High Court

Legal Reasoning

1 wp 7659.25.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.7659 OF 2025Hindustan Petroleum Corporation Ltd.Through it’s Dy. General Managerage 54 years, Occ. Service,C/o. Its Regional Office, G-39, at Town Centre, Cidco, Ch. Sambhajinagar(Aurangabad)Petitioner.VERSUSNandkumar Alias Laxman Sahadu Borude,age 36 yrs, Occ. Agri.R/o Padegaon Road, Tq. Shrigonda,District Ahmednagar.Respondent....Advocate for Petitioner : Smt. Anjali DubeAdvocate for Respondent:Mr.A.D.Sonkawade h/f Mr.R.H. Mewara …CORAM :S. G. CHAPALGAONKAR, J.Dated:July 16, 2025FINAL ORDER :-1.Petitioner impugns the order dated 5.5.2025passed by the learned Civil Judge, S.D., Shrigonda, belowExhibit-45 in Regular Darkhast No.43 of 2022, therebyrejecting prayer of petitioner/Judgment Debtor to excludeportion of land kept reserved for road widening as persanctioned lay out plan of gat no.1498 while undertaking themeasurement of the property for the purpose of handing over 2 wp 7659.25.odtthe possession of land excess of agreement to holder of decreeand for ensuring that judgment debtor would remain inpossession of 929.6 sqare meter of land.2.Facts giving rise to the present writ petition, canbe summarized as under :-The petitioner/Petroleum Corporation entered intoa lease agreement dated 20.10.2004 with Respondent inrespect of land admeasuring 929.6 square meters from gatno.1498 situated at Shrigonda to Ahmednagar road for theperiod of 29 years. Petitioner was put into possession of 929.6square meters of land and in addition 505.55 sq. meters as peroffer of respondent for additional lease. However, additionallease could not be executed. 3.Respondent instituted a Regular Civil Suit No.76of 2012 before the Civil Judge J.D. Shrigonda for recovery ofsuit land. On 27.11.2020 the learned Civil Judge J.D.,Shrigonda partly decreed the suit and directed petitioner tohand over possession of additional area as per measurementmap Exhibit-150. The decree as passed by Trial Court attainedfinality in view of dismissal of petitioner’s second appeal bythis Court vide judgment and order dated 28.2.2023. 3 wp 7659.25.odt4.Respondent/plaintiff filed Regular Darkhast No.43of 2022 for execution of the decree. He filed an applicationExhibit-36 for issuing possession warrant and applicationExh.38 for appointing Court Commissioner for measurement ofthe land as per map, which is part of the decree. ExecutingCourt allowed both the applications and appointed ExecutingOfficer/Bailiff and Court Commissioner for execution of decreeand handing over possession of excess area as per map Exhibit-150, which is made part of the decree.5.The petitioner/J.D. filed application below Exhibit45 seeking direction that while maintaining possession ofpetitioner over 929.6 square meter of lease portion, landreserved for expansion of road shall be excluded and land fromnorthern side be maintained in possession of petitioner. Thelearned Executing Court rejected said application observingthat decree is passed on the basis of measurement map atExhibit 150, wherein excess portion in possession of petitionerhas been defined. Therefore, directions to exclude spacereserved in sanctioned lay out plan for widening of the roadwould be introduction of new case or would be substantial 4 wp 7659.25.odtmodification of the decree. Executing Court cannot go beyondthe decree and, as such, application cannot be entertained.6.Smt. Dube, learned advocate appearing forpetitioner vehemently submits that at the time of execution oflease, no objection certificate was obtained from DistrictCollector, Ahmednagar, wherein specific term is incorporatedthat no structures should be erected between control line i.e.50.00 meters from the center line of the road. Even ShrigondaMunicipal Council had issued no objection to execute the leaseagreement after leaving 50 meters distance from center of theroad. She would submit that lease agreement was executed onthe basis of aforesaid no objections and offer letter given by therespondent. Accordingly, petitioner was put into possession.Smt. Dube would further point out that decree passed by theCivil Court upholds entitlement of petitioner to continue intopossession of the 929.6 sq. meters of land on the basis of leaseagreement. The decree of possession is passed only in respectof the Additional area occupied by petitioner. Therefore, itwould be necessary to maintain the area in possession ofpetitioner keeping in mind lay out plan and center of the road.According to Smt. Dube, petitioner has apprehension that 5 wp 7659.25.odtwhile executing the decree, aforesaid factors may not be takeninto account, thereby practically reducing area possessed bypetitioner below 929.6 square meters.7.Per contra, Mr. A.D. Sonkawade h/f Mr. Mewara,learned advocate appearing for respondent submits that similarobjection was raised in appeal against decree and afterconsidering the same, this Court observed that the map exhibit150 which is part of the decree shall govern rights of theparties. Petitioner cannot seek protection of possession beyond929.6 square meters as earmarked in the suit map. In supportof his submissions, he relies upon observations of the SupremeCourt of India in case of Kanwar Singh Saini Vs. High Court ofDelhi reported in (2012) 4 Supreme Court Cases 307 andcontend that Executing Court does not have power to gobeyond the decree and once decree has attained finality, noobjection can be raised to the execution in tune with thedecree.8.Having considered submissions advanced, it canbe observed that petitioner is held entitled to remain inpossession of land to the extent of 929.06 square meters fromgat no.1498 in terms of lease agreement. The decree is passed 6 wp 7659.25.odtin favour of respondent to repossess excess area occupied bythe petitioner from gat no.1498. The decree passed in R.C.S.No.76 of 2012 shows that map at Exhibit 150 is to be treatedas part of the decree and decree is to be executed in terms ofthe said map.9.The respondent filed Regular Darkhast No.43 of2022 for execution of the decree and filed application belowExhibit 36 and 38 for appointing Court Commissioner asOfficer of the Court for execution of the decree. The learnedExecuting Court allowed the said application and issuedpossession warrant under Order XXI Rule 35 of the CivilProcedure Code to handover the possession of land excess ofagreement, to the holder of decree, as specified inmeasurement map annexed to the decree. ExecutingOfficer/Bailiff is directed to take all necessary steps for puttingthe decree holder in possession of the land excess ofagreement, as referred in the measurement map annexed withthe decree. The Deputy Superintendent of Land Record,Shrigonda is appointed as a Court Commissioner to assist theexecuting officer/bailiff for execution of possession warrantand also for undertaking measurement. It is further specified 7 wp 7659.25.odtthat Executing Officer and Court Commissioner shall ensurethat J.D. would remain in possession of 929.6 square metersland as per the original lease agreement.10.In this background, it is apparent that applicationis filed under apprehension that while determining the area of929.6 square meters, reservation of land from center of theroad would be ignored and petitioner may be continued inpossession of 929.6 sq. meters of land, which may be affectedby road widening as per reservation of lay out plan. Thesubmissions advanced appears to be hypothetical in nature.The petitioner is in possession of land as per lease agreementdated 20.10.2004. In addition, petitioner had possessed theland approximately 505.55 square meters, for which there wasno agreement. Respondent raised claim for possession ofentire land occupied by petitioner. The map exhibit-150,which is made part of the decree, specifies lease area andadditional area in possession of the petitioner.11.It appears that trial Court recorded specific findingrelying upon map Exhibit 150 that petitioner was found inpossession of additional area over and above lease agreement.Nothing is brought on record to show contents of the map were 8 wp 7659.25.odtdisputed by petitioner during course of the trial. Witness ofdefendant admitted possession of additional area. In that viewof the matter, decree will have to be executed on the basis ofthe map at Exhibit 150. Petitioner's entitlement would be toremain in possession of 929.6 square meters area as specifiedin the map. As rightly pointed out by Mr. Sonkawade, theExecuting Court cannot go behind decree or delete orsupplement any part of decree or introduce any modification.Therefore, Court Commissioner and Executing Officerexecuting the decree will have to bear in mind the map Exhibit150 while carving out additional area in possession ofpetitioner and put decree holder in possession of that part soalso maintaining area to the extent of 929.6 square meters inpossession of the petitioner. The Executing Officer or CourtCommissioner will have to take into account position of theland as on the date of execution of lease agreement andaccordingly, ensure that petitioner remains in possession of929.6 square meters of land and hand over additional area infavour of the decree holder. 9 wp 7659.25.odt12.In that view of the matter, the impugned orderpassed by Trial Court cannot be faulted with. In the result,writ petition stands dismissed. ( S. G. CHAPALGAONKAR ) Judge…AAA