Bombay High Court
Adarsh Gruh Nirman Sanstha, ... vs Arun Vishnuji Rokade, And Others on 5 December, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3084 OF 2014
Adarsh Gruh Nirman Sanstha,
Yerala, through its Secretary
Krushnarao Tulashiram Raikwad,
Aged about 71 years,
R/o Pimpalkhuta (Mohta),
Tq. Morshi, Dist. Amravati. ....... PETITIONER
...V E R S U S...
1]
Arun Vishnuji Rokade,
Aged about Major, Occ: Cultivator,
R/o Yerla, Tq. Morshi,
Dist. Amravati.
2] Smt. Nanda Vinodrao Ajmire,
Aged: Adult, Occ: Household work.
3] Smt. Smita Pradiprao Ajmire,
Aged Adult, Occ: Household work,
Nos.2 & 3 residing besides Sahu
Mangal Karyalaya, Ajmire Layout,
Morshi, Tq. Morshi, Dist. Amravati.
4] Sahebrao Pundlikrao Vidhale,
Aged about Major,
R/o Mahanagar Palika Garden,
Rathi Nagar, Amravati,
Tq. & Dist. Amravati.
5] Sudhakar Bapurao Korde,
Aged: Major, R/o Pimpalkhuta,
Tq. Morshi, Dist. Amravati.
6] Ashok Vishnuji Rokade (since
dead) by L.R's:
6-a] Smt. Maya wd/o Ashok Rokade,
Aged about 45 years,
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6-b] Saurav s/o Ashok Rokade,
Aged about 20 years,
Both R/o Yerla, Tq. Morshi,
Dist. Amravati.
7] Ashok Uttamrao Navghare,
Age: 54 years, R/o Asarani Layout,
Morshi, Tq. Morshi, Dist. Amravati.
8] Ramesh Pundilikrao Nikam,
Age 60 years, R/o Maharashtra
Colony, Morshi, Tq. Morshi,
Dist. Amravati.
9] Suresh Namdeorao Choudhari,
Aged 56 years, R/o Malviya Garden,
Morshi, Tq. Morshi, Dist. Amravati.
10] Krishna Bajrang Nikam,
Aged 67 years, R/o Pimpalkhuta,
Morshi, Tq. Morshi, Dist. Amravati.
11] Sahebrao Vidhate (since dead)
through L.R's
11a] Smt. Suman wd/o Sahebrao Vidhate,
Aged 65 years, Occ: Household.
11b] Pramod s/o Sahebrao Vidhate,
Aged 50 years, Occ: Cultivator.
11c] Vinod s/o Sahebrao Vidhate,
Aged 47 years, Occ: Cultivator.
11d] Anil s/o Sahebrao Vidhate,
Aged 43 years, Cultivator.
All R/o Pimpalkhuta (Motha),
Tah. Morshi, Dist. Amravati.
12] Prabhakar Govindrao Deshmukh
Aged 54 years, R/o Hanuman Nagar,
Morshi, Tq. Morshi, Dist. Amravati.
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13] Waman Ganpatrao Lekurwale
(since deceased) by legal heir:
13a] Smt. Lalita wd/o Wamanrao Lekurwale,
Aged 70 years, R/o Near State Bank
Colony, Morshi, Tq. Morshi,
Dist. Amravati.
14] Namdeo Parnuji Wankhade
(since decased) by legal heir:
14-a] Smt. Panchfula wd/o Namdeo Wankhede
14-b] Prakash s/o Namdeo Wankhede
Both R/o & Post Naya Wathoda,
Tah. Morshi, Dist. Amravati.
15] Niranjan Ramkrushna Rumne
(since deceased) by legal heir:
15a] Rajesh s/o Niranjan Rumne
Aged 35 years, R/o Manjari Mhasla,
Tq. Nandgaon Kh. Dist. Amravati.
16] Mahadeo Tukaram Uprot,
Aged 63 years, R/o Yerla,
Tq. Morshi, Dist. Amravati.
17] Vandeo Gunaji Raut
Aged 63 years, R/o Yerla,
Tq. Morshi, Dist. Amravati.
18] Eknath Rangarao Awate
(since deceased) by legal heir:
18-a] Smt. Kamalabai wd/o Eknathrao
Awate, Aged 63 years.
18-b] Vasant s/o Eknathrao Awate,
Aged 45 years.
18-c] Ashok s/o Eknathrao Awate
Aged 42 years,
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18-A to 18-c All R/o Washim Bypass
Road, Akola, Tq. & Dist. Akola.
19] Rangrao s/o Ramchandra Raut,
Aged 72 years, R/o Yerla,
Tq. Morshi, Dist. Amravati.
20] Chandrakant Vithalrao Raut,
At Post Ambada, Tah. Morshi,
Dist. Amravati. ....... RESPONDENTS
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Shri B.N. Mohta, Advocate for Petitioner.
Shri D.P. Dapurkar, Advocate for Respondent No.1.
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CORAM: R.K. DESHPANDE, J.
th DECEMBER, 2016.
DATE: 5
ORAL JUDGMENT
1] Heard Shri Mohta, the learned counsel for the
petitioner-original plaintiff and Shri Dapurkar, the learned counsel
for respondent No.1, who is the defendant No.1 in Regular Civil
Suit No.47 of 2011.
2] Rule, made returnable forthwith. Heard finally by
consent of the learned counsels appearing for the petitioner and
the respondent No.1.
3] It is the respondent No.1 who is the defendant No.1,
the contesting party and hence, the matter can be disposed of
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without service upon the other respondents.
4] The petition challenges the order dated 24.02.2013
and 16.09.2013 passed by the trial Court rejecting the application
for discovery of documents and for modification of the issues
framed by the trial Court. So far as the order rejecting the
application for discovery of documents is concerned, the order
being interlocutory in nature it shall be open for the petitioner to
challenge the same in Regular Civil Appeal, if any such occasion
arises. On the question of modification or recasting of issues, the
matter is required to be dealt with by this Court as it goes to the
root of the matter.
5] The petitioner/plaintiff wanted modification of issue
no.1 framed by the trial Court which is reproduced below:
"Does the plaintiff prove that defendant no.1 has no
right to sale out the suit property in favour of the
defendant no.2 and 3."
6] The petitioner/plaintiff has claimed the declaration
that the sale-deed dated 24.08.2009 executed by the defendant
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No.1 in favour of defendant Nos.2 and 3 is null and void. An issue
to that extent has already been framed at Sr. No.3. So far as issue
No.1 is concerned which is reproduced above, it is based upon the
stand taken by the defendant Nos.1, 2 and 3 in their written
statement. If the issue is not proved the defendant Nos.1, 2 and 3
shall fail, hence the burden is required to be discharged in respect
of the said issue by the defendants. Hence, the said issue No.1
framed is re-casted as under:
"Does the defendants prove that the sale of the
property by the defendant No.1 in favour of
defendant Nos.2 and 3 was legal."
7] In the result, the writ petition is partly allowed.
The issue No.1 framed at Exhibit 47 is modified in terms of the
issue framed by this Court. The petition is therefore, disposed of.
No costs.
JUDGE
NSN
