1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.159 OF 2010 Yezdi Khodaram Irani ...Applicant. v. Rusi @ Rustum Sorab Irani ...Respondent. Mr.A.V.Anturkar, Sugandh B. Deshmukh, advs. For the Applicant. Mr.G.N.Salunkhe, adv. For the Respondent. CORAM : J.H. BHATIA, J. DATED : MARCH 23, 2010 P.C. 1 Heard the learned counsel for the Parties. 2 Applicant is nephew of the respondent. In Appeal No.668 of 2006 in Petition No.331/03 on 9th October, 2006 ‘Consent Terms’ were filed by the parties and the said appeal came to be disposed off as per the Consent Terms by this Court. As per paragraph 3 of the Consent Terms, it was agreed by the parties that the respondent and his sister Mrs. Pervin P. Jilla shall have 100% right, title and interest in the land bearing Survey No.40 situated at Matheran, District Alibag alongwith the structure standing thereon known as Cecil hotel. As per paragraph 4, applicant and his brother Rohington Irani were to have 100% right, title and interest in the properties situated at Grant Road, Mumbai. Parties were to co-operate with each other in getting property transferred to their 2 respective names. Applicant and his brother were also to co-operate in getting licence in respect of hotel Cecil at Matheran transferred to the name of the respondent and his sister. Admittedly, as per Consent Terms the properties at Bombay were transferred in the names of the applicant and the brother. The respondent filed Execution Application No.2/2008 in the Court of Civil Judge Junior Division, Karjat wherein he made two prayers. According to him, he was already in possession of hotel Cecil at Matheran but as the applicant had become violent and was trying to cause damage to his personal property, as per prayer clause (a) he sought police protection for execution of the decree through Court bailiff by giving formal possession of the Hotel Cecil to enable him to approach authorities issuing electricity bill and water bills. As per the prayer clause (b), he sought appointment of Commissioner to get the licence of the hotel transferred to his name. Executing Court granted only prayer clause (b) but refused prayer clause (a). That order was challenged by the respondent in Writ Petition No.3625/2008, which was disposed off by the judgment dated 9th October, 2009. It was held that under the ‘Consent Terms’ applicant and his sister became entitled to entire right, title and interest in the land bearing Survey No.40 together with the structure of the hotel Cecil at Matheran thereon. It was noted that the applicant 3 therein, i.e. the respondent in the present Revision Application was appointed as an interim administrator under the orders of the Court and in the capacity of interim administrator, he was in possession of the suit property Survey No.40, with the structure of the Hotel Cecil at Matheran . It was held that on plain reading of the consent decree, petitioner/applicant has to be put in legal possession of the hotel in-as- much as possession was already with him in the capacity of administrator and, therefore, he was justified in incorporating a prayer in the execution application by putting him in formal possession of the suit property. With these observations, writ petition came to be allowed and prayer clause (a) was also allowed. That order was challenged by the present applicant before the Supreme Court but could not succeed. After the above order of the High Court, Executing Court passed an order dated 4.3.2010 granting police aid to the bailiff in executing the decree and in giving formal possession of the hotel Cecil to the respondent. That order is challenged in the present Revision Application. 3 The learned counsel for the applicant vehemently contended that in the affidavit filed by the respondent before the Executing Court , he has admitted that after ‘Consent Terms’ were filed, separate and fresh agreement had taken place and according to the learned counsel, as per 4 the terms of the said contract or agreement, applicant is in possession and, therefore, only a formal possession can be given but physical possession of the property can not be given to the respondent and question of granting police aid does not arise. In support of this, he placed reliance upon Ratanlal Jain v. Umashankar Vyas 2002(2) SCC 656 wherein the Supreme Court distinguished provisions of Rule 35 and 36 of the order 21 of the C.P.C. and it was pointed out that where a decree for the actual possession has to be given, Rule 35 Sub-rule 1 would be applicable but where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy same and not bound by the decree to relinquish such occupancy , Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property and proclaiming to the occupant, the substance of the decree in regard to the property and thus, the decree holder is put in formal possession without disturbing the possession of the tenant or such other person who may be entitled to be in possession. The learned counsel also placed reliance on Umashankar (deceased) & Ors. v. Sarapjeet (1996) 2 SCC 371 wherein a decree of eviction was passed in favour of the landlord against the tenant. However, before that decree could be executed and actual possession 5 could be delivered to the landlord, a fresh agreement of tenancy was entered into whereby the tenant became tenant under the fresh agreement. In such circumstances, it was held that in view of the later agreement, tenant was entitled to be in possession and, therefore, decree in the earlier litigation or eviction suit could not be physically executed and the tenant could not be evicted. The learned counsel contended that in the present case also the Rule 36 of the Order 21 would be applicable and formal possession can be given while the actual possession of the property should continue with the applicant. The learned counsel for the respondent raises strong objections to these contentions. 4 It is material to note that as per ‘Consent Terms’, Respondent got 100% right, title and interest in the suit property being Survey No.40 with the structure of Cecil Hotel as noted in judgment dated 9th October, 2009 in writ petition no.3625/2008. Respondent was already in possession of this property as interim administrator and only formal possession is required to be given. The learned counsel mainly relied upon paragraph ‘h’ of the affidavit filed by the respondent before the Executing Court. Paragraph ‘h’ reads as follows: “h) I say that I have been continuously residing at Cecil Hotel Matheran in Room No.12 and as the relations between me and appellant become cordial after filing consent terms, I allowed him to assist me 6 and allowed the old staff to run the hotel. During the said period till October, 2007, I was looking after all the affairs of the Hotel and as per the oral understanding between me and Appellant I allowed the Appellant to maintain the account as we agreed to have 50% income from properties at Matheran as well as properties at Mumbai.” On perusal of this paragraph carefully, it becomes clear that according to the respondent, he alone was looking after the hotel Cecil till October, 2007 and he also resides in Room No.12 of the same hotel. As the relations between him and the applicant became cordial after the consent terms, he allowed the applicant to assist him and allowed the old staff to run hotel. The applicant was to maintain the account and they were to share the profit equally but nowhere it shows that respondent had handed over exclusive possession to the applicant. It only shows that he allowed the applicant to assist him in running the hotel. It means that the applicant was allowed entry in the hotel to assist the respondent, who was already in possession and running the same. The applicant has no document to show the terms of the contract under which he was allegedly inducted in the said hotel after the Consent Terms. He has also not come forward with any specified terms of the contract under which he claims to have been inducted in the hotel. The learned counsel for the applicant fairly conceded that he relies only on the statement made in 7 paragraph ‘h’ of the affidavit of the respondent and that there is no other material. On the basis of the said paragraph, it is impossible to come to a conclusion that applicant was put in possession either as tenant or a licensee but only indicates that respondent, who was already in possession, had allowed the applicant just to assist him in the business. That does not give him exclusive right of possession over the same. It needs to borne in mind that the applicant is bound by the decree based on the consent terms. He is neither a tenant nor any other person entitled to occupy the property. Therefore, in my considered opinion, the authorities in Ratanlal and Umashankar (Supra) are not applicable to the facts of the present case. Order 21 Rule 36 has no application to the facts of the present case. Respondent, who is already in possession needs police aid for formal possession in execution of the decree so that applicant may not create any obstacles or nuisance at the time of giving formal possession. Words “Formal possession” in the Consent Terms and the application as well as the earlier order of this Court have to be read with reference in this context and do not mean that he has to be put in formal possession and that the respondent is to be allowed to be in actual possession as under order 21 Rule 36 of the C.P.C. 5 Taking into consideration the facts and the circumstances 8 and the legal position, I find no substance in the present Revision Application. I find no illegality or irregularity in the impugned order. Therefore, Revision Application stands dismissed. 5 At this stage, the learned counsel for the applicant seeks stay to this order for some time. However, the learned counsel for the respondent strongly objects to the same. Taking into consideration the circumstances noted earlier and the fact that respondents have already been put in possession of the property which went to his share, I see no justification to grant any further stay. Request refused. (J.H. BHATIA,J.)