DATTATRAYA UTTAM PAVBAKE AND ANOTHERversusKARBHARI GOPALA PAVBAKE AND OTHERS

2026:BHC-AUG:7879
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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD
                            WRIT PETITION NO.1811 OF 2026
               1.    Dattatraya Uttam Pavbake,
                     Age: 57 years, Occu. Agri.,
                     R/o. Pavbake Road, Ghulewadi,
                     Tq. Sangamner,
                     Dist. Ahilyanagar (Ahmednagar).
               2.    Sanjay Uttam Pavbake,
                     Age: 55 years, Occu. Agri.,
                     R/o. As above.                            ..Petitioners
                                                         (Org. JD Nos.2 and 3)
                             Versus
               1.    Karbhari gopala Pavbake,
                     Age: 70 years, Occu. Agril.,
                     R/o. Pavbake Road, Ghulewadi,
                     Tq. Sangamner,
                     Dist. Ahilyanagar (Ahmednagar)

               2.    Uttam Murlidhar Pavbake,
                     (Now Deceased),
                     L.R’s. already on record
                     i.e. petitioner and respondent Nos.2 to 4.

               3.    Balasaheb Uttam Pavbake,
                     Age: 48 years, Occu. Agri.,
                     R/o. Pavbake Road, Ghulewadi,
                     Tq. Sangamner,
                     Dist. Ahilyanagar (Ahmednagar)

               4.    Sunil Uttam Pavbake,
                     Age: 45 years, Occu. Agri.,
                     R/o. As above.                            ..Respondents
                                                   (Res. No.1-Orig. DH, Res. No.2
                                                   to 4-Orig. JD Nos.1, 4 and 5)
                                                ...
               Mr. A. N. Nagargoje, Advocate for the Petitioners.
               Mr. A. S. Bajaj, Advocate for Respondent No.1.
                                                …
                                         CORAM : S. G. CHAPALGAONKAR, J.
                                         DATED : 17th FEBRUARY, 2026.
               JUDGMENT:-

               1.    Rule.     Rule made returnable forthwith.      By consent of

               parties, matter is taken up for final hearing at the admission stage.
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2.    The petitioners impugns common order dated 02.02.2026

passed below Exhibits-33 and 35 by Civil Judge Junior Division,

Sangamner, District Ahmednagar in R.D. No.149/2022, whereby

petitioners application filed below Exhibit-35 for issuance of

witness summons to TILR has been rejected and respondents

application filed below Exhibit-33 to appoint Bailiff for execution of

decree passed in Regular Civil Suit No.101/2006 is allowed with

consequential direction.


3.    The petitioners are original defendants in Regular Civil Suit

No.101/2006.   The respondent no.1 had instituted suit claiming

relief of perpetual and mandatory injunction. The suit came to be

decreed on 25.01.2011.     Ultimately, decree attained finality by

judgment and order dated 18.02.2022 passed by this Court in

Second Appeal No.300/2018.         The respondent no.1 filed R.D.

No.149/2022 for execution of decree and filed application below

Exhibit-15 to appoint Bailiff to remove construction of ‘ota’ and

‘grills’ made by petitioners.     The petitioners contended that in

Rasta Case filed by respondents such construction is already

removed and there is nothing for further execution of decree.

Accordingly, respondent no.1 had filed another application at

Exhibit-25 for appointment of Court Commissioner to verify factual

position.   The said application was allowed.        The TILR was

appointed as Court Commissioner, who after ascertaining factual
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position on spot submitted his report mentioning that construction

still exist over suit property.


4.    At this stage, petitioners/Judgment Debtors filed application

Exhibit-35 objecting map and report submitted by TILR and sought

issuance of witness summons for his examination. On other hand,

respondents filed applications below Exhibit-33 for appointment of

Bailiff to execute decree, thereby removing construction of ‘ota’ and

‘grills’ by taking help of TILR or Surveyor to clarify area of 20

meters width as per decree. Even police aid is granted on payment

of Bhatta of Decree Holders.


5.    Mr. Nagargoje, learned Advocate appearing for petitioners

would submit that when suit was filed there was construction of

‘ota’ and ‘grills’.     However, respondents had filed another

proceeding in Rasta Case, which was allowed and in execution of

that order ‘ota’ and ‘grills’ that was standing within suit property is

already removed.       The Court Commissioner was specifically

appointed to find out existence of alleged ‘ota’ and ‘grills’ on spot.

However, Court Commissioner failed to discharge his duties in

terms of directions and submitted ambiguous report. In that view

of matter, it is necessary to cross-examine TILR. The map and

report submitted by TILR cannot be relied for purpose of execution

of decree.
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6.    On other hand, Mr. Bajaj, learned Advocate appearing for

respondents points out that TILR was appointed as Court

Commissioner only for purpose of ascertaining existence of

construction over suit property. He was not expected to submit

measurement of encroachment or particulars thereof. The report of

TILR clearly shows existing construction within 20 meters of suit

property. Therefore, there is no reason to call Court Commissioner

by issuing witness summons. He would submit that decree passed

by Trial Court has attained finality upto Supreme Court and

petitioners are creating hurdles in its execution by adopting

various tactics.


7.    Having       considered    submissions   advanced    by     learned

Advocates appearing for respective parties, it can be observed that

in Regular Civil Suit No.101/2006 filed by respondent no.1 decree

has been passed with following directions:

     “1.   Suit decreed with costs.
     2.    Counter Claim of Defendant dismissed with costs.
     3.    Defendant Nos.1 to 5 are hereby directed to remove the
           ‘ota’ constructed by them in the open space of 20 Meter
           on western side within 30 days from the date of decree
           at their costs.
     4.    It is further directed that, if defendants fails to remove
           the ‘ota’ and ‘grills’ constructed by them as per above
           direction then plaintiff is at liberty to remove the same
           by following due procedure of law at the costs of
           defendants.
     5.    Defendant Nos.1 to 5 in person, through agents or
           servants are hereby perpetually restrained from doing
           any type of construction or any act which will likely to
           close the user of plaintiff on western side of stream and
           upon space of 20 Meter adjacent to the road.
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     6.   Defendant Nos.1 to 5 shall pay the cost of this suit and
          cost of counter claim to plaintiff.
     7.   Defendant Nos.1 to 5 shall bear their own costs.
     8.   Decree be drawn up accordingly.”


8.    The aforesaid decree has attained finality.         Perusal of

judgment and order in Second Appeal No.300/2018 arising out of

aforesaid decree shows that this Court has specifically observed

that suit property has been specifically described and there is

absolutely no confusion as regards to identity of property in respect

of which plaintiffs have been claiming reliefs. Since petitioners

came with case that in execution of order passed in Rasta Case,

‘ota’ and ‘grills’ have been removed, TILR was appointed as Court

Commissioner, who submitted factual report that encroachment

still subsists within suit property.   Perusal of impugned order

would show that Executing Court has appointed Bailiff to execute

decree with aid of TILR and police. The petitioners would have no

prejudice, if suit property is put into possession of respondents as

per decree, which has already attained finality. Apparently, there

is no reason to issue witness summons to TILR, as report of TILR

and map was only to find out existence of encroachment, if any,

within boundaries of suit property and not for measurement or

fixation of boundaries.


9.    In that view of matter, this Court do not find any reason to

interfere in impugned order and stall execution of decree, which
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has attained finality upto Supreme Court. Hence, Writ Petition

stands dismissed.


10.     Rule stands discharged.



                                   (S. G. CHAPALGAONKAR)
                                            JUDGE
Devendra/January-2026