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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Writ Petition No. 6271 of 2015
PETITIONER: Shivshankar s/o late Kedarnath Sahu,
(Original Aged about 52 years, Occ: Business, R/o House
Plaintiff) No.781 (Old), 572 (New), Ward No.2, Behind
Hazare Chambers, Pandit Malviya Road,
Sitabuldi, Nagpur.
-VERSUS-
RESPONDENTS: Baburao Pandurang Hazare,
(Original (Since Deceased through Legal Heirs 1 to 6)
Defendant's)
1 Smt. Indirabai wd/o Baburao Hazare,
Aged 75 years, Occ: Household.
2 Sadanand s/o Baburao Hazare,
Aged 60 years.
3 Chandrakant s/o Baburao Hazare,
Aged 57 years.
4 Laxmikant s/o Baburao Hazare,
Aged 57 years,
Legal Heirs 1 to 4 above all residents of House
No.782, 573, B-4, Behind Dhanwate Ashram,
Malviya Road, Sitabuldi, Nagpur.
5 Shyamal s/o Baburao Hazare,
Aged 54 years, resident of Hazare Chambers,
Opp: Shani Mandir Malviya Road, Sitabuldi,
Nagpur.
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6 Meera w/o Sheshrao Ashtankar,
Aged 58: R/o Ashtankar Bhawan, Plot No.14,
Narendra Nagar, Nagpur.
Mr. M.K. Kulkarni, Advocate for the Petitioner.
Mr. A.M. Ghare, Advocate for the Respondents.
CORAM: Z.A. Haq, J.
DATED: 06.12.2017.
Oral Judgment
Heard.
Rule. Rule made returnable forthwith.
1. The petitioner (original plaintiff) has challenged the order
passed by the trial Court by which the plaint is rejected under Order
VII, Rule-11 of the Code of Civil Procedure.
2. The plaintiff filed civil suit praying for decree for
declaration that the compound wall towards the eastern side of house
of plaintiff and towards western side of the house of defendants is
the wall shown by letters "E F" and defendants have no right to
interfere with the possession of plaintiff over the said wall. The
plaintiff also prayed for decree for permanent injunction restraining
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the defendants from interfering with the possession of plaintiff over
the suit wall.
3. The defendants opposed the claim of the plaintiff. The trial
progressed and an application (Exhibit-6) was filed by the plaintiff
praying that the Commissioner be appointed to carry out
measurement of the property of the defendant. While considering this
application, the learned trial Judge recorded that the dispute relating
ownership of wall in question is already decided in Regular Civil Suit
No. 1430/2000 and the claim made by the plaintiff is hit by Section
11 of the Code of Civil Procedure and the suit was not maintainable in
view of the provisions of Section 47 of the Code of Civil Procedure.
With these conclusions, the learned trial Judge rejected the plaint.
4. The plaintiff is disputing that the wall in question was the
subject matter of Regular Civil Suit No.1430/2000. The issue raised
by the plaintiff cannot be decided unless the plaintiff is given chance
to lead evidence in support of his claim. I found that the learned trial
Judge has exceeded his jurisdiction by rejecting the plaint under
Order VII, Rule-11 of the Code of Civil Procedure, without granting
opportunity to the plaintiff to substantiate his claim.
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Hence, the following order:
ORDER
1) The impugned order is set aside.
2) The proceedings of Regular Civil Suit No. 529/2014 are restored on the file of 2 nd Joint Civil Judge, Junior Division, Nagpur.
3) The application (Exhibit-6) filed by the plaintiff praying that Commissioner be appointed to carry out the measurement of property of the defendant, is restored.
4) The learned trial Judge shall consider the application (Exhibit-6) on its merits.
5) The learned trial Judge shall proceed with the suit according to law.
6) The petitioner / plaintiff and the respondent / defendant shall appear before the 2nd Joint Civil Judge, Junior Division, Nagpur on 12/01/2018 and shall abide by further orders in the matter.
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wp6271of2015.odt 5/5 Rule is made absolute in the above terms. In the circumstances of the case, the parties to bear their own costs.
JUDGE nandurkar ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:30:21 :::