Bombay High Court
Somnath Hanumant Jagtap vs Ramchandra Shrirang Jagtap And ... on 11 March, 2021
Bench: C.V. Bhadang
22-sa-31-2021 with ia-207-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.31 OF 2021
WITH
INTERIM APPLICATION NO.207 OF 2021
Somnath Hanumant Jagtap ..Appellant
Vs.
Ramchandra Shrirang Jagtap & Ors. ..Respondents
----
Mr.Dilip Bodake for the Appellant.
Mr.Uday P. Warunjikar a/w Mr.Sumit Kate for the Respondents.
Nilam Digitally signed
by Nilam Kamble
----
CORAM : C.V. BHADANG, J.
Kamble Date: 2021.03.11
17:16:48 +0530
DATE : 11th MARCH 2021
P.C.:
1. The challenge in this appeal at the instance of the
appeallant, who is the obstructionist is to the concurrent finding of
the Courts below refusing to uphold the objection filed by the
appellant to the execution of a decree dated 27 th January 2011
passed by the learned Civil Judge Junior Division at Baramati in RCS
No.170 of 2009 which has been confimed by the Appellate Court
vide judgment and decree dated 24th August 2015 in Civil Appeal
No.36 of 2011.
2. It may be mentioned that some of the original
defendants had challenged the said judgment and decree in an
N.S. Kamble page 1 of 5
22-sa-31-2021 with ia-207-2021
appeal which was dismissed. The said defendants sought to
challenge the said judgment before this Court in which there was a
dealy of about 5 years. This Court by an order dated 11 th February
2021 passed in Interim Application No.206 of 2021 in Second
Appeal Stamp No.1252 of 2021 had refused to condone the dealy.
Thus the said decreee has attained finality.
3. Coming to the present appeal, the case made out by the
appellant is that the Government had allotted a certain portion of
land situated in Gat No.390 (Old Gat No.924) which was part of a
gairan land to the homeless persons. The specific case made out is
that the grand father of the present appellant had constrcuted a
house in a portion admeasuring 1 R of the land in Gat No.390 which
is presently bearing house No.793. The contention is that under the
garb of the execution of the judgment and decree in RCS No.170 of
2009 the appellant is trying to execute and take possession of the
portion on which the house No.793 is standing.
4. The executing Court by an order dated 01st October
2019 (Below Exhibit-36) in RD No.20 of 2011 has refused to uphold
the objection and the application came to be dismissed. The
appellant challenged the same before the learned District Judge in
N.S. Kamble page 2 of 5
22-sa-31-2021 with ia-207-2021
MCA No.99 of 2019 which has been dismissed by the impunged
judgment and order dated 05th March 2020. Hence, this appeal.
5. I have heard Mr.Bodake, the learned counsel for the
appellant and Mr.Warunjikar, the learned counsel for the
respondent-decree holder. With the assistance of the learned
counsel for the parties I have gone though the record.
6. Mr.Bodake, the learned counsel for the appellant has
taken me through the record as well as the evidence of the parties
on record in the execution case. It is submitted that although
according to the appellant the house is situated in Gat No.390 the
decree holder is trying to execute the decree claiming that the said
constrcution by way of an encorachment is in Gat No.389. It is also
submitted that in the evidence the surveyor, in the suit, has admitted
that only land Gat No.389 was measured. It is submitted that unless
and until both the lands are jointly measured the suit could not have
been decreed.
7. Mr.Warunjikar, the learned counsel for the respondent-
decree holder has supported the impugned judgment. It is
submitted that both the Courts below have recorded finding of fact
N.S. Kamble page 3 of 5
22-sa-31-2021 with ia-207-2021
on the basis of the oral and documentary evidence on record. It is
submitted that in the absence of the finding being shown to be
perverse the appeal does not raise any substantial question of law.
8. I have considered the circumstances and the
submissions made. Admittedly the decree passed in RCS No.170 of
2009 is in respect of land Gat no.389. The evidence of the present
appellant shows that in the cross-examination the appellant had
admitted in clear terms that the house No.793 is standing in land
Gat No.390 (Old Gat No.924). It transpired during the course of the
hearing that land Gat no.390 (Old Gat No.924) is a gairan land in
which the government under the scheme had alloted certain
portions, including to the grant father of the present appellant on
which the house No.793 is said to be standing.
9. Both the Courts below on appreciation of the evidence
have found, and, to my mind rightly so, that the decree sought to be
exeucted is in respect of land Gat No.389. Even the grampanchyat
record which was referred to by the learned counsel for the
appellant during the course of the hearing today shows that house
No.793 is standing in Gat No.390 and not Gat no.389. In that view
of the matter the finding of fact recorded by the Courts below does
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22-sa-31-2021 with ia-207-2021
not suffer from any infirmity so as to give rise to any substantial
question of law. The appeal is without any merit and it is
accordingly dismissed, with no order as to costs.
Decree be drawn accordingly.
10. At this stage Mr.Bodake, the learned counsel for the
appellant has sought stay of this order. In view of the fact that the
House No.793 is held to be standing in Gat No.390 and not Gat
No.389 in respect of which the decree is sought to be executed, the
prayer for stay stands refused.
C.V. BHADANG, J.
N.S. Kamble page 5 of 5
