Bombay High Court
Kashinath Kisan Nimkar And Others vs Saiyyad Nsarruddin Nazirruddin ... on 18 October, 2016
Bench: A.S. Chandurkar
23-J-4118-15 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4118 OF 2015
1. Kashinath Kisan Nimkar
Aged about 54 years. Occ. Cultivation
R/o Lakhmapur Tah. Korpana,
Dist. Chandrapur.
2. Laxman Kisan Nimkar
Aged about 50 years, Occ. Cultivation
R/o Bakhardi, Tahsil Korpana
District Chandrapur.
3. Sakhubai Wasudeo Nibrad
Aged about 35 years, Occ. Household,
R/o Kukudsat Tahsil Korpana,
Dist. Chandrapur. ... Petitioners.
-vs-
1. Saiyyad Nsarruddin Nazirruddin Kazi
Aged about 60 years, Occ. Business
2. Ahiroddin Naziruddin Kazi
Aged about 55 years, Occ. Business
3. Ahersamuddin alias Salimuddin
Nazirruddin Kazi, Aged about 48 years.
Occ. Business
4. Sirazoddin Nazirruddin Kazi
Aged about 45 years, Occ. Business
5. Riyajuddin Nazirruddin Kazi
Aged about 40 years, Occ. Business
All R/o Chhota Bazar Ward,
Chandrapur, Tah. & Dist. Chandrapur.
6. Dadaji son of Kisan Nimkar
Aged about 35 years, Occ. Cultivation
::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:50:13 :::
23-J-4118-15 2/3
R/o Kukudsat Tahsil Korpana,
Dist. Chandrapur. ... Respondents.
Ms Kirti Satpute, Advocate for petitioners.
Shri P. A. Markandewar, Advocate for respondent Nos.1 to 5.
CORAM : A.S.CHANDURKAR, J.
DATE : October 18, 2016
Oral Judgment :
There is no appearance on behalf of the respondents though the
matter has been called out twice. Considering the limited controversy
involved, the learned counsel for the petitioner has been heard by issuing
the Rule and making the same returnable forthwith.
2. The petitioners are the original plaintiffs who are aggrieved by the
order passed below Exhibit-5 in R.C.A. No.107/2014 whereby the application
for staying the effect and operation of the decree for possession passed by the
trial Court has been rejected.
3. The petitioners have filed suit for declaration of their title
alongwith relief of permanent injunction with regard to the suit land. In the
said suit, the respondents filed counter-claim seeking possession of the very
same suit property. The trial Court by its judgment dated 20/09/2014
dismissed the suit but decreed the counter-claim. A direction was issued to
the plaintiffs to hand over possession of the suit property to the original
23-J-4118-15 3/3
defendants. Being aggrieved, the original plaintiffs filed R.C.A. No.107/2014
challenging the decree for possession. The trial Court refused to stay the
execution of aforesaid decree and rejected the said application.
4. This Court on 21/07/2015 while issuing notice had granted ad
interim stay to the execution of aforesaid decree in favour of the petitioners.
This order continues to operate even today. Considering the fact that the
petitioners are in possession and the same has been protected by this Court
vide order dated 21/07/2015, the interests of justice would be served by
passing the following order :
i) The order dated 19/06/2015 passed below Exhibit-5 in R.C.A.
No.107/2014 is set aside.
ii) The decree for possession passed in the counter-claim shall
remain stayed during pendency of R.C.A. No.107/2014 subject to
petitioners not creating third party rights in the suit property.
iii) Proceedings in R.C.A.No.107/2014 are expedited and the appeal
shall be decided by the end of February 2017. Order accordingly.
Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE
Asmita
