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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANDEEP V. MARNE, J.
Darryl D’Monte (deleted since deceased) and Ors. - Applicants
Versus
Vadilal Kunverji Gada & Ors. – Respondents
Civil Revision Application No. 417 of 2022 With Civil Revision Application No. 418 of 2022
Decided On : 06-04-2026
| Table of Content |
|---|
| 1. revision challenges appellate reversal of obstructionist notice. (Para 1 , 2) |
| 2. lease history mandates structure removal upon expiry. (Para 3 , 4 , 5 , 6 , 7 , 8) |
| 3. consent decree execution obstructed by alleged sub-tenants. (Para 9 , 10 , 11 , 12) |
| 4. joint tenancy survivorship binds heirs; no sub-tenant rights. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19) |
| 5. suit jurisdiction faulty; obstructionists claim lawful sub-tenancy. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28) |
| 6. lease deeds prohibit subletting; require vacant land return. (Para 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38) |
| 7. consent decree valid; no collusion or improper parties. (Para 39 , 40 , 41 , 42) |
| 8. appellate misread lease creating 15 tenancies erroneously. (Para 43 , 44 , 45 , 46 , 47) |
| 9. order xxi rule 101 limits to independent rights inquiry. (Para 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55) |
| 10. no lawful sub-tenancy from land re-lease. (Para 56 , 57 , 58 , 59 , 60 , 61) |
| 11. structure occupants are licensees; vacate with lessee. (Para 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70) |
| 12. precedents affirm dual ownership; no structure protection. (Para 71 , 72 , 73 , 74 , 75) |
| 13. trial order upheld; revisions allowed. (Para 76 , 77 , 78 , 79) |
JUDGMENT :
SANDEEP V. MARNE, J.
1) These two Revision Applications challenge the common judgment and order dated 4 May 2022 passed by the Appellate Bench of the Small Causes Court in Appeal Nos. 27 of 2019 and 28 of 2019. By the impugned order, the Appellate Bench has allowed the Appeals and has set aside the judgment and order dated 3 November 2018 passed by the Learned Judge, Small Causes Court in Obstructionist Notice No. 15 of 2006 filed in T.E. & R. Suit No. 66 of 2002 and the said Obstructionist Notice filed by the Applicant has been dismissed. By its judgment and order dated 3 November 2018, the learned Judge of the Small Causes Court had allowed Obstructionist Notice No. 15 of 2006 filed by the Applicants/Plaintiffs and had directed Obstructionist Nos.1, 4, 5 and 6 to remove themselves from Gala No.1 i.e. Shop No.1 from the suit plot and handover vacant possession thereof to the Applicant/Plaintiffs. The Small Causes Court had further directed Obstructionist No.2 to remove itself from Gala No.2 i.e Shop No.2 in the suit plot and handover vacant possession thereof to the Applicants/Plaintiffs. Obstructionist No.3 was directed to remove itself from Gala No.3 i.e. Shop No.3 by handing over possession thereof to the Applicants/Plaintiffs. Plaintiffs were permitted to demolish Galas Nos.1 to 3 and secure vacant possession thereof by recovering costs of demolition from the respective obstructionists. The Trial Court had also directed conduct of separate enquiry into mesne profits under Order XX Rule 12 of the Code of Civil Procedure, 1908 (the Code).
2) Applicants are Plaintiffs in T.E. & R. Suit No. 66 of 2002 in which consent decree has been passed for recovery of possession of the suit premises from original Defendant Nos.8 to 11. However, when decree was sought to be executed, obstruction was presented by the obstructionists/Respondent Nos.1 to 6 who claimed possession and accordingly Applicants took out Obstructionist Notice No. 15 of 2006 which was allowed by the Trial Court. The Appellate Court has however dismissed the same. The obstructionists’ right to occupy the three Galas/Shops constructed in suit the suit property is thus upheld by the Appellate Court despite passing of the eviction decree against the Defendants in the Suit. Accordingly, the Applicants/Plaintiffs have preferred the present Revision Applications under Section 115 of the Code.
FACTS
3) An open plot of land bearing Final Plot No. 650 at Bandra TPS-III being and situated at Ghodbunder Road (S.V. Road), Bandra, Mumbai Suburban District admeasuring about 450 sq.yards is ‘the suit property’. An Indenture of Lease was executed between Domnic A. D’Monte (lessor) and one Moogatlal J. Bhat, (lessee). The lease in respect of the suit property was gran
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