Maheshkumar Ramlal Pethe vs Vasant Rambhau Dhole
2016 Latest Caselaw 3024 Bom

                                      1
                                                                      sa400.15.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                               
                      NAGPUR BENCH, NAGPUR




                                                       
                        Second Appeal No.400 of 2015

      Maheshkumar Ramlal Pethe,
      Aged about 68 years,
      Occupation - Agriculturist,




                                                      
      R/o Morshi, Tq. Morshi,
      Dist. Amravati.                                    ... Appellant/
                                                         Ori. Plaintiff

            Versus




                                          
      Vasant Rambhau Dhole,
      Aged about 68 years,
                             
      Occupation - Advocate,
                            
      R/o Vidyavihar Colony, 
      Morshi, Tq. Morshi, 
      Dist. Amravati.                                    ... Respondent/
                                                         Ori. Defendant
      


      Shri N.A. Gawande, Advocate for Appellant.
   



      Shri Sanjeev Deshpande, Advocate for Respondent.


                   Coram : R.K. Deshpande, J.

Dated : 20th June, 2016

Oral Judgment :

1. Admit, on the following substantial question of law :

Whether the lower Appellate Court was right in confirming

the dismissal of the suit filed by the appellant-plaintiff after

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recording of the findings in his favour?

The lower Appellate Court has held that the appellant-plaintiff has

established ownership and possession of eastern land, admeasuring

4 acres out of Survey No.164/2, except the plot sold to the

respondent-defendant. The respondent-defendant has made an

encroachment on the appellant-plaintiff's land to the extent of

110 sqr. meters. Thus, the substantial question of law is whether the

lower Appellate Court was right in confirming the decision of the suit.

2. Heard finally by consent of the learned counsels appearing

for the parties.

3. It is apparent that the lower Appellate Court has held that

the appellant-plaintiff has established ownership and possession and

that the respondent-defendant has made encroachment over the land

owned by the appellant-plaintiff to the extent of 110 sqr. meters. The

lower Appellate Court ought to have, therefore, passed a decree, as

was claimed by the appellant-plaintiff, if the findings on all other

issues are also to be recorded in favour of the appellant-plaintiff and

against the respondent-defendant. The judgment and order passed by

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the lower Appellate Court cannot, therefore, be sustained.

4. This Court cannot adjudicate the matter on merits, for the

reason that it would be open for the parties to raise appropriate

contentions in respect of the decree passed by the Trial Court. The

lower Appellate Court has relied upon the decision of this Court in

Writ Petition No.2288 of 2008 (Mahesh s/o Ramlal Pethe v. Divisional

Commissioner, Amravati Division, Amravati, and others), rendered on

15-9-2008, which was not properly considered by it. In view of this,

the entire appeal is required to be decided afresh by the lower

Appellate Court, upon remand of the matter.

5. In the result, the second appeal is allowed. The judgment and

order dated 14-11-2014 passed by the lower Appellate Court in

Regular Civil Appeal No.50 of 2010, is hereby quashed and set aside

and the matter is remitted back to the lower Appellate Court to decide

the appeal afresh in accordance with law. All the questions are left

open to be adjudicated in the appeal. The parties to appear before the

lower Appellate Court on 18-7-2016. The lower Appellate Court to

decide the appeal within a period of eight months from the date of

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first appearance of the parties before it. No costs.

JUDGE.

Lanjewar