Tarachand S/O Keshaorao Rokde And ... vs Ramesh S/O Nathubuji Dhage (Dead) ...
2022 Latest Caselaw 7852 Bom

                                                         1                                  916.WP.4603-2022.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO. 4603 OF 2022
                 ( Shri Tarachand S/o Keshaorao Rokde & Ors.
                                      Vs.
           Shri Ramesh S/o Nathbuji Dhage (Dead),Thr. LR's & Anr. )

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. R.G. Kavimandan, Advocate h/f Mr. S. S. Deshpande, Advocate for the
                                  Petitioners.
                                  Mr. C.B. Dharmadhikari, Advocate h/f Mr. R.D. Dhande, Advocate for the
                                  Respondent Nos. 1(A) to 1(E).

                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 11th AUGUST, 2022.

Heard Mr. Kavimandan, learned counsel holding for Mr. Deshpande, learned counsel for the petitioners and Mr. Dharmadhikari, learned counsel holding for Mr. Dhande, learned counsel for the respondent Nos.1(A) to 1(E).

2. The petition challenges the order dated 23.04.2018 passed by the 7th Jt. Civil Judge Junior Division, Nagpur, whereby the objection filed by the judgment debtors under Section 47 of the Civil Procedure Code (for short "C.P.C.") claiming, that there is discrepancy between the property acquired by the decree holder and that mentioned in the Schedule to RCS No. 21/1982 (page 25) are different, and therefore, the decree is unexecutable as against the petitioners/judgment debtors on account of non 2 916.WP.4603-2022.odt

identification of the property. A further claim is raised, that the petitioners were entitled to the suit property under gift deed of the year 1931. The objections have been rejected by the learned executing Court by the impugned order.

3. Mr. Kavimandan, learned counsel for the petitioners submits, that the sale deed dated 04.12.1981, in favour of the decree holder/respondent No.1 makes a mention of Corporation house No. new 98 (old house No. 545) whereas, the description of the property in the Schedule to RCS No. 21/1982 (page 25) gives the description of the suit property as Corporation house no. 545-old ; 98-B-new, and therefore, there is discrepancy in the description of the property, on account of which, it is unidentifiable and the decree is not executable on that count. It is further contended, that the petitioners are in the occupation on account of the gift deed of the year 1931, and therefore, are entitled to continue the same, in light of which, the impugned order is liable to be quashed and set aside and the objection be allowed.

4. Mr. Dharmadhikari, learned counsel appearing for the respondent Nos.1(A) to 1(E) submits, that insofar as the plea regarding the gift deed of the year 1931 is concerned, the issue has been finally concluded by the judgment of this Court in Second Appeal No. 440/1994 dated 05.12.2007 (page 52), in which it has been held, that Tarabai had no entitlement on the basis of the gift deed of the year 1931. That apart, he submits, that the description of the suit property is 3 916.WP.4603-2022.odt

clear enough to identify the suit property, and therefore, the objection has been rightly been rejected.

5. A perusal of the description in the sale deed dated 04.12.1981 of the property indicates, that the property which is shown is Corporation house No. new 98 (old house No. 545) bearing C.T.S. No. 325. The Schedule of property at page 25 indicates the same property i.e. Corporation house No. 545-old C.T.S. No. 325 and new house No. 98-B. The boundaries given in the sale deed as well as that in the Schedule would indicate that they are identical, and therefore, there is no question of any misdescription of the property which is the subject matter of the sale deed dated 04.12.1981 and that which is described in Schedule to RCS No. 21/1982. The property is clearly identifiable based upon the old Corporation house number, the C.T.S. number and the boundaries, in view of which, I do not see any reason to interfere on this ground. Insofar as, the plea that the petitioners are in possession of the house No. 98-B on the basis of the gift deed of the year 1931 is concerned, the claim in this regard, is that the original donee, of the gift deed dated 09.04.1931 was Keshavrao and not Vasanta, which has been turned down in the judgment in Second Appeal No.440/1994, dated 05.12.2007 (para 22 page

69). Vasanta in turn, has on the basis of gift claiming title of the property has executed the sale deed on 04.12.1981 in favour of the plaintiff in RCS No. 21/1982, in light of which, the plea raised on the basis of the gift deed by the petitioners also does not survive. I therefore do not see 4 916.WP.4603-2022.odt

any merit in the petition, as the objections have been correctly considered and rejected by the executing Court. The petition is accordingly dismissed. No costs.

JUDGE

SD. Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:12.08.2022 14:34