Bombay High Court
Mr. Ravindra Pawhari Singh vs Shri. Ashok D. Bhuta on 25 July, 2024
2024:BHC-AS:29488
Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 409 OF 2023
WITH
INTERIM APPLICATION NO. 13980 OF 2023
Sanjay Ramchandra Parab } ....Applicant
V/s.
Ashok D. Bhuta } ....Respondent
WITH
CIVIL REVISION APPLICATION NO. 615 OF 2022
Vinod Banslochan Singh } ....Applicant
V/s.
Ashok D. Bhuta } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 484 OF 2023
WITH
INTERIM APPLICATION NO. 14938 OF 2023
Nilam Nandakishor Triookar } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 485 OF 2023
WITH
INTERIM APPLICATION NO. 14939 OF 2023
Harcharan Singh Kuljit Singh } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 486 OF 2023
WITH
INTERIM APPLICATION NO. 14940 OF 2023
Taramathi Panchal (deceased)
Thr. Lrs. Sunil Morar Panchal } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
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CIVIL REVISION APPLICATION NO. 487 OF 2023
WITH
INTERIM APPLICATION NO. 14941 OF 2023
Savitri Vakil Singh } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 488 OF 2023
WITH
INTERIM APPLICATION NO. 14942 OF 2023
Harpal Singh (Deceased) Thr. Lrs. } ....Applicants
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 489 OF 2023
WITH
INTERIM APPLICATION NO. 14943 OF 2023
Mukesh Waman Parab } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 490 OF 2023
WITH
INTERIM APPLICATION NO. 14947 OF 2023
Jaysukh Shantilal Salot } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
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WITH
CIVIL REVISION APPLICATION NO. 491 OF 2023
WITH
INTERIM APPLICATION NO. 14948 OF 2023
Brijo Chetandas Chawla } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 492 OF 2023
WITH
INTERIM APPLICATION NO. 14949 OF 2023
Naina Bhavesh Jain } ....Applicant
V/s.
Ashok D. Bhuta and Ors. }....Respondents
WITH
CIVIL REVISION APPLICATION NO. 493 OF 2023
WITH
INTERIM APPLICATION NO. 14950 OF 2023
Suresh Maruti Rane } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 494 OF 2023
WITH
INTERIM APPLICATION NO. 14953 OF 2023
Mr. Sunil Morar Panchal } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
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WITH
CIVIL REVISION APPLICATION NO. 495 OF 2023
WITH
INTERIM APPLICATION NO. 14954 OF 2023
Vakil Shayamrathi Singh } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 496 OF 2023
WITH
INTERIM APPLICATION NO. 14956 OF 2023
Subhash Dayaram Panchal } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 497 OF 2023
WITH
INTERIM APPLICATION NO. 14959 OF 2023
Dinesh C. Mehta } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 498 OF 2023
WITH
INTERIM APPLICATION NO. 14961 OF 2023
Nammi Swarnsheel Jain } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
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WITH
CIVIL REVISION APPLICATION NO. 499 OF 2023
WITH
INTERIM APPLICATION NO. 14963 OF 2023
Malati Chandrakant Mehta } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 500 OF 2023
WITH
INTERIM APPLICATION NO. 14965 OF 2023
Jayarama Kurumbila Poojari (Decd)
Thr. Sashikala Jayaram Poojari } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 568 OF 2023
WITH
INTERIM APPLICATION NO. 15976 OF 2023
Jayantilal Narkeram Panchal } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 569 OF 2023
WITH
INTERIM APPLICATION NO. 15977 OF 2023
M/s. Arihant Enterprises } ....Applicant
V/s.
Ashok D. Bhuta & Ors. } ....Respondents
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WITH
CIVIL REVISION APPLICATION NO. 570 OF 2023
WITH
INTERIM APPLICATION NO. 15979 OF 2023
Brazil John Dsilva } ....Applicant
V/s.
Ashok D. Bhuta & Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 571 OF 2023
WITH
INTERIM APPLICATION NO.15980 OF 2023
M/s. Rehan Fastners } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 572 OF 2023
WITH
INTERIM APPLICATION NO. 15983 OF 2023
Brazil John Dsilva } ....Applicant
V/s.
Ashok D. Bhuta & Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 573 OF 2023
WITH
INTERIM APPLICATION NO. 15985 OF 2023
Mr. Sahadev Balaji Korgaokar } ....Applicant
V/s.
Ashok D. Bhuta } ....Respondents
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WITH
CIVIL REVISION APPLICATION NO. 574 OF 2023
WITH
INTERIM APPLICATION NO. 15984 OF 2023
Satish Shekhar Poojari } ....Applicant
V/s.
Ashok D. Bhuta } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 575 OF 2023
WITH
INTERIM APPLICATION NO. 15986 OF 2023
Jaswant Singh Bhogal } ....Applicant
V/s.
Ashok D. Bhuta & Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 576 OF 2023
WITH
INTERIM APPLICATION NO. 15987 OF 2023
Kamala K. Bhatia } ....Applicant
V/s.
Ashok D. Bhuta } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 577 OF 2023
WITH
INTERIM APPLICATION NO. 15989 OF 2023
Kesrichand Jivachand Shah (Deceased)
Thr. Lrs Pushpa Keshrichand Shah & Ors. } ....Applicants
V/s.
Ashok D. Bhuta & Ors. } ....Respondents
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Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC
WITH
CIVIL REVISION APPLICATION NO. 610 OF 2022
Subadra Hari Yadav } ....Applicant
V/s.
Ashok D. Bhuta } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 611 OF 2022
Mrs. Sharda Ravindra Singh } ....Applicant
V/s.
Ashok D. Bhuta } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 612 OF 2022
Mr. Ravindra Narayan Kale } ....Applicant
V/s.
Ashok D. Bhuta } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 613 OF 2022
Mr. Ravindra Pawhari Singh } ....Applicant
V/s.
Ashok D. Bhuta } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 614 OF 2022
Mrs. Tazhe Purayil Dakshyani } ....Applicant
V/s.
Ashok D. Bhuta } ....Respondents
WITH
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CIVIL REVISION APPLICATION NO. 615 OF 2023
WITH
INTERIM APPLICATION NO.16403 OF 2023
Karunakaran Rajan Panicker } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 616 OF 2023
WITH
INTERIM APPLICATION NO.16404 OF 2023
Manohar Bala Madhgut } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 617 OF 2023
WITH
INTERIM APPLICATION NO.16405 OF 2023
M/s. Prakash Electronics
Thr. Partner Mr. K.G. Subramanian } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 618 OF 2023
WITH
INTERIM APPLICATION NO.16406 OF 2023
Subhash Dayaram Panchal } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
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WITH
CIVIL REVISION APPLICATION NO. 619 OF 2023
WITH
INTERIM APPLICATION NO.16407 OF 2023
Chandrakant Nagvekar } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 620 OF 2023
WITH
INTERIM APPLICATION NO.16408 OF 2023
M/s. V.M. Plating,
Thr. Partnership Firm
Thr. Partner Meena Nanavati } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
CIVIL REVISION APPLICATION NO. 621 OF 2023
WITH
INTERIM APPLICATION NO.16409 OF 2023
Kodomudi Ramchandran Laxminarayan } ....Applicant
V/s.
Ashok D. Bhuta and Ors. } ....Respondents
__________________________________________________________
Mr. Rajendra Mishra with Ms. Priyanka Ghosh i/b Solicis Lex, for
Applicants in CRA/409/2023, CRA/575/2023, CRA/572/2023,
CRA/577/2023, CRA/569/2023, CRA/570/2023, CRA/571/2023,
CRA/568/2023, CRA/576/2023, CRA/573/2023, CRA/574/2023,
CRA/494/2023, CRA/499/2023, CRA/500/2023, CRA/495/2023,
CRA/487/2023, CRA/496/2023, CRA/485/2023, CRA/488/2023,
CRA/484/2023, CRA/497/2023, CRA/498/2023, CRA/486/2023,
CRA/489/2023, CRA/491/2023, CRA/490/2023, CRA/493/2023,
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CRA/492/2023, CRA/617/2023, CRA/620/2023, CRA/619/2023,
CRA/618/2023, CRA/615/2023, CRA/616/2023 & CRA/621/2023
Mr. R.D. Mishra, for Applicant in CRA/610/2022, CRA/611/2022,
CRA/612/2022, CRA/613/2022, CRA/614/2022 & CRA/615/2022
Mr. Y.S. Jahagirdar, Senior Advocate with Mr. Amrut Joshi, Mr. Hersh
Choksi & Mr. Mahek Kamdar i/b Kanga & Co., for Respondent No. 1
_______________________________________________
CORAM : SANDEEP V. MARNE, J.
Reserved On : 19 July 2024.
Pronounced On : 25 July 2024.
JUDGMENT :
1) These Civil Revision Applications are filed by Obstructionists who have obstructed execution of the decree passed by the Appellate Bench of the Small Causes Court on 27 February 2003 by which, R.A.E. & R. Suit No. 1184/3460 of 1990 filed by the 0riginal Plaintiffs/Respondent Nos.1 and 2 has been decreed directing eviction of Defendant/Respondent No.3 from the suit property. Applicants in these Revision Applications claim to be owners of structures in their possession and it is their contention that the said structures do not form part of the decree for eviction and that therefore they cannot be evicted from their respective structures in execution of the said decree. Obstructionist Notice No.59 of 2003 taken out by the Decree Holders has been made absolute by the Executing Court by judgment and order dated 20 November 2017 directing the obstructionist/applicants to handover vacant and peaceful possession of the suit property to Plaintiffs. The Page No. 11 of 31 25 July 2024 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 03/08/2024 06:08:42 ::: Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC said order dated 20 November 2017 passed by the Executing Court has been unsuccessfully tested by Applicants before the Appellate Bench of the Small Causes Court by filing various Appeals, which have been dismissed by the Appellate Bench of the Small Causes Court by judgment and order dated 4 May 2022. The decisions of the Small Causes Court (Executing Court) making Obstructionist Notice absolute as well as of the Appellate Bench in dismissing the Appeals filed by Applicants are subject matter of challenge in the present Revision Applications.
2) Shorn of unnecessary details, it would be necessary to narrate brief history of the litigation. Plaintiffs, Ashok D. Bhuta and Naresh D. Bhuta are owners of land admeasuring 3448 sq.mtrs at 76 Part H2 (Part) at Bhandup. The land was reserved as 'Heavy Industrial Area'by the Municipal Corporation under the Town Planning Scheme. By Lease Deed executed on 30 September 1972, Plaintiffs granted lease in respect of land w.e.f. 1 October 1970 for a period of 25 years on ground rent of Rs.175/- per thousand square yards for net area of 3030 sq. mtrs, out of total area of 3449 sq. mtrs after deducing non-useable area of 419 sq. mtrs due to water stream passing through the land. The lease was for manufacturing purposes either as it is or by putting up buildings, structures or sheds thereon at the cost of the lessee. The lease-deed contained a covenant which entitled the lessee to sublet the demised land or part thereof with or without building to any person for such period as determined by the lessee subject to the said user or demise not exceeding the period beyond the period fixed in the lease. The Page No. 12 of 31 25 July 2024 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 03/08/2024 06:08:42 ::: Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC lessee was also entitled to assign the buildings and structures together with his interest in the leasehold plot of land.
3) Plaintiffs served Notice dated 17 July 1990 terminating the lease and calling upon Defendant to vacate the suit property, inter- alia, on the ground of arrears of rent as on 1986, as well as bonafide need of the Plaintiffs. Plaintiffs instituted R.A.E. & R. Suit No. 1184/3460 of 1990 in the Court of Small Causes at Bombay against the Defendant for recovery of possession of the suit property together with a small shed located thereon and for recovery of arrears of rent of Rs.22,860/- as well as enquiry into mesne-profits.
4) R.A.E. & R. Suit No. 1184/3460 of 1990 came to be dismissed by the Small Causes Court on 30 November 2000 holding that though the Defendant was in arrears of rent, it was ready and willing to pay the amount of rent. Plaintiffs filed Appeal No. 82 of 2001 before the Appellate Bench of Small Causes Court challenging the Trial Court's decree dated 30 November 2000. The Appellate Bench allowed the Appeal vide decree dated 27 February 2003, set aside Trial Court's decree dated 30 November 2000 and decreed R.A.E. & R. Suit No. 1184/3460 of 1990 holding that Defendant was in arrears of rent and that Plaintiffs are entitled to decree for possession of the suit premises. Defendant filed Writ Petition N0. 4042 of 2003 before this Court challenging Appellate Bench's decree dated 27 February 2003. The Writ Petition was dismissed by this Court by order dated 1 August 2003. This is how litigation between Plaintiffs and Defendant-tenant came to an end and the decree passed by the Appellate Bench attained finality.
Page No. 13 of 31 25 July 2024 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 03/08/2024 06:08:42 ::: Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC 5) The decree was put in execution by Plaintiffs/decree
holders. In the execution proceedings, warrant of possession was issued on 1 September 2003 for execution of the decree. When the warrant of possession was attempted to be executed, the same was obstructed by 56 different persons (Applicants) claiming possession in respect of various structures located on the suit property. Plaintiffs therefore took out Obstructionist Notice No.59 of 2003 against the Applicants. The Obstructionist Notice was resisted by the Applicants by filing Affidavit-in-Reply. Evidence was led by the parties. After considering the evidence on record, Small Causes Court passed judgment and order dated 20 November 2017 making the Obstructionist Notice absolute and directing the obstructionists to hand over possession of the suit property alongwith all 56 industrial structures (galas) standing thereon to Plaintiffs. Applicants filed various Appeals before the Appellate Bench of the Small Causes Court challenging the order of the Executing Court dated 20 November 2017. On 5 July 2019, the Appellate Bench of the Small Causes Court passed order directing the Applicants to deposit amount @ Rs. 25/- per sq.feet w.e.f. 20 November 2017 together with an undertaking not to create third party rights. All the Appeals have been dismissed by the Appellate Bench by judgment and order dated 4 May 2022, which are subject matter of challenge in the present Revision Applications. The delay in filing the Revision Applications has been condoned by this Court by passing various orders.
Page No. 14 of 31 25 July 2024 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 03/08/2024 06:08:42 ::: Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC 6) On 31 January 2024, when the Revision Applications
were heard, this Court raised a query as to whether the Applicants had complied with directions of the Appellate Bench's orders dated 5 July 2019 for deposit of monthly compensation @ Rs.25/- per sq.ft. from 20 November 2017. By order dated 22 April 2024, this Court had directed 35 Applicants to deposit 25% of arrears of monthly compensation. It appears that the said amount representing 25% of arrears has been deposited by 35 Applicants in this Court.
7) Mr. Rajendra Mishra and Mr. R.D. Mishra, the learned counsel appear on behalf of the Revision Applicants. Mr. Rajendra Mishra has led submissions on behalf of the Applicants, which have been adopted by Mr. R.D. Mishra. The submissions canvassed by the learned counsel appearing for the Applicants are summarised below:
i Lease deed dated 30 September 1972 empowered the lessee not just to construct shed/galas in the suit property, but also to assign such constructed sheds/galas to third parties together with lessee interest in the demised land.
ii That in accordance with covenants of the lease-deed, Defendant-Bhide Textile Industry constructed sheds/galas in the demised lands and sold the same to various persons. That therefore persons who purchased such constructed sheds/galas have become owners in respect of the same.
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iii To illustrate, in Civil Revision Application No. 409 of 2023 filed by Sanjay Ramchandra Parab, M/s. Bhide Textile Industry sold Gala bearing No. A/7 (A/11) to Mrs. Ranjana Ravindra Parab vide Assignment Deed dated 29 December 1993. The said Mr. Ranjana Ravindra Parab further assigned the said Gala to Mrs. Harsha Shashikant Panchal and Mr. Neel Shashikant Panchal by Agreement dated 15 July 2022. That Revision Applicant, Sanjay Ramchandra Parab has purchased the said Gala from Panchals on 15 July 2002 by paying consideration of Rs.3,60,000/-. That therefore the Revision Applicant-Sanjay Ramchandra Parab has become owner in respect of the said galas.
iv That the gala owners have formed Bhide Industrial Co-
operative Society which has admitted the concerned Gala owners as its members. That the Municipal Corporation has included name of Bhide Industrial Co-operative Society in its assessment records.
v Various licenses are procured by the concerned gala owners.
Reliance is placed on Shop License issued in the name of M/s. Sankalpana Plastic with Sanjay Ramchandra Parab as employer in respect of Gala No.A/11. That electricity connections are issued by the Maharashtra State Electricity Distribution Company Ltd. in the name of individual gala owners/their firms.
vi That galas/sheds occupied by the Applicants are not covered by
the decree which is sought to be executed. Inviting my
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attention to the prayers in the plaint, it is submitted that prayer clause (a) in the plaint reads 'The Defendants be ordered and directed to handover open land together with small shed at Sr. No.105, Municipal No.2807 (4-AB)/Bhandup, Village Road, Bombay-400 078 to the Plaintiff.' That the suit was filed for recovery of possession of only one shed and despite knowledge of existence of several sheds/galas, which are now occupied by the Applicants, Plaintiffs chose not to include the said constructed galas/sheds in the plaint and that therefore the decree passed by the Appellate Bench of the Small Causes Court directing eviction of the Defendants in the suit does not apply to the said constructed galas/sheds.
vii That since the suit property has not been correctly described in the Plaint, the decree cannot be executed against the structures which did not form subject matter of the suit. In support, the judgments of Kerala High Court in Arumughan and another Versus. Sreedas and others1 and Dr. Hariprasad, Rep. by the Power of Attorney Holder Mr. S. Jayakumar Versus. Omana Amal Raj 2 are relied upon. Relying on the provisions of Order VII Rule 3 of the Code and judgment of this Court in Laxman Wamanrao Nagpure Versus. Shankar Haribhau Adhau and another 3 it is contended that Plaintiff must describe the suit property sufficiently to identify appropriately the boundaries thereof.
12019 SCC OnLine Ker 16683.
22019 SCC OnLine Ker 18105.
32014(3) Mh.L.J. 791.
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viii That the Applicants are not direct purchasers of the shed and being not much literate, they acted on representations made to them about right of the Defendant/lessee to assign constructed structure on the suit property. That Applicants saw their predecessors-in-title in possession and proceeded to purchase the concerned structures.
ix That the suit filed in the year 1990 was initially dismissed in the year 2000 and came to be decreed only by the Appellate Court in the year 2003. That in the meantime several transactions took place in respect of the constructed structures and it was the duty of the Plaintiffs to implead the purchasers and occupiers of the constructed structures. In absence of impleadment of such occupiers and purchasers, the decree is nullity for them and cannot be enforced or executed against them.
8) The Revision Applications are opposed by Mr. Jahagirdar, the learned senior advocate appearing for Respondent Nos.1 and 2 (Plaintiffs/Decree holders). He would submit that the Applicants are claiming possession in respect of the concerned structures on the basis of unregistered documents, which do not confer any title on them. That most of the documents are created after filing of the suit deliberately to frustrate the decree passed in favour of the Plaintiffs. Taking me through the Affidavit-of-Evidence filed by one of the Applicants, Mr. Jahagirdar would contend that the plea raised before the Executing Court by the Applicant was about acquisition of ownership by prescription i.e. by adverse possession.
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That though a lame defence was taken in the Affidavit-of-Evidence that the land beneath the galas in possession of the Applicants is not covered by the decree, in the cross-examination, finally admission is given that the land beneath the galas is the same in respect of which the suit is filed by the Plaintiffs. Mr. Jahagirdar would submit that the Executing Court as well as the Appellate Bench have correctly considered the objections raised by the Applicants which are rejected by recording cogent reasons. Mr. Jahagirdar would rely upon judgment of this Court in Ramkrishna Girishchandra Dode and others Versus. Anand Govind Kelkar and another 4 in support of his contention that persons who claim possession of land in respect of which decree is passed must move out once the decree is sought to be executed. That such persons at best can be considered as mere licensees and once the landlord obtains a decree for eviction of his tenant, all the occupants have to be evicted from the land, as well as from the structures constructed thereon. He would submit that the facts in Ramkrishna Girishchandra Dode are almost identical to the facts of the present case. Mr. Jahagirdar would also rely upon following judgments:
i) Jamnadas Dharamdas Versus Sr. J. Joseph Farreira and another 5
ii) Dinkar S. Vaidya Versus Ganpat S. Gore and another6
iii) Norman Joseph Ferreira Versus Arjandas New Andram by his LRs New Andram Shivalomal and others7
iv) Vasant Laxman Mote and others Versus Rajendra Kumar Pande (dead) by LRs Kamlabai Bajranglal Pande and others8 4 1999(1) Mh.L.J. 37.5
(1980) 3 SCC 569.6
AIR 1981 Bom 190.
72001(2) Mh.L.J. 810.
82002(4) Mh.L.J. 832.
Page No. 19 of 31 25 July 2024 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 03/08/2024 06:08:42 ::: Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC v) Rupchand Gupta Versus Raghuvanshi (Private) Ltd., and another 9 vi) Bhatia Cooperative Housing Society Limited (Registered) Versus D.C.Patel10 vii) Goregaon Malayalee Samaj (Regd.) Versus M/s. Popatlal Prabhudas and Sons and others11 9) Mr. Jahagirdar would further submit that Applicants have
not obeyed the order passed by the Appellate Bench on 20 February 2017 by failing to deposit the amount of monthly compensation @ Rs.25/- per sq.ft. and therefore on this count as well, the Revision Applications cannot be entertained. He would pray for dismissal of the Revision Applications.
10) Rival contentions of the parties now fall for my consideration.
11) Applicants in the Revision Applications have obstructed the decree passed by the Appellate Bench of the Small Causes Court on 27 February 2003 by which R.A.E. & R. Suit No. 1184/3460 of 1990 is decreed directing eviction of Defendant-Bhide Textile Industries from the suit property. The suit property was let out to the Defendant by lease-deed dated 3 September 1972. It does appear that at the time when the lease-deed was executed, the land was open piece of land and was reserved as 'heavy industrial area' by the Municipal Corporation. The land was let to the Defendant- lessee for the purpose of industry, Equity Text Astorage and 9 AIR 1964 SC 1889.
10(1952) 2 SCC 355.
111987 SCC OnLine Bom 226.
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manufacturing activities either to be used as its or by putting up structures or sheds thereon at the cost of the lessee. Though the lease-deed did entitle the lessee to sublet the land or part of it with or without building/structures to any persons and also to assign the said buildings/structures, a caveat was put that such use/demise was not to exceed the period fixed under the lease. The Revision Applicants have heavily relied upon Clause (1) and Clause-2(f) of the lease-deed which are reproduced below:
1. That in consideration of the covenants and conditions herein contained and on the part of Leasee to be observed and performed of the rents herein reserved, the Lessors hereby to be observed and performed of the rents herein - reserved, the Lessors hereby demise unto the Lessee by way of lease for the purpose of Industry and Storage and for manufacturing purposes either as it is or by putting up buildings, structures, or sheds thereon at the cost of the leasee and all that plot of land lying and being and situate at Bhandup Opposite the CEAT TYRE Factory and being part of Survey No. 76-H-2 (part) and more particularly described in the Schedule hereto (and for greater clearness described and delineated on the plan annexed hereto and thereon shown with its boundaries coloured red) together with all easements, appurtenances, thereto to hold the said premises to the Lessee from 1-10-1970 for a period of 25 (twenty-five) years ending on 30th September 1995 paying therefor during the said term the monthly ground rent of Rs.175/- (Rupees One Hundred Seventy-five only) per 1,000 square yards payable in advance only for the net area of 3030 out of the total area of 3449 square meters after deducting the non-
usable area of 419 square meters due to water stream passing through the piece of land, free from all taxes, charges, etc. as more particularly described in the - Lessee's covenants hereinafter mentioned at the office of the Licensors at 24, Vithaldas Road, Princess Street, Bombay-2 or at such other place as the Lessors may from time to time appoint.
2. ----
(f) That the Lessee shall be entitled to sublet the said plot of land or any part of it either with or without the buildings or structures Page No. 21 of 31 25 July 2024 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 03/08/2024 06:08:42 ::: Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC to any person whatsoever for whatever purposes or use and for such period or periods, as the Lessee may think fit --- PROVIDED the said user or demise shall not be beyond the period fixed in the lease and the Lessee shall also be entitled to assign the said buildings or structures together with his interest in the said leasehold plot of land.
12) Revision Applicants have also referred to prayer clause (a) in the plaint in support of their contention that the suit was filed for recovery of possession of open land with only one small shed. Prayer clause (a) in the suit reads thus:
(a) The Defendants be ordered and decreed to vacate and handover open land together with small shed at Sr. No. 105, Municipal No. 2807 (4-AB)/Bhandup, Village Road, Bombay 400 078 to the Plaintiff;
13) Relying upon on Clause (1) and 2(f) of the lease-deed together with prayer clause (a) in the plaint, it is sought to be contended on behalf of the Revision Applicants that the suit was not filed in respect of the constructed galas/sheds owned/occupied by them. It is their contention that in accordance with the covenants of lease, the Defendant-Bhide Textile Industry constructed galas/sheds and assigned them to various third parties, which it was entitled to do under the lease-deed. It therefore contended that if eviction of occupants from the said constructed sheds/galas was sought by the Plaintiffs, it was incumbent for them not just to describe all the 56 sheds/galas in the plaint but more importantly to implead the occupiers on actual sheds/galas to the suit. It is therefore contended that in absence of impleadment of Applicants to the suit and in absence of inclusion of their sheds/galas in the suit, the decrees cannot be executed either qua Page No. 22 of 31 25 July 2024 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 03/08/2024 06:08:42 ::: Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC such sheds/galas and in any case against the Applicants. To prove that the decree passed in the suit does not cover the shed/galas in occupation of the Applicants, it was necessary for the Applicants to prove before the Executing Court that the said sheds/galas existed prior to institution of the suit and that the Applicants/their predecessor-in-title/occupiers were occupying the same prior to institution of the suit. However, no material is produced on record to demonstrate that the said 56 galas were either constructed by Defendant-Bhide Textile Industry prior to institution of the suit or that the Applicants/their predecessor-in-title owned and occupied the same prior to institution of the suit. If facts of Civil Revision Application No. 409 of 2023 (Sanjay Ramchandra Parab) are considered, it is seen that rights in respect of the Gala-A/7 or A/11 claimed by the Applicant therein on the basis of unregistered Deed of Assignment dated 29 December 1994 allegedly executed in favour of Ms. Ranjana Ravindra Parab in favour of Harshal Panchal and Neel Panchal and alleged Agreement for Sale dated 15 July 2002 executed by Panchals in favour of the Applicant-Sanjay Ramchandra Parab. The Executing Court has rightly held that the said unregistered and insufficiently documents are neither admissible in evidence nor confer any title on the Applicants in respective of galas or land beneath. All those documents are shown to be executed after institution of the suit. The Executing Court has rightly held that Applicants could not prove their independent title in respect of their concerned galas/sheds.
14) To get over the defect in title, Applicants also raised defence of acquisition of title by prescription on account of their Page No. 23 of 31 25 July 2024 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 03/08/2024 06:08:42 ::: Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC alleged adverse possession. In this regard, the statement made by Sanjay Ramchandra Parab in Affidavit of examination-in-chief reads 'the land beneath the structures are in possession of ourselves since 1984 or thereabout and our possession of land since then has not been disturbed by anybody and I have become owner of the land by prescription i.e. by adverse possession'. The above statement of being in possession of the land since 1984 is contrary to Mr. Parab's own case of the concerned Gala being first sold to Ranjana Ravindra Parab on 29 December 1994 and Sanjay Ramchandra Parab purchasing it for the first time on 15 July 2002. In the cross-examination, the said witness admitted that 'the suit premises came in my possession in the year 2002'. Thus, even the alleged stand of acquisition of land by prescription could not be proved before the Executing Court.
15) Applicants also adopted another lame defence that the land on which the respective sheds/galas are located is different than the one in respect of which the decree is passed. However, in the cross-examination, it is admitted that the witness did not have any evidence to show that subject matter of the decree and premises in his possession were different or distinct. The Executing Court has considered this aspect and has recorded a finding of fact that all the respective sheds/galas are located in the suit property which is the subject matter of decree. No material is produced to indicate perversity in the said concurrent findings of facts.
16) The facts of the present case appear to be somewhat similar to the facts involved in Ramkrishna Girishchandra Dode in which the Single Judge of this Court ( A.V. Sawant, J.) has noted the Page No. 24 of 31 25 July 2024 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 03/08/2024 06:08:42 ::: Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC plight of the landlord/decree holder trying to execute the decree in petitions filed by the obstructionists. The suit premises therein comprised of open piece of land in respect of which, a registered lease-deed was executed in favour of the lessee for a period of 50 years. The lease was terminated by issuance of notice and suit was instituted for recovery of possession. One of the grounds for eviction was carrying out construction on the plot and induction of outsiders without prior consent of the landlords. The suit was decreed on 4 October 1978 directing the Defendants/Tenants to vacate the suit property. When the decree was put in execution and warrant of possession was issued, the bailiff returned the warrant with a report that execution of decree was obstructed by 80 obstructionists claiming possession in respect of various constructed portions in the suit property. The decree holders took out obstructionist notice which came to be made absolute and the order of the Executing Court was upheld by the Appellate Bench. In the above facts, this Court considered the right of occupants of structures constructed on the leased land in respect of which decree of eviction was passed against the original lessee. This Court referred to judgment of Division Bench in S.R. Shetty vs. Phirozeshah Nusserwanji Colabawala12 decided on 21 November 1962 in which the question of right of obstructionists in respect of the structures put up by the tenants of the plot was considered. This Court held in para-17 of the judgment as under:
17. As far back as on 21st November, 1962, a Division Bench of this Court in C.R.Equity Text AA. No. 1511 of 1960 of S.R. Shetty vs. Phirozeshah Nusserwanji Colabawala and another was 12 Civil Revision Application No. 1511 of 1960.
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considering the question of the right of the obstructionists in respect of the structures put up by the tenant of the plot belonging to landlord owner of the plot. Whatever right the obstructionists may have against the owner of the structures, it was held that it was almost impossible to accept the suggestion that after the structure is built and the sub-tenant has been inducted by the tenant, such a sub-tenant also becomes the sub-
tenant of the land belonging to the landlord. The sub-tenant of the structure erected by the tenant had only right to occupy the said structure without any right to occupy the land on which the structure was erected. This was all the more so in a case where a multi-storeyed building is erected on a plot of land where it would be difficult to decide as to which subtenant of which structure had right to occupy the particular portion of the plot of land in dispute which was leased by the landlord to the tenant who had erected the super structure may be a multi storeyed structure. This view expressed by the Division Bench in S.R. Shetty vs. Phirozeshah Nusserwanji Colabawala, was considered in a series of judgments rendered by this Court while dealing with the right of the obstructionists in the proceedings under the Rent Act.
17) In Ramkrishna Girishchandra Dode, this Court also relied upon judgment in Goregaon Malayalee Samaj vs. M/s. Popatlal Prabhudas and Sons13 wherein again the same issue was decided and this Court held in para-21 as under:
21. In Goregaon Malayalee Samaj vs. M/s. Popatlal Prabhudas and Sons, 1987 Mah.Rent Control Journal 701 , A.C. Agarwal, J.
had occasion to consider the same question. Originally the tenancy was in respect of the land. The tenant of the land constructed structures thereon and inducted third parties. The question arose whether such a third party could become sub- tenant of the landlord in respect of the land beneath the structure and claim protection of the provisions of section 15A of the Rent Act. It was held that persons so inducted on the structures would be the tenants in respect of the super structure on the land only. Their status vis-a-vis the land is necessarily that of a licensee only and not any higher status. Where a decree is sought to be executed in respect of land which was subject matter of the original lease, the status of the tenants of the structure on the land was nothing more than that of mere licensees. The right of 13 1987 Mah.Rent Control Journal 701.
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the occupants of the structures on the land was nothing more than that of a mere licensee. Such licence must necessarily come to an end when the landlord obtains a decree for eviction of his tenant and the occupants have got to be evicted from the land which could not be done unless they are also evicted from the structures which stand on the land. All subsidiary interests that would have been created by the original lessee of the land pursuant to the lease deed must necessarily come to an end unless the occupant was otherwise protected by the provisions of the Rent Act. On the question as to whether such an occupant would be protected by the provisions of section 15A of the Rent Act, this Court gave the answer in the negative.
18) This Court further held in para-23 and 24 as under :
23. I must now make a reference to the judgment of the Apex Court which sets at rest the entire controversy and to which a reference has been made in some of the decisions of this Court referred to above. In Jamnadas Dharamdas vs. Dr. J.
Josheph, AIR 1980 SC 1605, the Apex Court considered identical situation where the obstructionists were claiming protection after the tenant had suffered a decree for eviction under section 12(3) of the Rent Act. On consideration of some of its earlier decisions, Apex Court held in para 18 of the judgment at page 1610 that the landlord was entitled to claim relief of possession of his land and in effect the decree for possession of the land would mean that the land should be delivered to him without structures. The tenant had committed defaults in payment of rent. Reference was made by the Apex Court to the decision of this Court in Ramchandra Raghunath Shirgaonkar vs. Vishnu Balaji Hindalekar, AIR 1920 Bom. 87 where it was held that ordinary rule of law is that tenant must give up vacant possession of the land demised at the end of the term and that if he builds on the land of the tenancy, he builds at his own risks. At the end of the term, he can take away his building but if he leaves it there it becomes the landlord's property. A reference was also made to another decision on this Court in Khimjee Thakersee vs. Pioneer Fibre Co. Ltd., AIR 1941 Bom. 337 where it was held that on determination of the lease the lessees were required to deliver over possession of the demised premises to the lessors and the lessees were entitled to remove the structures which they might have erected during the continuance of the tenancy. In para 21, the Apex Court concluded that the plaintiff was entitled to ask for relief as to the possession of the land and he was also entitled to ask for demolition of the structures and for grant of vacant possession of the plots.
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24. In the light of the above legal position, I will consider the contentions raised by the petitioners. The first contention is that, in the facts of this case, since the lessee of the plot Kelkar was permitted to put up or erect structures, the licensees of the structures inducted by the lessee Kelkar were also entitled to become the tenants of the land underneath the structures. Reliance was placed on the observations of a learned Single Judge Bhasme, J. in Mangharam Chubarmal vs. B.C. Patel, 1971 Mh.L.J. 369=73 BLR 140 where it was held that in a suit against the tenant, if other persons are joined on the allegation that they are sub-tenants and if eviction is sought only on the grounds which are personal to the tenant (sections 13(1)(a), (b), (c), (d) and (e) of the Rent Act) then decree in ejectment against him will result in conferring the direct tenancy rights on the lawful sub tenant. It was further held that if sub-tenants are not impleaded in such a suit, then the landlord, after obtaining the decree against the tenant, will have to file a fresh suit against the sub- tenants who had by then became his direct tenant by virtue of section 14 of the Rent Act. This view expressed by Bhasme, J., need not detain me any longer since it is contrary to the earlier Division Bench decision of this Court in S.R. Shetty's case (C.R.A. No. 1511 of 1960 decided on 21st November, 1962). The view expressed by Bhasme J. has also been dissented by P.B. Sawant, J. in Damji Nansi's case, 1979 BCR 670 by Sharad Manohar, J. in Dinkar Vaidya's case, AIR 1981 Bom. 190 by S.J. Deshpande, J. in Mrs. Suman Damani's case 1986 Mah. R.C. J. 376 and by A.C. Agarwal, J. in Goregaon Malayalee Samaj's case 1987 Mah.R.C. J. 701. More over in view of the decision of the Apex Court in Jamnadas Dharamdas vs. Dr. J. Joseph, AIR 1980 SC 1605, with respect it is not possible for me to agree with the view expressed by Bhasme, J. that the sub-tenants or licensees of the structures inducted in the structures by the lessee of the plot will still be entitled to claim protection of the provisions of section 14 or 15-A of the Rent Act despite the decree for eviction being passed against the tenants under the provisions of the Rent Act. There is thus no substance in the first contention advanced on behalf of the obstructionists.
19) Thus it is settled position of law as expounded by the Apex Court in Jamnadas Dharamdas (supra) that obstructionist claiming protection after suffering of decree of eviction by a tenant cannot defeat landlord's entitlement to claim possession of his land and if any structure is built on the land, such structure is at the risk Page No. 28 of 31 25 July 2024 ::: Uploaded on - 26/07/2024 ::: Downloaded on - 03/08/2024 06:08:42 ::: Neeta Sawant CRA-409-2023 with 40 WPs-JR-FC of the tenant and at the end of the term, the land must be returned to the landlord and persons inducted in such structures cannot oppose execution of the decree. Thus, if Defendant-M/s. Bhide Textile Industry has inducted Applicants/their predecessor-in-title in the constructed portion of the suit property during pendency of the suit, the tenant has done so at its own risk and Applicants/predecessor-in-title have occupied the structures at their own risk. Their status vis-a-vis the land is necessarily that of lessee and they cannot claim any higher status. Once the tenant is directed to vacate, his licensee must also vacate the structures on the land. This position of law is repeatedly expounded in various other judgments relied upon by Mr. Jahagirdar.
20) The contention raised on behalf of the Revision Applicants that there was incorrect description of the suit property in the plaint and cannot be accepted in the light of specific and concurrent findings of fact recorded by the Executing and the Appellate Court that the galas/sheds occupied by the Applicants are constructed on the suit property in respect of which the decree is passed. Therefore, reliance on provisions of Order VII Rule 3 of the Code on judgments of the Kerala High Court in Arumughan and Dr. Hariprasad and of this Court in Laxman Wamanrao Nagpure does not assist the case of the Applicants.
21) Mere issuance of licenses by the electricity distribution company or admission of the Applicants as members of Co- operative Society formed by occupants does not entitle the Applicants to hold on to possession of the respective structures.
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of the view that the Applicant could not establish any independent right to occupy the structures in their possession which are apparently occupied by them after institution of the suit, nor could establish their title in respect of the said structures. They are also unsuccessful in proving before the Courts below that description of the suit property does not cover the land on which their structures are located. Applicants are mere licensees inducted by Defendant- tenant in absence of any document of title. Once the tenant is directed to deliver vacant possession of the land, persons occupying constructed structures at the behest of the tenant must move out with the tenant when the decree is put in execution. In my view, therefore the Executing Court has rightly made the Obstructionist Notice absolute. The Appellate Bench has rightly dismissed the Appeals filed by the Applicants.
23) It also bears mention that most of the Applicants have failed to obey the directions issued by the Appellate Bench by order dated 5 July 2019 for deposit of monthly compensation @ Rs.25/- per sq. ft. In Marshall Sons & Co. (I) Ltd V/s. Sahi Oretans Pvt. Ltd. 14 the Apex Court has held that obstructionist cannot continue to delay execution of the decree without inviting the consequences. In that view of the matter, it was incumbent for the Appellants to deposit the entire amount of monthly compensation during pendency of the Appeals and the present Revision Applications.
14AIR 1999 SC 882.
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interference in the orders passed by the Executing Court and the Appellate Bench of the Small Causes Court in exercise of revisionary jurisdiction under Section 115 of the Code of Civil Procedure. All the Civil Revision Applications are accordingly dismissed without any order as to costs. All the Interim Applications pending therein also stand disposed of.
[SANDEEP V. MARNE, J.]
25) After the judgment is pronounced, the learned counsel appearing for the Revision Applicants, would pray for continuation of the interim relief relating to execution proceedings. However, as observed in the judgment, the Appellate Bench of the Small Causes Court had directed the Applicants to deposit amount at the rate of Rs.25/- per sq.ft w.e.f. 20 November 2017 as pre-condition for stay of the order of the Executing Court. Admittedly, the said amount was not deposited by Revision Applicants. This Court by order dated 22 April 2024 permitted 35 Applicants to deposit 25% of arrears of monthly compensation, which shows that 75% of the monthly compensation has not been deposited by Revision Applicants. In that view of the matter, prayer for continuation of interim relief is rejected.
Digitally
signed by
NEETA
NEETA SHAILESH [SANDEEP V. MARNE, J.]
SHAILESH SAWANT
SAWANT Date: Page No. 31 of 31
2024.07.26 25 July 2024
17:37:47
+0530
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