1 rev2-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa REVIEW PETITION NO. 2 OF 2009 IN CIVIL REIVSION APPLICATION NO. 397 OF 2009 Dayanand K. Shetty .. Petitioner. v/s. Yusuf Abdulhusein Arsiwalla (Since deceased through his LR's) 1(a) Smt. Fizza Yusuf Arsiwalla & Ors. .. Respondents .... Mr. Dayanand K. Shetty, Appellant present in person. Mr. A. N. Nasikwala for Respondent Nos. 1 to 7. .... CORAM : R. S. MOHITE, J. DATE : JULY 26, 2010. P.C. This is review petition filed by original defendant no. 2 seeking review of this order dated 18th August, 2009 passed in Civil Revision Application No. 397 of 2009. 2. The first ground which is urged is that the decree cannot be executed against the premises which are presently occupied by the present defendant no. 2. Defendant no. 2 contends that he is in possession of two rooms admeasuring 11 feet x 10 feet 2 rev2-09 and 9 feet x 10 feet and an open space. As regards this contention, it is seen that in the plaint, the suit property was described as a terrace room situated on a property at 172-94, Dr. Babasaheb Ambedkar Road, Byculla, Bombay 400 027. The advocate for the plaintiff states that in the plaint, there is no area of the suit premises that was given. However, the record indicates that during his cross examination, the plaintiff admitted that there was only one room on the terrace and that the area of the said room was about 6 feet x 8 feet. This being the situation, the decree which has been obtained can only be executed in respect of the suit property which, according to the plaintiff was a small room on a terrace of area of about 6 feet x 8 feet. If defendant no.2 raise claim to any other area, and the decree is sought to be executed against such area, it is open for him to raises this by way of objections, in the execution proceedings or take independent proceedings in respect of any property which is not the suit property. It is recorded and registered by the advocate after taking instructions from one of the plaintiff who is present in court, stated that the room on the terrace, which is a suit property, is of an area of about 8 feet x 6 feet. 3 rev2-09 2. Another objection taken by defendant no. 2 is that his contention that the premises were public premises, was not dealt with. I find that as regards this aspect of the matter, there is a detailed discussion by the lower Courts. This contention was not taken in the original Written Statement, but was taken in the Additional Written Statement and the concurrent finding is that the railway authorities have conveyed open land to the original lessee, and that the structure was not of the ownership of the railways. This point was not considered because it was not argued. In any case, there is no substance in the review petition. 3. Hence, with the aforesaid discussion and clarification, the review petition is dismissed. [ R.S. MOHITE, J. ]