Indraraj S/O. Ramchandra ... vs Shri. Satyawan S/O. Keshavrao ...
2016 Latest Caselaw 2864 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     




                                                
                              NAGPUR BENCH, NAGPUR.


     WRIT PETITION NO.806 OF 2016




                                               
     1) Indraraj s/o Ramchandra Goundhariya,
         Aged about 56 years, 
         Occupation - Labour.




                                       
     2) Shri Naresh s/o Bapurao Barekar,
                             
         Aged about 44 years, 
         Occupation - Labour.
                            
     3) Smt. Laxmibai wd/o Rajendra Goundhariya,
         Aged about 53 years, 
         Occupation - Labour.
      

     4) Shri Jayant s/o Rajendra Goundhariya,
         Aged about 28 years, 
   



         Occupation - Labour.

     5) Sau. Jaiprakash Rajendra Goundhariya,
         Aged about 25 years, 





         Occupation - Labour.

     6) Sou. Malabai Mahesh Mohbe,
         Aged about 33 years, 
         Occupation - Labour.





     7) Sau. Jyoti Anand Barekar,
         Aged about 38 years, 
         Occupation - Labour.

     8) Sau. Suhagabai Khotu Tandekar,
         Aged about 79 years, 
         Occupation - Labour.

     9) Shri Sevakram Natthu Pogode,
         Aged about 54 years, Occupation - Labour,


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     10) Shri Sadaram s/o Atmaram Agade,




                                                             
           Aged about 53 years, 
           Occupation - Labour, 
       
           All R/o Near Laxmi Talkies, Ward No.3,




                                                            
           Durgapur, Tahsil and District 
           Chandrapur.                            ....                  PETITIONERS


                           VERSUS




                                               
                             
     Shri Satyawan s/o Keshavrao Bendle,
     Aged about 71 years, 
     Occupation - Business, 
                            
     R/o Durgapur, Tahsil and District 
     Chandrapur.                                             ....       RESPONDENT
      

     ______________________________________________________________
                  Shri Amit Khare, Advocate for the petitioners,
   



             Shri U.M. Aurangabadkar, Advocate for the respondent.
      ______________________________________________________________





                                   CORAM : Z.A. HAQ, J.

DATED : 15 JUNE, 2016 th

ORAL JUDGMENT :

1. Heard Shri Amit Khare, Advocate for the petitioners/

judgment-debtors and Shri U.M. Aurangabadkar, Advocate for the

respondent/decree-holder.

2. Rule. Rule made returnable forthwith.

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3. The respondent filed civil suit praying for decree for

possession and for perpetual injunction. The respondent claimed that

he is owner of the suit land and the petitioners encroached over the

suit land without any authority. The learned trial Judge, by the

judgment dated 31-12-2007, partly decreed the claim of the

respondent and directed the petitioners/defendants to deliver

possession of the land occupied by them out of Survey No.116 of

village Durgapur shown in the plaint map. The petitioners filed appeal

challenging the judgment and decree passed by the trial Court. As

there was delay of about five years, eleven months and sixteen days in

filing the appeal, the petitioners filed an application praying for

condonation of delay. The learned District Judge has rejected the

application by the impugned order.

4. With the assistance of the learned Advocates for the

respective parties, I have examined the documents placed on the

record of the petition. The application filed by the petitioners before

the District Court praying for condonation of delay shows that

according to the petitioners, there is no wilful default on their part in

prosecuting the matter and they relied on their Advocate who assured

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them that if their presence is required, they will be called to attend the

Court. The learned District Judge has considered the relevant

pleadings. The learned District Judge has recorded that the notice of

execution proceedings was served on the petitioners in 2009 still they

had not taken any steps to file appeal immediately and the appeal is

filed sometime in December 2013. The learned District Judge has

recorded that the petitioners have failed to show that they were

prevented by sufficient cause and could not file appeal earlier.

5. The order passed by the learned District Judge is proper

and cannot be faulted with. I see no reason to interfere with the

impugned order. The petition is dismissed. In the circumstances, the

parties to bear their own costs.

6. The learned Advocate for the petitioners has submitted

that the petitioners are labourers and are residing in the huts

constructed on the suit land. Considering these facts, the petitioners

are granted six months time to vacate the suit land, however, on

condition that the petitioners shall file individual separate

undertakings that they will vacate the suit land and handover vacant

and peaceful possession to the decree-holder till 05-01-2017. The

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undertakings shall be filed before the executing Court till 15-07-2016.

If the undertakings are not filed by the petitioners till 15-07-2016, the

respondent/decree-holder will be at liberty to proceed with the

execution against the petitioners who do not file undertaking till

15-07-2016, and the executing Court shall proceed with the execution

against them.

JUDGE

adgokar