subsequently instituted execution proceedings bearing Regular Darkhast No.16 of 2000 for execution of the decree dated 16th November, 1999. The Executing Court appointed Advocate Shri Jadeja as Court Commissioner to execute the decree, pursuant to which the Court Commissioner visited the site on 20th February, 2001 alongwith the Respondent No.1 and police machinery and JCB machine for demolition the structures. The Appellants objected to the demolition on the ground that the structures are located on land bearing Survey No.13/5 which was not the suit land. In view of the visit by the Court Commissioner, the Appellants approached the Executing Court and filed application below Exhibit 47 contending that the Court Commissioner was not empowered in the absence of any direction to demolish the structure. It was further contended that the Appellants had carried out the construction of the Galas more than 15 years prior thereto and have let-out the said Galas to the tenants. It was contended that Galas were situated and erected on the land bearing Survey No.13/5 and that the Appellants are no-way concerned with the suit property. It was further contended that the Appellants had carried out the construction of the Galas more than 15 years prior thereto and have let-out the said Galas to the tenants. It was contended that Galas were situated and erected on the land bearing Survey No.13/5 and that the Appellants are no-way concerned with the suit property. The relief sought in the said application was for a direction to the Court Commissioner to not disturb the possession of the Appellants over the concerned Galas. 4. The Respondent Nos. 1 to 6 as well as the Respondent No.7 filed their reply to the said application. The Respondent Nos. 1 to 6 contended that the Appellant Nos. 1 and 2 are the nephews of the Respondent No.7 and the Appellant No.3 is the son of the Respondent No.7. The Judgment Debtor has not stated during the trial or in the Appeal that the suit land and the incomplete structure standing thereon does not fall in Survey No 13/4. The Judgment Debtor had during the hearing of the Appeal given an undertaking that he will not create any third party right in the incomplete structure and the structure will be used for his own business purpose. It was further contended that there is no documentary evidence to show that the structure of the Appellants is not on the Survey No.13/4 or to show that they have purchased any property or construction in Survey No.13/5. 5. The Respondent No.7 filed his reply contending that the Court Commissioner wanted to demolish the structure which is in Survey No.13/5 and not of Survey No.13/4 and that the structure of the Appellants are in existence for more than 15 years and without identification of the suit property the darkhast proceedings cannot be proceeded with. 6. The Executing Court appointed the Taluka Inspector of Land Records (TILR) Shri Vinayak Anant Patil as the Court Commissioner with a direction to demarcate Survey No.13/4 and 13/5 and for fixing of the boundaries. The Trial Court after considering the report of the TILR and the evidence of the witness for the Appellants noted that the Appellants have not proved that they are owners of land Survey No.13/5 and even if it is assumed that they are in occupation of land Survey No.13/5, the suit property is Survey No.13/4. The Trial Court after considering the report of the TILR and the evidence of the witness for the Appellants noted that the Appellants have not proved that they are owners of land Survey No.13/5 and even if it is assumed that they are in occupation of land Survey No.13/5, the suit property is Survey No.13/4. The Executing Court further held that if any construction is made on the land during the pendency of the suit, then Executing Court has a power to make an order for possession after removing the said construction and that the TILR map shows some construction on Survey No.13/4. The Executing Court held that there is no substance in the Application filed under Order XXI Rule 97 of the Code of Criminal Procedure, 1908 (for short, "CPC") and that the Appellants are closely related with the Respondent No.7. By order dated 11th February, 2002, the application below Exhibit 47 came to be rejected and possession warrant issued in respect of Survey No.13/4 with a direction to the Court Commissioner to handover possession of the suit land Survey No.13/4 after removing the construction thereon. 7. As against this, Civil Appeal No.28 of 2002 came to be filed before the Appellate Court. Vide order dated 26th August, 2002, the Appellate Court remanded the matter to the Executing Court to decide the application on framing of the issue as to whether the obstructionist has proved that the construction of shop-Galas are in Survey No.13/5 and the same are not part and parcel of Survey No.13/4. 8. The Executing Court upon remand framed the necessary issue. By written arguments, the judgment-debtor raised an issue as to the excitability of the decree in view of the ground raised as to the identification of the suit property Survey No.13/4. It was contended that the TILR had failed to carry out the survey properly and that the present report of the TILR be rejected. The Executing Court considered the evidence of Court Commissioner-Shri Nandkishor Kulkarni, who was examined by the Appellants and had submitted his report and the map relating to the construction and that the report disclosed that 80% of the construction is in the Survey No.13/4 which is the suit land and only 20% construction is in the Survey No.13/5. The Executing Court considered the evidence of Court Commissioner-Shri Nandkishor Kulkarni, who was examined by the Appellants and had submitted his report and the map relating to the construction and that the report disclosed that 80% of the construction is in the Survey No.13/4 which is the suit land and only 20% construction is in the Survey No.13/5. The Executing Court held that the question of excitability of the decree as to the suit property and the construction of the shop-Galas of the judgment-debtor or the Appellants will be considered while delivery of the possession of the suit premises to the decree-holder and rejected the application. The Executing Court noted that the burden was upon the Appellants to prove that their construction of shop-Galas is in Survey No.13/5 and not in the Survey No.13/4 and that the objection raised by the judgment-debtor as regards the excitability of the decree can be considered while delivering the possession to the decree-holder in Survey No.13/4. Vide judgment dated 24th August, 2004 the application below Exhibit 47 came to be rejected. 9. As against this, the Civil Appeal No.99 of 2004 came to be filed before the Appellate Court. The Appellate Court re-appreciated the documentary evidence on record as well as the oral evidence of the Court Commissioner - Shri Nandkishor Kulkarni. The Appellate Court upheld the findings of the Executing Court that all construction is not in land bearing survey No.13/4 and the decree-holders are having every right to remove construction in the suit land and obtain vacant and peaceful possession of the suit land. The Appellate Court held that the constructions of the shops in Survey No.13/5 would not affect the execution of the decree as those constructions are out of the suit land. The Appellate Court further upheld the findings of the Executing Court that the suit land can be identified and the structure can be removed for the purpose of handing over the vacant possession of the suit land Survey No.13/4. The Appellate Court further held that the Appellant Nos. 1 and 2 are the nephews of the Respondent No.7 whereas the Appellant No.3 is the son of the Respondent No.7 and they are claiming so-called rights through the judgment-debtor and rejected the Appeal. SUBSTANTIAL QUESTIONS OF LAW: 10. The Appellate Court further held that the Appellant Nos. 1 and 2 are the nephews of the Respondent No.7 whereas the Appellant No.3 is the son of the Respondent No.7 and they are claiming so-called rights through the judgment-debtor and rejected the Appeal. SUBSTANTIAL QUESTIONS OF LAW: 10. Vide order dated 28th July, 2011, the Appeal came to be admitted on the following substantial questions of law: "(i) Whether the Appellant Nos. 1 and 2 could be said to be persons bound by the Decree and whether there is complete non- consideration of this aspect by the Courts below ? (ii) Whether in the absence of any specific Decree directing removal of encroachment by demolition of the super structure, the obstruction/objection to the execution in so far as is sought the relief of vacant possession of a portion of land, over which the super structure has been constructed by the appellants, could have been dismissed ? (iii) Whether in execution of the aforesaid Decree, the Decree- holder could have been awarded the vacant possession of land beneath super structure without filing a suit for removal of encroachment ?" SUBMISSIONS : 11. Learned counsel appearing for the Appellants has taken this Court through the application filed by the Appellants as well as the orders of the Executing Court and the Appellate Court. He has further taken this Court through the averments in Regular Civil Suit No.330 of 1987 and in particular paragraph no.4 thereof, wherein it was pleaded that the Respondent No.7 has started the construction on the suit land illegally and without the consent of the Plaintiffs. He submits that thus, there is clear admission that there was a construction prior to the filing of the suit and despite thereof no relief of removal of construction was sought. He would further submit that the suit land is Survey No.13/4 and the Galas are situated on Survey No.13/5. He submits that the suit is of the year 1987 and it is thus the specific case of the Appellants that the construction of the Galas are more than 15 years back. He submits that the Executing Court has not dealt about the different survey numbers as well as the construction which was carried out prior to the filing of the suit. He submits that the Executing Court has not dealt about the different survey numbers as well as the construction which was carried out prior to the filing of the suit. He would further point out to the tax receipts issued by Kalyan Municipal Corporation which is in respect of the Galas constructed by the Appellant No.2 on Survey No.13/5, which is annexed at page 54. He would further submit that the Executing Court in view of the incorrect earlier survey had appointed a fresh Surveyor, who had prepared the map which is at page 92 of the appeal memo and would submit that no notice was issued about the survey to the Appellants and thus, the map cannot be accepted. He would further submit that the said fact has been admitted by the Surveyor in his cross-examination. He submits that in view of the objection raised a fresh Surveyor came to be appointed who prepared a map which is annexed at page 102 and as the map was not in consonance with the draft map prepared on site again an objection was raised to the said map. He submits that without any relief of removal of construction being granted, the Executing Court could not have permitted the demolition of the construction for the purpose of handing over the possession of the suit property. 12. As far as the Respondent Nos. 1 to 6 are concerned, the arguments of the learned counsel for the Appellants were concluded on 15th February, 2024 and thereafter, the matter was adjourned to 21st March, 2024, 4th April, 2024, 18th April, 2024 and to 9th May, 2024. Despite several adjournments being granted, the Respondent Nos. 1 to 6 were not present on these occasions and on 18th April, 2024, the Respondent No.5 is appeared in-person and sought time and as such, the matter was adjourned to 25th April, 2024 on which date the matter did not reach and the matter was adjourned to 9th May, 2024 on which date the Advocate holding for the Advocate on record once again sought adjournment which this Court declined. Hence, no submissions are canvassed by the Respondent Nos. 1 to 6. REASONS AND ANALYSIS : 13. Vide Judgment dated 16th November, 1999 passed by the Appellate Court, the judgment debtor was directed to hand over possession of suit property I.e Survey No 13 Hissa No 4 to the Decree Holder. Hence, no submissions are canvassed by the Respondent Nos. 1 to 6. REASONS AND ANALYSIS : 13. Vide Judgment dated 16th November, 1999 passed by the Appellate Court, the judgment debtor was directed to hand over possession of suit property I.e Survey No 13 Hissa No 4 to the Decree Holder. Despite a specific pleading that at the time of filing of the suit, the Respondent No 7 was carrying out construction on the suit property, no relief of removal of construction was sought. The decree is therefore for handing over possession of the suit property without any direction for removal of the construction on the suit property. 14. The Appeal has reached this Court in the obstructionist proceeding taken out by the Appellants. At this stage it will be apposite to refer the necessary provisions governing the execution of the decree. Section 47 of Code of Civil Procedure governs the questions which are required to be determined by the Court executing the decree and reads thus: "47. Questions to be determined by the Court executing decree- (1) all questions arising between the parties to the suit in which the decree was passed or their representative and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section be determined by the Court. Explanation I- -For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II.-(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section." 15. Order XXI Rule 35 of the CPC governs the execution of the decree for delivery of immovable property and reads thus: "35. Order XXI Rule 35 of the CPC governs the execution of the decree for delivery of immovable property and reads thus: "35. Decree for immovable property.-(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession." 16. Order XXI Rule 97 of CPC governs the position when there is resistance or obstruction to possession of immovable property and Order XXI Rule 101 provides for all questions to be determined by the executing Court and reads thus: "97. Resistance or obstruction to possession of immovable property.-(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 101. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 101. Question to be determined.-All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions." 17. The provisions of Order XXI Rule 35 of the CPC postulates that person in possession of the immovable property to be delivered under a decree must be bound by the decree i.e. the resister must claim derivative title from the judgment-debtor. In the present case, the Appellant No.3 is the son of the judgment-debtor and thus while admitting the appeal, the substantial question of law as to whether the Appellants can be said to be the persons bound by the decree is restricted to Appellant Nos. 1 and 2. 18. The execution was obstructed by the Appellants claiming independent title in the super structure, disputing the identity of the land on which the constructions stand, and the excitability of the decree as there was no decree for demolition of the super structure. In support of their case of independent title, the Appellants has produced on record the tax receipt and 7/12 extract. The tax receipt is of the year 1997 and the 7/12 extract is in respect of Survey No.13/5. Once a title independent of that from the judgment debtor is claimed, the provisions of Section 47 read with Order XXI Rule 35 of CPC mandates the Executing Court to render a finding as to whether the obstructionist is claiming a derivative title from the judgment debtor and is thus bound by the Decree of possession of immovable property. 19. Perusal of the impugned Judgment indicates that the finding of the Appellate Court is that the Appellants are not having any independent right and they are claiming their so called rights through the Judgment Debtor. 19. Perusal of the impugned Judgment indicates that the finding of the Appellate Court is that the Appellants are not having any independent right and they are claiming their so called rights through the Judgment Debtor. For arriving at that finding, it was necessary for the Appellate Court to re-appreciate the evidence which was produced by the Appellants in support of their title. The finding has been rendered solely by reason of the relationship of the Appellants with the Judgment Debtor. The Appellate Court has not discussed the evidence on record and there are no reasoned findings for holding that the Appellants have no independent right and that they are the representatives of the Judgment Debtor and are bound by the decree. Even if it is accepted that the Appellant No 3 is the son of judgment debtor and is claiming through the judgment debtor, the case of Appellant Nos 1 and 2 who are the nephews was required to be considered. 20. Rule 101 of Order XXI of CPC mandates all questions relating to right title and interest in the property to be determined by the executing court. Rule 100 of Order XXI of CPC provides that upon determination of the questions referred to in Rule 101, the Court shall in accordance with such determination pass appropriate order which is treated as decree. It was thus necessary for the Appellate Court to determine the issue of independent title claimed in the property by proper appreciation of evidence on record and then to pass an appropriate order based on such determination. The Appellate Court has on solitary finding of the inter se relationship dismissed the claim of an independent right of the Appellant Nos. 1 and 2 which is unsustainable. 21. As regards the issue of identity of property as it is claimed that the construction is on Survey No.13 Hissa No.5 and not on Survey No.13 Hissa No.4. The report of the earlier Court Commissioner was not considered as the survey was not conducted properly and fresh Surveyor was appointed who has prepared the map and has deposed that the majority of the construction falls in Survey No.13/4 and only a part of the construction is on Survey No.13/5. The question qua the location of the super structure has been answered against the Appellant Nos. 1 and 2 by the Executing Court. The question qua the location of the super structure has been answered against the Appellant Nos. 1 and 2 by the Executing Court. It is a finding of fact based on the evidence which has come on record that 80% of the construction is on suit land Survey No.13/4 and only 20% is on the Survey No.13/5. It is settled position in law that in exercise of powers under Section 100 of the CPC, this Court cannot go into the findings of fact unless it is shown that the findings are perverse and there is no perversity demonstrated from the findings of the Appellate Court. 22. The seminal issue for consideration is whether in absence of mandatory injunction granted in the decree, the Appellate Court could have directed removal of the super structure and to hand over possession of the suit land. The Appellants were not eo nominee parties to the proceedings. As indicated above, there is non consideration of the principle issue as to whether the Appellant Nos. 1 and 2 are the persons bound by the decree. 23. The Appellate Court has held that the decree holders are having every right to remove constructions in the suit land and obtain vacant and peaceful possession of the suit land. The said finding overlooks the primary aspect to be considered as to whether the Appellant Nos. 1 and 2 are claiming through the judgment-debtor. In that context if Order XXI Rule 35(3) is looked at, it provides that where the possession has to be delivered and person in possession, being bound by the decree, does not afford free access, the Court may do any act necessary for putting the decree holder in possession. It is therefore evident that it is only in event of a person being bound by the decree raises an obstruction to deliver the possession that the incidental or inherent power can be exercised to deliver the possession. It would have been a different aspect if the super structure would have been constructed pendente lite in which case the Decree Holder would have been entitled to get it removed without resorting to filing of separate suit. It is well settled position in law that the Executing Court cannot go beyond the decree. It would have been a different aspect if the super structure would have been constructed pendente lite in which case the Decree Holder would have been entitled to get it removed without resorting to filing of separate suit. It is well settled position in law that the Executing Court cannot go beyond the decree. The power to remove the construction is consequential to deliver possession provided the obstruction is raised during pendency of the proceedings and the person in possession is bound by the decree. In the instant case, the plaint itself pleads that the construction was being carried out and thus prior to the filing of the suit the construction was being carried out and therefore the Plaintiff ought to have sought the relief of mandatory injunction of removal of construction. CONCLUSION: 24. The Appellant Nos 1 and 2 claimed independent title in the super structure, which claim is dismissed by the Appellate Court without any reasoned finding. There is no appreciation of the evidence produced on record by the Appellant Nos 1 and 2 to support their claim. The Appellate Court has dismissed the right claimed by the Appellant Nos 1 and 2 for the solitary reason that they are nephews of the Judgment Debtor. The determination by the Appellate Court on the question of title in the super structure is legally unsustainable. 25. The Appellant Nos. 1 and 2 were not eo nominee parties to the proceedings. The primary issue as to whether the Appellant Nos. 1 and 2 are bound by the decree has remained unanswered. As the obstruction is not raised pendente lite the direction of removal of the super structure for purpose of handing over suit possession of the suit land cannot be said to be a consequential power to be exercised to deliver vacant possession of the suit land as the construction was raised prior to the filing of the suit. 26. It was therefore necessary for the Plaintiffs to seek declaration of mandatory injunction of removal of construction. In the absence of any such relief of mandatory injunction being granted, the decree has been rendered in-executable. 27. The questions of law are answered accordingly in favour of Appellant Nos. 1 and 2. Resultantly the Appeal succeeds qua the Appellant Nos. 1 and 2. 28. In the absence of any such relief of mandatory injunction being granted, the decree has been rendered in-executable. 27. The questions of law are answered accordingly in favour of Appellant Nos. 1 and 2. Resultantly the Appeal succeeds qua the Appellant Nos. 1 and 2. 28. In view of the disposal of the Appeal, Civil/Interim Applications, if any, taken out in this Appeal, does not survive and same is disposed of.