Bombay High Court
Pushpa Mahadev Jadhav And Ors. vs Milind Barma Dhage And Ors. on 18 August, 2025
2025:BHC-AS:35687
12 IA-9475-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL (ST) NO. 21342 OF 2025
WITH
INTERIM APPLICATION NO. 9475 OF 2025
(Stay)
Pushpa Mahadev Jadhav and Ors. .... Appellants/Applicants
Versus
Milind Barma Dhage and Ors. .... Respondents
***
Mr. Rajesh Kanojia i/b Mr. Rohan Surve, for Applicants/Appellants.
Ms. Babita P. Paday a/w. Mr. Dinesh R. Sonawane, Mr. Ramesh Golait
for Respondents.
***
CORAM : M.M. SATHAYE, J.
DATE : 18th AUGUST, 2025
P.C. :
1. Heard learned advocates for the parties.
2. The Appellants are Obstructionists who are challenging the
order dated 23.04.2025 passed in Notice of Motion No.1230 of 2021
filed in Execution Application No.5 of 2010. By the said impugned
order, the motion filed by the Appellants under Order XXI Rule 97 to
101 of Civil Procedure Code, 1908 ('CPC', for short) is rejected.
3. Few facts necessary for disposal of this appeal, are as under.
Respondent No.1 Original Plaintiff had filed Civil Suit No. 2478 of
1999 against Respondent Nos.2 to 4. The said suit is decreed by the
Judgment and Decree dated 29.04.2009 passed by City Civil Court at
Dindoshi, Goregaon (Borivali Division). Under the said decree, the
Defendants are directed to hand over peaceful and vacant possession
12 IA-9475-2025.doc
of the suit premises to the present Respondent No.1 - Plaintiff.
Defendant No. 3 filed first appeal in this Court, where consent terms
are filed by heirs of Defendant No. 3 agreeing to hand over
possession. The subject matter of the appeal is a room admeasuring
10' x 13', situated at Sarvodaya Chawl, Behrambagu, Link Road
Jogeshwari (W), Mumbai - 400 102.
4. Learned advocate for the Appellants submitted that the
Appellants are in possession of the suit premises and there have
documents in support of their claim such as ration card, electricity
bills, election identity cards, birth certificates, death certificate,
Aadhaar cards, driving licenses, voters lists etc. He also relied on
Annexure-II prepared under the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act of 1971 in which
entry no.232 reflects their names. He submits that the Execution
Court has not considered the documents in proper perspective in as
much as their possession could not be disputed.
5. Learned advocate for Respondent No.1 (contesting
Respondent-Plaintiff/Decree-holder) contends that this dispute
necessarily requires finding about independent right of the
obstructionist, which is not established. She points out that when
warrant of possession was issued in execution, the bailiff report
records that the present Appellants claimed to be 'tenants' of the suit
premises. She contends that the Appellants are acting in collusion
with Defendant Nos. 3a and 3b. It is submitted that documents relied
upon by the Appellants are of some other property. It is also
contended that original Defendant no. 3 was in possession of the suit
12 IA-9475-2025.doc
premises, who had made a statement that he will not part with
possession, but that statement is breached and the Appellants /
obstructionist are inducted illegally. She contends that there is no
merit in the obstructionists' claim and the appeal be dismissed.
6. I have considered the submissions and perused the impugned
judgment. It shows that the Appellants came before the Court with a
case that their father was the owner of the suit premises.
7. At the outset, it must be noted that in response to the
possession warrant, the Bailiff was informed that Appellants were
tenants. At that time, no rent receipt was produced, however, the
possession was not handed over and therefore obstruction was
recorded. In the present motion, the stand is changed and it is
claimed that the Appellants are owners of the suit premises through
their father. The documents mentioned above, which were relied
upon by the Appellants, are considered in paragraph no.9 of the
impugned judgment and it is rightly held that none of the documents
are the documents of ownership and therefore, not useful for holding
an independent right.
8. The Annexure-II relied upon by the Appellants, on close
scrutiny, indicates that in the last column, it is already recorded that
there is a dispute pending in the Court about the suit premises. In
that view of the matter, the said entry in the Annexture-II can not be
considered as conclusive proof of Appellants' independent right of
ownership or otherwise. Mere possession is not sufficient in a dispute
like the present one, which is under Order XXI Rule 97 to 101 of CPC,
12 IA-9475-2025.doc
necessarily requiring obstructionist to establish an independent right.
No explanation is forthcoming as to how they were inducted in the
suit premises.
9. In the aforesaid facts and circumstances, when the Appellants
have not proved any independent right of ownership to the suit
premises, as claimed and no documents have been shown to this
Court indicating any ownership to the suit premises, no fault can be
found with the impugned order.
10. There is no merit in the appeal. Hence, appeal and pending
interim application are accordingly dismissed. No order as to costs.
11. At the request of learned counsel for the Appellants, operation
of this order is stayed for a period of 4 weeks from today. It is
however clarified that as on today, no interim/ad-interim
stay/protection was granted by this Court.
12. All concerned to act on duly authenticated or digitally signed
copy of this order.
(M.M. SATHAYE, J.)
