HAJHARABI MOHAMAD HANIF QURESHI SINCE DECD THROU. LH.versusZORABI HASSANBHAI PATEL AND ORS

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                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                            CIVIL APPELLATE JURISDICTION

                                            WRIT PETITION NO. 4396 OF 2015


                      Hajarabi Mohamad Hanif Qureshi And Ors.               … Petitioners
                               Versus

                      Zorabi Hassanbhai Patel And Ors.                      … Respondents

                                                          WITH
                                        CIVIL APPLICATION (ST) NO. 19449 OF 2019
                                                          WITH
                                         INTERIM APPLICATION NO. 1037 OF 2026
                                                          WITH
                                        CIVIL APPLICATION (ST) NO. 19459 OF 2019
                                                          WITH
                                         INTERIM APPLICATION NO. 5901 OF 2026
                                                          WITH
                                         INTERIM APPLICATION NO. 1035 OF 2026
                                                          WITH
                                         INTERIM APPLICATION NO. 1036 OF 2026
                                                            IN
                                            WRIT PETITION NO. 4396 OF 2015



                      Mr. Tejas Deshmukh a/w Mr. Onkar Somvanshi for the Petitioners.

                      Mr. Sugandh Deshmukh a/w Mr. Aniket Kanawade, Mr. Vaibhav Thorave
                      for Respondent Nos. 2(i)(a)(i) to 2(i)(a)(iii) and 1(c).



                                                        CORAM        : SANDEEP V. MARNE, J.
 MANE
 SONALI                                                 DATE         : 16 SEPTEMBER 2026.
 DILIP
Digitally signed by
MANE SONALI
DILIP
Date: 2026.09.21
16:35:30 +0530
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P.C.:

1)            It is unfortunate that the present proceedings, filed by the
heirs of the decree holder challenging the impugned order dated
29 August 1988 have remained pending in this Court for the last
38 long years. Though the proceedings are numbered as Writ Petition
No. 4396 of 2015, the same were initially filed as a Revision Application,
which was numbered as Civil Revision Application No. 634 of 1988. The
Revision, which is converted into a Writ Petition, raises a challenge to
the Order dated 29 August 1988 passed by the Executing Court (Third
Joint Civil Judge, Senior Division, Pune) allowing the Application at
Exhibit 114, preferred by Defendant No. 1B under Section 47 of the
Code of Civil Procedure, 1908 (the Code) obstructing execution of the
final decree dated 5 October 1972 passed in Special Civil Suit No. 87 of
1964.



2)            By the impugned Order, the Executing Court has declared JD
No. 1B to be the absolute owner of the theater property known as
"Bharat Cinema" standing on land bearing C.T.S. No. 860, Bhawani
Peth, Pune. The Executing Court has also declared JD No. 1B to be the
owner, to the extent of 52/96th share in all the properties mentioned in
the schedule of the Execution Application. The Executing Court has
further declared that JD No. 1C is the lessee to the extent of 52/96 th
share in C.T.S. No. 860 and also to the extent of 11/96 th share in all
properties in execution. The Executing Court has clarified that the
theater property known as "Bharat Cinema" cannot be the subject
matter of execution. After giving these directions, the Executing Court
has directed that the execution to proceed in respect of all properties,


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except the theater property known as "Bharat Cinema" and the 63/96 th
share in C.T.S. No. 860, Bhawani Peth, Pune.



3)            The case has a checkered history. Petitioners' predecessor
Mohamad Qureshi filed Suit No. 87 of 1964 seeking partition of various
properties, including inter alia the property at C.T.S. No. 860, Bhawani
Peth, Pune. Zorabi Hassanbhai Patel was Defendant No.1 to the Suit,
who filed written statement contending inter alia that the property
bearing C.T.S. No. 860 was not in her possession and that lease was
granted to M/s. A. V. Exhibitors. She did not however contend that the
land bearing C.T.S. No. 860 was her exclusive property and was
incapable of being partitioned. On 31 August 1966, the Trial Court
passed a preliminary decree for partition, in which Zorabi was given
52/96th share in the suit properties and the Plaintiff and his three
brothers were given 11/96th        share each in the suit properties. On
25 June 1970, a Court Commissioner was appointed to physically divide
the suit properties. On 5 October 1972, a final decree was passed
directing sale of the suit property and for distribution of the sale
proceeds.



4)            It appears that the lessee constructed a cinema hall/theater
on land bearing C.T.S. No. 860. The lease was due to expire in the year
1989. It further appears that Zorabi had mortgaged the land bearing
C.T.S. No. 860 and the dues of Zorabi were apparently settled by
Karimsaheb Kamble. Similarly, the lessee had also secured some loan
from Gopaldas Sugandhi and mortgaged the theater as well as
leasehold rights in respect of C.T.S. No. 860, in favour of Gopaldas


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Sugandhi. A suit for redemption was filed by Gopaldas Sugandhi, in
which decree was passed against the lessee and this is how Gopaldas
Sugandhi purchased the theater as well as leasehold rights in respect of
C.T.S. No. 860 in a Court auction in 1969.



5)             Zorabi thereafter executed a Gift Deed in favour of
Karimsaheb in the year 1982-83 and bequeathed all her properties
including her share in C.T.S. No. 860 in favour of Karimsaheb. It
appears that, in the year 1974, Gopaldas Sugandhi was in arrears of rent
and therefore Karimsaheb filed Civil Suit No. 774 of 1974 against
Gopaldas Sugandhi inter-alia for recovery of possession of the theater.
The suit was compromised and Karimsaheb apparently purchased
leasehold rights in the land, as well as the theater building from
Gopaldas Sugandhi. This is how Karimsaheb started claiming (i)
ownership rights in respect of superstructure of the theater, (ii) the
leasehold rights in land bearing C.T.S. No. 860 and (iii) ownership of
Zorabi's share in the land bearing C.T.S. No. 860.



6)            Armed with the above claims, Karimsaheb filed Special Civil
Suit No. 396 of 1984, inter-alia, seeking a declaration that land bearing
C.T.S. No. 860 is in his exclusive ownership and that the partition
decree does not bind him. His application for temporary injunction in
the suit was rejected and even Appeal from Order No. 786 of 1987 was
dismissed on 30 September 1987. Karimsaheb was however granted
liberty to raise the issue of his rights in the execution proceedings.




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7)            In the above background, Karimsaheb apparently did not
prosecute the Suit and instead filed an application at Exhibit 114 in the
execution proceedings under Section 47 of the Code and sought a
declaration that the partition decree was void qua land bearing C.T.S.
No. 860 and sought omission of that land and structure from sale
proceeds in execution. By impugned order dated 29 August 1988, the
Executing Court has allowed the application preferred by Karimsaheb.
Petitioners are aggrieved by the Order dated 29 August 1988 and have
filed the present Revision Application, which is converted into a Writ
Petition.



8)            I have heard Mr. Tejas Deshmukh, the learned counsel
appearing for the Petitioners and Mr. Sugandh Deshmukh, the learned
counsel appearing for Respondent Nos. 2(i)(a)(i) to 2(i)(a)(iii) and 1(c).
Since Respondent No.2, Karimsaheb and his legal heirs are the main
contesting Respondents, most of whom are already represented by
Mr. Sugandh Deshmukh, it is not necessary to keep the present
proceedings pending any longer awaiting appearance on behalf of legal
heirs of Respondent No. 1, as the proceedings have remained pending
in this Court for the last 38 long years.



9)            Perusal of the impugned order passed by the Executing Court
would indicate that the following operative directions are given in the
Order dated 29 August 1988:


                1. It is hereby declared that J.D. No. 1B is the absolute owner of the
                theatre property known 'Bharat Cinema' standing on the C.T.S. No.
                860 Bhawani Peth Pune,


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                2. It is hereby declared that J.D.No.1B is the owner to the extent of
                52/96th share in all the properties mentioned in schedule of this
                execution.

                3. It is hereby declared the J.D.No.1C is the lease holder to the extent
                of 52/96th share in the C.T.S. No. 860 and to the extent of 11/96 th share
                in all the properties in execution.

                4. The theatre property known as 'Bharat Cinema cannot be subject
                matter of this execution.

                5. The execution to proceed in respect of other properties mentioned
                in schedule of this execution except the theatre Bharat Cinema 's
                properties standing on C.T.S. No. 860 and 63/96 th share in
                C.T.S.No.860 Bhawani Peth, Pune.

                6. No order as to costs.



10)           From the above narration, it is clear that Karimsaheb
essentially claimed rights in the land bearing C.T.S. No. 860 on three
grounds. Firstly, he claimed ownership rights in respect of the structure
"Bharat Cinema" on the strength of purchase of ownership rights in the
theater from Gopaldas Sugandhi and M/s. A. V. Exhibitors through
compromise in Small Causes Suit No. 774 of 1974. Secondly,
Karimsaheb also claimed leasehold rights in respect of land bearing
C.T.S. No. 860, again through compromise effected in Small Causes Suit
No. 774 of 1974. Thirdly, Karimsaheb also claimed ownership rights
qua share of Zorabi through Gift Deed executed by Zorabi in his favour.
Though Petitioners question correctness of the said gift deed and
contend that the same is an oral gift, that controversy need not detain
this Court any further while deciding the Petition. For now, I proceed
on the footing that there is a gift by Zorabi in favour of Karimsaheb.



11)           By way of preliminary decree for partition, the Trial Court
granted 52/96th share to Zorabi, while granting 11/96th share to the
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Plaintiff and three other brothers. Therefore, so far as Plaintiff is
concerned, the decree needs to be executed qua land bearing C.T.S. No.
860, to the limited extent of 11/96 th share granted to the Plaintiff
therein. Zorabi had her own 52/96th share in C.T.S. No. 860 therefore
even if the gift of Zorabi is treated to be valid, what is acquired by
Karimsaheb is only 52/96th share in land bearing C.T.S. No. 860. In my
view, therefore, execution of gift by Zorabi in favour of Karimsaheb
does not come in the way of Plaintiff executing the decree for securing
his 11/96th share in land bearing C.T.S. No. 860.



12)           So far as the superstructure on land bearing C.T.S. No. 860 is
concerned, in my view, even if Karimsaheb may own the same, the same
would not affect the ownership rights of Plaintiff in respect of 11/96 th
share in land bearing C.T.S. No. 860. Plaintiff can become owner of land
bearing C.T.S. No. 860 qua his 11/96th share even if Karimsaheb may
remain owner of the superstructure.



13)           Similarly, in respect of the alleged leasehold rights of
Karimsaheb in respect of land bearing C.T.S. No. 860, existence of such
leasehold rights cannot defeat the Plaintiff's claim for ownership in
land bearing C.T.S. No. 860 to the extent of his 11/96 share. While
Plaintiff would become owner and lessor in respect of 11/96 th share in
C.T.S. No. 860, Karimsaheb can continue to be a lessee in respect of the
land. Thus, both ownership rights of the Plaintiff as well as leasehold
rights of Karimsaheb can co-exist harmoniously.




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14)           The Executing Court has correctly appreciated the above
position. I do not find any error in any of the operative directions
issued by the Executing Court. This is clear from the following:


    (i)       So far as operative direction No.1 about absolute ownership
              of Karimsaheb in respect of theater property "Bharat Cinema"
              on C.T.S No. 860 is concerned, there appears to be no
              difficulty.

    (ii)      Similarly, in so far as declaration that Karimsaheb is the
              owner in respect of 52/96th share (of Zorabi) in C.T.S. No. 860
              is concerned, the same is acquired through alleged gift of
              Zorabi and therefore there can be no difficulty about the said
              direction.

    (iii)     So far as the operative paragraph No. 3 of the impugned order
              is concerned, the same declares JD No. 1C to be the
              leaseholder to the extent of 52/96th share in C.T.S. No. 860 and
              also 11/96th share in all properties in execution. So far as
              declaration of leasehold rights to the extent of 52/96 th share in
              C.T.S. No. 860 is concerned, the same is acquired by JD No. 1C
              from Karimsaheb. So far as 11/96 th share in C.T.S. No. 860 is
              concerned, it appears that legal heirs of the Plaintiff filed a
              pursis admitting grant of rights in respect of 11/96 th share in
              favour of JD No.1C in C.T.S. No. 860. Therefore, there appears
              to be no difficulty even qua operative direction No. 3 of the
              impugned order.

    (iv)      The Trial Court has rightly excluded the property known as
              "Bharat Cinema" from the subject matter of execution in


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              operative direction No. 4 since Karimsaheb was the owner of
              the superstructure.

    (v)       Direction No. 5 directs that the execution shall proceed in
              respect of other properties mentioned in schedule of the
              Execution Application except the theatre ‘Bharat Cinema’ and
              63/96th (52/96 + 11/96) share in C.T.S.No.860 Bhawani Peth,
              Pune.



15)           So far as Plaintiff's brothers are concerned, who had not given
up any rights qua their 11/96th shares in C.T.S. No. 860, operative
paragraph No. 5 of the impugned order specifically permits
continuation of execution proceedings and what is excluded is only
"Bharat Cinema" property standing on C.T.S.No. 860 as well as 52/96 th
(+) 11/96th share in the land bearing C.T.S. No. 860.



16)           From the above position, I do not find any error being
committed by the Executing Court in passing the Order dated                    29
August 1988. The Petition is thus devoid of merits it is accordingly
dismissed. Rule is discharged. It is however, clarified that the execution
proceedings shall continue as directed in operative paragraph No. 5 of
order dated 29 August 1988.



17)           In view of dismissal of the Writ Petition, the pending Civil
Applications and Interim Applications do not survive and hence stand
disposed of.


                                                       [SANDEEP V. MARNE, J.]

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