ash 1 wp-3931.02withCA-2342.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3931 OF 2001 WITH CIVIL APPLICATION NO.2342 OF 2011 IN WRIT PETITION NO. 3931 OF 2001 Tarabai Vishwanath Jadhav, deceased through her heirs and legal representatives - 1. Vishwanath Sitaram Jadhav, 2. Chhaya Uttam Thorat, 3. Sou. Anuradha Ganesh Waghmare, 4. Sou. Maya Bhanudas Alat, 5. Sou. Bharati jagannath Raskar 6. Sou. Anita Laxman karandweal, 7. Sou. Geeta Subhash Gholap, 8. Sou. Neeta S. Tamane, & 9. Gopal Vishwanath Jadhav. .. Petitioners (Heirs of original Plaintiff ) Vs 1. Dyaneshwar Bhau Bheke, ) Aged 56 years, ) 2. Suman D. Bheke, ) Aged 44 years, ash 2 wp-3931.02withCA-2342.11 3. Tukaram Bheke, ) Aged 58 years, ) 4. Sulochana T. Bheke, ) Aged 47 years, ) All residing at Room No.12, ) Tarabai Vishwanath Jadhav Chawl, ) Behind Golibar Maidan, ) Ghatkopar (West), Mumbai – 400 086. ).. Respondents (Obstructionists) -- Shri B.K. Raje for the Petitioners. Shri A.S. Uraizee for the Respondents. -- CORAM : A.S. OKA, J DATED : 14TH DECEMBER, 2011 ORAL JUDGMENT : . Heard learned counsel appearing for the Petitioners and the learned counsel appearing for the Respondents. 2. This Petition arises out of the orders passed by the Courts below in the proceedings initiated under Rule 97 Order XXI of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code”). The Petitioners are the legal representatives of the original Plaintiff. The predecessor of the Plaintiff filed a suit for eviction against one Ramchandra Pandurang Hande in respect of the suit premises being Room No.12 situated at Tarabai Vishwanath Jadhav Chawl, more particularly described in the Plaint. The case of the original Plaintiff was that the said Ramchandra Pandurang Hande was a monthly tenant ash 3 wp-3931.02withCA-2342.11 who failed and neglected to pay arrears of rent even after service of the notice of demand. The suit was decreed ex parte. Initially, the said Ramchandra had taken out a notice for setting aside the ex parte decree. The notice taken out for setting aside the ex parte decree was dismissed. As the present Respondents obstructed in execution of the decree, Obstructionist Notice under Rule 97 of Order XXI of the said Code was taken out by the Petitioners. Notice was made absolute by the learned Judge of the Court of Small Causes. An Appeal was preferred by the Respondents before the Appeal Bench of the Court of Small Causes. The Appeal has been allowed and the order of the Trial Court has been set aside. 3. Learned counsel appearing for the Petitioners has taken the Court through the impugned Judgment and Order. He submitted that the decree was passed in a suit under Section 28 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 ( hereinafter referred to as “the said Act of 1947”) and therefore, though the issue of title was not relevant, the Appeal Bench has erroneously put the burden on the Petitioners to prove the ownership of the original Plaintiff. He submitted that as the Petitioners have allegedly failed to prove their ownership, the Appeal has been allowed. He submitted that this was a clear case where the obstructionists were claiming through the judgment debtor. He, therefore, submitted that the Appeal Bench of ash 4 wp-3931.02withCA-2342.11 the Court of Small Causes has committed an error by interfering with the order of the Trial Court. 4. The learned counsel appearing for the Respondents invited attention of the Court to the cross-examination of the original Plaintiff. He pointed out that the original Plaintiff admitted that the suit premises has been constructed on the land belonging to the Central Government. He submitted that the original Plaintiff also admitted that the suit premises was constructed without any permission of the Competent Authority. He pointed out that the original Plaintiff admitted that the occupants of the suit premises have formed a co-operative society of which the first obstructionist (first Respondent) is a member. He pointed out that the original Plaintiff admitted that even she had applied for membership of the said Society. Inviting attention of the Court to various documents annexed to Civil Application No.2342 of 2011, he submitted that the said documents which have come into existence subsequently show that a co-operative society has been formed by the occupants of various structures on the land on which the suit premises is situated. He pointed out that in fact certain amounts have been paid by the first Respondent to Maharashtra Housing and Area Development. He submitted that apart from the fact that the Respondents have proved their independent right in respect of the suit premises, in view of the law laid down by this Court in the decisions in ash 5 wp-3931.02withCA-2342.11 the case of Zunshi Bhanu Yadav v. Tukaram Raghoo Chavan (1993 Mh.L.J. 859 ) and M/s. Lockwood Industrial and Transport Services Vs M/s. Victoria Timber Supplying Co. (2009(6) All MR 332), the provisions of the said Act of 1947 were not applicable inasmuch as admitted position is that the suit premises has been unauthorisedly constructed on a land vesting in the Central Government. He submitted that as the provisions of the said Act of 1947 were not applicable to the suit premises, the Court of Small Causes had no jurisdiction to entertain the suit and the decree is accordingly nullity. He submitted that in the obstructionist proceedings, the Respondents examined Ramchandra Hande to show that he was never a tenant of the predecessor of the Plaintiff and he never admitted the landlord/tenant relationship. He pointed out that Ramchandra denied that he was a tenant of the original Plaintiff. He, therefore, submitted that this was a clear case where the decree was nullity. 5. I have carefully considered the submissions. The Respondents applied under Rule 97 of Order XXI of the said Code. Rule 101 of Order XXI of the said Code reads thus:- “101. Question to be determined.-- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, Court dealing with the application, and not by a separate suit and ash 6 wp-3931.02withCA-2342.11 for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.” The Rule 98 of Order XXI of the said Code reads thus :- “98. Orders after adjudication.-- (1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub- rule (2), -- (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment- debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. The Court may also order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly or severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be, for the delay and expenses caused to him in obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.” ash 7 wp-3931.02withCA-2342.11 6. Hence, on an Application under Rule 97 of Order XXI of the said Code, all questions relating to right, title and interest in respect of the property are to be decided by the Executing Court. Rule 98 deals with the orders to be passed after adjudication is made in accordance with the Rule 101 of Order XXI of the said Code. Sub-rule (2) of Rule 98 of Order XXI of the said Code as amended by the Bombay High Court on 1st October, 1983 provides that if the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the Judgment Debtor or by some other person at his instigation or on his behalf, the Court shall direct that the Applicant be put into possession of the suit property. 7. Perusal of the findings recorded by the Trial Court shows that the case of the Obstructionists/Respondents was that after the Defendant left the suit premises for native place, he allowed the Obstructionists to stay in the suit premises. It will be, therefore, necessary to make a reference to the findings of the Appellate Court. In Paragraph 14, the Appellate Court has noted that the obstructionists have not produced any supportive evidence to show that they have any independent right. At the end of Paragraph 14, the Appellate Court has observed that in the Plaint as well as in the oral evidence, there is nothing to mention that the original Plaintiff was the owner of the Chawl in which the suit premises is situated. In Paragraph 15, the Appellate Court has observed thus:- ash 8 wp-3931.02withCA-2342.11 “15. .....it is absolutely necessary that the respondent-plaintiff to show that he is owner of the appeal premises when it was denied by the appellants-obstructionists in his evidence that she is not landlady in respect of the appeal premises. In the evidence also he has denied that he is landlady of the appeal premises, therefore, considering the same we hold that the respondent-plaintiff is the landlady the reasons given by the learned trial judge only taking into consideration one counterfoil at Exh.B, holding that he is landlady in respect of the appeal premises cannot be accepted, we do not agree with the reasoning and findings given by the learned trial judge on that point we therefore hold that the respondent-plaintiff has failed to prove that she is landlady in respect of appeal premises. As premises are not governed by the provisions of Bombay Rent Act and the decree passed is without jurisdiction, therefore, it is nullity and not executable, therefore, we hold that even though we have not come to the conclusion that the appellants obstructionists have proved their case that they are there in the appeal premises in their own rights, but we rejecting the decree only the decree is not executable, therefore, considering this we pass the following order.” Thus, the Appellate Court reiterated that the Obstructionists have not proved their case of having an independent right in respect of the suit premises. 8. It is pertinent to note that the Obstructionists have examined the original Defendant Ramchandra Hande. In Paragraph 17 of his deposition, he stated that in the year 1983, the Obstructionists came to him and requested him to accommodate them in the suit premises and therefore, after accepting the request he allowed the ash 9 wp-3931.02withCA-2342.11 Obstructionists to reside in one portion of the suit premises. He stated that after he left for native place, even the remaining half portion was given to the Obstructionists. Though the original tenant Ramchandra stated that he was not a tenant of the original Plaintiff, in his evidence he has stated that he inducted the Obstructionists in the suit premises. There is already a finding recorded that the Obstructionists have no independent right. The very fact that the Obstructionists examined the original Defendant-Judgment Debtor Ramchandra who stated that he had inducted them in the suit premises shows that the obstruction by the Obstructionists was obviously on behalf of or at the instance of the said Ramchandra who claimed in his examination-in-chief that he has constructed the suit premises. Thus, this was a case where the Obstructionists were claiming through the Judgment Debtor. Therefore, the mandate of Sub-rule (2) of Rule 98 of the Order XXI of the said Code is that once the Court is satisfied that the obstruction was caused by a third party at the instigation or on behalf of the Obstructionists, the Court shall direct that the Applicant be put into possession of the property subject matter of the decree. This being the clear legal position, it is not necessary to consider at the instance of such Obstructionists a contention that the decree sought to be executed was passed by the Court having no jurisdiction. Therefore, the issue whether the provisions of the said Act of 1947 are applicable or not does not arise in this case as the obstruction is obviously at the instance ash 10 wp-3931.02withCA-2342.11 of and on behalf of the Judgment Debtor who stepped into the witness box as the witness of the Obstructionists. Only on this ground, the impugned order of the Appellate Court will have to be set aside. It must be stated that the approach of the Appellate Court is clearly erroneous inasmuch as the view of the Appellate Court was that the burden was on the decree holders to establish their ownership. It is pertinent to note that the Appellate Court has found that the Respondents-Obstructionists have no independent right in respect of the suit premises. 9. Hence, the Petition must succeed and I pass the following order. ORDER (a) The Rule is made absolute in terms of prayer clause (c); (b) This Judgment shall not be given effect for a period of twelve weeks from today; (c ) Civil Application No.2342 of 2011 is accordingly disposed of. ( A.S. OKA, J )