Bombay High Court
Sau. Kunda W/O Naryan Lepse vs Vitthal S/O Maniram Chunarkar on 22 March, 2016
Bench: Ravi K. Deshpande
1
ao90.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Appeal against Order No.90 of 2015
Along with
Cross-Appeal No.56 of 2015
In
Appeal against Order No.90 of 2015
Sou. Kunda w/o Narayan Lepse,
Aged about 59 years,
Occupation - Retired,
R/o Chandrabhaga Nagar,
Hudkeshwar Road,
Behind Pride Bar, Nagpur. ... Appellant
Ori. Plaintiff
Versus
Vitthal s/o Maniram Chunarkar,
Aged about 62 years,
Occupation - Retired,
R/o Fuley Ward,
Gadchiroli, Tahsil and
District Gadchiroli. ... Respondent
Ori. Defendant
Shri Rohit Joshi, advocate for Appellant.
Shri Vishwas S. Kukday, Advocate for Respondent.
Coram : R.K. Deshpande, J.
Date : 22nd March, 2016
ao90.15.odt
Oral Judgment :
1. Heard the learned counsels appearing for the parties.
2. Admit. Shri V.S. Kukday, the learned counsel, waives
service of notice for the respondent.
3. By consent of the learned counsels for the parties, the
matter is taken up for final hearing.
4. On 25-2-2010, the Trial Court dismissed Regular Civil Suit
No.52 of 2004 and partly allowed the counter-claim filed by the
respondent-defendant. The appellant-plaintiff was directed to
hand over the vacant possession of 71.25 sq.mtr. Area, shown by
the blue ink in the measurement map at Exhibit 202, to the
respondent-defendant. The map at Exhibit 202 was directed to
be treated as part and parcel of the decree. The claim for
permanent injunction was dismissed. In Regular Civil Appeal
No.21 of 2010 preferred by the appellant-plaintiff, the lower
Appellate Court has remanded the matter back to the Trial Court
ao90.15.odt
for appointment of Taluka Inspector of Land Records or District
Inspector of Land Records as Commissioner under Order XXVI,
Rule 9 of the Code of Civil Procedure, to measure the plots of the
appellant-plaintiff and the respondent-defendant with the help of
the sale-deeds of the respective parties, and to take actual
measurement and submit the report to the Court along with the
map drawn and measurements taken by him. The lower
Appellate Court, by its judgment and order dated 25-8-2015, has
quashed and set aside the decision of the Trial Court.
5. Both the learned counsels appearing for the parties submit
that there was no need to appoint the Court Commissioner under
Order XXVI, Rule 9 of the Code of Civil Procedure and the matter
could have been decided on the basis of the evidence available
on record. There is no finding recorded by the lower Appellate
Court under Order XLI, Rule 23-A of the Code while remanding
the matter back to the Trial Court. In view of this, the judgment
and order passed by the lower Appellate Court cannot be
sustained and the same will have to be quashed and set aside
ao90.15.odt
with an order of remand to the lower Appellate Court with a
direction to decide the matter afresh on its own merits and in
accordance with law.
6. In the result, the appeal as well as cross-appeal are partly
allowed. The judgment and order dated 25-8-2015 passed by
the lower Appellate Court in Regular Civil Appeal No.21 of 2010,
is hereby quashed and set aside. The matter is remanded back to
the lower Appellate Court to decide it afresh on its own merits
and in accordance with law. The parties to appear before the
lower Appellate Court on 18-4-2016. The lower Appellate Court
to decide the matter thereafter.
7. The appeal as well as cross-appeal are disposed of in
above terms. No order as to costs.
Judge.
Lanjewar
