Dismissed

Haji Siddique Abdul Hamid Darvesh v. Kamaluddin Ebrahim Esmail and Ors.

Bombay HC11 Feb 2009WP/1376/2009

Case brief

AI extract

What is this about?

The High Court dismissed the writ petitions, holding that no interference in its writ jurisdiction is warranted regarding possession disputes where parties claim through decree holders in pending execution proceedings requiring due process adjudication.

What did the court decide?

Petitioners' writ petitions were dismissed; no interference in writ jurisdiction was granted.

Haji Siddique Abdul Hamid Darvesh Vs Kamaluddin Ebrahim… — Property and Title | Bombay HC (2009)

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 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO.1376 OF 2009

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 WITH

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 WRIT PETITION NO.1378 OF 2009

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 Haji Siddique Abdul Hamid Darvesh. ..Petitioner.
 V/s.

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 Kamaluddin Ebrahim Esmail & ors. ..Respondents.

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 Mr.P.K.Dhakephalkar, Sr.Counsel i/b. M/s. Khilnani
 & Co. for Petitioner.

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 Mr.P.S.Dani i/b. Mr.M.J.Virjee for Respondents.

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 CORAM: A.M.KHANWILKAR,J

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 DATE : FEBRUARY 11, 2009.

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P.C. :

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 1. Heard Counsel for the parties.

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 2. In the fact situation of the present case, no
 interference in exercise of writ jurisdiction is
 warranted.

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 3. Indeed, the Court below has observed that the
 Petitioner has been put in possession by one of the
 co-owner. The expression "co-owner" in the fact
 situation of the present case is inappropriate. The
 indisputable facts however are that all the
 defendants are claiming through one Mr.Ibrahim Ismail

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 being heirs and legal representatives of the said
 deceased Ibrahim Ismail. The concept of one of the
 co-owner inducting the third party and creating a
 valid tenancy has no application to the case on hand.
 What is relevant to notice is that the Petitioner
 claims to have been inducted by defendant No.1 one of
 the joint tenant on 26th August, 2004. There was
 express prohibitory order operating in relation to
 the suit premises in the proceedings pending between
 the defendants and the obstructionist. The Defendant
 No.1 who is party to the said proceedings however,
 disregarding the said prohibitory order allegedly
 parted with possession of the suit premises to the
 Petitioner. It is well established position that
 such transaction will have to be treated as void in
 view of the exposition in the case of Keshrimal Jivji
Shah & Anr. V/s.Bank of Maharashtra & Ors. reported
in (2004) 4 BCR 842.

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 4. Besides, the Appellate court has rightly
 reversed the opinion recorded by the Trial Court that
 the Defendants cannot take possession of the suit
 premises on the strength of decree passed in R.A.Suit
 No.1474 of 1984 not being due process of law. As a
 matter of fact, that question will have to be
 addressed in the pending execution proceedings. For,

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 the Petitioner at best is claiming through one of the
 decree holder in the said suit. In that sense,
 whether he is entitled to obstruct execution of
 decree in the said suit is a matter to be considered
 in the said proceedings and would obviously be an
 adjudication to fulfil the requirement of due process
 of law.

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 5. As aforesaid, taking any view of the matter,
 no interference in exercise of writ jurisdiction is

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 warranted. Dismissed.

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(A.M.KHANWILKAR,J)

Haji Siddique Abdul Hamid Darvesh v. Kamaluddin Ebrahim Esmail and Ors.

Case brief

What is this about?

What did the court decide?

Haji Siddique Abdul Hamid Darvesh v. Kamaluddin Ebrahim Esmail and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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