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2025 Supreme(Online)(Bom) 351568
2025:BHC-AS:35751 Santosh IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2451 OF 2023
1. Ashok Sitaram Sonawane
2. Smt. Lata Ashok Sonawane …Petitioners Versus
1. Percy Burjor Sarkari
2. Kumari Shera Burzor Sarkari
3. Smt. Rita Dentas SANTOSH SUBHASH 4. Smt. Hema D. Valecha KULKARNI
5. Pratap Hundaraja Asrani Digitally signed by SANTOSH SUBHASH 6. Harish Kumar Panjwani KULKARNI Date: 2025.08.19 7. Rajesh Badrilal Darshana
17:46:34 +0530
8. Prakash, full name not disclosed
9. Nirmal, full name not disclosed
10. Saddan, full name not disclosed …Respondents Mr. Kaustubh Thipsay, a/w Prasad Nagargoje, for the Petitioners.
Mr. V. K. Gupta, for the Respondents.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 1 st AUGUST, 2025 PRONOUNCED ON: 19 th AUGUST, 2025
Unregistered deeds do not confer legal title; rights of possession must derive from lawful ownership.
Headnote:(A) Civil Procedure Code, 1908 - Order XXI Rule 97, 101 - Execution of decree - Obstructionist claims regarding independent right, title, and interest in the demised premises - Courts below upheld that the petitioners failed to establish their claims; the decree from which they obstructed was binding. (Paras 4.8, 30)
(B) Possession - Rights of obstructionists - Courts emphasized that possession must relate to lawful title; unregistered deeds do not confer rights validly. (Paras 30)
(C) Execution of Decree - Requirement for establishing title - An executive court must resolve all questions of title relevant to the execution of a decree; failure to establish title negates standing. (Paras 10, 15, 18)
Facts of the case:
The petitioners obstructed a decree of possession from 1989, contending independent rights based on a tenancy agreement derived from a disputed and unregistered Deed of Conveyance.
Findings of Court:
The courts concluded that the petitioners could not prove a legitimate basis for possession and dismissed the obstruction claims.
Issues: The primary issue was whether the petitioners had independent rights to the demised premises conflicting with the established decree.
Ratio Decidendi: The court reiterated that an unregistered Deed of Conveyance does not confer legal title, confining the obstructionists' rights.
Result: The petition was dismissed.
JUDGMENT:-
1. Rule. Rule made returnable forthwith and, with the consent of the learned Counsel for the parties, heard finally.
2. The petitioners – obstructionists take exception to a judgment and order dated 31st January, 2023 passed by the Appellate Bench of the Court of Small Causes at Mumbai in Ex. Appeal No.222 of 2021, whereby the appeal preferred by the petitioners against a judgment and order dated 30th September, 2021 passed by the trial court came to be dismissed.
3. By the said order dated 30th September, 2021, the Executing Court has made the Obstructionist Notice No.474 of 2010, taken out by respondent Nos.1 and 2 – plaintiffs, absolute and directed the removal of obstruction to the execution of the decree passed in RAE&R Suit No.126/328/1989 caused by the petitioners – obstructionists.
4. The background facts necessary for the determination of this petition can be stated in brief as under:
4.1 Respondent Nos.1 and 2 – plaintiffs claim to be the landlords in respect of the premises bearing Room No.6, second floor, situated at 4th Marine street, Dhobi Talao, Mumbai, (“the demised premises”). The plaintiffs instituted a suit for recovery of possession of the demised premises. The said suit came to be decreed ex parte on 3rd September, 1992.
4.2 As Harish Kumar Panjwani caused obstruction to the execution of the decree, the plaintiffs took out the Obstructionist Notice No.17 of 2001. The said notice was made absolute by a judgment and order dated 15th March, 2003. The plaintiffs filed Execution Application No.158 of 2010. A possession warrant came to be issued on 26th April, 2010.
4.3 On 3rd May, 2010, the second set of obstructionists, comprising the petitioners – obstructionist Nos.5 and 6, caused obstruction to the execution of the decree for possession. The obstructionist Nos.1 to 4 claimed to be in possession of the demised premises through obstructionist Nos.5 and 6 – the petitioners.
4.4 Thus, the plaintiffs took out second Obstructionist Notice No.474 of 2010 to remove the obstruction caused by the second set of obstructionists. It was, inter alia, asserted that the second set of obstructionists had no independent right, title and interest in the demised premises. Therefore, they deserve to be removed from the demised premises.
4.5 Later on the plaintiffs claimed that the obstructionist Nos.1 to 4 were no longer in the occupation of the demised premises and, thus, the obstructionist notice qua obstructionist Nos.1 to 4 came to be disposed as withdrawn.
4.6 Obstructionist Nos.5 and 6 filed their written statement. Obstructionist Nos.5 and 6 claimed to be in exclusive use, occupation and possession of the demised premises in their own independent right. Obstructionist No.6 was stated to be a tenant in respect of the demised premises, who was put in possession thereof pursuant to a registered tenancy agreement dated 9th November, 2006 executed by Kurban Husein M. Pardawala, the landlord of the demised premises. Kurban Husein M. Pardawala had purchased the property including the demised premises, under a Deed of Conveyance dated 9th July 2002, in the capacity of the owner of the demised premises, Kurban Husein M. Pardawala had executed the registered tenancy agreement in favour of the Obstructionist No.6. Consequently, the Obstructionist Nos.5 and 6 were not bound by the ex parte decree passed in RAE&R Suit No.126/328 of 1989, and the plaintiffs were not entitled to recover the possession of the demised premises from the obstructionist Nos.5 and 6.
4.7 Though the plaintiffs filed an affidavit-in-rejoinder and contested the claim of the obstructionists, yet, the plaintiffs did not adduce any evidence. Obstructionist No.5 examined himself. The plaintiffs, however, did not cross-examine the obstructionist No.5 (DW1). Obstructionist Nos.5 and 6 also placed documents on record.
4.8 By a judgment and order dated 30th September, 2021, the Executing Court was persuaded to make the obstructionist notice absolute holding that the a
