Babu Gopal Gaware Through His ... vs Shesherao Ganpati Gaware
2016 Latest Caselaw 4578 Bom

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     drp
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                         
                         WRIT PETITION NO. 3638 OF 2016




                                                 
     Babu s/o Gopal Gaware                                         PETITIONER
     Age - 80 yeas, Occ - Nil
     R/o Kelgaon, Taluka - Nilanga,
     District - Latur




                                                
     Through his Power of Attorney Holder,
     Govind s/o Babu Gaware,
     Age - 50 years, Occ - Agriculture




                                        
     R/o Kelgaon, Taluka - Nilanga
     District - Latur

              VERSUS
                             
     Shesherao s/o Ganpati Gaware                               RESPONDENT
                            
     Age - 66 years, Occ - Agriculture
     R/o Kelgaon, Taluka - Nilanga
     District - Latur
      

                                   .......

Mr. Tukaram M. Venjane, Advocate for the petitioner

Mr. S. B. Gastgar, Advocate for the respondent .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 9th AUGUST, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally with

consent of learned advocates for the parties.

2. Learned advocate for the petitioner purports to contend

that as a matter of fact, the decreed land has already been put

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in possession of the respondent-plaintiff and under the garb of

execution of decree, the plaintiff-respondent would be placed in

the area of land more than due to him under the decree.

3. It would be worthwhile to refer to the decree as has been

passed by the trial court, which reads as under:

1. Suit is decreed with costs, as under.

2. Defendant do handover possession of encroached area of land

admeasuring 30 R. of survey No.63/C, whose boundaries are -

east - Shiv of Mouje Zari, west - land of Balaji Ramchandra

Gaware and Babu Gaware, south - remaining land of plaintiff,

north - land of defendant, after one month of the date of the order.

3. Measurement map Exh.72 be part and parcel of the decree.

4. Decree be drawn accordingly."

4. It will have to be borne in mind that the decree as has

been passed directs that the measurement map Exhibit-72 to be

part and parcel of the decree. It is as such, evident that the

plaintiff-respondent is supposed to take possession of the land in

respect of which decree has been passed. The decree appears to

be in respect of land Gut No.63/c, specifically described in the

plaint and as referred to in Exhibit-72. As such, it emerges that

the respondent-plaintiff would be entitled to take possession of

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the land so decreed in his favour.

5. Learned advocate though contends that since the order

dated 10th December, 2015 refers to appointment of court

commissioner and yet it is considered under the impugned order

that there is no need to appoint commissioner again, since the

decree is amply clear and executing court is precluded from

going behind the decree.

6.

It appears that during the course execution, the executing

court had issued possession warrant under order dated 10 th

February, 2015 and had directed the Taluka Inspector of Land

Records to be court commissioner in order to show the

boundaries of 30 Are land of survey No. 63/Kha (in fact 63/C) as

per measurement map annexed to the decree. Intention

underlying order primarily is to assist giving of possession as per

decree. He is not supposed to measure the land again in the face

of decree. Observation regarding measurement appears to be

unintentional and under oversight. Observations regarding

payment of fees and measurement amounts in said order appear

to be redundant.

7. In the circumstances, the impugned order passed may not

be exactly faulted with, however, the Taluka Inspector of Land

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Records may facilitate and aid taking over of possession

pursuant to the decree passed. In such a case, if the petitioner

pays up the charges of the Taluka Inspector of Land Records in

assisting giving of delivery of possession to the plaintiff, it is

open for the petitioner to deposit charges immediately and the

Taluka Inspector of Land Records may assist in giving of

possession pursuant to the decree. Taluka Inspector of Land

Records, however, is not supposed to carry out measurement

and will have to go as per decree.

8. Impugned order in the circumstances is not disturbed. Writ

petition stands disposed of. Rule stands discharged. As such,

Civil Application No.8873 of 2016 stands disposed of.

[SUNIL P. DESHMUKH, J.]

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