: 1 : 7444-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7444 OF 2011 Saraswati Tukaram Savade .. Petitioner v/s. Krishna Rakhamaji Patil & Ors. .. Respondents ......... Mr. Macchindra Patil for the petitioner None for the respondents ......... CORAM : R.Y.GANOO, J DATE : 16th SEPTEMBER,2011. P.C. : 1. The respondents herein are heirs of Rakhmaji M. Patil. Said Mr. Rakhmaji had filed R.C. Suit No.10 of 1976 in the Court of learned Civil Judge, Junior Division, Jath, Dist. Sangli for having re­conveyance of the land and possession of the land, which was entrusted to the petitioner as per transaction between said Rakhmaji and petitioner on 23rd February, 1971 being Mudatkharadi Conditional Sale. Learned Civil Judge, Junior Division, Jath, Dist. Sangli by his Judgment and Order dated 30th January, : 2 : 7444-11-wp=.sxw 1982 delivered a judgment in favour of present respondents as they were brought on record on account of death of said Rakhmaji pending aforesaid suit. By said decree the petitioner was directed to execute registered Sale Deed in respect of the suit land in favour of the respondents by accepting a sum of Rs.3,000/­. The petitioner was directed to hand over possession of suit land to respondents. It must be mentioned that in the synopsis of this petition itself, the petitioner has narrated as to how the matter was taken to superior Courts and as to how decree dated 30th January, 1982 is declared as final and binding upon the present petitioner. 2. After the decree dated 30th January, 1982 became final, the respondents filed an application for execution being Regular Darkhast No. 23 of 1982 in the Court of Civil Judge, Junior Division, Jath. It is to be noted that the land, which was entrusted in the hands of the petitioner was open plot of land and upon completion of the aforesaid Mudatkhat Conditional Sale transaction, the petitioner was obliged to redeliver the possession of the open land in question to the respondents. This will mean that the petitioner was fully aware of the fact that on one day, if the respondents pay off the loan, the open plot of land will have to be handed over to the respondents on account of completion of the transaction. At : 3 : 7444-11-wp=.sxw the stage of execution of the aforesaid decree and in the proceedings of R.D. No.23 of 1982, the bailiff gave a report that on the land in question, certain structures are standing and water pipelines are installed. He, therefore, came to the conclusion that the property in respect of which the decree is passed does not tally with the property at site and, therefore, he indicated that warrant of possession cannot be executed. Thereafter, the present respondents filed an application at Exh.91 in the aforesaid R.D. No.23 of 1982 and prayed for possession of the land in question. It was also admitted by the respondents in the said application at Exh.91 that the exact measurement of the land, which is required to be returned to the respondents have to be made and respondents had shown willingness to get the land measured and pay for the measurement charges. This application was not opposed by the petitioner and the learned Civil Judge, Junior Division, Jath on 20th August, 2011 below Exh.91 passed an order that the possession in respect of the land more particularly described in Item No.2 of the order i.e. the land, which is required to be handed over to the respondents be handed over after Deputy Superintendent of land record conducts survey, who came to be appointed as Nimtanadar. The respondents felt that there would be some obstruction from the petitioner and, therefore, the respondents vide Exh.92 filed an application for police : 4 : 7444-11-wp=.sxw protection. Learned Civil Judge, Junior Division by his order dated 20th August, 2011 granted the police protection for the purposes of execution of the decree, subject to payment of normal Government charges. These two orders dated 20th August, 2011 below Exh.91 and Exh.92 are challenged in this petition. 3. I have heard learned advocate Mr. Patil appearing on behalf of the petitioner. According to learned advocate Mr. Patil, the land in question was received by the petitioner as open plot of land and thereafter the petitioner Saraswati Patil had prior to the institution of the suit, constructed certain structures and installed pipelines. Learned advocate Mr. Patil, therefore, submitted that it is not now open for the Court to direct that the possession of the land should be given to the respondents. According to him, the construction which was carried out was not during the pendency of the suit. In support of his submission, he relied upon the judgment in the case of B. Gangadhar V/s. B.G. Rajalingam (1995)5 SCC 238. He relied upon the judgment and in particular paragraph 8. He submitted that the Supreme Court has observed that the construction carried out on the land, pending the suit, can be removed and for that no mandatory injunction is required to asked for. He submitted that the : 5 : 7444-11-wp=.sxw construction, which is presently existing on the land in question was carried out by the petitioner prior to the filing of the suit and such construction cannot be removed and the decree cannot be executed as it is and it is necessary for the respondents to approach the Trial Court and apply for modification of the decree. 4. I have perused the aforesaid judgment. I have considered the record. I have noted the submission of learned advocate for the petitioner that the construction was carried out after taking possession of the land and prior to filing of the suit. At this juncture, in a Writ Petition under Article 227 of the Constitution of India, I do not wish to go into the factual aspects of the matter as to whether the construction was carried out prior to the filing of the suit or during the pendency of the suit as in my view, that is not necessary to do so. It is to be noted that the petitioner entered into transaction and that the petitioner was fully knowing that at one point of time she will have to return the open plot of land to concerned persons, when the transaction would come to an end. In such situation, if the petitioner carried out construction on the land, even prior to the filing of the suit, she did it at the risk of getting it demolished if at all said land was to be returned to concerned persons. No doubt, the Supreme Court in the : 6 : 7444-11-wp=.sxw case of B. Gangadhar V/s. B.G. Rajalingam (Supra) has recorded that the construction, which is carried out pending the suit can be demolished. The fact in the present petition are different. It is clear that petitioner very well knew that she has to return the land to Rakhmaji or his successors if loan is repaid. Therefore, the construction carried out on the land was subject to the condition that if the land is to be returned, it should be returned as open. Now that the present respondents are entitled to execute a decree and have open plot of land, surely, merely because some structure is standing on the said land, the execution of decree cannot be declined. In my view, the contentions raised by the petitioner in the present petition, cannot be accepted. It is noted that learned Civil Judge, Junior Division has passed order dated 20th August, 2011 at Exh.91 and has observed that the land should be measured and the possession of the land should be given. I do not find any infirmity in the order passed by the learned Judge below Exh.91. No interference is required in the impugned order. So far as application under Section 92 and order below the same, I am of the view that the present respondents rightly felt that the petitioner may obstruct to execution of the decree and that his how the police protection was sought. In my view, there is no need to interfere in the order of grant of police protection. : 7 : 7444-11-wp=.sxw 5. For the reasons mentioned aforesaid, I hold that the petition cannot be entertained. Same is dismissed at the stage of admission. There shall be no order as to costs. 6. After the aforesaid order is passed, learned advocate for the petitioner sought stay of the execution of the decree. Request is rejected. (R.Y.GANOO, J.)