Ganpat Ramchandra Raut vs Rajendra Ratilal Munot And Others
2017 Latest Caselaw 5129 Bom

   (Judgment)                         (1)                  W.P. No. 07475 of 2017




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
          AURANGABAD BENCH, AT AURANGABAD.

                        Writ Petition No. 07475 of 2017

                                                 District : Ahmednagar


Ganpat s/o. Ramchandra Raut,
Age : 50 years,
Occupation : Business,
R/o. House No. 3452, Church Road,
Khist Galli, Ahmednagar.                    .. Petitioner.

                versus

1. Rajendra s/o. Ratilal Munot,
   Age : 61 years,
   Occupation : Business,
   R/o. Vijaya Residency,
   Chitale Road,
   Ahmednagar.

2. Kailash Balasaheb Nistane,
   Age : 52 years,
   Occupation : Business,
   Church Road, Ahmednagar.

3. Anita Kailash Nistane,
   Died through L.Rs.,

   3-A] Kailash Balasaheb Nistane,
        Age ; 52 years,
        Occupation : Business,
        Church Road, Ahmednagar.

   3-B] Sau. Suvarna Yashwant Namde,
        Age : 31 years,
        Occupation : Household,
        Namde Chawl, Mohan Nagar,
        Chinchwad, Pune.

   3-C] Sau. Rani Ganesh Chanwandke,
        Age : 29 years,
        Occupation : Household,
        Bhimnagar, Gandhinagar,
        Kopergaon, Dist. Ahmednagar.




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   (Judgment)                             (2)                  W.P. No. 07475 of 2017




   3-D] Pallavi Kailash Nistane,
        Age : 25 years,
        Occupation : Business,
        Church Road, Ahmednagar.

   3-E] Vinod Kailash Nistane,
        Age : Major,
        Occupation : Business,
        Church Road, Ahmednagar.                      .. Respondents.


                                     ...........


      Mr. S.S. Manale and Mr. A.M. Gholap, Advocates, for
      the petitioner.

      Mr. A.S. Bajaj, Advocate, with
      Mr. S.R. Andhale, Advocate, for respondent no.01 (caveator).


                                     ...........


                                   CORAM : SUNIL P. DESHMUKH, J.

DATE : 27TH JULY 2017

ORAL JUDGMENT :

01. Rule. Rule made returnable forthwith. Heard learned

counsel appearing for parties finally by consent.

02. The petitioner is before this court challenging order dated

04-05-2017 passed by Civil Judge (Senior Division), Ahmednagar, an

executing court, whereunder applications of present petitioner -

exhibits 113 and 116 in regular darkhast no. 240 of 2012 stand

dismissed with a show cause notice to the present petitioner to

explain as to why preliminary inquiry be not initiated under section

(Judgment) (3) W.P. No. 07475 of 2017

340 of the code of criminal procedure.

03. The petitioner is defendant no.05 in special civil suit

no.158 of 2006 instituted by present respondent no.01 against

respondents no.02 and 03 seeking specific performance of

agreement of sale of plot bearing no. 3452 situated at Ahmednagar.

The suit had been instituted contending that defendants no.03 to 08

therein were tenants of defendants no.01 and 02 in possession of

one room each in suit property and defendants no.01 and 02 had

agreed to deliver possession of suit property to the plaintiff upon

recovery of possession from tenants.

04. While the suit came to be contested by defendants no.01

and 02, present petitioner - defendant no.05 had chosen to be away

from the proceedings. Eventually, the trial court had considered that

as defendants no.01 and 02 had not taken efforts to take possession

from tenants, yet the plaintiff had been ready and willing to go

ahead with the specific performance and purchase the property. The

trial court had observed that defendants no.01 and 02 had

deliberately avoided to execute the sale deed in favour of the plaintiff

and had thus seemingly not made any effort to take possession from

tenants. The suit was eventually decreed, clause no.02 of which

reads thus :-

(Judgment) (4) W.P. No. 07475 of 2017

"2. The defendant no.01 and legal heirs fo defendant no.02 are directed to execute sale deed of the suit property after accepting amount of Rs. 3,50,000/- from the plaintiff within a period of one month from today and directed to hand over possession of the suit property. "

05. Against judgment and decree dated 22nd July, 2009,

defendant no.01 and legal heirs of deceased defendant no.02 had

taken the matter in regular civil appeal no. 380 of 2012 wherein as

well, present petitioner had not participated. Appellate court while

dismissing the appeal on 19-09-2014 had observed in paragraph

no.26 as under :-

" Before parting with it is to be mentioned here that the plaintiff is entitled for symbolic possession in respect of premises in possession of tenants. "

06. Regular darkhast no. 240 of 2012 had been in the

interregnum moved against legal representatives of defendants

no.01 and 02 seeking execution of sale deed and possession. Sale

deed came to be executed through court commissioner in execution

of decree, yet possesion had not been handed over and as such,

execution proceedings were being prosecuted. Application at exhibit

26 came to be moved for possession of the property described in the

plaint.

(Judgment) (5) W.P. No. 07475 of 2017

07. While deciding exhibit 26, the executing court had noted

that defendants no.04, 07 and 08 had filed application at exhibit 36

and third party had filed application at exhibit 39. Under order dated

04-11-2015, application - exhibit 26 had been allowed and

possession warrant had been issued in respect of the property

mentioned in paragraph 1 of the plaint and schedule annexed to the

darkhast. Thereupon, it appears, bailiff had been deputed to hand

over possession of suit property to decree holder. He found the

property having three doors on eastern side had been locked from

outside. On one of its doors paper plate having name Kishor

Sarolkar had been displayed. Bailiff further found that the door on

the way to go to upper rooms had been locked. While he peeked

through small opening, inside on a closed door, name plate of

Sadashiv Bondge was seen. Since the way for going to upper floor

was locked, bailiff could not go to upper floor and since there had

been no order of handing over possession to decree holder by

breaking open locks, panchanama accordingly had been prepared.

Bailiff report dated 19-11-2016 is supported by panchanama of even

date.

08. While the bailiff went on 25-11-2015 along with panchas,

he had been resisted by a person bearing surname Gondhale and his

relatives. While the judgment debtors - defendants no.01 and 03

(Judgment) (6) W.P. No. 07475 of 2017

had been on scene, they had also asked family of Gondhale to vacate

the premises, however, they had refused. Accordingly, bailiff had

submitted a report on 25-11-2015 along with panchanama of even

date. Proceedings ensued thereupon at the instance of Mr. Gondhale

which went up to high court in second appeal. Resistance by said

Gondhale had been turned down throughout, even in second appeal

no.785 of 2016 under an order dated 01st March, 2017.

09. Present petitioner has suo motu presented an application

dated 12-04-2017 at exhibit 113 and also filed application at exhibit

116 feeling aggrieved by order dated 04-11-2015 on exhibit 26

issuing possession warrant in respect of suit property. In both,

petitioner claimed that he is in possession of two rooms, one

admeasuring 12 X 10 feet on east-north facing south and the other

situated having dimensions 8 X 8 feet situated middle facing east, as

tenant. Resistance had been on the ground that admittedly

petitioner has been accepted as tenant in possession and that the

appellate court had granted only symbolic possession.

10. Said applications came to be resisted by the decree

holder claiming that defendant no.05 is no longer in possession of

the suit property. On two occasions, bailiff has not found petitioner

in possession of suit property and had not recorded their possession.

Claim of defendant no.05 has been actuated by mala fides.                     The





   (Judgment)                         (7)                 W.P. No. 07475 of 2017

applications are moved in order to harass the decree holder. In the

circumstances, proceedings were adjudicated.

11. The petitioner, in support of his claim, had submitted

certain documents, such as, licence under Bombay Shops &

Establishment Act referring to his address of suit property as well as

ration card bearing said address. With reference to the same, it had

been claimed that having regard to the pleadings and observations

of the trial and appellate courts, he is in possession of disputed

property and he has not vacated suit premises nor it is the case,

after suit had been instituted or it had been decreed, possession had

ever been taken from defendant no.05.

12. While resisting applications at exhibits 113 and 116, it

appears that the decree holders had submitted a few documents

viz.; Aadhar card and voters list showing defendant no.05 to be

resident of some other place other than the disputed property.

13. The executing court, however, considered that it may not

be said that defendant no.05 can be said to be in possession of

disputed property having regard to the record placed in the

proceedings. Documents which had been submitted in support of

defendant no.05 are documents procured during pendency of the

proceedings and further that there is no contemporaneous evidence

(Judgment) (8) W.P. No. 07475 of 2017

indicating, showing and proving actual occupancy of the disputed

property by defendant no.05 as on the date of putting up claim

under exhibits 113 and 116.

14. Court considered that there is no material placed

showing occupancy of and running business by defendant no.05 in

suit premises during visits by bailiff. The application was rejected

and, thus, the petitioner is before this court.

15. Mr. S.S. Manale, learned counsel for the petitioner,

vehemently submits that it is the decree holder's own claim that the

disputed property had been in possession of tenants including

defendant no.05. The trial court also found that disputed property

being in possession of tenants and appellate court has confirmed the

same observing that decree holder would be at the most entitled to

symbolic possession of the property in possession of tenants. He

further submits that over and above this, the decree holder did not

intend to have actual possession of disputed property from

defendant no.05. While execution proceedings were filed, defendant

no.05 had not been a party. Defendant no.05, as such, was not

aware of the pendency of the proceedings. While it came to his

notice, immediately applications at exhibits 113 and 116 had been

moved. It is submitted that the documents supporting possession

have been duly placed on record, however, appreciation of the

(Judgment) (9) W.P. No. 07475 of 2017

executing court in respect of the same has been improper and the

executing court had unnecessarily got swayed away by the

documents like Aadhar card and voters list, while documents like

licence under Bombay Shops & Establishment Act and ration card

show address of defendant no.05 to be that of disputed property.

The executing court had refrained itself from appreciating the same.

During the course of his submissions, learned counsel has put

emphasis on pleadings of decree holder and observations of the

executing court. He submits, in the face of such situation, unless

possession is shown to have been delivered to persons legally

entitled, dispossession of defendant no.05, if any, shall be deemed to

be illegal. Appreciation by executing court is erroneous and away

from record. Applications at exhibits 113 and 116 deserve to be

granted.

16. Mr. A.S. Bajaj, learned counsel appearing for respondent

no.01 - decree holder, however, finds it difficult to go by the

submissions advanced on behalf of the petitioner. He submits that

the record sufficiently depicts that defendant no.05 has not been in

possession of the suit property from quite a while during pendency of

the suit. There is nothing to show that during pendency of execution

proceedings, petitioner had been in possession. He submits that the

record showing ration card and licence under the Bombay Shops &

Establishment Act are obtained by making applications without

(Judgment) (10) W.P. No. 07475 of 2017

consulting and without the decree holder being informed about the

same. Defendant no.05 cannot assert possession over the disputed

property on the basis of the same. He submits that besides the

documents are obtained during the proceedings. There is no

contemporaneous other record showing actual possession of the

petitioner viz.; electricity bills or any business being done over the

property. He further submits that while in the suit, the plaintiff had

specifically mentioned that the tenants are in possession of one room

each, whereas the claim is being now made by the petitioner is of

two rooms. It had never been the case of the petitioner during

pendency of the suit, they were tenants in two rooms nor it was his

case that he had been carrying on any business in the room. He

further purports to submit that it is difficult to consider that in such a

small place, defendant no.05 can be said to carry on business and

reside simultaneously. In the circumstances, a proper view has been

taken based on record by the executing court.

17. Mr. Bajaj further submits that the petitioner has not been

occupying the disputed property is a position reinforced by findings

of the executing court. Two bailiff reports vividly make it clear that

defendant no.05 had not been in occupation of the suit property. He

was neither seen to be occupying nor there had been indication of

him running business or residing there. He submits that the bailiff

found entire premises locked on one occasion from outside. There

(Judgment) (11) W.P. No. 07475 of 2017

had been no egress and ingress to the building is sufficient indication

that nobody had been occupying the premises. On the other

occasion it was being claimed to be occupied by third party. On that

occasion, as well, it was not at all seen that defendant no.05 had

been in occupation of the suit property. Third parties ultimately

turned out to be stooge of defendant nos.01 and 02. After their

attempt failed up to second appeal, applications at exhibits 113 and

116 have been moved.

18. Having heard learned counsel for parties, the executing

court, it appears, with reference to material which has been placed

before it, found that there is no credible evidence available to

support the case being put up by the petitioner about him being in

actual possession. The executing court has noted that there is no

document produced on record by the petitioner like electricity bill,

telephone bill or school record indicating that he had been doing

some activity over disputed property. The suit had proceeded on the

footing that it was defendants no.01 and 02 who were to take

possession and hand it over to the plaintiff and further that there has

been some evidence by defendants no.01 and 02 about possession

having been taken over from tenants. The executing court found

that defendant no.05 was residing at some other place other than

the suit property. The executing court has found that while it came

to execution of decree in 2014, certain other tenants had been to the

(Judgment) (12) W.P. No. 07475 of 2017

executing court purporting to resist the decree and their claim had

been rejected. Taking stock of the situation with reference to the

material on record, executing court appears to have considered that

the case of petitioner being in actual possession turns out to be

hollow and thus has rejected applications at exhibits 113 and 116.

While appellate court observed about taking over of symbolic

possession of property in possession of tenant, executing court found

that defendant no.05 had not been in possession of tenanted

premises, as such, possession is to be taken over.

19. There is no compatibility in the claim of the petitioner in

exhibits 113 and 116 with the assertion in the suit which was allowed

to be tried by the petitioner without taking part in the same. The

petitioner does not appear to be aware of actual tenanted premises.

Material on record is not supporting the claim of the petitioner.

Applications at exhibits 113 and 116 claim interest in excess of the

uncontested assertion. There has been disparity in the claim under

applications at exhibits 113 and 116 and the one which has been in

the suit. This is one more circumstance which would not lend

credence to the claim. It had not been a case by defendant no.05 in

the suit that he had been carrying on business in suit premises.

Material on record does not show petitioner would be able to assert

actual possession.

(Judgment) (13) W.P. No. 07475 of 2017

20. However, one may have to take into account, the court

ought to have observed caution while passing the order directing

issuing show cause notice seeking explanation as to why proceedings

pursuant to section 340 of the code of criminal procedure be not

initiated. May be that the petitioner is trying to vex and harass the

respondent, yet while issuing show cause notice, the court ought to

have seen that defendant no.05 had been trying to claim to be in

possession on background of pleadings and purported to assert the

same in applications exhibits 113 and 116. He may have failed to

adduce sufficient evidence to support his claim but that alone is not

an indication of substance in allegations by decree holder in this

respect.

21. Thus, the writ petition is partly allowed. Clause 2 of the

order on exhibits 113 and 116 in regular darkhast no. 240 of 2012

stands set aside. The writ petition succeeds to that extent. Rest of

the claims and reliefs prayed for in writ petition stand rejected. Writ

petition fails in respect of rest claims and reliefs.

22. Rule made partly absolute to the extent as referred to

above. Rule discharged in respect of rest of the claims and prayers

in the writ petition. In the circumstances, there shall be no order as

to costs.

(Judgment) (14) W.P. No. 07475 of 2017

23. The effect and operation of this order stands deferred by

five weeks from today at the request on behalf of the petitioner.

( Sunil P. Deshmukh ) JUDGE

...........

puranik / WP7475.17