Writ Petition No. 859 of 2015. Case: Sugandh Rama Gaude and Ors. Vs V.G. Quenim and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 859 of 2015 |
| Counsel | For Appellant: Jatin Ramaiya and Ivan Santimano, Advocates and For Respondents: Neelesh A. Takkekar, Advocate |
| Judges | C. V. Bhadang, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XXI Rules 100, 101, 103, 35, 35(3), 97, 99 |
| Judgement Date | March 30, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
C. V. Bhadang, J.
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Rule. Rule made returnable forthwith. Mr. Neelesh Takkekar, learned Counsel waives service on behalf of the respondents. Heard finally, by consent of the parties.
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By this petition, the petitioners (obstructionists), are taking exception to the order dated 30.09.2015, below Exhibit-62 passed by the learned Civil Judge Senior Division, Bicholim in Execution Application No. 3/2005/A. By the impugned order, the application (Exhibit-62) filed by respondent Nos. 1(a) to 1(i) (decree holders), for police protection for execution of the possession warrant, has been allowed. The respondent Nos. 2 to 5 are the original judgment debtors.
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The brief facts necessary for the disposal of the petition may be stated thus:--
"That, property surveyed under No. 50/1 of village Sonus Vonvoliem, alongwith three houses constructed therein, bearing house Nos. 61/1, 61/2 and 61/3 alongwith their appurtenances are the subject matter of dispute."
M/s. V.G. Quenim, a proprietary concern of Mr. Vassudeva G. Quenim, had filed a civil suit against the respondent Nos. 2 to 5, for specific performance of the agreement dated 05.07.1996. Undisputedly, the property survey No. 50/1 alongwith three other properties were purchased by respondent Nos. 2 to 5 on 06.10.1995 from Jesus Botelho. According to the original plaintiffs, he was holding a mining lease dated 26.04.1990 and the aforesaid four properties including survey No. 50/1 were included in the mining lease. Regular Civil Suit No. 20/95 filed by the original plaintiffs, of whom the respondent Nos. 1(a) to 1(i) are the legal heirs, was amicably settled as per the consent decree dated 30.07.1996, thereby agreeing to execution of the sale deed in respect of survey Nos. 40/1, 41/3, 48/1 and 50/1. Insofar as the property except survey No. 50/1 is concerned, the sale deeds are already executed in terms of the consent decree. However, insofar as the property survey No. 50/1 is concerned, the original plaintiffs were required to file Execution Application No. 3/2005/A, which is pending before the learned Civil Judge Senior Division, Bicholim. Undisputedly, on 17.10.2011 a possession warrant was issued by the executing Court for handing over the possession of the property survey No. 50/1 alongwith, three houses. It appears that prior thereto, i.e. 19.03.2011, an application was filed by the petitioners herein, purportedly under Order XXI, Rule 97 of C.P.C., claiming that the property survey No. 50/1 is an agricultural land in which, name of Rama Gaude, the father of the petitioners/obstructionists, was recorded as a tenant. On the demise of Rama Gaude and his wife, the applicants who are the daughters of Rama Gaude alongwith the other legal heirs, including respondent Nos. 2 to 5, became the owners of the suit property. In short, it was contended that the deed of sale dated 06.10.1995 was totally ineffective and void, in as much as under the fifth amendment to the Agricultural Tenancy Act, the property could not have been purchased except at the "purchase price" as provided under the said Act. It was contended that the original plaintiffs/decree holders may dispossess the applicants from the suit property.
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It was also contended that although, the applicants were made parties to the agreement of sale dated 05.07.1996, through the Power of Attorney holder namely, the respondent No. 2, Gokuldas, they have not executed the Power of Attorney in favour of Gokuldas. In short, it was contended that Gokuldas could not have represented the applicants as their constituted Attorney. It was contended that thus, the applicants not being parties to the Special...
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