wp6851.15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT PETITION NO. 6851 OF 2015
Shivaji Trimbak Suradkar,
age 41 yrs. Occu.Agriculturist,
R/o Gondhkhed, Post Madh,
Distt. Buldhana. PETITIONER.
VERSUS
Shalikram Shenfad Shurdkar,
age 60 yrs. Occu.Agriculturist,
R/o Gondhkhed, Post Madh,
Distt. Buldhana. RESPONDENT.
Shri S. R. Deshpande, Advocate for the petitioner.
Shri R. L. Khapre, Advocate for the respondent.
CORAM: A. S. CHANDURKAR J.
Dated : JUNE 29, 2016.
ORAL JUDGMENT:
In view of notice for final disposal the learned counsel for the parties have been heard at length.
2] The petitioner who is the original plaintiff is aggrieved by the order passed by the appellate Court thereby setting aside the order of injunction passed in his favour.
3] The petitioner is the original plaintiff who claims to own 0.41 R land from gat no. 11. It is his case that initially the plaintiff had got 1 acre 25 ::: Uploaded on - 02/07/2016 ::: Downloaded on - 30/07/2016 07:32:06 ::: wp6851.15 2 R land as half share while the remaining half share was allotted to the respondent. According to him in June 2015 an obstruction was caused by the respondent and hence aforesaid suit for permanent injunction came to be filed. The trial Court by order dated 29.09.2015 allowed the application for temporary injunction. This order however was set aside in the appeal filed by the respondent.
4] Shri S. R. Deshpande, the learned counsel for the petitioner submitted that the appellate Court allowed the appeal merely on the ground that the measurement report was not placed on record by the petitioner. He submitted that as per the 7/12 extracts of the land in question, the petitioner was in possession of 0.41 R of land after selling 0.84 R land. He submitted that the appellate Court without considering the findings recorded by the trial Court gave much weightage to the fact that the measurement report was not brought on record by the petitioner. He therefore submitted that the order passed by the trial Court deserves to be restored.
Shri R. L. Khapre, the learned counsel for the respondent supported the impugned order and relied upon the measurement map that was prepared pursuant to the application moved by the petitioner himself.
He submitted that as this measurement report was not in favour of the petitioner, the same was not brought on record. He submitted that as per the statement of the petitioner the boundaries of his land were not fixed and until said aspect was verified the petitioner was not entitled for any order of injunction.
::: Uploaded on - 02/07/2016 ::: Downloaded on - 30/07/2016 07:32:06 :::wp6851.15 3 5] I have perused the documents placed on record. The same indicate that out of land admeasuring 1 H 25 R, 0.84 R was sold by the petitioner and he was left with 0.41 R land. The record indicates that on 01.10.2014 the petitioner had applied for measurement of the field in question and his statement in those proceedings was recorded. The petitioner stated that the boundaries of his field had not been fixed. Thus on one hand there are 7/12 extracts indicating the ownership of the petitioner to the extent of 1 H 25 R. while there is also a statement that boundaries of his field had not been fixed. The question with regard to the exact area that is in possession of the petitioner will be a matter to be decided by the trial Court after recording evidence. It is found that the trial Court passed an order of injunction on 29.09.2015 which was set aside on 25.11.2015. This Court while issuing notice on 18.12.2015 directed the parties to maintain status quo as on said date. Hence, instead of entering into the dispute with regard to the actual area in possession of the parties, in the facts of the present case the interests of justice would be met by directing the trial Court to decide the civil suit expeditiously and by continuing the order of status quo which was passed on 18.12.2015 in the Writ Petition. Thus by clarifying that the observations made by the trial Court or by the appellate Court while considering the injunction application would not come in the way of parties when the suit is decided, the proceedings in Regular Civil Suit No. 207 of 2015 are expedited. The said suit shall be decided by the end of December 2016. Without prejudice to the rights of the parties, the order of status quo ::: Uploaded on - 02/07/2016 ::: Downloaded on - 30/07/2016 07:32:06 ::: wp6851.15 4 dated 18.12.2015 shall continue to operate during pendency of the suit. The Writ Petition is disposed of in aforesaid terms. No costs.
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