Qabrastan Dargah Committee ... vs Gram Panchayat Susundri ...
2017 Latest Caselaw 1859 Bom

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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 NAGPUR BENCH : NAGPUR

                                                       WRIT PETITION NO.2708/2016

Qabrastan Dargah Committee Susundri, 
Post Kohli, Tahsil Kalmeshwar, Distt. Nagpur, 
through Secretary Shri Shami S/o Mahebullah 
Sheikh, aged 66 Yrs., Occu. Retired, 
R/o Mankapur, Nagpur.                                                                                                                                           ..Petitioner.
                          ..Vs..
1.          Gram Panchayat Susundri-Sawandari, 
            Panchayat Samiti Kalmeshwar, 
            Zilla Parishad Nagpur, Tahsil Kalmeshwar, 
            Distt. Nagpur.

2.          Smt. Manisha Arvind Dahat,
            Sarpanch, Gram Panchayat Susundri-Sawandari, 
            Tahsil Kalmeshwar, Distt. Nagpur. 

3.          Shri B.V. Jirapure, Secretary,
            Gram Panchayat Susundri-Sawandari, 
            Tahsil Kalmeshwar, Distt. Nagpur.                                                                                                      ..Respondents.
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           Shri Masood Shareef, Advocate for the petitioner. 
           Ms. Radhika Bajaj, Advocate for the respondents.
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                                                                 CORAM :  Z.A.HAQ, J.

                                                                 DATE  :     19.4.2017.

ORAL JUDGMENT

1. Heard Shri Masood Shareef, Advocate for the petitioner and Ms.

Radhika Bajaj, Advocate for the respondents.

2. Rule. Rule made returnable forthwith.

3. The original plaintiff has challenged the judgment passed by the

District Court dismissing the appeal filed by it under Order 43 Rule 1(r) of the

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Code of Civil Procedure and maintaining the order passed by the trial Court by

which the application filed by the plaintiff under Order 39 Rules 1 and 2 is

rejected.

The claim of the plaintiff is that the land in question is being used as

qabrastan since last more than six decades. There is a dispute about

identification of the property in question. According to the plaintiff Survey No.4

(old Khasra No.84) belongs to the plaintiff and according to the defendants this

Survey No.4 is old Survey Nos.84/1, 84/2, 84/3, 84/4 and 84/5 which vests in

the defendant No.1 - Gram Panchayat. The defendants intend to construct an

office on the land in question. Undisputedly the construction work is at

preliminary stage.

Considering the nature of dispute, in my view, the interests of

justice would be sub-served by passing the following order:

(i) The impugned judgment and order are set aside.

(ii) The application (Exh. No.5) filed by the plaintiff before the trial

Court is allowed in terms of the prayer for temporary injunction in the

application.

(iii) The trial Court shall dispose the civil suit till 29th September, 2017.

The petition is allowed in the above terms.

In the circumstances, the parties to bear their own costs.

JUDGE Tambaskar.