Neeta Sawant CRA-417&418-2022

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO. 417 OF 2022

WITH

CIVIL REVISION APPLICATION NO. 418 OF 2022

Darryl D’Monte (deleted since deceased)

and Ors. … APPLICANTS

: VERSUS :

Vadilal Kunverji Gada & Ors. …. RESPONDENTS

Mr. Nusrat Shah with Mr. Kevin Gala, Ms. Sayali Ramugade i/b. Ms.

Samaa Shah, for the Applicant in CRA-418/2022.

Mr. N.V. Walawalkar, Senior Advocate i/b. Ms. Samaa Shah for the

Applicant in CRA-417-2022.

Mr. Mayur Khandeparkar with Mr. Aseem Naphade, Ms. Kausar

Banatwala, Mr. Pratik Shah and Ms. Sneha Mahawar i/b. Mr. Tushar A.

Goradia, for Respondent Nos.4 to 6 in CRA-417-2022.

Mr. Rohan Savant, with Mr. Ashish Dube, Mr. Ashok Chopra, Ms.

Gayatri Gupta and Mr. Aman Saraf for Respondent No.2 in both CRA.

Ms. Tasneem Azmi I /b. Mr. Rajiv Mane, for Respondent Nos.7 to 10 in

both CRA.

Ms. Ema Almeida with Ms. Archana Jha, for Respondent No.11 in both

CRA.

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CORAM : SANDEEP V. MARNE, J.

JUDG. RESD. ON : 17 March 2026.

JUDG. PRON. ON : 6 April 2026.

Judgment:

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 �led in T.E. & R. Suit No. 66 of 2002 and the said Obstructionist

Notice �led 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 �led 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

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pro�ts 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 granted for a period of 5 years and 5

months commencing from 1 March 1934 and ending on 31 July 1939. It is

the case of Respondents No.1 to 6 that lessee Moogatlal Bhat started

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operating a petrol pump on the demised land and had apparently

constructed three temporary structures bearing Gala Nos.1, 2 and 3. He

let out Gala No.1 to one Halimabai Madraswala for carrying out Motor

Garage business called ‘Apna Garage’, whereas Gala Nos.1 and 2 were let

out to Mr. Jagannath Tare.

4) Upon expiry of tenure of the �rst lease, a second lease was

executed on 15 September 1949 between Cecil Joseph D’Monte (lessor)

and Moogatlal J. Bhat (lessee) in respect of the demised land for a period

of 15 years commencing from 1 June 1949 and ending on 31 May 1964.

According to the Applicants, both leases contained a speci�c convent for

removal of all structures on the demised land upon expiration of the

tenure of lease and for handing over of vacant land to the lessor in the

same condition as the same was �rst let. Mr. Moogatlal Bhat passed away

on 10 March 1954 before expiry of the second lease dated 15 September

1949.

5) Only 3 heirs of Moogatlal Bhat expressed intention for

execution of fresh lease with the lessor and accordingly third Indenture

of Lease was executed on 6 March 1959, by which 15 legal heirs of

Moogatlal Bhat surrendered their leasehold right in respect of the

demised land to the lessor. Under third lease dated 6 March 1959, a fresh

lease was created in favour of only 3 heirs of Moogatlal viz.

Parvatishankar Moogatlal Bhat, Madhusudan Moogatlal Bhat a nd

Vijaykumar Moogatlal Bhat (tenants) for a period of 20 years from 1

January 1959. According to the Applicants, thus joint tenancy was

created only in favour of Parvatishankar Bhat, Madhusudan Bhat and

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Vijaykumar Bhat with a speci�c covenant that the expression ‘tenant’

would include surviving tenant and last surviving heir of the last

surviving tenant. According to the Applicants, the third lease also

contained a covenant for removal of all structures in the land and to

return the land in the same condition as it was �rst let to Moogatlal

Bhat.

6) The tenure of the lease expired on 31 December 1979.

However, according to the Applicants no action could be taken for

recovery of possession of the demised land from the three lessees,

Parvatishankar Bhat, Madhusudan Bhat and Vijaykumar Bhat on account

of application of provisions of the Bombay Rents, Hotel and Lodging

Houses Rates Control Act,1947 (Bombay Rent Act) to open piece of

land and the three lessees acquiring the status of protected tenants

under the Bombay Rent Act. Madhusudan Bhat passed away on 3 July

1986. Parvatishankar Bhat passed away on 31 May 1995. According to the

Applicants, Vijaykumar Bhat was the last surviving joint tenant and

became the only tenant as per the covenants of the third lease dated 6

March 1959. Vijaykumar Bhat passed away on 10 January 1996 leaving

behind his heirs (Respondent Nos. 7 to 10). Son of Vijaykumar viz. Parag

Bhat had already predeceased him on 23 August 1985. According to the

Applicants, as per the convents of the third lease deed, only the four

surviving heirs of Vijaykumar (Respondent Nos.7 to 10) became entitled

to inherit the leasehold/tenancy rights after demise of the three joint

tenants.

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7) On 16 November 1994, it is claimed that a Deed of

Assignment was executed between Halimabai Madraswala and Girnar

Griha Nirman Pvt. Ltd. in respect of Gala No.1. According to the

Applicants, the said assignment was without the consent of the lessors

and also in violation of provisions of Section 15 of the Bombay Rent Act.

This is how Girnar Griha Nirman Pvt. Ltd claimed rights in respect of

Gala No.1. It is claimed that the alleged rights of Girnar Griha Nirman

Pvt. Ltd were taken over by the company ‘White Rose Properties Pvt.

Ltd.’ (Respondent No.4). However Respondent No. 4 claims that only the

name of company has undergone change.

8) After repeal of the Bombay Rent Act and on advent of the

Maharashtra Rent Control Act, 1999 (MRC Act), the protection in

respect of the tenancy laws no longer apply in respect of open land.

Accordingly, Applicants �led T.E. & R. Suit No. 66 of 2002 under the

provisions of Section 41 of the Presidency Small Causes Court Act,1882

(PSCC Act) against the heirs of the lessees (defendants). Defendant

No.1- Jailaxmi/wife of Moogatlal, passed away during pendency of the

suit. In the Suit, Written Statement was �led by Defendant Nos.2 to 9

(heirs of Madhusudan). However, Defendant Nos.2 to 7/heirs of

Madhusudan �led additional Written Statement on 13 June 2005 stating

inter-alia that they were not the tenants in respect of the demised land

and only heirs of Vijaykumar remained tenants thereof. They also prayed

for dismissal of suit against them. The suit was accordingly withdrawn

against Defendant No.1 (Jailaxmi/wife of Moogatlal) and Defendant

Nos.2 to 7 (heirs of Madhusudan) in view of additional Written

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Statement dated 13 June 2005. The other Defendant Nos.8, 9, 10 and 11

(Respondent Nos.7 to 10 herein) executed Consent Terms with the

Plaintiffs under which Defendant Nos.8 to 11 surrendered their rights in

respect of the demised land. Plaintiff agreed not to press the claim for

mesne pro�ts against them. The suit was accordingly decreed on in view

of consent terms dated 29 April 2006.

9) Plaintiffs put the decree for execution. However, they

encountered obstruction by Respondent Nos. 2 to 6. Accordingly,

Plaintiffs took out Obstructionist Notice No. 15 of 2006 against

Wadilal Gada/White Rose Properties Pvt. Ltd. in respect of Gala No.1.

Vaseem Kapadia and Sana Kapadia, Additional Directors of White Rose

Properties Pvt. Ltd. were also impleaded them as Obstructionist Nos.5

and 6 in respect of Gala No.1 The Obstructionist Notice sought ouster of

Sheela Madhukar Tare in respect of Gala No.2 and of Chandrakant

Jagannath Tare in respect of Gala No.3. Af�davits in reply were �led by

the Constituted Attorney of Vaseem Kapadia and by Sheela Tare and

Chandrakant Tare. Issues were framed in the Obstructionist Notice on

19 January 2007. In the Obstructionist Notice, status quo order was

passed. Plaintiff took out Interim Notice No.23 of 2008 alleging violation

of status quo order. By order dated 30 April 2008, the learned Judge of

the Small Causes Court restrained obstructionist from creating any

third-party rights and carrying out any construction in permanent nature

on the demised land. According to the Applicants, the obstructionists

have made drastic structural changes to Gala No.1 in �agrant violation of

the interim order.

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10) The rival parties led evidence in support of their respective

claims in the Obstructionist Notice. By judgment dated 3 November

2018, the Trial Court allowed the Obstructionist Notice in favour of the

Plaintiff directing Obstructionists in respect of Gala Nos.1, 2 and 3, to

remove themselves and to handover possession thereof to the Plaintiffs

with further liberty to the Plaintiffs to demolish the three galas and

recover costs of demolition from the Obstructionists. The Trial Court

also directed conduct of inquiry into mesne pro�ts under Order XX Rule

12 of the Code.

11) Two separate Appeals were �led against judgment and order

dated 3 November 2018 passed by the Small Causes Court. Appeal No.27

of 2019 was �led by Respondent Nos.2 and 3 (Tares) in respect of Gala

Nos.2 and 3 and Appeal No.28 of 2019 was �led by Respondent Nos.4, 5

and 6 (White Rose Properties and its directors) in respect of Gala No.1.

By judgment and order dated 4 May 2022, the Appellate Bench of the

Small Causes Court has allowed both the Appeals �led by the

Obstructionists and has dismissed the Obstructionists Notice No. 15 of

2006 by setting aside the judgment and order dated 3 November 2018

passed by the Trial Court.

12) Aggrieved by the judgment and order dated 4 May 2022

passed by the Appellate Bench of the Small Causes Court, Applicants

have �led the present Revision Applications. Revision Application No.

417 of 2022 challenges the order of the Appellate Bench passed in Appeal

No. 27 of 2019 �led by Tares in respect of Gala Nos.2 and 3 and Civil

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Revision Application No. 418 of 2022 is �led challenging the judgment

and order of the Appellate Bench passed in Appeal No. 28 of 2019 �led by

White Rose Properties Pvt. Ltd. and its directors in respect of Gala No.1.

SUBMISSIONS

13) Mr. Shah, the learned counsel appearing for the Applicants

in Civil Revision Application No.418 of 2022 submits that the Appellate

Bench of Small Causes Court has erred in reversing well considered

decision of the Trial Court by which the obstructionist notice was

allowed and Respondent No. 1 to 4 were directed to be removed from

Gallas No. 1 to 3. He submits that the Appellate Bench of the Small

Causes Court has committed an egregious error in assuming that there

were 15 independent lessees/ tenants in respect of the demised land

having independent rights and therefore the consent decree operates as

‘surrender of partial tenancy’ and is therefore an ‘incomplete decree’.

That this assumption on the part of the Appellate Court is factually

incorrect from plain reading of Indenture dated 6 March 1959 which

shows that 15 heirs of Moogatlal had surrendered their rights in respect

of the demised land and therefore tenancy was created in respect of only

three joint tenants namely Parvatishankar, Madhusudan and Vijaykumar

with a speci�c provision for survivorship of the last survivor of them and

the heirs of the last survivor. That admittedly Vijaykumar was the last

surviving joint tenant and his heirs, who were Defendant Nos.8 to 11 in

the suit (Respondent Nos.7 to 10) were the only persons who were

entitled to inherit the leasehold rights in respect of the demised land.

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That Respondent Nos.7 to 10 have signed the consent terms dated 29

April 2006. That therefore the very assumption of the Appellate Bench

about existence of 15 tenants and termination of tenancy qua the heirs

of only one joint tenant (Vijaykumar) is wholly erroneous. That

therefore the Appellate Court has erred in holding that the decree was

not suf�cient in law in putting an end to an indivisible contract of lease

in respect of or qua the other heirs of Moogatlal or the heirs of

Moogatal’s deceased heirs. He relies upon judgment of the Apex court in

Suresh Kumar Kohli Versus. Rakesh Jian and another

1

, in support of his

contention that it is not necessary for the landlord to implead all heirs of

the deceased tenant. He however submits that all heirs of Vijaykumar

were impleaded as party defendants in the suit.

14) Mr. Shah Further submits that none of the heirs of

Vijaykumar or other heirs of Moogatlal have challenged the consent

decree and that they have accepted the same. That the decree binds

obstructionists who have failed to establish any independent right, title

or interest in the property leased to the said joint tenants. He submits

that the Executing Court cannot go behind the decree between the

parties if it is erroneous in law or on fact as it has been held by the Apex

Court in Vasudev Dhanjibhai Modi Versus. Rajabhai Abdul Rehman

and Others

2

.

15) Mr. Shah further submits that the Appellate Bench has come

to an erroneous conclusion that the land and the structure were

1 2018 6 SCC 708

2 AIR 1970 SC 1475

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surrendered and by second document dated 6 March 1953 land and

tenants were let out to tenants, and that therefore the obstructionists

have become lawful sub-tenants of the landlord. That the �nding is in

the teeth of speci�c covenants of the lease-deed under which only land

was leased out and structure was put up by Moogatlal at his own costs.

That the structure belonged to the lessee and not to Moogatlal and that

therefore the question of surrender of structure/building to the landlord

does not arise. That subject matter of lease was only in respect of open

land and not the structure. He relies on judgment of this Court in

Goregaon Malayalee Samaj Versus. Popatlal Prabhudas

3

in which it has

been held that in a lease of open land, the structure constructed by

lessee upon termination of lease of open land must be vacated and that

there is no protection available to the tenant under Section 15A of the

Bombay Rent Act. He submits that the subject matter of the case is

covered by the principles of dual ownership as held in the case of Dinkar

S. Vaidya Versus. Ganpat S. Gore

4

which is followed in Ramkrishna G.

Dode and others Versus. Anand Dovind Kelkar and Others

5

. He relies

on judgment of this Court in Sanjay Ramchandra Parab Versus. Ashok

D. Bhuta

6

reiterating the said legal position regarding dual ownership.

That therefore obstructions do not have any right, title or interest either

to the land or the structure.

16) Mr. Shah relies on speci�c covenant in the 3 lease deeds

requiring removal of structures upon expiration of term of lease. That

3 1988 1 BCR 358

4 1981 Bom.C.R. 431

5 1999 1 Bom CR. 63

6 CRA No. 409 of 2023 decided on 25 July 2025

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the �rst lease was in respect of open land without structure. That the

structures were constructed in the year 1948. That since lease has

expired in 1979, there was obligation to remove the structures and

handover possession of vacant land to the lessors.

17) Mr. Shah submits that since there is no privity of contract

between lessors and obstructionists and there was no question of joining

them as parties. In support he relies on judgments in Balwant N.

Vishwamitra and others Versus. Yadav Sadashiv Mule and others

7

,

Rupchand Gupta Versus. Raghuvanshi Pvt. Ltd.

8

, B. Gangadhar Versus.

B.G. Rajalingam

9

and Silverline Forum Pvt. Ltd. Versus. Rajiv Trust

and Others

10

. That it is settled law that a sub-tenant cannot create

further sub-tenancy without the consent and permission of the landlord

and relies on judgment in Jay Singh Murarji and others Versus. M/s.

Sovani Pvt. Ltd. And Others

11

.

18) Mr. Shah further submits that the case of acceptance of rent

by the two joint tenants set up by Respondent Nos.1 to 4 is totally

fallacious as rent receipts are not proved. That the Appellate Bench has

erroneously framed Issue No.1 by placing entire burden of proof on the

decree holder rather than requiring obstructionists to prove existence of

independent right to occupy the structures. That it erroneously

permitted obstructionists to question validity of decree without proving

their independent right, title or interest in the suit property. That no

7 AIR 2004 SC 4377

8 AIR 1964 SC 1889

9 1995 5 SCC 238

10 1998 3 SCC 723

11 AIR 1973 SC 770

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notice was required to be issued under Section 106 of the Transfer of

Property Act,1882 to obstructionists with whom the Plaintiffs had no

privity of contract and in support he relies on judgment in Ganga Dutta

Murarka Versus. Kartik Chandra Das and others

12

. He also relies on

judgment in Virji Nathuram and others Versus. Krishnakumar

13

in

support of his contention that when a decree is sought to be executed in

respect of the land which was subject matter of original lease, the status

of tenants in the structure on the land is nothing more but of licensees.

He submits that Obstructionist No.1 came in possession of Gala No.1 by

Deed of Assignment in the year 1994 from alleged sub-tenant-Halimabai

Madraswala without the consent of the landlord after expiry of the lease

and it is in contravention to Section 15 of the Bombay Rent Act. That

there is also speci�c bar in the third lease for subletting under

Clause1(h). That White Properties Pvt. Ltd. and its Directors have come

in possession of Gala No.1 in 2007 by transfer from one Company to

another which is also prohibited under Section 15 of the Bombay Rent

Act and contrary to the law as declared in General Radio and Appliances

Co. Ltd. And others Versus. M.A. Khader

14

which is reiterated in Cox

and Kings. Ltd Versus. Chander Malhotra

15

. Mr. Shah would therefore

submit that the obstructionists are bound by consent decree and must

vacate the possession of the structures alongwith lessees.

19) Mr. Walawalkar, the learned Senior Advocate appearing for

the Applicants in Civil Revision Application No.417 of 2022 would adopt

12 AIR 1961 SC 1067

13 AIR 1985 Bom 429

14 1986 2 SCC 656

15 1997 2 SCC 687

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the submissions of Mr. Shah. Additionally, he would submit that the

Appellate Court has erroneously not taken into consideration de�nition

of the term ‘tenant’ in the third lease deed which included only the last

surviving tenant and last surviving heir of the last surviving tenant. He

would take me through the dates of death of each joint tenant and their

legal heirs to demonstrate that Respondent Nos.7 to 10 were the only

last surviving tenants in respect of the leased land and who have validly

surrendered the tenancy rights in respect of the land. He submits that

the lease was only in respect of the open land and the Appellate Court

has erroneously assumed that the same was also in respect of the

building.

20) Mr. Khandeparkar, the learned counsel appearing for

Respondent Nos. 4 to 6 would oppose the Revision Applications and

support the judgment and order passed by the Appellate Bench. He

submits that the Appellate Bench has rightly concluded that the lease

contemplated constructed structures. That the lessors were aware of

presence of sub-tenants in the structures. That consent decree for

surrender of lease is faulty. That the decree does not result in valid

surrender of leasehold rights and that the obstructionists are the lawful

sub-tenants in respect of the structures. He submits that these �ndings

are recorded after due appreciation of evidence on record and that in

absence of any element of perversity therein, there is no warrant for

interference in the �ndings recorded by the Appellate Court in exercise

of revisionary jurisdiction under Section 115 of the Code.

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21) Mr. Khandeparkar, would submit that the very frame of the

suit �led by the lessors/landlords/plaintiffs was faulty as the suit

proceeds on a footing that the same was in respect of only an open land

and was therefore not governed by the provisions of the Maharashtra

Rent Control Act,1999. The suit was erroneously instituted under the

provisions of Section 41 of the PSCC Act, ignoring the position that there

are structures on the land occupied by the Obstructionists. That the

plaint itself refers to the structures standing on the property. That

Applicant’s witness admitted existence of structures during the cross-

examination. That the Indenture dated 15 September 1949 speci�cally

refers to the erected structures. That the last Indenture of 6 March 1959

expressly refers to petrol pump, as well as appurtenances. He relies on

judgment of the Apex Court in D.G. Gose and Co. Pvt. Ltd. Versus. State

of Kerala and another

16

in support of the contention that the term

‘appurtenances’ includes constructed structures as well. He relies on

provisions of Section 108(d) of the Transfer of Property Act, 1882 in

support of the contention that if any accession is made to the land

during continuance of lease, such accession becomes part of the lease.

He submits that the plaint proceeds on a fundamentally erroneous basis

that the suit was in respect of open land. There is an admission in the

plaint that the Defendants in the suit enjoyed protection of Bombay Rent

Act after expiry of third Indenture in 1979. Admittedly, at that

time,obstructionists, their predecessors in title were in possession of the

structures on the leased land. That therefore the protection of the

Bombay Rent Act extends to obstructionists as well. That therefore the

suit could not have been �led as ‘T.E. & R. Suit’. That therefore the

16 1980 2 SCC 410

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decree passed in the suit is a nullity as the same is passed by the Court

having no jurisdiction.

22) Mr. Khandeparkar further submits that under Order XXI

Rule 97 of the Code, Obstructionists Application is required to be

adjudicated. Under Order XXI Rule 97 and 101 of the Cod e,

Obstructionists Application is required to be adjudicated by deciding all

questions between the parties to the proceedings which are ‘relevant for

adjudication of the application’. Therefore even questions regarding

validity of the decree and executability can also be decided under Order

XXI Rule 97 and 101. He relies on judgment of the Kerala High Court in

Koyakutty Thangal and others Versus. Kavunni Raja

17

in support of the

contention of scope of inquiry in an obstructionists application. He relies

on judgment of the Apex Court in Noorduddin Versus. Dr. K.L. Anand

18

in which it has held that Order XXI Rule 101 is an ef�cacious remedy to

prevent fraud and miscarriage of justice.

23) Mr. Khandeparkar further submits that his clients claimed

tenancy rights in respect of the Shops/Galas through Halimabai

Madraswalla who became a deemed tenant as on 1 February 1973. That

his clients are assignees in respect of the tenancy rights from Halimabai.

He relies on rent receipts in respect of Shop No.1 issued by the joint

tenants under the last Indenture dated 6 March 1959. That Applicant’s

witness has admitted that Defendant Nos.8 to 11 were not even in

possession of the suit property at the time of execution of the consent

17 2014 SCC Online Ker 14819

18 1995 1 SCC 242

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decree. That therefore the case involves conspiracy between the

Plaintiffs and Defendants to the suit (Respondent Nos.7 to 10) for the

purpose of ensuring eviction of the real occupants in the property. That

there is also admission of obstructionists being the sub-tenants of

Moogatlal in the evidence. That Defendant Nos.2 to 9 in the suit had

initially �led Written Statement questioning maintainability of the Suit

and speci�cally contended that provisions of Maharashtra Rent Control

Act,1999 apply to the suit property. That the stand was subsequently

changed by �ling Additional written statement which was af�rmed only

by Defendant Nos. 2 to 7. That various admissions made by witnesses of

Applicants when read conjointly with stand of Defendant Nos.2 to 7, it

becomes clear that consent terms are outcome of collusion and fraud

between Applicants and those Defendants.

24) Mr. Khandeparkar further submits that the plaint itself

admits that Respondent Nos.4 to 6 were in occupation of the suit

premises. Yet they were not made parties to the suit. That Respondent

Nos.4 to 6 have become lawful subtenants after expiry of the leasehold

rights of all the three lease deeds. He relies on judgment of the Apex

Court in Mahabir Prasad Verma Versus. Dr. Surinder Kaur

19

in support

of his contention that once sub-tenant is inducted, lawful possession of

such sub-tenant becomes unlawful after expiry of tenancy of the head

tenant. He relies on judgment of the Apex Court in South Asia

Industries Private Ltd. Versus. S. Sarup Singh and others

20

in support of

his contention that if sub-tenant is inducted with the consent of the

19 1982 2 SCC 258

20 AIR 1966 SC 346

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landlord, then in eviction suit, such tenant is a necessary party. He also

relies on judgment of the Apex Court in Habibunnisa Begum and others

Versus. G.Doraikannu Chettiar and others

21

in support of the

contention that where a contract of tenancy is single indivisible contract

and in absence of a statutory provision, the tenancy cannot split.

25) Lastly, Mr. Khandeparkar concludes by submitting that

consent terms are entered into before a Court having no jurisdiction, the

same are entered between the parties who were not in possession and

the consent terms are put into execution to evict parties who are actually

in possession. He therefore submits that the entire act of execution of

consent terms is a result of collusion and fraud and relies on judgment of

the Apex Court in S.P. Chengalvaraya Naidu Versus. Jagannath and

others

22

.He submits that the decree itself is not executable since there is

no lawful compromise between the parties within the meaning of Order

XXI Rule 3 of the Code. He accordingly prays for dismissal of the

Revision Application.

26) Mr. Savant, the learned counsel appearing for Respondent

No.2 in both the Revision Applications (Tare’s) also opposes the Revision

Applications in addition to adopting the submissions canvassed by Mr.

Khandeparkar. Mr. Sawant submits that there is express �nding of

Obstructionists being lawful sub-tenants of the Plaintiffs/landlords as

recorded by the Appellate Court. He further submits that the ratio of the

judgments of this Court in Sanjay Ramchandra Parab (supra) and of the

21 2001 (1) SCC 74

22 1994 1 SCC 1

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Apex Court in Jamnadas Dharamdas Versus. Dr. J. Joseph Farreira and

another

23

cannot apply to the present case since the judgment was not

under the provisions of the Bombay Rent Act or Maharashtra Rent

Control Act,1999 and the same was �led under Section 41 of the PSCC

Act. That the law enunciated in Jamnadas Dharamdas and Sanjay

Ramchandra Parab applies only when a suit is �led for eviction of

statutory rent under the Bombay Rent Act or Maharashtra Rent Control

Act,1999 and the decree passed under those legislation's can be enforced

against the sub-tenant. That in the present case, the Plaintiff took a

calculated risk of �ling suit for eviction of lessee only in respect of open

piece of land not covering structures or occupants of the structures. That

therefore the principle of removal of occupants from structures erected

by lessee/tenants cannot be applied to the present case.

27) Mr. Savant further submits that the Trial Court has failed to

conduct any inquiry into sub-tenancy created in favour of the

predecessor of Respondent No.2 and has proceeded to hold non-

existence of independent right only on the basis of covenants of lease-

deed dated 6 March 1959. That Respondent No.2 is a protected tenant

under Section 15A of the Bombay Rent Act. That in Sanjay Ramchandra

Parab this Court has speci�cally excluded cases where occupant is

otherwise protected by the provisions of the Bombay Rent Act. That

there is ample material to prove induction of Mr. Jagannath Tare prior to

1 February 1973. That both Indentures dated 15 September 1949 and 6

March 1959 clearly recorded existence of structures and therefore it

cannot be contended that the lease was granted only in respect of the

23 1980 3 SCC 569

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vacant land. That the decree is not binding on sub-tenants and is

otherwise a nullity.

28) Ms. Azmi has appeared on behalf of Respondent Nos.7 to 10

(heirs of original lessee) and the Defendants, who have signed the

consent terms. She has submitted to the jurisdiction of this Court. Ms.

Almeida, the learned Counsel appearing for Respondent No.1 has not

canvassed any independent submissions.

REASONS AND ANALYSIS

29) The issue which arose before the Trial and the Appellate

Courts, and which again arises for consideration before this Court, is

whether Respondent Nos.1 to 6, who have obstructed execution of the

decree, have any independent rights in respect of Galas No.1 to 3 or

whether they ought to be removed from those Galas with vacation of

possession of the demised land by the tenants/lessees. Another issue for

consideration, to which the Appellate Court has given much importance,

is whether the decree is defective or inexecutable.

30) The Applicants are the owners of the demised land situated

at a very prominent location at Bandra, Mumbai. The predecessor-in-

title of the Applicants initially leased out the land in favour of Moogatlal

by the �rst Indenture executed on 23 August 1934 for a tenure of 5 years

and 5 months commencing from 1 March 1934 and ending on 31 July

1939. The lease was in respect of only open portion of land with a clear

prohibition on erection of any structure thereon except after obtaining

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necessary permission from the Collector and the Municipality. Under

Clauses-5 and 6 of the �rst Indenture, Moogatlal agreed to deliver to the

Lessors, vacant possession of the land by removing the constructed

structures. It appears that in the year 1948, Moogatlal set up a petrol

pump in the demised land and also constructed three temporary

structures bearing Gala Nos.1, 2 and 3. He inducted Halimabai

Madraswala in Gala No.1 for carrying out motor garage business. Gala

Nos.2 and 3 were given to Jagannath Tare. On 15 September 1949,

Lessors executed second Indenture in favour of Moogatlal granting lease

for a period of 15 years from 1 June 1949 to 31 May 1964. This time, the

second Indenture noticed construction of structures by Moogatlal after

securing permission of Collector and Municipality. However, Moogatlal

agreed to remove the said structure upon expiration of the lease and to

hand back possession of vacant open land to the lessors. He was

speci�cally prohibited in clause-8 from assigning, underletting or

parting with possession of the demised premises or any building or

structure thereon without the consent of the landlord. It would be

apposite to reproduce second recital to the Indenture dated 15

September 1949 which reads thus:

(8) Not to assign underlet or part with the possession of the demised

premises and/or any building or structure thereon or any part thereof

without the consent of the Landlord in writing previously had and

obtained provided that this covenant not to assign underlet or part with

the possession of the demised premises and/or the buildings or

structures thereon shall not prohibit the letting of any building or

structure thereon or any part thereof (so long as such letting does not

create any other interest in the demised premises or any building or

structure thereon or any part thereof) to tenant on monthly tenancy;

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(9) To keep the Landlord indemni�ed against all loss which he may

suffer and all claims and demands which may be made against the

Landlord by reason of anything done or omitted or permitted to be

done by the Tenant in regard to the demised premises or any building

or any structure thereon.

(10) Before the expiration of the term hereby created to remove the

buildings and structures on the demised premises and at the expiration

of the said term to yield up to the Land-lord the demised premises in

the same condition in which it was at the time it was �rst let to him.

31) It appears that Moogatlal passed away before expiration of

second lease dated 15 September 1949 and there were 15 legal heirs who

inherited the leasehold rights. All the 15 legal heirs of Moogatlal

executed the third Indenture dated 6 March 1959 and surrendered the

leasehold rights in the land in favour of the lessors. By the same

document, a fresh lease was executed by lessors in favour of only three

legal heirs of Moogatlal i.e. Parvatishankar Moogatlal Bhat, Madhusudan

Moogatlal Bhat and Vijaykumar Moogatlal Bhat for a tenure of 20 years.

Thus, Parvatishankar, Madhusudan and Vjaykumar were the only three

persons, who became tenants in respect of the demised land. The

expression ‘tenant’ was de�ned under the Indenture dated 6 March 1959

as under:

Hereinafter to as the Tenants (which expression unless inconsistent

with the context or meaning thereof shall be deemed to include the

survivors and lest survivor of them and the heirs executors and

administrators of such last survivor and their and his permitted

assigns) of the Fourth Part. 

(emphasis added)

32) The Indenture dated 6 March 1959, made a reference to the

earlier Indenture dated 15 September 1949 and one of the recitals was as

under:

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AND WHEREAS by an Indenture of Lease dated 15th day of September

1949 made between the Landlord of the one part and the said Moogatlal

in his own right of the other part and registered with the Sub-Registrar

of Bandra under No.896 of Book No.1 on the 15 day of December 1949

the Landlord demised unto the said Moogatlal the land m ore

particularly described in the Schedule thereunder written and

hereinafter referred to as the said land with the appurtenances thereto

for a term of 15 years from the 1st June 1949 to 31st May 1964 on a

monthly rent of Rs.55 and on the other terms covenants and conditions

therein mentioned And Whereas the said Moogatlal erected structure

on the said lend used as Petrol Pump now assessed by the Bombay

Municipal Corporation under Ward No.H-5196 Street No.47B, Ghod

Bunder Road

33) By Indenture dated 6 March 1959, surrendering of leasehold

rights by 15 heirs of Moogatlal is recorded as under:

NOW THIS INDENTURE WITNESSETH that in pursuance of the sai d

agreement and in consideration of the Lease hereinafter granted to the

tenants the heirs of Moogatlal do hereby surrender and the

administrator at the request and direction of the heirs of Moogatlal

doth hereby con�rm unto the Landlord ALL AND SINGULAR the land

more particularly described in the Schedule hereunder written and

other the premises comprised in and demised by the said Indenture of

Lease dated the 15th day of September 1949 and all and singular the

appurtenances thereto belonging AND ALL THE ESTATE right title

interest claim and demand whatsoever of the heirs of Moogatlal and

the administrator in to out of or upon the said premises TO THE

INTENT that the residue of the said term of 15 years created by the said

indenture of Lease dated the 15

th

day of September 1949 and all other

estate and interest of the heris of Moogatlal and the administrator in

the said land and premises under or by virtue of the said Indenture may

be merged and for ever extinguished in the reversion and inheritenace

of the said land and premises and the heirs of Moogatlal do hereby

respectively covenant with the Landlord that notwithstanding any act

deed or thing by them done or executed or knowingly suferred to the

contrary they the tenants now have good right to surrender the said

land and premises unto the Landlord in the manner aforesaid AND

THAT landlord shall and may at all times hereafter peaceably and

quietly possess and enjoy the said land and premises and receive the

rents and pro�ts thereof without any lawful eviction claim or

demand whatsoever from or by the heirs of Moogatlal or any

person or persons lawfully or equitably claiming from under or in trust

for him or them or any of them AND THAT free from all encumbrances

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whatsoever made occasioned or suffered by them or by any person or

persons lawfully or equitably claiming as aforesaid. 

(emphasis added)

34) Thus, under Indenture dated 6 March 1959, all the legal

heirs of Moogatlal �rst surrendered the leasehold rights in the demised

land. They did not continue to be the lessees in respect of the demised

land on account of express surrender made by them by virtue of

registered deed dated 6 March 1959. By the same document dated 6

March 1959, the lessors made new tenancy in favour of Parvatishankar,

Madhusudan and Vijaykumar by recording in the Indenture as under:

AND THIS INDENTURE FURTHER WITNESSETH that in consideration

of the above-mentioned surrender the Landlord doth hereby demise

unto the tenants ALL THAT piece or parcel of land on Ghod Bunder

Road, at Bandra being Final Plot No.650 of the Bandra Town Planning

Scheme-III admeasuring about 450 square yards and more particularly

described in the Schedule hereunder written and hereinafter referred to

as the said land with the appertances thereto belonging except and

reserved unto the Landlord all mines, minerals, earth, clay, gravel and

sand in and upon the demised premises TO HOLD unto the Tenants for

a term of 20 years on and from the 1st day of January 1959. 

35) Clause-1(h) of the Indenture dated 6 March 1959 imposed

restriction on subletting by stipulating as under:

(h) not to assign underlet or part with the possession of the demised

premises and/or any building or structure thereon or any part thereof

without the consent of the Landlord in writing previously had and

obtained provided that this covenant not to assign under let or part

with the possession of the demised premises and/or the buildings or

structures thereon shall not prohibit the letting of any building or

structure thereon or any part thereof (so long as such letting does not

create any other interest in the demised premises or any building or

structure thereon or any part thereof) to a tenant on monthly tenancy;

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36) Under Clause-1(j), Parvatishankar, Madhusudan and

Vijaykumar agreed to remove all buildings and structures before

expiration of term of lease as under:

(j) before the expiration of the term hereby created to remove the

buildings and structures for the time being on the said land and at the

expiration of the said term to yield up to the Landlord the said land

vacant and in in the same condition in which it was at the time it was

�rst let to the said Moogatlal �lled and properly levelled to road level;

37) The Schedule of Indenture dated 6 March 1959 is as under :

ALL THAT piece or parcel of land or ground admeasuring 450 square

yards being Final Plot 650 of Bandra Town Planning Scheme-III lying

being and situate on Ghodbunder Road in Bandra in the registration

Sub-District of Bandra in the Bombay Suburban District.

38) After expiration of tenure of the third Indenture on 5 March

1979, the three lessees namely, Parvatishankar, Madhusudan and

Vijaykumar apparently acquired the status of protected tenants under

the Bombay Rent Act, which also applied to vacant lands. However,

under the Indenture dated 6 March 1959, it was expressly agreed that

tenants would only include the last survivor of Parvatishankar,

Madhusudan and Vijaykumar, as well as heirs, executors and

administrators of such last survivor or their permitted assignees.

Madhusudan passed away on 3 July 1986, Parvatishankar passed away on

31 May 1995. This left only Vijaykumar as the last surviving tenant in

terms of Indenture dated 6 March 1959 and he became the sole tenant.

Vijaykumar passed away on 10 January 1996. Vijaykumar had total �ve

legal heirs at the time of his death viz Mukta (Wife), Manjiri, Sona and

Mala (daughters) and Parag (Son). Parag had already passed away on 23

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August 1985. Thus, Mukta, Manjiri, Sona and Mala became the last

surviving tenants in respect of the demised land.

39) Since Mukta, Manjiri, Sona and Mala remained protected

tenants under the Bombay Rent Act and therefore, it appears that the

lessors did not �le suit under Section 41 of the PSCC Act for ejectment of

those lessees, who remained in possession of the demised land even after

expiration of tenure of lease. After coming into force of the Maharashtra

Rent Control Act,1999 protection in respect of the tenancies of vacant

lands was not continued and provisions of Maharashtra Rent Control

Act,1999 did not apply to tenancies of open lands. After loss of

protection of Rent Act in respect of the suit land, the owners instituted

T.E.& R. Suit No. 66 of 2002 for ejectment of the lessees under Section

41 of the PSCC Act. The suit was instituted against 11 Defendants, which

apparently included several legal heirs of Moogatlal. Defendant No.1 to

the suit was Moogatlal’s wife Jailaxmi. Defendant No.2 to the suit is son

of Madhusudan (Ashok). Defendant No.3 was daughter of another son of

Moogatlal named, Shantooram. Defendant No.4 was Shakuntala (wife of

Madhusudan). Defendant Nos.5 to 7 were the three sons of Madhusudan

named, Jitendrra, Hemendera and Mukesh. Defendant Nos.8 to 11 were

legal heirs of Vijaykumar.

40) It appears that Moogatlal’s wife-Jailaxmi passed away

during pendency of the suit. Defendant Nos.2 to 7, who had initially

opposed the suit by �ling written statement, �led additional written

statement pleading that they did not have any right, title or interest in

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respect of the suit premises. They pleaded in the additional written

Statement that they were not tenants of the suit premises nor were

occupying the same. They relied on de�nition of the term ‘tenants’ in

the last Indenture dated 6 March 1959 to contend that only the last

surviving tenant and legal heirs of the last surviving tenant could �t into

de�nition of the said term. Since Vijaykumar was the last surviving

tenant, only legal heirs of Vijaykumar remained tenants in respect of the

demised land. In my view, the stand taken by Defendant Nos.2 to 7 was

in accordance with the contractual stipulations under the Indenture

dated 6 March 1959. This is not a case involving any collusion between

Plaintiffs and Defendant Nos.2 to 7. If Defendant Nos.2 to 7 were to

claim any rights in respect of the suit property, they would have incurred

liability to pay mesne pro�ts in the event of passing of decree for

ejectment. Defendant Nos.2 to 7 rightly did not claim any rights in the

demised land by �ling additional written statement.

41) Thus, the tenancy in the demised land was claimed only by

Defendant Nos. 8 to 11, who were the legal heirs of the last surviving

tenant-Vijaykumar. Vijaykumar also had a son named, Parag who had

passed away on 23 August 1985 and therefore there was no question of

his impleadment. Vijaykumar’s wife, Mukta and children, Manjiri, Mala

and Sona were impleaded as Defendant Nos.8 to 11 to the suit.

Defendant Nos.8 to 11 executed Consent Terms with the Plaintiffs on 29

April 2006. Under the Consent Terms they accepted termination of

tenancy and agreed for passing of decree for ejectment subject to the

condition of Plaintiffs not claiming any mesne pro�ts from them. In view

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of the Consent Terms dated 29 April 2006, Small Causes Court passed

order dated 6 May 2006 decreeing the suit in view of the Consent Terms.

42) It is contended by the Obstructionists that the suit was

collusive in nature and that the same was compromised in an illegal

manner. It is contended that the suit was �led deliberately against the

persons not in occupation of the suit property and Defendant Nos.8 to 11

had no authority in law to surrender tenancy rights. I am not inclined to

accept these submissions for following reasons:

(i)Firstly , the obstructionists attempted to expand the scope of

enquiry under Order XXI Rules 97 and 101 of the Code by

virtually questioning the correctness of the decree. In those

proceedings the Executing Court deciding the Obstructionist

Notice has a limited remit of inquiry to conduct, which is

mainly about existence of independent right of the

obstructionist to occupy the property. The Court cannot really

expand the scope of its inquiry and examine validity of decree

sought to be executed. In an obstructionist notice, the

Executing Court is not ordinarily suppose to enter into the

realm of merits of the decree. In a case like present one, the

inquiry under Order XXI Rule 97 and 101 would yield positive

outcome for obstructionists only if they can demonstrate

independent right in respect of the property in question.

(ii)Secondly even if it is assumed arguendo that the Executing

Court can determine validity of decree in obstructionist

proceedings, it is seen that the Suit was rightly �led only

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against the lessees/tenants without impleadment of

obstructionists. The tenancy/lease was created only in respect

of the vacant land and not in respect of the constructed

structures. (This is discussed in greater details in latter part of the

judgment). The Obstructionists were therefore not necessary or

even proper parties. The Suit was thus not collusive. It was

genuinely �led for recovery of possession from the lessees who

had contractual obligation to demolish the constructed

structures and hand back vacant possession of the demised

land.

(iii)Thirdly the compromise is lawful one within the meaning of

Order XXIII Rule 3 of the CPC. In a suit �led against the lessees

for ejectment, it is lawful for the lessees to vacate possession by

entering into consent terms. The Suit was �led in the year

2002, after protection of Bombay Rent Act ended in the year

1999, and was compromised by �ling consent terms on 29 April

2006. It is thus a lawful compromise.

(iv)Fourthly , it cannot be concluded in the facts and circumstances

of the present case that Defendant Nos.8 to 11 have acted

illegally or in collusive manner. As observed above, Plaintiffs

had unnecessarily impleaded all the legal heirs of Moogatlal

though the tenancy had survived only in favour of the last

surviving tenant being Vijaykumar, and after his death, in

favour of his legal heirs. Madhusudan or Parvatishankar or their

heirs did not have any tenancy rights in the demised land.

Parvatishankar had already passed away issueless on 31 May

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1995. Moogatlal’s son-Shantooram was not a tenant under the

Indenture dated 6 March 1959. Madhusudan’s legal heirs,

Defendant Nos.2, 4 to 7 had not inherited the tenancy rights as

per the stipulations of the Indenture dated 6 March 1959. They

rightly gave up claim in the demised land by �ling the

additional written statement. Heirs of Vijaykumar (Defendant

Nos.8 to 11), who were the lessees, gave up tenancy claims in

the demised land by entering into consent terms. Entering into

consent terms by Defendant Nos.8 to 11 needs to be understood

in the context of provisions of Maharashtra Rent Control

Act,1999 which no longer applies to vacant lands. Irrespective

of contention of Obstructionists that there were structures on

the land at the time of execution of Indenture dated 6 March

1959, it was the responsibility of the lessees to remove the

structures constructed on the demised land upon expiry of the

lease. Not only the Indenture spoke of creation of lease in

respect of only vacant land, but both Plaintiffs, as well as

lessees (Defendant Nos.8 to 11) understood it to mean creation

of lease only in respect of vacant land to which provisions of

Maharashtra Rent Control Act,1999 did not apply. Defendant

Nos.8 to 11 thus carried the risk of occupying the suit property

(either by themselves or through obstructionists) and to pay

mesne pro�ts in respect of the land in the event of passing of

decree for ejectment. Considering the time taken for decision of

suits before the Small Causes Courts at Mumbai, as well as

location of the land at prime spot in Bandra at Mumbai, in my

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view, Defendant Nos.8 to 11 rightly used the common and

commercial sense and consented for passing of ejectment

decree on condition of Plaintiff not claiming any mesne pro�ts.

If Defendant Nos. 8 to 11 were to continue contesting the suit,

such an act had the potential risk of incurring of liability to pay

mesne pro�ts running into crores of rupees. It therefore cannot

be contended that the act of Defendant Nos. 2 to 7 in giving up

tenancy claims and of Defendant Nos.8 to 11 in �ling the

consent terms is an act of fraud or collusion. The compromise

therefore cannot be treated as unlawful in any manner.

(v)Fifthly the contention of obstructionists that the suit was

deliberately �led against Defendants who were not in actual

physical possession is without substance. The lessors-Plaintiffs

had no privity of contract with the obstructionists. The lease

was created in favour of Moogatlal, who operated a Petrol

Pump on the demised land and had constructed three

sheds/galas possibly for auxiliary services such as tyre shop,

garage, etc. How such small galas can occupy the whole of the

land after discontinuation of Petrol Pump is dif�cult to

comprehend. Mr. Shah has alleged gross encroachments by the

obstructionists over open plot. He has contended that Gala No.

1, there are unauthorised transfers and what stands at the site

is a swanky showroom. Be that as it may. That issue is raised in

the separate proceedings pending before this Court. From the

contention raised on behalf of the obstructionists, it is

apparent that the entire plot is occupied by them. The case thus

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involves, induction by the lessee of third persons in small

structures for providing auxiliary services and such third

persons preventing the owners of land from enjoying the same

even after the lessee has surrendered possession of the land. In

my view, there was no need to implead the Respondents as

party Defendants to the suit. In any case, the alleged right of

occupation of the structures has been adjudicated in the inquiry

under Section 101, which is akin to an inquiry in the suit.

43) Now I proceed to examine the manner in which the Trial and

Appellate Courts have dealt with the matter. The Trial Court had made

the Obstructionists Notice absolute by judgment and order dated 3

November 2018. The Trial Court held that there was no privity of

contract between Plaintiffs and Obstructionists in respect of 3 galas. The

Trial Court further held that obstructionists could not prove any

independent right to occupy the three galas and that since they were

inducted by the tenants, they were under obligation to remove

themselves after passing of ejectment decree against the tenants.

44) The Appellate Court has however reversed the decree passed

by the Trial Court. Perusal of the judgment of the Appellate Court would

indicate that the same proceeds on a fundamentally errone ous

assumption that the tenancy subsisted in favour of 15 legal heirs of

Moogatlal and that the decree was passed only against some of the

tenants and not against all. This is clear from following �ndings recorded

by the Appellate Bench of the Small Causes Court:

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13. This point goes to roots of this matter. The decree is not against any

of the obstructionist. Decree is against only a few of tenants of land.

It is a cardinal principle of Rent Act that, if there are more than one

tenant, tenancy of all the tenants should come to an end. There is

another fundamental rule of tenancy that tenancy comes to an end only

by way of legitimate recognized modes of termination, that is to say, by

decree of Court, by surrender or by forfeiture followed by decree for

possession.

16. If the exact wordings of second lease deed dated 6/3/1959 are

read, there are 15 independent lessees, who are co-tenants of land

simultaneously, having independent tenancy rights. All of them

belongs to one family is just incidental. So far as their rights are

concerned, each of the tenant has independent tenancy right, and law

expects termination of right of each of the tenant.

18. If the names of tenants are compared with defendants, following

picture emerges. (Lessee No. 1 to 15 are referred to as number given

against their respective names in paragraph No. 4 of this judgment).

i. Jaylakshmi w/o Moogatlal is lessee No. 1; she is not party to

the suit after her death. Her tenancy right devolves upon all her

legal heirs and just deleting her name will not serve purpose

unless all her legal heirs on whom her tenancy right devolves

surrenders their tenancy right. Her legal representatives were

then necessary party to the suit.

ii. Parvatishankar s/o. Moogatlal is lessee No. 2; he is not party

to the suit.

iii. Vijaykumar s/o Moogatlal is lessee No. 4; he is not party to

the suit. He died prior to the suit. But his widow is defendant

No. 8 to the suit. She has surrendered her right, which she

inherited after Vijaykumar. But, Vijaykumar's entire tenancy

rights will not devolve upon his widow. He has one son Parag

(lessee No. 13) and two daughters viz. Mala (defendant No. 10)

and Malini (lessee No. 10). The third daughter who has

compromised the suit appears to have born subsequent to the

lease deed dated 6/3/1959. His widow and three daughters

surrendered their rights but tenancy right which Parag

Viajaykumar received by inheritance prior to date of suit (on

death of Vijaykumar) has not been surrendered. Likewise the

right of Parag. which he holds as lessee No. 13 has not been

surrendered.

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iv. Madhusudan (lessee No. 3), his children Hemendra

Madhusudan (lessee No. 5), Ashok Madhusudan (lessee No. 6),

Jitendra Madhusudan (lessee No. 7), Kirti Madhusudan (lessee

No. 9), Malini Madhusudan (lessee No. 10), Jitiksha

Madhusudan (lessee No. 11) and Kalpana Madhusudan (lessee

No. 12). Neither of them is party to the suit, nor they have

surrendered their tenancy rights.

v. The defendants No. 1 to 9 were deleted from array of

defendants. Ashok Moogatlal (defendant No. 2), Nutan S. Bhat

(Defendant No. 3), Shakuntala M. Bhat (defendant No. 4),

Jitendra M. Bhat (Defendant No. 5), Hemendra M. Bhat

(Defendant No. 6) and Mukesh M. Bhat (Defendant No. 7) were

parties to suit. But point to be noted is that these defendants

No. 2 to 4 were not parties to the lease deed. Those were

improperly made parties. Therefore, defendants No. 2 to 4,

being as defendant or not being there on deletion won't made

any difference to the merits of the suit.

19. To be precise, there were 15 tenants of land. Out of them, Smt.

Jayalaxmi (defendant No. 1) died and Mala Vijaykumar (defendant No.

10) surrendered tenancy absolutely. Manjiri Varde Defendant No. 9)

and Sona Rajiv Kapadiya (Defendant No. 11) are daughters of late

Vijaykumar Moogatlal Bhat. Out of 14, tenancy is surrendered by 3 i.e.

defendant No. 9 to 11 as defendant No. 8 is not tenant in her own right,

still tenancy of nine tenants remains with them. Likewise, tenancy of

Jaylakshmi (tenant No. 2) and Vijaykumar (tenant No. 4) remains in

part as all the legal heirs have not surrendered the tenancy rights which

is transmitted on them.

21. The preposition is simple. On perusal of only two documents i.e.

consent decree dated 6/5/2006 and Lease deed dated 6/3/1959 (Exhibit

No. 93 in suit). This can be understood by any man of ordinary

prudence that consent decree is valid surrender of tenancy to the

extent of (partial) tenancy of the signatory to consent terms.

Obviously, the tenancy rights of all other parties to lease deed

dated 6/3/1959 (Exhibit No. 93) still remains with them and they all

are unaware of this T.E. & R. Suit No. 66 of 2022 as well as consent

decree and these subsequent proceedings for simple reasons that the

plaintiff choose to not to make them party. Only branch of Late

Vijaykumar signed Consent Decree. Four signatory to consent terms are

widow and three daughters of Vijaykumar Moogatlal Bhat. His son

Parag Vijaykumar Bhat has not surrendered his tenancy. 

23. Decree of possession of land on termination of lease can be

enforced as a whole or it cannot be executed. Considering the limited

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surrender of three tenants out of 14 tenants, it is valid decree to

the extent of surrender of tenancy rights of signatory individuals.

However, it is not a decree which can be executed to tak e

possession of the suit land. Unless there is decree against all the

tenants or their legal heirs, it cannot be an executable decree.

Consent binds only the signatory. For rest 11 out of 14 tenants,

the landlord should get a separate decree and only thereafter both

the decrees can be executed as once and not otherwise.

24. A speci�c query was put to learned advocate for plaintiff/decree

holder as to how it can be executed unless all the tenants signs consent

decree, to which learned advocate replied that there is indemnity

clause where the signatory to consent decree has undertaken to Court

to indemnify other tenants if any problem arises.

45) Thus, the Appellate Court has proceeded on a fundamental

erroneous assumption that the Indenture dated 6 March 1959 created

tenancy in favour of 15 tenants and that the surrender was made only by

3 tenants. The above �ndings recorded by the Appellate Bench are

perverse to the core and depicts misreading on the part of the Appellate

Court of the third Indenture dated 6 March 1959, which created tenancy

only in favour of three persons, namely Parvatishankar, Madhusudan and

Vijaykumar. It read only the names of 15 heirs on the Indenture without

bothering to read what those 15 heirs did by signing the Indenture. Their

names appear in the Indenture not for creation of any rights in their

favour but only for recording of an act by them of surrender of rights in

the land. The Appellate Court however has erroneously assumed that the

15 persons named in the Indenture dated 6 March 1959 became tenants

of the demised land. The Appellate Bench did not even bother to read

contents of Indenture dated 6 March 1959 which had the effect of

surrender of tenancy by the 15 heirs of Moogatlal and creation of

tenancy in favour of only 3 tenants. The �nding of the Appellate Court in

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para-16 of the Judgment that ‘if the exact words of second lease deed dated

6 March 1959 are read, there are 15 independent lessees, who are co-

tenants of land simultaneously’ is so egregiously perverse that even Mr.

Khandepakar has not made any attempt to support the same. He fairly

admits the error on the part of the Appellate Court in assuming that

tenancy was created in favour of 15 lessees by Indenture date 6 March

1959.

46) It would also be necessary to take note of few more perverse

�ndings recorded by the Appellate Court. In para-21 of the judgment,

the Appellate Court has held that ‘His son, Parag Vijaykumar Bhat has not

surrendered his tenancy’. This �nding is perverse and is recorded in

ignorance of the fact that Parag Vijaykumar Bhat had passed away on 23

August 1985. In para-18 of its judgment the Appellate Court has

anaylised as to how the suit �led was �awed on account of non-

impleadment of all the lessees. Again, this analysis is premised on a

fundamental erroneous assumption that the tenancy was created in

favour of 15 tenants (heirs of Moogatlal). This is clear from the

overarching �nding recorded in opening part of Para 18 before

commencing the analysis that ‘If the names of tenants are compared with

defendants, following picture emerges. (Lessee No. 1 to 15 are referred to as

number given against their respective names in paragraph No. 4 of this

judgment)’. Thus, the Appellate Court’s analysis in clauses (i) and (v) of

Para 18 is premised on fundamentally wrong assumption that tenancy

was created in favour of 15 tenants by the Indenture dated 6 March 1959.

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47) This is how the impugned judgment of the Appellate Court

is replete with numerous errors. The Appellate Court has dismissed the

Obstructionist Notice by allowing the Appeals �led by the

Obstructionists on a fundamentally �awed foundation that the decree

was not validly passed as surrender was only by 3 out of the 15 tenants.

The entire judgment is built upon by the Appellate Court on this

fundamentally �awed assumption. Since the basic assumption itself is

defective, the entire judgment is rendered grossly erroneous and the

same is liable to be set aside only on this ground. In fact, this is the

reason why attempts were made on behalf of the obstructionist towards

the end of the hearing for seeking remand of the Appeals for fresh

decision. Though remand of the Appeals for fresh decision could have

been an easy course of action for this Court, I am not inclined to adopt

the said course of action since the Appellate Court has walked a step

ahead and has also recorded �ndings on independent rights of the

obstructionists. Also, obstructionists have been resisting the execution

of the decree for the last 20 long years, and an order of remand would

obviously enure to their bene�t by continuing to occupy the structures.

Since �ndings are recorded both by the Trial and the Appellate Courts on

right of the obstructionists to occupy the structures, it is appropriate

that this Court determines correctness of those �ndings.

48) Now I proceed to examine the issue of establishment of

independent right by the obstructionists to occupy the structures

constructed on the demised land. It is sought to be contended by

Respondent Nos.4 to 6 that the Executing Court is bound to decide all

the issues that are relevant for adjudication of the application under

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Order XXI Rule 101 of the Code. This submission is canvassed essentially

to support the exercise undertaken by the Appellate Cou rt for

determining validity of compromise decree under Rule 97 of Order XXI.

If execution of decree is obstructed by any person in possession of the

property, the decree holder can make an application to the Executing

Court complaining of such obstruction. Rule 101 of Order XXI deals with

questions to be determined by the Executing Court in Obstructionist

Notice and provides thus:

101. Question to be determined—

All questions (including questions relating to right, title or interest in

the property) arising between the parties to a proceeding on an

application under rule 97 or rule 99 or their representatives, and

relevant to the adjudication of the application, shall be determined by

the Court dealing with the application and not by a separate suit and

for this purpose, the Court shall, notwithstanding anything to the

contrary contained in any other law for the time being in force, be

deemed to have jurisdiction to decide such questions.

Bombay.-In Order XXI, in rule 101, insert the following proviso,

namely:-

"Provided that when the Court is not competent to decide such

question due to want of pecuniary jurisdiction the Court shall send the

execution case to the Court of the District Judge to which the said

Court is subordinate and thereupon the Court of the District Judge or

any other competent Court to which it may be transferred by the

District Judge, shall deal with it in the same manner as if the case had

been originally instituted in that Court."

49) Thus, under Rule 101 of Order XXI, the Executing Court can

decide ‘all questions’ including the question relating to right, title or

interest of the Obstructionist in the property and the one which are

relevant to the adjudication of the application and that the same cannot

be adjudicated by a separate suit. Thus, every question relating to right,

title or interest in the property arising between the parties to

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Obstructionist Notice, but which are relevant to the adjudication of the

application are to be determined by the Executing Court itself. This

would essentially mean that if a question relating to right, title or

interest to the property between an obstructionist and decree holder

arises in application �led under Order XXI Rule 97, the same has to be

decided by the Executing Court and cannot be left open to be decided in

a separate suit. This essentially means that if obstructionist can prove

his title to the land in respect of which decree for possession is secured,

the Executing Court can decide the said issue relating to title. Similarly,

if obstructionist can prove his right to occupy the property (without

title), that right can also be determined by the Executing Court under

Rules 97 and 101 of Order XXI.

50) This would not necessarily mean that in an inquiry under

Rule 101, the Executing Court can also determine the issue of right, title

or interest between the decree holder and defendant in the suit. Use of

the words ‘arising between the parties to a proceeding on application under

Rule 97 or 99’ and more particularly the words ‘and relevant to the

adjudication of the application’ would mean that only such questions that

are relevant to adjudication of Obstructionist Notice can be decided by

the Executing Court, which may not necessarily mean the right, title or

interest between the Plaintiff and Defendant. Only the questions

relevant to adjudication of the ‘application’ �led under Rule 97 or 99 can

be determined by the Executing Court. Rule 101 does not confer power

on the Executing Court to reopen the decree and redetermine the issues

answered between the parties to the suit while deciding the same. Since

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obstructionist is not heard while deciding the suit, only the questions

relating to right, title or interest in the property ‘arising between the

parties to a proceeding on an application under rule 97 or rule 99’ and the

ones that are relevant to the adjudication of the ‘application’ can be

decided in inquiry under Rule 101 of Order XXI. Thus, the question of

right, title or interest in the property must be germane to the ‘objection

application’ �led under Rule 97 of Order XXI. The questions which are

germane to decision of ‘suit’ cannot be reopened in inquiry under Rule

101. The real objective behind Rule 101 is to prevent multiplicity of

litigation. It provides for remedy for determination of questions between

decree holder and third parties. It ensures that questions of title or

interest of third parties need not be determined in a separate suit and

can be determined in Rule 101 inquiry itself. The Executing Court cannot

hold that the obstructionist must secure declaration of title or

entitlement of possession from another Court and must determine that

issue in Rule 101 inquiry. However, this would not mean that Rule 101 is

aimed at reopening the inquiry in the Suit between Plaintiff and

Defendant and redetermination of issues that are already decided in the

suit. Rule 101 envisages adjudication of disputes between decree holder

and third parties.

51) In support of the contention that the Executing Court can

decide the issue of validity of compromise executed between the Plaintiff

and Defendants to the Suit, Mr. Khandeparkar has relied on judgment of

Kerala High Court in Koyakutty Thangal (supra) in which it has held in

paras-69 and 70 as under :

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69. Regarding the burden of proof relating to obstructions, divergent

views have been expressed in similar matters. One view is that the

burden is entirely on the obstructionist for a determination of his right,

title or interest to be adjudicated. Another view is that, the decree-

holder, even though he is clothed with a decree which is not inter

parties, cannot be absolved from his burden to prove his right or title

over the property. When the obstructionists are capable of showing

that they have some rights, title or interest over the immovable

properties, which are to be adjudicated within the meaning of Order

XXI Rule 101 CPC, it cannot be said that the decree-holders, who are

clothed with a decree which is not inter parties, have no burden in the

matter. An adjudication under the complete code contained in Order

XXI Rule 97 and the related provisions is admittedly in the form of a

suit and the determination through such an adjudication has the effect

of a decree within the meaning of Order XXI Rule 103 of the Code. In

such case, this Court is of the view that an obstructionist has even the

right to challenge the title of the decree-holder also. Further, such an

obstructionist has the right even to challenge the executability or

otherwise of the decree. If by any means, the decree has become

inexecutable, it cannot be said that an obstructionist cannot raise such

a question. He can validly challenge the executability of the decree 

70. A decree-holder cannot always rest in an arm chair by possessing a

decree by saying that he has got title, even when the decree contains it.

Article 129 of the Limitation Act speci�es the period of limitation for

�ling an application for possession after removing resistance or

obstruction to delivery of possession of immovable property, as 30

days. When the law says that such an application is for possession, it

involves an adjudication of his right to possession. When it has to be

considered as a suit, it cannot be said that such an applicant has no

burden at all.

52) The judgment in Koyakutty Thangal does not assist the case

of the obstructionists in contending that the Executing Court can also

decide the issue of validity of compromise decree made between the

Plaintiffs and Defendant Nos.8 to 11. It is held by the Kerala High Court

in Koyakutty Thangal that when obstructionists are capable of showing

that they have speci�c right, title or interest over the property, it cannot

be said that the decree holders have no burden in the matter to prove his

right, title or interest and that obstructionist can also challenge title of

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the decree holder. The Kerala High Court has further held that a decree

holder cannot always rest in an arm chair by possessing a decree

representing that he has certi�cate of title. I am in respectful agreement

with the view expressed by the Kerala High Court. To illustrate, if

Plaintiff secures a decree against the Defendant-Vendor for speci�c

performance and as a result of such decree, seeks to remove another

person in possession through execution and such person in possession

sets up a case of title of having purchased the property much before

execution of agreement of sale-deed in favour of plaintiff, the Plaintiff

cannot rely upon mere decree and obstructionist is entitled to challenge

Plaintiff’s title over the property. However, this principle does not mean

that an obstructionist, who merely claims possessory right in respect of

the structures on demised land, can question validity of ejectment decree

passed against lessee who inducted them.

53) If an obstructionist claims possession through lessee, he will

have to necessarily remove himself with ejectment decree passed against

the lessee. On the other hand, if obstructionist is in a position to claim

independent right to occupy the structure, he needs to establish that

right rather than questioning the legality of ejectment decree passed

against the lessee who inducted him. This means that if a tenant inducts

sub-tenant without the consent of the landlord, but that sub-tenant has

a statutory right/protection from being removed, he can obstruct

execution of decree passed against the tenant by establishing his

independent statutory right to occupy the property. In such a case, it is

not necessary for a sub-tenant, who has statutory right to occupy the

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property, to question legality of ejectment decree passed against the

head tenant. In an inquiry under Order XXI Rule 101, such obstructionist

can prove his statutory right to occupy the property and defeat execution

of the decree, instead of �ling a separate suit.

54) Reliance is also placed on behalf of obstructionists on

judgment of the Apex Court in Nooruddin (supra) in which it is held that

the provision under Order XXI Rule 101 of the Code is an ef�cacious

remedy to prevent fraud and miscarriage of justice. Again, there can be

no dispute in respect of the proposition enunciated by the Apex Court in

Nooruddin. However, the Apex Court has held that person presenting

obstruction must establish independent right than that of judgment

debtor. The independent right must be own right of the obstructionist to

possess the property. Therefore, even as per the judgment of the Apex

Court in Nooruddin it was incumbent for the Obstructionists to establish

their independent right to occupy the three Galas on the demised land in

the inquiry under Rules 91 and 101 of Order XXI of the Code. They

unnecessarily made an attempt before the Trial and the Appellate

Courts, and which attempt is also repeated before me, in poking holes in

the manner in which the Suit was �led and the manner in which the

same is compromised. May be the obstructionists could question their

own non-impleadment to the suit and to this limited extent, they could

have raised issues relating to the manner of �ling and compromising the

suit. However, they cannot question validity of the decree on the ground

that all the Defendants in the suit had tenancy rights and only few of

them surrendered the same. Once some of the Defendants admit that

they are not the tenants and the rest of Defendants, claiming tenancy,

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surrender the possession of the demised land, obstructionists cannot

seek to establish in Rule 101 of Order XXI inquiry that each and every

Defendant had tenancy rights and some of them could not have �led

additional written statement giving up claim of tenancy. Also, the

Executing Court could not have gone into the issue of validity of

surrender of tenancy rights by �nding out who all were the tenants, etc

in the inquiry under Rule 101 of Order XXI.

55) It must be noted that the other heirs of Moogatlal have not

questioned the manner in which the suit is compormised. They do not

claim any right, title or interest in the demised land or in respect of the

structures standing thereon. It is only the obstructionists who are

attempting to protect their possession by pointing out the defects in the

suit and the decree. Thus the attempt to poke holes in the decree is

aimed at somehow defeating execution of decree and latch on to

possession by obstructionists when the Defendants have no objection to

the decree. It is quite another aspect that this Court is unable to notice

any defect in the Suit or in the compromise decree for the reasons

discussed in the preceding paras. Thus, the only way left for the

obstructionists in the present case was to establish their independent

right to occupy the 3 galas constructed on the demised land.

56) Coming back to the main issue about existence of

independent right of obstructionists to occupy the three galas on the

demised land, the Trial Court has held that they could not establish such

independent right. The Appellate Court, on the other hand, has held that

the obstructionists became lawful sub-tenants of the plaintiff. The

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�ndings recorded by the Appellate Court in this regard in paras-27, 28

and 29 as under:

27. By the date of second lease deed dated 6/3/1959, heirs of Moogatlal

surrendered the land to landlord Cecil Joseph D'Monte. Second lease

deed is an independent contract dated 6/3/1959. It is not continuation

or renewal of earlier lease deed. On 6/3/1959, where new lease deed was

created, the land already had building over it, and the obstructionist,

who were tenants of Moogatlal were in possession of building in the

capacity of tenants. Before death of Moogatlal, they were tenants of

Moogatlal. On death of Moogatlal on 10/3/1954, they become tenants

of all the legal representatives of Moogatlal.

28. On the date of second lease deed dated 6/3/1959, prior to signing of

second lease deed, there was surrender of rights by lega l

representatives of Moogatlal. Moogatlal was owner of buildings. He was

tenant of land. Obstructionists claim that land as well as building

structures were surrendered to landlord. Plaintiff/decree holder says

only tenancy of land was surrendered.

29. If the case of obstructionists is believed, land and structure were

surrendered, and by second document dated 6/3/1953, land and

structure were let out to tenant. In that event, lessee would become

tenant of land as well as tenant of building. If these 14 members

(tenants) as abovestated are tenants of building, the

obstructionists become lawful subtenants of plaintiff/landlord.

(emphasis added)

57) Thus, the Appellate Court has held that the Indenture dated

6 March 1959 created a lease noticing that there were structures

occupied by inductees of Moogatlal, that such inductees were tenants of

Moogatlal and that after Moogatlal’s death, the inductees became

tenants of legal heirs of Moogatlal. The Appellate Court further held that

the land and structures were surrendered by Indenture dated 6 March

1959 and fresh lease was created in respect of the land and structures on

6 March 1959 and that therefore obstructionists became lawful sub-

tenants of the Plaintiffs. This is the only �nding in the entire judgment

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of the Appellate Court for establishing alleged independent right of the

Obstructionists to occupy the 3 galas on the demised land.

58) As observed above the entire judgment of the Appellate

Court is built upon and premised essentially on non-surrender of

tenancy by all 15 tenants resulting in an imperfect decree. It has brie�y

meandered into the issue of existence of independent right of

obstructionists to occupy the structures and had returned to its core

inquiry into imperfect decree. Thus after cursory �ndings recorded in

Paras 27 to 29 of the Judgment on the issue of existence of independent

right of obstructionists to occupy the structures, the Appellate Court

went on to hold in para-30 of the judgment that the decree was not for

possession of 100% leasehold rights since the surrender was not by all

tenants. Thus, after sketchily holding that obstructionist had become

sub-tenants, the Appellate Court once again went on to its original track,

and has held in paras-30 and 31 of the judgment as under:

30. But even otherwise, leaving the case of sub-tenancy aside, landlord

cannot enforce a decree for possession against the obstructionist

(tenant of land lessee) unless the lease of lessee is terminated by

decree. Tenant of the premises (obstructionist) has right to resist the

execution unless the right of the land lessee (his landlord) is lawfully

terminated by the decree which is sought to be executed.

31. For the abovestated reasons, it is held that the Consent Decree in

T.E. & R. Suit No. 66 of 2002 cannot be enforced against any of tenants

in building until the landlord acquires right to demolish this structure.

Right to demolish the structure is not the part of the decree but an

incidental consequence of decree for possession of open land. Unless

the landlord/plaintiff gets a decree terminating rights of all 14 tenants,

he will not have right to obtain possession of land beneath the

building; and unless the landlord gets that kind of decree, it is a stage

premature for the landlord to seek vacant possession of shop

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(structure) possessed by obstructionist. It is an attempted misfeasance

on part of the plaintiff/decree holder by exceeding beyond the scope of

decree. It is well within rights of the obstructionist to obstruct

execution of decree beyond the authority of decree. For this reason, it is

held that, as the decree is not for possession of 100% of the lease right,

it cannot be enforced for seeking possession of suit premises from

obstructionists for purpose of demolishing the building to get

possession of open land, which is subject matter of suit.

59) Thus, the Appellate Court has not conducted an in-depth

inquiry for upholding the independent right of obstructionists to occupy

the structures. After recording stray �nding of lawful sub-tenancy in

para-29 of the judgment, there is no further inquiry into establishment

of independent right to occupy the structures. The judgment is

essentially rendered on the footing that the decree was incomplete and

inexecutable against the obstructionists. This is clear from further

�ndings by the Appellate Court in paras-50 and 53 of the judgment as

under:

50. It will be improper if this Court decides or makes observation at this

stage over nomenclature of alleged right of obstructionists to be in

possession of premises. But, they have right to be evicted only by

following due process of law. There should be a valid and complete

decree for possession. Complete decree is not a legal term. This Court

therefore try to explain it with a general illustration to convey how the

Court tries to distinguish between a complete decree and incomplete

decree.  

53. For the abovestated reasons, it is held that the decree in T.E. & R.

Suit No. 66 of 2002 cannot be enforced against the obstructionists.

Accordingly, point No. 1 is answered in the negative.

60) Thus, except recording a stray �nding of lawful sub-tenancy

in paras-27 to 29, the entire judgment from paras-13 to 25 and 30 to 55 is

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based on the �nding that the decree itself was ineffective and could not

be executed.

61) However, since the Appellate Court has recorded �nding of

lawful sub-tenancy in favour of the obstructionists, albeit in a sketchy

manner, I proceed on an assumption that it has recognized some

independent right of the obstructionists to occupy the structures.

However, it must be observed at the very outset that the manner in

which the Appellate Court has recorded the conclusion of lawful

subtenancy is not very convincing. No provision of law is discussed, nor

any case law is examined for holding the obstructionists to be lawful

subtenants. Since Appellate Court is totally silent on any provision in

law about sub-tenancy of obstructionist, Mr. Khandeparkar and Mr.

Savant have strenuously placed reliance on provisions of Sections 15 and

15A of the Bombay Rent Act. It is submitted that the obstructionists

were inducted by the erstwhile lessees into the structures well before 1

February 1973 which is the datum line prescribed under Sections 15 and

15A of the Bombay Rent Act and that therefore the obstructionists/their

predecessor in title became lawful tenants in respect of the structures

who enjoy protection of the rent control legislation.

62) However, the issue in this regard appears to be squarely

covered by the judgment of this Court in Sanjay Ramchandra Parab

(supra) in which, the obstructionists had challenged orders passed by the

Small Causes Court and its Appellate Bench directing their removal from

structures in execution proceedings taken out by decree holders, who

had secured decree for eviction against the lessee of the land. The

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Plaintiff had granted lease in respect of the vacant land for a period of 25

years in favour of the lessee who was permitted to put up buildings,

structures or sheds on the demised land. The lessee was also entitled to

assign the buildings and structures alongwith leasehold interest in the

land. The Plaintiffs �led R.A.E. & R. Suit before the Small Causes Court

for recovery of possession of land alongwith shed located thereon. The

R.A.E. & R. suit was dismissed but the Appellate Court allowed the

Appeal and passed eviction decree for possession of the suit premises.

When decree was put in execution, possession warrant was obstructed by

56 different persons claiming possession in respect of the various

structures constructed on the demised land. Plaintiffs therefore took out

Obstructionist Notice, which was resisted by the 56 obstructionists

claiming independent right in respect of the structures. The issue before

this Court was whether the obstructionist had any independent right to

possess the structures erected by the original lessee in view of

permission granted to them under the clauses of lease. This Court noted

the ratio of the judgment in Ramkrishna Girishchandra Dode and Ors.

Versus. Anand Govind Kelkar and another

24

which in turn had relied

upon judgment in Goregaon Malayalee Samaj (supra) and This Court

held that if the tenants of the demised land constructed structures and

inducted third parties, their status vis-a-vis the land is necessarily that

of licensees and that they do not enjoy protection of provisions of

Section 15A of the Bombay Rent Act. This Court also referred to the

judgment of the Apex Court in Jamnadas Dharamdas (supra) in which it

was held that the landlord is entitled to claim relief of possession of land

without recognizing rights of obstructionists who were inducted by the

24 1999 1 Mh.LJ 37

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tenant in structures constructed by him. This Court held in Sanjay

Ramchandra Parab in paras-16 to 19 as under :

16) The facts of the present case appear to be somewhat similar to the

facts involved in Ramkrishna Girishchandra Dode in which the Single

Judge of this Court (A.V. Sawant, J.) has noted the plight of the

landlord/decree holder trying to execute the decree in petitions �led by

the obstructionists. The suit premises therein comprised of open piece

of land in respect of which, a registered lease-deed was executed in

favour of the lessee for a period of 50 years. The lease was terminated

by issuance of notice and suit was instituted for recovery of possession.

One of the grounds for eviction was carrying out construction on the

plot and induction of outsiders without prior consent of the landlords.

The suit was decreed on 4 October 1978 directing the

Defendants/Tenants to vacate the suit property. When the decree was

put in execution and warrant of possession was issued, the bailiff

returned the warrant with a report that execution of decree was

obstructed by 80 obstructionists claiming possession in respect of

various constructed portions in the suit property. The decree holders

took out obstructionist notice which came to be made absolute and the

order of the Executing Court was upheld by the Appellate Bench. In the

above facts, this Court considered the right of occupants of structures

constructed on the leased land in respect of which decree of eviction

was passed against the original lessee. This Court referred to judgment

of Division Bench in S.R. Shetty vs. Phirozeshah Nusserwanji

Colabawala decided on 21 November 1962 in which the question of

right of obstructionists in respect of the structures put up by the

tenants of the plot was considered. This Court held in para-17 of the

judgment as under:

17. As far back as on 21st November, 1962, a Division Bench of

this Court in C.R.Equity Text AA. No. 1511 of 1960 of S.R. Shetty

vs. Phirozeshah Nusserwanji Colabawala and another was

considering the question of the right of the obstructionists in

respect of the structures put up by the tenant of the plot

belonging to landlord owner of the plot. Whatever right the

obstructionists may have against the owner of the structures, it

was held that it was almost impossible to accept the suggestion

that after the structure is built and the sub-tenant has been

inducted by the tenant, such a sub-tenant also becomes the

subtenant of the land belonging to the landlord. The sub-tenant

of the structure erected by the tenant had only right to occupy

the said structure without any right to occupy the land on which

the structure was erected. This was all the more so in a case

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where a multi-storeyed building is erected on a plot of land

where it would be dif�cult to decide as to which subtenant of

which structure had right to occupy the particular portion of the

plot of land in dispute which was leased by the landlord to the

tenant who had erected the super structure may be a multi

storeyed structure. This view expressed by the Division Bench in

S.R. Shetty vs. Phirozeshah Nusserwanji Colabawala, was

considered in a series of judgments rendered by this Court while

dealing with the right of the obstructionists in the proceedings

under the Rent Act.

17) In Ramkrishna Girishchandra Dode, this Court also relied upon

judgment in Goregaon Malayalee Samaj vs. M/s. Popatlal Prabhudas

and Sons wherein again the same issue was decided and this Court held

in para-21 as under:

21. In Goregaon Malayalee Samaj vs. M/s. Popatlal Prabhudas

and Sons, 1987 Mah.Rent Control Journal 701, A.C. Agarwal, J.

had occasion to consider the same question. Originally the

tenancy was in respect of the land. The tenant of the land

constructed structures thereon and inducted third parties. The

question arose whether such a third party could become

subtenant of the landlord in respect of the land beneath the

structure and claim protection of the provisions of section 15A

of the Rent Act. It was held that persons so inducted on the

structures would be the tenants in respect of the super structure

on the land only. Their status vis-a-vis the land is necessarily

that of a licensee only and not any higher status. Where a

decree is sought to be executed in respect of land which was

subject matter of the original lease, the status of the tenants of

the structure on the land was nothing more than that of mere

licensees. The right of the occupants of the structures on

the land was nothing more than that of a mere licensee.

Such licence must necessarily come to an end when the

landlord obtains a decree for eviction of his tenant and the

occupants have got to be evicted from the land which could

not be done unless they are also evicted from the structures

which stand on the land. All subsidiary interests that would

have been created by the original lessee of the land pursuant to

the lease deed must necessarily come to an end unless the

occupant was otherwise protected by the provisions of the Rent

Act. On the question as to whether such an occupant would

be protected by the provisions of section 15A of the Rent

Act, this Court gave the answer in the negative.

18) This Court further held in para-23 and 24 as under :

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23. I must now make a reference to the judgment of the Apex

Court which sets at rest the entire controversy and to which a

reference has been made in some of the decisions of this Court

referred to above. In Jamnadas Dharamdas vs. Dr. J. Josheph,

AIR 1980 SC 1605, the Apex Court considered identical situation

where the obstructionists were claiming protection after the

tenant had suffered a decree for eviction under section 12(3) of

the Rent Act. On consideration of some of its earlier

decisions, Apex Court held in para 18 of the judgment at

page 1610 that the landlord was entitled to claim relief of

possession of his land and in effect the decree for

possession of the land would mean that the land should be

delivered to him without structures. The tenant had

committed defaults in payment of rent. Reference was made by

the Apex Court to the decision of this Court in Ramchandra

Raghunath Shirgaonkar vs. Vishnu Balaji Hindalekar, AIR

1920 Bom. 87 where it was held that ordinary rule of law is that

tenant must give up vacant possession of the land demised

at the end of the term and that if he builds on the land of

the tenancy, he builds at his own risks. At the end of the

term, he can take away his building but if he leaves it there

it becomes the landlord's property. A reference was also

made to another decision on this Court in Khimjee Thakersee

vs. Pioneer Fibre Co. Ltd., AIR 1941 Bom. 337 where it was held

that on determination of the lease the lessees were required to

deliver over possession of the demised premises to the lessors

and the lessees were entitled to remove the structures which

they might have erected during the continuance of the tenancy.

In para 21, the Apex Court concluded that the plaintiff was

entitled to ask for relief as to the possession of the land and he

was also entitled to ask for demolition of the structures and for

grant of vacant possession of the plots.

24. In the light of the above legal position, I will consider the

contentions raised by the petitioners. The �rst contention is

that, in the facts of this case, since the lessee of the plot Kelkar

was permitted to put up or erect structures, the licensees of the

structures inducted by the lessee Kelkar were also entitled to

become the tenants of the land underneath the structures.

Reliance was placed on the observations of a learned Single

Judge Bhasme, J. in Mangharam Chubarmal vs. B.C. Patel, 1971

Mh.L.J. 369=73 BLR 140 where it was held that in a suit against

the tenant, if other persons are joined on the allegation that

they are sub-tenants and if eviction is sought only on the

grounds which are personal to the tenant (sections 13(1)(a), (b),

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(c), (d) and (e) of the Rent Act) then decree in ejectment against

him will result in conferring the direct tenancy rights on the

lawful sub tenant. It was further held that if sub-tenants are not

impleaded in such a suit, then the landlord, after obtaining the

decree against the tenant, will have to �le a fresh suit against

the subtenants who had by then became his direct tenant by

virtue of section 14 of the Rent Act. This view expressed by

Bhasme, J., need not detain me any longer since it is contrary to

the earlier Division Bench decision of this Court in S.R. Shetty's

case (C.R.A. No. 1511 of 1960 decided on 21st November, 1962).

The view expressed by Bhasme J. has also been dissented by P.B.

Sawant, J. in Damji Nansi's case, 1979 BCR 670 by Sharad

Manohar, J. in Dinkar Vaidya's case, AIR 1981 Bom. 190 by S.J.

Deshpande, J. in Mrs. Suman Damani's case 1986 Mah. R.C. J.

376 and by A.C. Agarwal, J. in Goregaon Malayalee Samaj's case

1987 Mah.R.C. J. 701. More over in view of the decision of the

Apex Court in Jamnadas Dharamdas vs. Dr. J. Joseph, AIR 1980

SC 1605, with respect it is not possible for me to agree with the

view expressed by Bhasme, J. that the sub-tenants or licensees

of the structures inducted in the structures by the lessee of the

plot will still be entitled to claim protection of the provisions of

section 14 or 15-A of the Rent Act despite the decree for

eviction being passed against the tenants under the provisions

of the Rent Act. There is thus no substance in the �rst

contention advanced on behalf of the obstructionists.

19) Thus it is settled position of law as expounded by the Apex

Court in Jamnadas Dharamdas (supra) that obstructionist claiming

protection after suffering of decree of eviction by a tenant cannot

defeat landlord’s entitlement to claim possession of his land and

if any structure is built on the land, such structure is at the risk of

the tenant and at the end of the term, the land must be returned

to the landlord and persons inducted in such structures cannot

oppose execution of the decree. Thus, if Defendant-M/s. Bhide

Textile Industry has inducted Applicants/their predecessor-in-title in

the constructed portion of the suit property during pendency of the

suit, the tenant has done so at its own risk and Applicants/predecessor-

in-title have occupied the structures at their own risk. Their status

vis-a-vis the land is necessarily that of lessee and they cannot

claim any higher status. Once the tenant is directed to vacate, his

licensee must also vacate the structures on the land. This position

of law is repeatedly expounded in various other judgments relied upon

by Mr. Jahagirdar.

(emphasis and underlining added)

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63)In Virji Nathuram (supra) the Single Judge of this Court has held

in para-9 of the judgment as under:

9. The argument is highly attractive. Though this argument had not

been advanced in such terms in the Court below, since it is based on the

facts already on record and it is raised in the form of a legal

proposition, I have heard Mr. Walavalkar at length on the same. In my

opinion, though, as mentioned above, the argument is hi ghly

attractive, it ignores one basic ingredient in the dual relationship which

has come into existence as a result of the lease deed executed by the

respondent in favour of the origin al lessee and the law laid down by

the long line of decisions to which I have already made reference

earlier. The original lessee has naturally got to be evicted pursuant to

the decree passed in the suit preferred by the respondent. The original

lessee has to be evicted from the entire land which was the subject-

matter of the lease which has now been determined. Undoubtedly, as

has been pointed out repeatedly, the original lease has permitted

the erection of a superstructure on the land and the induction of

third parties in the said superstructure. The persons so inducted

were no doubt the tenants of the superstructure which was

erected. The status of the persons who were inducted, though

legally, in the superstructure vis-a-vis the land is necessarily that

of licensees and not any other higher status. At present the decree

is being sought to be executed in respect of the land which was the

subject-matter of the original lease and upon which the status of the

petitioners is nothing more than that of licensees. The correct legal

position is that on the determination of the lease or other

interests which are created on the land including the

superstructure, the interest, if it can be so called, of the licensees

has necessarily to come to an end. The decree which is being

executed by the respondent cannot be properly executed unless the

status of the petitioners as licensees on the land also comes to an end.

It is in this sense that the petitioners have got to be evicted from the

suit land. This cannot be done unless naturally they are also evicted

from the structure which is standing on the land in question.

Therefore, in execution of the decree by the respondent

inexorably the possession of the petitioners of the land as

licensees must also come to an end. The petitioners cannot remain

in possession of the structure unless they have a right to remain in

possession of the land as licensees, which they are not entitled to do in

view of the decree which has been validly passed against the lessee. The

petitioners, therefore, cannot resist the execution of the decree which

had been undoubtedly passed validly against the original lessee. All the

subsidiary interests which were created, even if legal, by the original

lessee pursuant to the lease deed must necessarily come to an end

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unless otherwise they are protected under the provisions of the Bombay

Rent Act. The possession of a licensee in the year 1964 when the suit

was �led could not survive the determination of the lease in respect of

the land on which the licence was created. It is thus that the petitioners

do not enjoy any protection even in respect of the structure in which

they have been inducted legally pursuant to the term of the lease.

(emphasis added)

64) In Virji Nathuram this Court has recognised the principle

that mere permission to erect a superstructure on the land, and

induction of the parties in the superstructure does not create a right in

favour of occupier of such superstructure to obstruct execution of

decree.

65) In C. Albert Morris Versus. K. Chandrasekaran and

others

25

the Apex Court has held in para-40 of the judgment as under :

40. We have already referred to the arguments advanced by both the

parties in regard to the nature of tenancy and the statutory protection.

It is abundantly clear from the recitals in the plaint, the Schedule to the

notice and to the plaint and also of the lease deed that what was "leased

out" was only a vacant site to put up a petrol bunk with accessory

constructions thereon. The mention of a small shed in the current

lease undoubtedly belonged to the tenant himself and, therefore,

the building put up by the tenant situated in the vacant site

belonging to the landlord cannot be said to be the building of the

landlord in order to attract the statutory protection of the Rent

Control Act. This issue is, therefore, answered against the tenant.

(emphasis added)

66) Thus, in Ramkrishna Girishchandra Dode, Jamnadas

Dharamdas, C. Albert Morris, Sanjay Ramchandra Parab and Virji

Nathuram it is repeatedly held that a person, inducted by the lessee in

structure constructed by him as per permission granted under the lease,

25 2006 1 SCC 228

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is not entitled to claim protection of possession of structures

constructed by the lessee and that he must vacate the structure when

decree against the lessee is executed.

67) In the present case, the obstructionists/their predecessors

were apparently inducted by Moogatlal who was operating a petrol pump

in the demised land. In the 3 galas that he constructed on the land, he

inducted Tare’s in 2 galas and Halimabai Madraswala in 1 gala. Each of

the Indentures mandated Moogatlal to deliver possession of demised

land in the same condition as it stood at the time of creation of lease.

Even in clause 1(j) of the last Indenture dated 6 March 1959, the three

lessees were under obligation to handover possession of vacant land by

removal of structures standing thereon. Thus the case does not involve

induction of Obstructionist by the lessee who were tenants in any

premises. Therefore Section 15 and 15A would have no application in

this case. The induction is by the lessee’s in structure with obligation to

demolish the structures at the expiry of the lease. In that view of the

matter provisions of Sections 15 or 15A of the Bombay Rent Act would

have no application and it cannot be concluded that Obstructionist

became lawful subtenant of the structure.

68) It is sought to be contended on behalf of Respondent Nos.4

to 6 that the last Indenture dated 6 March 1959 was not only in respect

of the land but also in respect of the appurtenances and that the term

‘appurtenances’ also included constructed structures. It is therefore

sought to be suggested that the lease was in respect of constructed

structures as well. Reliance is placed on judgment of the Apex Court in

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D.G. Gose and Co Pvt. Ltd. (supra). The judgment is rendered by the

Apex Court while interpreting taxation law in the State of Kerala and in

that context, the Apex Court has held that if some land is included as

appurtenances to a building, it forms integral part of the building for the

purpose of application of the taxation statute. In my view, the judgment

cannot be relied on in support of an abstract proposition that when lease

is granted in respect of open land alongwith the appurtenances, the lease

is also in respect of the constructed structures or that the lessor has

accepted structure occupiers to be sub-tenants. The Schedule to the

Indenture dated 6 March 1959 clearly envisaged creation of lease only in

respect of vacant land. In fact, there was speci�c prohibition under

Clause-1(h) of the Indenture from assigning, under letting, or parting

with possession of the demised premises or any building or structure

without the consent of the landlord. As observed above, Clause-1(h)

imposes obligation on the tenants to handover possession of the

demised land after removal of the structures and in the same condition

as the same was let out to Moogatlal initially. The Indenture must be

read as a whole. When the lessee had obligation to remove the structures

at the end of the lease, it cannot be contended that the lessor had any

intention of creating lease in respect of constructed structures, that too

in favour of the obstructionists.

69) In my view, therefore the ratio of the judgment of this Court

in Sanjay Ramchandra Parab would squarely apply to the present case.

Inductees in the structures constructed by a tenant do not automatically

become the tenants/sub-tenants of the lessor. They are merely licensees

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of the inductor/lessee. The alleged license arrangement between the

tenant/lessee and his inductee does not bind the lessor and the inductees

have a right to occupy the structure only during currency of the lease.

The moment the lessee is required to vacate the land by removing the

structures, the right of the inductee to occupy the struc ture

automatically comes to an end. SectionS 15 and 15A of the Bombay Rent

Act cannot apply to a situation where tenant has constructed a structure

on open land which is demised to him. When the lessor permits

construction of structure with obligation for removal thereof at the end

of tenure of the lease, the violation of such obligation by the lessee (in

not removing the structure at the end of the lease) does not create a

right in favour of lessee’s inductees to occupy the structures forever.

There can be no lawful subtenancy in such case.

70) In leases comprising of vacant land, the lessor may permit

the lessee to put up construction with obligation to remove the same at

the end of tenure of the lease. In such a case, the lessee is permitted to

enjoy rent/license fees from inductees in structures constructed by him.

Those inductees can occupy the structures only till their inductor/lessee

has the right to occupy the land. The moment lessee’s right to occupy

the land terminates, inductees right to occupy the structure also gets

terminated. It is incomprehensible that a lessee can be permitted to

create a contractual relationship between the lessor and third parties. In

the present case, the Trial Court has rightly held that there is no privity

of contract between the Plaintiffs and the Obstructionists. The Appellate

Court has thus egregiously erred in attempting to establish relationship

of lawful sub-tenancy between obstructionists and Plaintiffs.

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71) Reliance by Respondent Nos.4 to 6 on judgment of the Apex

Court in Mahabir Prasad (supra) does not cut any ice. The case before

the Apex Court involved subletting of tenanted premises by the tenant to

sub-tenants. The issue for consideration was whether creation of such

sub-tenancies was valid. In the facts of that case, the Apex Court held

that subletting by a tenant with consent in writing of the landlord does

not become unlawful. In the facts of that case, it was found that there

was consent of the landlord for creation of sub-tenancies. The judgment

has no application to the facts of the present case, where the lessees

were not the tenants of any structures and the induction by them of

obstructionists in the structures was without lessor’s consent.

72) Respondent Nos.4 to 6 have relied upon judgment of the

Apex Court in South Asia Industries Private Ltd. (supra) in support of

the contention that sub-tenant is a necessary party where his induction

is with the consent of the landlord. The case again involved suit for

eviction in respect of the premises let out to a tenant. The case did not

involve the issue of creation of lease in respect of vacant land and right

of third parties to occupy the structure constructed by the tenant. The

judgment therefore would have no application to the facts of the present

case.

73) Respondent Nos.4 to 6 have also relied upon judgment of

the Apex Court in Bhatia Coopeative Housing Society Limited Versus.

D.C. Patel

26

in support of the contention that the structure constructed

26 1952 2 SCC 355

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by the lessee becomes part of the lease. However, the judgment is

rendered in the light of the peculiar facts of that case where the lease

itself was found to be in respect of the land, as well as in respect of the

building standing thereon. The structure was constructed by the lessee

for use and bene�t by the lessor. In case before the Apex Court, an MOU

was incorporated which required the tenant to construct a building for

the bene�t of the lessor. After completion of construction of the

building, the Indenture of lease was executed not only in respect of the

land but also in respect of the building. The judgment in Bhatia CHSL

(supra) is thus rendered in the light of peculiar facts of that case where

the lease was also in respect of the building. In the present case, there is

nothing on record to indicate that any leasehold rights were created in

favour of the lessees in respect of the constructed structures on the

demised land. The structures are not constructed by the lessees for

bene�t of the lessor. On the other hand, the lessees were under

obligation to remove all constructions put up on the demised land and to

deliver possession of vacant land to the landlord.

74) Mr. Savant has relied upon judgment of the Apex Court in

Jamnadas Dharamdas in support of his contention that the decree is not

binding on obstructionists, who are sub-tenants. It is contended by Mr.

Savant that both the judgments in Jamnadas Dharamdas and Sanjay

Ramchandra Parab involved �ling of eviction suits under the Rent Act,

whereas the suit was �led by Plaintiffs in the present case under Section

41 of the PSCC Act. Firstly, the judgment of the Apex Court in Jamnadas

Dharamdas has been taken into consideration by this Court in Sanjay

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Ramchandra Parab. Secondly, mere �ling of suits for ejectment under

the Rent Act would not make the judgment in Jamnadas Dharamdas or

in Sanjay Ramchandra Parab inapplicable to the facts of the present

case. The present suit was �led for recovery of possession of vacant land

by removal of the structures and therefore following observations of the

Apex Court in para-18 of the judgment in Jamnadas Dharamdas would

be apt in the present case:

18. The decisions referred to above will show that that th e

plaintiff/ landlord of the land is entitled to claim the relief for

possession of his land and in effect the decree for possession of

the land would mean that the land should be delivered to him

without the structures. Apart from the relief under the lease deed, the

plaintiff is entitled to succeed as he has established that there was

default of payment under the provisions of the Bombay Rent Act. The

jurisdiction of the Small Cause Court to grant an effective decree for

possession of the land cannot be denied. Equally untenable is the

contention of the respondent that as the plaintiff has sought two reliefs

one under the Bombay Rent Act and another under the Contract, the

entire plaint must be rejected. As we have already observed so far as the

relief of possession of the premises i.e. the land, is concerned, it is

exclusively within the jurisdiction of the Small Cause Court. In asking

for the relief for possession of the land, the plaintiff is entitled to

incidental and consequential reliefs such as for taking possession

of the plot without the structures. The prayer in the plaint asking for

possession of the land including the structures would not take the suit

out of the competence of the Small Cause Court. In this view it is not

necessary for us to go into the question as to whether the terms in the

contract regarding the forfeiture can be enforced by the Small Cause

Court. It is suf�cient for the purpose of this suit to hold that the

plaintiff is entitled to seek for possession of the land which is the

premises in the suit, and in getting possession of the land, he is

entitled to ask for possession of the land without any superstructures.

In this connection reference may be made to the nature of the relief

which the plaintiff is entitled to. In Ramchandra Raghunath

Shirgaonkar v. Vishnu Balaji Hindalekar Z it was held that the

ordinary rule of law is that the tenant must give up vacant

possession of the land demised at the end of the term and that if

he builds on the land of the tenancy he builds at his own risk. At

the end of the term he can take away his building but if he leaves

it there, it becomes the landlord's property. The court further held

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that the tenant who had been in possession of land for a large number

of years and built a costly and substantial house on the land of the

tenancy with the knowledge of the landlord, is entitled to some

compensation.

(emphasis added)

75) Reliance by Respondent Nos.4 to 6 on judgment of the Apex

Court in Habibunnisa Begum is also misplaced as the judgment is on the

issue of single indivisible contract of tenancy. In case before the Apex

Court, the suit premises were leased out by a single lease deed to the

Respondent and part thereof was acquired for construction of road,

resulting in premises being separated by such road. The suit for

ejectment was decreed but the High Court partly allowed the tenant’s

revision directing partial ejectment. It is in the context of these peculiar

facts that the Apex Court held that the Court did not have power to order

partial ejectment by splitting single indivisible tenancy. The present case

does not involve the issue of surrender of part of tenancy by few tenants.

All the surviving tenants have lawfully surrendered the tenancy by

entering into consent terms. The case therefore does not involve the

issue of splitting of single tenancy into multiple parts. In fact the

Appellate Court erroneously held that the tenancy was joint in the

names of 15 lessees and that the surrender was only by few lessees. The

argument of impermissibility to split single indivisible tenancy into parts

is thus premised on the erroneous assumption on the part of the

Appellate Court.

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CONCLUSIONS

76) Considering the overall conspectus of the case, I am of the

view that the Appellate Court has grossly erred in reversing the decision

of the Trial Court by erroneously assuming that ejectment decree was

invalid or inexecutable. The Appellate Court has based its judgment

mainly on the issue of the 15 tenants not surrendering the tenancy

rights. The assumption on the part of the Appellate Court about

subsistence of tenancy rights in the name of the 15 tenants itself is

factually incorrect. Since the judgment is mainly based on erroneous

assumption of non-surrendering of tenancy by all tenants, the judgment

is unsustainable and liable to be set aside. As observed above, most of

the �ndings recorded by the Appellate Court revolve around its

erroneous assumption that the third Indenture dated 6 March 1959

created tenancy in favour of 15 legal heirs of Moogatlal. The Appellate

Court has very sketchily held that the Obstructionists have become

lawful subtenants, which �nding is also found to be erroneous. The

�nding of the Trial Court about absence of any independent right in

favour of the obstructionists to occupy the premises has been

erroneously set aside by the Appellate Court. The obstructionists have

thoroughly failed to establish any independent right to occupy the

structures constructed on the demised land. They were inducted by the

lessee-Moogatlal, who had obligation to hand back possession of

demised land by removal of structures. His three children, in whose

favour only the last lease was executed, and who permitted the inductees

of Moogatlal to continue to occupy the structures, also had the

obligation to remove the structures and hand back possession of vacant

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land. Therefore, the occupants of the structures must walk out with

surrender of demised land by the lessees. Resultantly, the impugned

judgment and order passed by the Appellate Court is liable to be set

aside and the judgment and order passed by the Trial Court deserves to

be upheld.

77) I accordingly proceed to pass the following order:

(i) Judgment and order dated 4 May 2022 passed by the

Appellate Bench of the Small Causes Court in Appeal

No.27 of 2019 and Appeal No. 28 of 2019 is set aside.

(ii) Judgment and order dated 3 November 2018 passed by

the Court of Small Causes at Mumbai in

Obstructionist Notice No.15 of 2006 is con�rmed.

78) Civil Revision Applications are allowed in the above terms.

Considering the facts and circumstances of the case, there shall be no

order as to costs.

[SANDEEP V. MARNE, J.]

79) After the judgment is pronounced, the learned counsel

appearing for the Respondents-Obstructionists, prays for stay of the

judgment for a period of eight weeks. The prayer is opposed by the

learned counsel appearing for the Applicants. Considering the nature of

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�ndings recorded in the judgment, I am not inclined to stay the

judgment. The request for stay is accordingly rejected.

[SANDEEP V. MARNE, J.]

____________________________________________________________________________

PAGE NO. 65 OF 65

6 April 2026

NEETA

SHAILESH

SAWANT

Digitally

signed by

NEETA

SHAILESH

SAWANT

Date:

2026.04.06

20:54:46

+0530