Bombay High Court
Ayubkha Mahammadkha vs Rajdarkha Kifayatullakha And ... on 15 July, 2016
Bench: Z.A. Haq
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Writ petition No. 1310 of 2016
Petitioner : Ayubkha Mahammadkha, aged about 43
igyears, Occ: Agriculturist, resident of Ladkheda,
Tahsil Darwha, District Yavatmal
versus
Respondents : 1) Rajdarkha Kifayatullakha, aged Major,
Occ: Agriculturist
2) Afsarkha Kifayatullakha, aged Major,
Occ: Agriculturist
3a) Smt Leelabai Vitthalrao Dudhe, aged
Major, Occ: Agriculturist
3b) Vilas Vitthalrao Dudhe, aged Major,
occ: Agriculturist
3c) Vinod Vitthalrao Duehe, aged major,
Occ: Agriculturist
3d) Shankar Vitthalrao Dudhe, aged Major,
Occ: Agriculturist,
Respondents no. 1 to 3d are residents of
Ladkheda, Tahsil Darwha, Dist. Yavatmal
3e) Sau Sunita Dnyaneshwar Nimkar, aged
Major Occ: Household
3f) Sau Vanita Dnyaneshwar Nimkar, aged
Major, Occ: Household
3g) Sau Ranjana Dattatray Dhage, aged Major,
Nos. 3e to 3g residents of Digras, Dist. Yavatmal
ig 3h) Sau Vandana Babasaheb Dabhod, aged
major, Occ: Household, resident of Badnera,
District Amravati
Shri S. N. Bhattad, Advocate for petitioner
Shri A. Deshpande, Advocate for respondents
Coram : Z. A. Haq, J
Dated : 15th July 2016
Oral Judgment
1. Heard Shri S. N. Bhattad, Advocate for the petitioner/original
plaintiff and Shri A. Deshpande, Advocate for respondents/original
defendants.
2. Rule. Rule made returnable forthwith.
3. In the civil suit filed by the petitioner/plaintiff, an application
(exhibit 35) was filed by the plaintiff praying that the Commissioner be
appointed to carry out measurement in respect of the disputed land. This
application was rejected by the trial Court by the order dated 28 th October,
1996 and this order was challenged before this Court in Civil Revision
Application No. 153 of 1997 which was dismissed on 29 th July, 1998.
Though the civil revision application was dismissed, this Court observed that
it would be open to the plaintiff to examine witnesses for proving his case
and also to have measurement of the land in dispute by any other means.
The petitioner had again filed an application praying for
appointment of Commissioner which was rejected by the trial Court and the
Civil Revision Application against this order was also dismissed by this Court.
4. The petitioner again filed an application (exhibit 171)
reiterating his request for appointment of Commissioner. The trial Court has
rejected this application by the impugned order.
5. Considering the fact that the request of the petitioner for
appointment of Commissioner to carry out the measurement is rejected by
the trial Court earlier and the challenge to the order passed by the trial Court
has also been rejected by this Court, it cannot be said that the impugned
order suffers from any infirmity or defect. The learned trial Judge has not
committed any error of jurisdiction.
6. At this stage, Shri S. N. Bhattad, Advocate for the petitioner has
submitted that the plaintiff be granted opportunity to invoke his right as per
the liberty granted by this Court by the order passed in Civil Revision
Application No. 153 of 1997 on 29 th July 1998. The learned Advocate for
the plaintiff has submitted that the defendants are in possession of the land
which is the subject-matter of civil suit and it is not that the plaintiff is
protracting the progress of the civil suit.
7. Considering the facts on record, in my opinion, it would be
open for the plaintiff to avail the opportunity granted by this Court while
disposing Civil Revision Application No. 153 of 1997. The petitioner would
be at liberty to get the land measured privately and to examine the measurer
to support his claim. If the petitioner is interested in availing the
opportunity, steps shall be taken by him and concerned witness shall be
examined within three months, failing which the trial Court shall proceed
further with the civil suit.
8. With the above observations, the petition is disposed. Parties to
bear their own costs.
Z. A. HAQ, J
joshi
