Bombay High Court

Hiralal Surajkaran Surana vs Madhav Kashinath Nikkumbh Since Dec Thr ... on 4 March, 2025

Author: N. J. Jamadar

Bench: N. J. Jamadar

2025:BHC-AS:10201
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                                                                                                 Santosh

                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                CIVIL APPELLATE JURISDICTION


                                              WRIT PETITION NO. 12864 OF 2023

                          Hiralal Surajkaran Surana                                 ...Petitioner
                                                     Versus
                          Madhav Kashinath Nikumbh (since
                          deceased) through LRs.
                          1a. Bhagirath Madhavrao Nikumbh
                          1b. Nandkumar Madhav Nikumbh
                          1c. Dilip Madhav Nikumbh                             ...Respondents

                          Mr. Ramesh Soni, a/w Tushar Momiayah, for the Petitioner.
                          Mr. N. R. Bubna, for the Respondents.

                                                              CORAM:   N. J. JAMADAR, J.
                                                              DATED:   4th MARCH, 2025

                          JUDGMENT:

1. Rule. Rule made returnable forthwith and with the

consent of the learned Counsel for the parties heard finally.

2. The petitioner - judgment debtor takes exception to the

legality, propriety and correctness of an order dated 4 th August, SANTOSH SUBHASH 2023 passed by the learned Civil Judge, Manmad in Execution KULKARNI

Application, RD/1/2016, thereby issuing a possession warrant

for handing over possession of encroached portion of CTS

No.327/B in terms of clause (c) of the decree passed in

RCS/65/2004 by demolishing the structure, if any.

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3. A usual dispute of encroachment has resulted in multiple

proceedings; this being the third round before this Court. The

background facts, thus, deserve to be noted in a little detail:

3.1 The petitioner - judgment debtor instituted a suit being

RCS/65/2004 for declaration and injunction against the

respondents and their predecessor-in-title. It was the case of the

petitioner that CTS No.327 was originally owned by

Pandharinath Shimpi (Nikumbh) and Tejmal Rajmal Hiran. In

the year 1981, the petitioner purchased an area admeasuring

83.06 sq.mt. from Shantilal Tejmal Hiran, under a registered

Sale Deed, and the said property was numbered in the City

Survey Record as CTS No.327/A. The respondents were the

successors in interest of Pandharinath. The respondents held

an area admeasuring 84.4 sq. mtrs., out of CTS No.327 which

was renumbered as CTS No.327/B. There was a lane-cum-open

space between CTS No.327/A and 327/B. The plaintiff had

been in use and occupation of the said lane-cum-open space.

3.2 The respondents got the said CTS No.327/A and 327/B

measured and started to cause obstruction to the possession

and enjoyment of the plaintiff over the said lane- cum-open

space. Hence, the plaintiff sought a declaration that the lane-

cum-open space situated between CTS No.327/A and 327/B

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was the property of the plaintiff and the defendants had no right

to cause obstruction to the possession and enjoyment of the

plaintiff over the said area.

3.3 The respondents resisted the suit by filing the written

statement and counter-claim. It was submitted that the lane-

cum-open space situated on the eastern side of CTS No.327/B

was the part and parcel of CTS No.327/B. In fact, the plaintiff

had erected construction by committing encroachment over an

area admeasuring 15 ft. X 30 ft. over CTS No.327/B.

3.4 By a judgment and order dated 24 th March, 2008, the

learned Civil Judge was persuaded to dismiss the suit and allow

the counter-claim filed by the defendants - respondents and

grant mandatory injunction in terms of prayer clause (c) of the

counter-claim. The learned Civil Judge held that the lane-cum-

open space was part and parcel of CTS No.327/B and the

plaintiff had committed encroachment over CTS No.327/B and

thus the defendants were entitled to the relief of perpetual and

mandatory injunction to remove the encroachment as prayed for

in the counter claim.

3.5 Aggrieved the plaintiff preferred an appeal being Regular

Civil Appeal No.29 of 2008. The learned District Judge,

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Malegaon, found no merit in the appeal and, thus, the first

appeal came to be dismissed.

3.6 The plaintiff assailed the said judgment and decree in

Second Appeal No.238 of 2015. By an order dated 30 th April,

2015 this Court was also persuaded to dismiss the second

appeal observing inter alia that the findings recorded by the

courts below were based on evidence and there was no error in

the orders passed by the courts below.

3.7 While dealing with a submission on behalf of the plaintiff

that the courts below were not justified in allowing the counter-

claim in terms of prayer clause (c), this Court observed as

under:

"13. This brings to me to the submission of Mr. Soni that the Courts below were not justified in allowing the counter claim in terms of prayer clause (c). It is clarified that whatever encroachment is made by the plaintiff in the disputed lane which is held to be a part and parcel of C.T.S. No.327-B, shall be removed by the plaintiff at his own costs within 12 weeks from today. Order accordingly."

3.8 The aforesaid clarification by this Court is at the core of

the controversy that arose during the execution proceeding.

3.9 The Executing Court, by an order dated 8th October, 2020

ordered issue of possession warrant for handing over possession

of suit lane and by demolishing double storied RCC

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construction admeasuring 15 ft. X 30 ft. The said order was

assailed by the petitioner in WP(St)/95168/2020.

3.10 Referring to the aforesaid observation in paragraph 13 of

the order dated 30th April, 2015, passed in Second Appeal

No.238/2015, the said petition was disposed by the following

order:

"2. In view of observations made by the learned Single Judge of this Court in order dated 30/04/2015 passed in Second Appeal No.238 of 2015 particularly para 13, the only clarification which is warranted in the order impugned particularly in para 1 is, the said execution be restricted to part and parcel of C.T.S. No.327-B. The learned Counsel for decree-holder also consents for the same in view of observations made in second appeal referred supra."

3.11 After the aforesaid order, the Executing Court passed an

order on 16th December, 2021 directing issue of possession

warrant to hand over possession of suit property only to the

extent to CTS No.327/B.

3.12 The decree-holder, again preferred an application to issue

the possession warrant in terms of the decree passed by the

Trial Court. By the impugned order, the Executing Court was

persuaded to issue the possession warrant for the removal of

encroachment to the extent of 15 ft. X 30 ft. as shown in clause

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4. Being aggrieved, the petitioner has again invoked the writ

jurisdiction.

5. Having regard to the aforesaid nature of the controversy,

by an order dated 6th May, 2024 this Court appointed Mr. Pandit

Kasar, Advocate, as a Court Commissioner, to inspect the suit

property, carry out measurement and submit a report as to

whether there is an encroachment to the extent of 15 ft X 30 ft.

over CTS No.327/B. Pursuant to the said order, the learned

Commissioner has submitted a report. The learned

Commissioner has inter alia reported that there is no

encroachment over CTS No.327/B to the extent of 15 ft. X 30 ft.

On the contrary, the holders of CTS No.327/B were in

possession of an excess area of 7.3 sq. mtrs.

6. An affidavit has been filed on behalf of the respondents to

deal with the inferences drawn by the learned Commissioner.

7. In the wake of the aforesaid material, I have heard Mr.

Soni, the learned Counsel for the petitioner, and Mr. Bubna, the

learned Counsel for the respondents, at some length. The

learned Counsel took the Court through the pleadings and the

material on record including the judgments and orders passed

by the courts in the various proceedings.

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8. Mr. Soni, learned Counsel for the petitioner, would urge

that the Executing Court has transgressed the limits of the

decree by directing demolition of a two storied RCC structures

admeasuring 15 ft. X 30 ft. In the process, the Executing Court

has completely lost sight of the import of the orders passed by

this Court in Second Appeal No. 238 of 2015, dated 30 th April

2015, especially paragraph 13 thereof (extracted above), and the

order passed by this Court in Writ Petition (St) No.95168 of

2020. Laying emphasis on the order dated 9 th February 2021,

whereby this Court had directed that the execution be restricted

to part and parcel of CTS No.327/B, Mr Soni strenuously

submitted that the Executing Court was in gross error in

ordering the demolition of the structure, which lawfully stands

on CTS No.327/A. It is a clear case of Executing Court

venturing to execute the decree well beyond the terms of the

decree and the clarification issued by this Court in Second

Appeal No.238/2015 and Writ Petition (St) No.95168 of 2020.

9. Mr. Soni would further urge that in pursuance of the order

passed by this Court, the decree has been fully complied with.

The portion of lane-cum-open space has already been handed

over to decree-holders. By taking undue advantage of the

decree, the decree-holders intend to demolish a lawfully erected

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structure on CTS No.327/A, with an oblique motive. Therefore,

the impugned order deserves to be quashed and set aside.

10. In opposition to this, Mr. Bubna, the learned Counsel for

the respondents, stoutly submitted that the decree-holders have

been deprived of the fruits of the decree passed in the year 2008

on account of the proceedings filed by the petitioners agitating

the very same grounds. Taking the Court through the judgment

of the Trial Court, Mr. Bubna strenuously submitted that the

very contentions which are now sought to be rendered were

urged before the Trial Court and expressly repelled. The Trial

Court has, in terms, held that the lane-cum-open space forms

part and parcel of CTS No.327/B and the plaintiff had

committed encroachment over the said portion and, thus, the

counter-claim was allowed in terms of prayer clause (c). The

said decree was upheld by the First Appellant Court. In Second

Appeal, this Court found no error in the determination by the

Courts below. The Second Appeal was thus dismissed.

11. Thus, the endeavour of the petitioner to read the

observations in paragraph 13 of the order dated 30 th April 2015

passed in Second Appeal No. 238 of 2015 to mean that the order

of the Trial Court was varied and modified, cannot be

countenanced. On the contrary, this Court has directed that the

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petitioner shall remove whatever encroachment he had

committed over the disputed lane, which is part and parcel of

CTS No.327/B. The petitioner has been taking undue advantage

of the said clarification to defeat the decree passed in favour of

the respondents, urged Mr. Bubna.

12. I have given careful consideration to the rival submissions.

The fact that the decree, passed in the counter claim directing

the plaintiff - petitioner to remove encroachment admeasuring

15 ft. X 30 ft. over the the property, which belongs to the

defendants, has attained finality, can hardly be contested. The

controversy between the parties revolves around the contours of

the said decree. Was it restricted to the lane-cum-open space or

included the constructed portion?

13. If the prayer clause (c) of the counter claim is considered,

the area of constructed portion falls within the ambit of the

decree. It is in that context, the import of the clarification

issued by this Court in paragraph 13 of the order passed in

Second Appeal No.238/2015 deserves to be appreciated.

14. This Court, in exercise of limited supervisory jurisdiction

against an order passed in execution proceeding, is not expected

to delve deep into the factual controversy. The limited exercise

which this Court can legitimately resort to is to ascertain

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whether the executing Court is executing the decree within the

bounds of the terms of the decree.

15. In my view, the correct course, in a situation of the

present nature, is to find out the correct findings of facts

recorded by the Courts below and then examine the import of

the clarification of this Court in Second Appeal No.238/2015.

16. It is trite that the First Appellate Court is generally

considered a final court on facts. In the case at hand this Court

finds that judgment of the learned District Judge in RCA No.29

of 2008 correctly encapsulates the controversy and rightly

resolves the same based on the report of cadestal surveyor. The

observations of learned District Judge in paragraph 11, 14 and

15 address and resolve the core controversy. They read as under.

"11. It is pertinent to note that the length and width of the house bearing C.T.S.No.327A or 327B is neither mentioned in the sale deeds nor mentioned in the property extracts nor mentioned by parties in their respective pleadings nor they deposed about it in their respective evidence. In such circumstances, in order to find out the encroachment, only single way is available to get both the properties to be measured by Government Surveyor.

......

14. In the case in hand, as per the application given by the parties, the learned trial Court has appointed the Taluka Inspector of Land Records, Nandgaon as a court commissioner to carry out the measurement work of both the properties and submit his report along with map. Accordingly, the Court commissioner has carried out the commission work and submitted his report along with Map Exhibit 150. Appellant has also examined Nilkanth Bhatar Patil as his witness No.4 at Exh. 146 who deposed that he was attached to the office of Taluka Inspector of Land Records, Manmad, as Surveyor from 2003 to 2006. As the court commissioner, before to begin his commission work, he

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issued notices to both the parties by R.P.A.D. and accordingly both the parties were present on the spot on appointed day. In presence of both the parties, he obtained the measurements and prepared map Exh. 150 accordingly. He opined that the said portion admeasuring 9 Mtrs. X 1.50 Mtrs. Is the part and parcel of the house property bearing C.T.S.No.327B. Neither the appellant nor the respondents have challenged the accuracy of said map Exh. 150. As mentioned earlier, said map clearly shows that the suit portion admeasuring 9 mtrs x 1.50 mtrs. Is the part and parcel of the property of respondents bearing C.T.S.No.327B, however, said portion is in possession of appellant. I do not find any reason to discard the evidence of this witness or the map prepared by him. On the other hand, neither party has challenged the accuracy of said map. Relying on the map Exh. 150, it is clear that the respondents have proved that the said portion is the part and parcel of their house property. Hence, I answer the point No.1 in the negative while point No.2 in the affirmative.

Point Nos.3 and 4 together :

15. It is already hold that the appellant has failed to prove that the suit portion admeasuring 9 mtrs x 1.50 mtrs.

Situated at the eastern side of his house is the part and parcel of his property. On the contrary, respondents have came with the case that the appellant has encroached on their property and also claimed possession of said portion. As the Respondents have claimed the relief in respect of the said portion although it is in possession of the appellant, however, appellant is not entitled to get the relief of injunction as sought. On the contrary, the evidence on record clearly indicates that the said portion admeasuring 9 mtrs. X 1.50 mtrs is part and parcel of the house property of respondents bearing C.T.S.No.327B. ....."

17. Evidently, the learned District Judge based his findings on

the report of the cadestal surveyor (Exhibit-150). The learned

District Judge observed that the report of cadestal surveyor

revealed that an area admeasuring 9 mts. X 1.50 mtrs was part

and parcel of house property bearing CTS No.327/B. Neither

the appellant - petitioner nor the respondents had challenged

the accuracy of the said map (Exhibit-150). The portion

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admeasuring 9 mts. X 1.50 mtrs. was part and parcel of the

property bearing CTS No. 327/B. However, the said portion was

found in possession of the appellant-petitioner. On that premise,

the leaned District Judge upheld the judgment and decree

passed by the Trial Court.

18. It would be contextually relevant to note the manner in

which this court approached the controversy in Second Appeal

No.238 of 2015. This Court again relied upon the map (Exhibit-

150) extensively and arrived at the conclusion that there was

encroachment by the appellant over the portion CTS No.327/B.

19. The observations in paragraphs 9, 10 and 12 of the order

passed by this Court in Second Appeal No.238 of 2015 deserve

to be extracted.

"9. I have considered the rival submissions made by the learned counsel appearing for the parties. I have also perused the material on record. As noted earlier, Mr Nilkanth Patil was appointed as Court Commissioner. It is not in dispute that after giving notices to the parties, he visited the disputed site in the presence of the plaintiff and the defendants. He has accordingly prepared Map at Exhibit-150 as also submitted report. He recorded statements of witnesses and had drawn panchnama. Perusal of the Map at Exh.150 and the legends therein clearly show that the suit lane is part and parcel of C.T.S. No.327-B.

10. Mr. Soni submitted that the Court Commissioner cannot determine issue of title. The Courts below decided the issue of title only on the basis of the report of the Court Commissioner. I do not find any merit in this submissions. Perusal of the evidence on record and in particular the Maps at Exhibits 150, 151 and 119 clearly shows that the disputed lane does not form part of C.T.S. No.327-A, rather it is clearly part and parcel of C.T.S.No.327-B. Perusal of Map at Exh.150 and in particular legends therein clearly shows that the suit lane is part and parcel of C.T.S. no.327-B. Legend no.1 shows

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boundaries of C.T.S. number as per the boundaries of City Survey Record. Legend no.2 shows dotted red line is the disputed boundary between C.T.S. no.327-A and B. Legend No.3 shows portion in red colour where window of defendants opening towards C.T.S. no.327-A is located. Legend no.6 shows the suit lane over which ownership dispute is raised. Having regard to these legends as also shape of C.T.S. no.327- A (rectangular portion) and C.T.S. No.327-B (square portion), I am more than satisfied that the suit lane is part and parcel of C.T.S. No.327-B. ......

12. After considering the material on record, I do not find that the Courts below committed any error in dismissing the suit. The plaintiff was not in a position to demonstrate that the findings recorded by the Courts below are perverse being based on no evidence or that they are contrary to the evidence on record. The findings recorded by the Courts below are based upon evidence on record. In view thereof, no substantial question of law arises in this Appeal. Hence, Appeal fails and the same is dismissed. In view of dismissal of Appeal, Civil Application No. 510 OF 2015 for stay does not survive and the same is disposed of."

20. The aforesaid consideration, especially in paragraph 10,

indicates that this Court after reference to the map (Exhibit-

150) recorded a categorical finding that the suit lane was part

and parcel of CTS No.327/B and there was encroachment by

the appellant - petitioner over the portion of the property

forming part of CTS No.327/B.

21. The subsequent clarification in paragraph 13 (extracted

above) cannot be read in isolation and torn out of context. It

was the submission on behalf of the petitioner that the courts

below were not justified in allowing the counter-claim in terms of

prayer clause (c). In that context, this Court clarified that,

whatever encroachment is made by the plaintiff in the disputed

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lane which is held to be a part and parcel of CTS No.327/B

shall be removed by the plaintiff. By the aforesaid clarification,

this Court cannot be construed to have diluted the effect of the

findings regarding the encroachment by the petitioner, with

reference to the map (Exhibit-150).

22. Properly construed the aforesaid clarification would mean

that, the plaintiff - petitioner was found to have committed

encroachment over the area shown in the map (Exhibit-150) i.e.

an area admeasuring 9 mtrs. X 1.50 mtrs. If the judgment and

order of the first Appellate Court and the order passed by this

Court in Second Appeal dated 30 th April, 2015 are considered in

juxtaposition with each other, in my considered view, what has

been proved is the encroachment by the plaintiff over the

property bearing CTS No.327/B to the extent of 9 mtrs. X 1.50

mtrs. as shown in the map (Exhibit-150) and that has been

ordered to be removed. Therefore, the decree deserves executed

to that extent. The petition, therefore, deserves to be partly

allowed.

23. Hence, the following order:

:ORDER:

(1)    The petition stands partly allowed.






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(2)    The impugned order stands modified to the following

effect:


       (a)      The possession warrant be issued for removal of

encroachment, including constructed portion, if any, over CTS

No.327/B, admeasuring 9 mtrs. X 1.50 mtrs. as shown in the

map (Exhibit-150).

(b) The Executing Court is at liberty to pass further

orders to seek the assistance of the Deputy Superintendent of

Land Records to demarcate the area in accordance with the map

(Exhibit-150) and its removal with the assistance of the officers

of the local body and the police machinery.