Babasaheb @ Balu Kondiram Dhage ... vs Nandakishor Dadasaheb Dhage And ...
2016 Latest Caselaw 5813 Bom

                                                            WP No. 10649/15
                                         1




                                                                          
                      IN THE HIGH COURT AT BOMBAY
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                  
                           WRIT PETITION NO. 10649 OF 2015


     1.       Babasaheb @ Balu s/o. Kondiram Dhage,
              Age 35 years, Occu. Agri.,




                                                 
     2.       Chandrakant s/o. Kondiram Dhage,
              Age 38 years, Occu. Agril,




                                       
              Both R/o. Warkhed, Tal. Gangapur,
              Dist. Aurangabad.                            ...Petitioners.

                      Versus
                             
     1.       Nandakishor s/o. Dadasaheb Dhage,
                            
              Age 28 years, Occu. Agril,

     2.       Bhaskar s/o. Dadasaheb Dhage,
              Age 25 years, Occu. Agril,
      

              Both R/o. Warkhed, Tal. Gangapur,
              Dist. Aurangabad.                            ....Respondent.
   



                                      ...
                 Mr. H.D. Deshmukh, Advocate for petitioners.
            Mr. D.Y. Nandekar, Advocate for respndent Nos. 1 and 2.





                                      ...


                                       CORAM : T.V. NALAWADE, J.
                                       DATED : 1st October, 2016.





     JUDGMENT :

1. Rule. Rule made returnable forthwith. By consent,

heard both the sides for final disposal.

2. The petition is filed to challenge the order made on

WP No. 10649/15

26.6.2015 by the learned Civil Judge, Junior Division, Gangapur

by which the Trial Court has held that the suit itself is not

tenable, it is barred by the provision of Prevention of

Fragmentation and Consolidation of Holdings Act and on that

ground, the plaint is rejected.

3. This Court has gone through the prayers made in the

plaint. The main prayer is as under :-

"Give direction to the office of Land Record to take measurement of the lands of plaintiffs

and defendants as per the revenue record like 7/12 extract and demarket boundaries and fix the boundaries."

4. The learned counsel for petitioners placed reliance

on the case reported as AIR 1987 SC 2137 [E. Achuthan Nair

Vs. P. Narayanan Nair]. The Apex Court has made it clear that

such suit is tenable. It is held that in view of the provision of

section 4 of C.P.C., if there is uncertainty about the boundary,

the appointment of Court Commissioner, T.I.L.R. is proper and

boundary marks can be fixed in such suit of civil nature. In view

of this position of law, this Court holds that the Trial Court has

committed error.

WP No. 10649/15

5. In the result, the petition is allowed. The order of the

Trial Court is hereby set aside. The matter is restored. The Trial

Court is to proceed ahead with the matter. Rule is made absolute

in aforesaid terms.

[ T.V. NALAWADE, J. ]

ssc/