22-sa-31-2021 with ia-207-2021

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.31 OF 2021

WITH

INTERIM APPLICATION NO.207 OF 2021

Somnath Hanumant Jagtap

..Appellant

Vs.

Ramchandra Shrirang Jagtap & Ors.

..Respondents

----

Mr.Dilip Bodake for the Appellant.

Mr.Uday P. Warunjikar a/w Mr.Sumit Kate for the Respondents.

----

CORAM : C.V. BHADANG, J.

DATE : 11^th MARCH 2021

P.C.:

1.

The challenge in this appeal at the instance of the

appeallant, who is the obstructionist is to the concurrent finding of

the Courts below refusing to uphold the objection filed by the

appellant to the execution of a decree dated 27^th January 2011

passed by the learned Civil Judge Junior Division at Baramati in RCS

No.170 of 2009 which has been confimed by the Appellate Court

vide judgment and decree dated 24^th August 2015 in Civil Appeal

No.36 of 2011.

2.

It may be mentioned that some of the original

defendants had challenged the said judgment and decree in an

N.S. Kamble page 1 of 5

Nilam

Kamble

Digitally signed

by Nilam Kamble

Date: 2021.03.11

17:16:48 +0530

22-sa-31-2021 with ia-207-2021

appeal which was dismissed. The said defendants sought to

challenge the said judgment before this Court in which there was a

dealy of about 5 years. This Court by an order dated 11^th February

2021 passed in Interim Application No.206 of 2021 in Second

Appeal Stamp No.1252 of 2021 had refused to condone the dealy.

Thus the said decreee has attained finality.

3.

Coming to the present appeal, the case made out by the

appellant is that the Government had allotted a certain portion of

land situated in Gat No.390 (Old Gat No.924) which was part of a

gairan land to the homeless persons. The specific case made out is

that the grand father of the present appellant had constrcuted a

house in a portion admeasuring 1 R of the land in Gat No.390 which

is presently bearing house No.793. The contention is that under the

garb of the execution of the judgment and decree in RCS No.170 of

2009 the appellant is trying to execute and take possession of the

portion on which the house No.793 is standing.

4.

The executing Court by an order dated 01^st October

2019 (Below Exhibit-36) in RD No.20 of 2011 has refused to uphold

the objection and the application came to be dismissed. The

appellant challenged the same before the learned District Judge in

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MCA No.99 of 2019 which has been dismissed by the impunged

judgment and order dated 05^th March 2020. Hence, this appeal.

5.

I have heard Mr.Bodake, the learned counsel for the

appellant and Mr.Warunjikar, the learned counsel for the

respondent-decree holder. With the assistance of the learned

counsel for the parties I have gone though the record.

6.

Mr.Bodake, the learned counsel for the appellant has

taken me through the record as well as the evidence of the parties

on record in the execution case. It is submitted that although

according to the appellant the house is situated in Gat No.390 the

decree holder is trying to execute the decree claiming that the said

constrcution by way of an encorachment is in Gat No.389. It is also

submitted that in the evidence the surveyor, in the suit, has admitted

that only land Gat No.389 was measured. It is submitted that unless

and until both the lands are jointly measured the suit could not have

been decreed.

7.

Mr.Warunjikar, the learned counsel for the respondent-

decree holder has supported the impugned judgment. It is

submitted that both the Courts below have recorded finding of fact

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on the basis of the oral and documentary evidence on record