68. WP 190 of 2023.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.190/2023
Nitin s/o Onkarrao Wankhede
...Versus...
Pratik s/o Rajeshwar Jichkar
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Shri A.M. Jaltare, Advocate with Shri N.D. Dawda, Advocate for petitioner
CORAM : AVINASH G. GHAROTE, J.
DATE : 09/01/2023
1. The petition challenges the order below Exhs.5 and 36 in Special Civil Suit No.35/2020 passed by the learned Trial Court allowing the application Exh.5 and rejecting that below Exh.36 (pg.74) and the judgment of the Appellate Court dated 04/10/2022 dismissing the appeal. It is contended that by a sale-deed dated 08/07/2019 the suit property i.e. field Survey no.41/1 admeasuring 1.26 HR was purchased by the petitioner from the respondent for valuable consideration under which the petitioner/defendant had been placed in possession. The name of the petitioner, thereafter was mutated in the 7/12 extract by rejection of the objection of respondent by the Tahsildar by his order dated 03/07/2020 (pg.58), appeal against which has also been dismissed by the Sub Divisional Officer, Arvi by his order dated 24/05/2021 (pg.116).
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2. The appeal against the order of the Trial Court below Exhs.5 and 36 has been dismissed by the Appellate Court by the judgment dated 04/10/2022. It is contended that the sale-deed being registered document which evidences delivery of possession by the plaintiff himself, he was estopped from contending otherwise being bound by the terms of the sale-deed and unless and until the sale-deed was set aside, he continued to remain bound. The learned Trial Court, has relied upon the affidavit of one Umesh Haridas Gavarle (para 26/pg.82) and the affidavit of the attesting witness Yogesh Banduji Bhtte (para 27/pg.82) to hold that there is no prima facie case as well as the spot panchanama dated 25/06/2020 prepared by the Talathi of village Sorta and the certificate by the Talathi of the same date which state that the plaintiff is in possession. The learned Appellate Court, has followed suit. Both the Courts velow have not considered the order of the Tahsildar dated 03/07/2020, which rejects the objection of the plaintiff/respondent to the sale-deed dated 08/07/2019 in favour of the present petitioner as well as the order of the Sub Divisional Officer in appeal.
3. Issue notice for final disposal to the respondent, returnable in four seeks.
Digitally signed bySHAILENDRA SUKHADEORAO WADKAR (AVINASH G. GHAROTE, J.) Signing Date:10.01.2023 17:34 Wadkar