The Appellate Court's failure to consider evidence of independent title and the lack of a mandatory injunction for removal of structures rendered the decree in-executable.

JUDGMENT :

Sharmila U. Deshmukh, J.

1. The present Appeal is at the instance of the Obstructionist aggrieved by the judgment dated 11th August, 2010 passed in Civil Appeal No.99 of 2004 rejecting the Appeal filed against the Order dated 24th August, 2004 passed by the Executing Court below Exhibit 47 in Regular Darkhast No.16 of 2000 rejecting the obstructionist's application.

FACTUAL MATRIX :

2. The Respondent Nos. 1 to 6 had instituted Regular Civil Suit No.330 of 1987 against the Respondent No.7 seeking declaration that the Respondent No.7 has no right over the suit property i.e. Survey No.13 Hissa No.4 and do not have any right to carry out any construction over the said property and for an order of permanent injunction restraining the Respondent No.7 from carrying out any construction over the suit property and for recovery of possession. The suit property is land bearing Survey No.13/4 situated at village Aashte Golivali, Taluka Kalyan, District Thane. The Trial Court dismissed the suit as against which the Respondent Nos 1 to 6 filed Civil Appeal No.579 of 1996 vide judgment dated 16th November, 1999 which came to be allowed and the Respondent No.7 was directed to handover the possession of the suit land to Respondent Nos. 1 to 6.

3. The Respondent Nos. 1 to 6 subsequently instituted execution proceedings bearing Regular Darkhast No.16 of 2000 for execution of the decree dated 16th November, 1999. The Executing Court appointed Advocate Shri Jadeja as Court Commissioner to execute the decree, pursuant to which the Court Commissioner visited the site on 20th February, 2001 alongwith the Respondent No.1 and police machinery and JCB machine for demolition the structures. The Appellants objected to the demolition on the ground that the structures are located on land bearing Survey No.13/5 which was not the suit land. In view of the visit by the Court Commissioner, the Appellants approached the Executing Court and filed application below Exhibit 47 contending that the Court Commissioner was not empowered in the absence of any direction to demolish the structure. It was further contended that the Appellants had carried out the construction of the Galas more than 15 years prior thereto and have let-out the said Galas to the tenants. It was contended that Galas were situated and erected on the land bearing Survey No.13/5 and that the Appellants are no-way concerned with the suit property. The relief sought in the said application was for a direction to the Court Commissioner to not disturb the possession of the Appellants over the concerned Galas.

4. The Respondent Nos. 1 to 6 as well as the Respondent No.7 filed their reply to the said application. The Respondent Nos. 1 to 6 contended that the Appellant Nos. 1 and 2 are the nephews of the Respondent No.7 and the Appellant No.3 is the son of the Respondent No.7. The Judgment Debtor has not stated during the trial or in the Appeal that the suit land and the incomplete structure standing thereon does not fall in Survey No 13/4. The Judgment Debtor had during the hearing of the Appeal given an undertaking that he will not create any third party right in the incomplete structure and the structure will be used for his own business purpose. It was further contended that there is no documentary evidence to show that the structure of the Appellants is not on the Survey No.13/4 or to show that they have purchased any property or construction in Survey No.13/5.

5. The Respondent No.7 filed his reply contending that the Court Commissioner wanted to demolish the structure which is in Survey No.13/5 and not of Survey No.13/4 and that the structure of the Appellants are in existence for more than 15 years and without identification of the suit property the darkhast proceedings cannot be proceeded with.

6. The Executing Court appointed the Taluka Inspector of Land Records (TILR) Shri Vinayak Anant Patil as the Court Commissioner with a direction to demarcate Survey No.13/4 and 13/5 and for fixing of t