Bombay High Court
Mohammad Ismail Mohammad Swaleh vs Haji Nisar Ahmed Shabbir Ahmed And Ors on 6 August, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:34107
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10847 OF 2025
Mohammad Ismail Mohammad Swaleh ...Petitioner
Versus
SANTOSH
Haji Nisar Ahmed Shabbir Ahmed and ors. ...Respondents
SUBHASH AND
KULKARNI
WRIT PETITION NO. 10848 OF 2025
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2025.08.08
19:04:30 +0530 Mohammad Sharif Mohammad Ishaq (since
deceased) through LRs. ...Petitioners
Versus
Haji Nisar Ahmed Shabbir Ahmed and ors. ...Respondents
AND
WRIT PETITION NO. 10657 OF 2025
Mohammad Ismail Mohammad Swaleh ...Petitioner
Versus
Haji Nisar Ahmed Shabbir Ahmed and ors. ...Respondents
AND
WRIT PETITION NO. 10734 OF 2025
Abdul Aziz Ishaq ...Petitioner
Versus
Haji Nisar Ahmed Shabbir Ahmed and ors. ...Respondents
Mr. Devendra Joshi, a/w Ashish Gabhale, for the Petitioner in
all WP.
Mrs. P. J. Gavhane, AGP for the State in WP/10848/2025.
CORAM: N. J. JAMADAR, J.
DATED : 6th AUGUST, 2025
Order:-
1. Heard the learned Counsel for the parties.
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2. These petitions under Article 227 of the Constitution of
India arise out of identical fact-situations, as all the petitioners
claim through Maulana Mohd. Ishaq and assert independent
rights in the suit properties which are the subject matters of the
execution petitions being (i) Regular Darkhast No.21 of 2016
instituted for the execution of the decree passed in Regular Civil
Suit No.237 of 2011, by the Appellate Court in Civil Appeal No.9
of 2014, (ii) Regular Darkhast No.23 of 2016 filed for the
execution of the decree passed in Regular Civil Suit No.283 of
2011, by the Appellate Court in Civil Appeal No.10 of 2014, (iii)
Regular Darkhast No.24 of 2016 filed for execution of the decree
in Regular Civil Suit No.520 of 2012, passed by the Appellate
Court in Civil Appeal No.12 of 2014 and (iv) Regular Darkhast
No.22 of 2016, filed for execution of decree in Regular Civil Suit
No.371 fo 2012, passed by the Appellate Court in Civil Appeal
No.11 of 2014.
3. The petitioners filed obstruction applications seeking a
declaration that the above decrees were not binding on the
petitioners. The Executing Court rejected the applications
observing inter alia that the petitioners had no independent
right or claim in the suit properties. The petitioners were
claiming through Maulana Mohd. Ishaq, whose rights stood
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determined by the orders passed by the District Court in the
above numbered Civil Appeals and the High Court in Civil
Revision Applications.
4. By the impugned orders the learned District Judge
dismissed the appeals concurring with the view of the Trial
Court.
5. Mr. Joshi, the learned Counsel for the petitioners,
submitted that the courts were in error in dismissing the
obstruction applications by failing to consider the nature of the
respective petitioners claim in a correct perspective. Attention of
the Court was invited to copy of the Sale Deed dated 22 nd
January, 1949, under which Maulana Mohd. Ishaq Mohd. Yusuf
had purchased the property bearing Survey No.1395. It was
submitted that Maulana Mohd. Ishaq was not party to the suits
in which the decrees came to be passed. Therefore, the courts
were in error in non-suiting the petitioners on the ground that
the petitioners had no independent right as the rights of
Maulana Mohd. Ishaq were already determined.
6. I find it difficult to accede to the submissions of Mr. Joshi.
The judgment of this Court in Civil Revision Applications
No.343 of 2016, 344 of 2016, 346 of 2016 and 347 of 2016, in a
sense, seals the issue sought to be raised by the petitioners.
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This Court noted that on 16th February, 1977 an application was
made by Maulana Mohd. Isahaq Mohd. Yusuf, through whom
the petitioners claim, and his brother Mohd. Ibrahim Mohd.
Yusuf, Mohd. Akhub Mohd. Yusuf and Shabbir Ahmed Mohd.
Yusuf, the father of plaintiff No.1, to effect partition of the
property bearing Survey No.1395. In the said application, the
area allotted to each of the brothers was carved out as under:
Sr. No. Name Area allotted
1. Maulana Mohd. Isahaq Mohd. Yusuf 10008 sq. ft.
2. Mohd. Ibrahim Mohd. Yusuf 5741 sq.ft.
3. Mohd. Akhub Mohd. Yusuf 8025 sq. ft.
4. Shabbir Ahmed Mohd. Yusuf, father of 6888 sq. ft.
plaintiff No.1
7. In that context, this Court observed in paragraph 16 as
under:
"16. Perusal of Exhibits 39 and 40 as also the extract of
Property Register Cards Exhibits 41 and 42 clearly establish
that in the year 1977, the partition was effected amongst four
brothers and an area admeasuring 6888 sq. ft. out of total one
acre and ten gunthas of City Survey No.1395/7 was allotted to
Shabbir Ahmed Mohd. Yusuf. Defendants No.1 and 2 have not
challenged order dated 4.3.1977 passed by the City Survey
Officer. That order was passed in pursuance of the application
made on 16.2.1977 and after recording the statements. In view
thereof, I do not find that the District Court committed any
error in holding that the plaintiffs have established partition as
also that an area admeasuring 6888 sq. ft. was allotted to
Shabbir Ahmed Mohd. Yusuf during the partition of 1977."
8. In the face of the aforesaid decision, which has attained
finality, the myriad contentions of the petitioners in their
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endeavour to delay and defeat the execution of the decrees
passed in the respective suits, do not deserve any consideration
as all the petitioners claim through Maulana Mohd. Ishaq. This
Court has categorically held that an area admeasuring 6888 sq.
ft. was allotted to Shabbir Ahmed Mohd. Yusuf, the predecessor-
in-title of the plaintiff - respondent, in the partition effected in
the year 1977. Thereafter Maulana Mohd. Ishaq had no
subsisting right in the said property. Resultanlty, the
petitioners, who claim though Maulana Mohd. Ishaq, have no
semblance of right in the suit properties. There is no infirmity in
the impugned orders.
9. Thus the petitions do not deserve to be entertained.
10. The petitions stand dismissed.
[N. J. JAMADAR, J.]
