IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.4071 OF 2009 Taffazull Ahmed Abdul Rauf Umar ..Petitioner Vs. Akhatri Mohammad Usuf Dalal and ors. ..Respondents Mr.A.M.Kulkarni , Advocate for petitoner. Mr.Nitin Mulye, Advocate for respondent nos.1 and 6. CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd April, 2009. P.C. 1 Heard Mr.Kulkarni, learned Advocate for petitioner and Mr.Mulye, learned Advocate for respondent nos.1 and 6. The petitioner is aggrieved by the order passed in obstructionist proceedings. By the concurrent orders, delivered during the course of obstruction raised by the petitioner to the execution of a Decree for the possession, the courts below have found that the obstruction raised has no merit and substance. 2 The petitioner had obstructed the Execution of the Decree for possession passed in favour of Respondent Nos.1 to 4 herein before the court below by filing his application that he is in possession of the suit property from 1971. He has stated that one Azizul Haque had inducted him as he was working in his tailoring shop. Thereafter, the petitioner shifted to Pune with his family. He got an independent job. Azizul Haque, thereafter, inducted him as a tenant in two rooms. He started residing there. He has stated that he acquired Tenancy Rights in respect of the premises which was in his physical possession and occupation. This obstruction was raised on 13th March, 2003 and in support of the said obstruction certain documents came to be filed. 3 The decree holder replied to this claim and stated that the thirty party applicant/petitioner was never resided in the suit property. He was never in possession of two rooms on ground floor of the suit property. He denied each and every statement made in application and, on the other hand, contended that even the judgment debtor was not residing in the suit premises. After setting out the entire controversy culminating in the decree, the decree holder pointed out that the obstruction is nothing but an attempt to delay and obstruct the execution of decree of possession in his favour. 4 On the pleas raised, the court below permitted the parties to lead evidence and the court below has given a finding that the obstructionist has failed to prove that he is sub tenant in the premises since 1971. Thus, it held that the petitioner failed to prove his case that he has an Independent Right, title and Interest in the subject premises. Holding thus, the petitioner’s Application under Order 21 Rule 99 of the Code of Civil Procedure was dismissed. 5 Mr.Kulkarni appearing for the obstructionist – petitioner contended that the courts below have failed to appreciate that the petitioner – obstructionist was in possession of the two rooms. The two rooms were identified in the Commissioner's report who has confirmed the possession. He has stated that if this was not the position, the decree holder need not institute another suit against the present petitioner. Mr.Kulkarni further contended that suit No.735 of 1997 in which decree came to be passed, was filed against one Nurul Haque and Ahmed Sirajuddin Khan. That suit was for the possession of property which has been described in paragraph no.1 of the plaint as a room admeasuring 10 X 12. In such circumstances, when the petitioner – obstructionist was in possession of two rooms, then, the version of the petitioner ought to have been accepted as it was consistent with the documents including the leave and licence agreement which was executed in his favour by Aziz-ul-Haque. In these circumstances, the courts below have failed to appreciate that there is statutory protection given to the petitioner which cannot be taken away by the decree holder on vague pleas. For all these reasons Mr.Kulkarni submits that order under challenge be set aside. 6 Mr.Mulye, on the other hand, invited my attention to the concurrent findings and contended that the courts below have rightly disbelieved the version of the petitioner – obstructionist. The application does not give any particulars with regard to possession of property nor it refers to any title which can be said to be independent to that of the judgment debtor. The judgment debtor was examined but he has admitted the fact that the suit property was not in possession of the obstructionist – petitioner as sub tenant. For all these reasons Mr.Mulye submitted that the petition be dismissed. 7 Having perused the relevant materials including the judgments under challenge, I am of the opinion that it will not be possible for this Court to re- appreciate and re-appraise the evidence. This Court cannot reverse the judgments under challenge by interfering with the findings unless they are perverse. Trial Court has held that the obstructionist – petitioner examined himself and Azizul Haque. The application which was filed by the petitioner does not give any details of the propert, leave alone and the boundaries etc. The trial Court and the lower appellate Court have held that said Azizul Haque had stated that he was residing as a tenant in the suit premises and that he is in occupation of two rooms each ad measuring 6 x 29 ft. and 7 x 14 ft. or 15 ft. approximately. Both rooms are not adjoining to each other. He was paying monthly rent in respect of these two rooms and he resided there from 1965 to 1971. Thereafter, he had delivered possession of both those two rooms to his servant Tafazzul Ahmed. He entered into an agreement of Leave and Licence with him. It is stated that this agreement of Leave and Licence was not produced by Azizul Haque but by the petitioner – obstructionist. Even, this leave and licence agreement nowhere shows the boundaries of premises which were allowed to be occupied by the said Azizul Haque. On the other hand the decree holder pointed out that the description of property is not set out so as to enable the courts to adjudicate upon the rights of the parties. Azizul Haque and Noorul Haque are real brothers. Noorul Haque is the Judgment Debtor in the proceedings. Thus, it is a case of the petitioner being put up by the Judgment Debtor. This findings of fact has been arrived at by the courts below and I do not see any reason to interfere with the same. More so, as it is based on the oral and documentary evidence, cogent and satisfactory reasons have been assigned by the courts below while refusing to uphold the pleas of the petitioner – obstructionist raised in the application. The petitioner's case that he was a sub tenant of Azizul Haque and was residing in the premises under leave and licence agreement has not been proved and the courts below have rightly held that the obstruction raised has no merit and must be rejected. 8 In the light of the findings of fact there is no reason to interfere in the writ jurisdiction of this Court. Writ Petition is therefore dismissed. 9 Mr.Kulkarni appearing for the petitioner has stated that there was ad- interim relief which was granted on 20th April, 2009 and the same be continued continued for a period of three weeks. His request is opposed by Mr.Mulye appearing for respondents. He states that the obstructionist is obstructing the execution of decree without having any right. The obstructionist is servant of judgment debtor and therefore no protection be granted to him. 10 Considering that the ad-interim relief has been granted on 20th April, 2009 and the petition has been taken for admission today, interest of justice would be sub-served if the same is continued for a period of three weeks. The ad-interim relief is, therefore, continued for a period of three weeks. [S.C.DHARMADHIKARI, J] *4071-09