Ashok Tulshiram Ingle vs Ashok Manik Mirkale And Another
2017 Latest Caselaw 5864 Bom

                                                              AO13-2017.odt
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD
                   APPEAL FROM ORDER NO. 13 OF 2017
             WITH CIVIL APPLICATION NO.1674 OF 2017
1.      Ashok Tulshiram Ingle                       ... Appellant
        Age 59 years, Occu: Agril.                      (Original 
        R/o Mahadeo Galli, Omerga,                      Plaintiff)
        Tq. Omerga, Dist. Osmanabad
        VERSUS
1       Ashok Manik Mirkale                         ... Respondents
        Age 54 years, Occu: Agri.
2       Balaji Manik Mirkale
        Age 51 years,  Occu: Agri.
        Both R/o Omerga, Tq. Omerga,
        Dist. Osmanabad
Mr.P. V. Barde , Advocate for the appellant.
Mr.Shoyab Shaikh,  Advocate for the respondents.

                             CORAM         : K. L. WADANE, J.

                             RESERVED ON   : 10.08.2017
                             PRONOUNCED    : 11.08.2017
                             ON

J U D G M E N T:    

1. This appeal takes exception to the judgment

and order dated 20.12.2016 passed by the District

Judge-1, Omerga in Regular Civil Appeal No.

22/2012, by which the appeal is partly allowed and

the Regular Civil Suit No. 441/2005 is remanded to

the trial court for the purpose of appointment of

the Court commissioner for joint survey of land

Gat Nos.408/1 and 408/2.

AO13-2017.odt

2. Brief facts giving rise to the present appeal

are as under:

i. The appellant purchased land admeasuring 3H 25R

from Gat No. 408/2 by two sale deeds. In the year

2009, dispute arose between the appellant and the

adjacent land owner and therefore, the appellant

got his land measured.

ii. On 14.07.2005, the respondents were trying

to disturb the peaceful possession of the

appellant/ plaintiff. The appellant filed Regular

Civil Suit No. 441/2002 simplicitor for

injunction. The respondents filed Application Exh.

23 and thereby prayed for appointment of the Court

Commissioner. After hearing both the sides, the

learned Civil Judge, Junior Division, Omerga

rejected the application Exh.23 on 17.10.2005. The

Respondents/defendants assailed the said order by

way of filing Writ Petition No. 2744/2006 which

was rejected by this court

iii. On 19.04.2012, the learned Civil Judge,

Junior Division, Omerga decreed the suit. The

respondent presented Regular Civil Appeal No.

AO13-2017.odt 22/2012. The District Judge, Omerga, by the

impugned judgment and order, remanded the matter

for appointment of Court Commissioner to measure

the land Gat Nos.408/1 and 408/2.

3. I have heard Mr. Barde, the learned counsel

for the appellant and Mr. Shoyab Shaikh, learned

counsel for the respondents.

4. During the course of argument, Mr. Barde,

the learned counsel for the appellant submitted that

earlier, Application Exh.23 in the suit was decided

by the learned Civil Judge and it was rejected and

that order was assailed in the writ petition and the

same was also rejected by this Court. The finding

regarding rejection of the measurement of the land

has attained finality and therefore, now this issue

cannot be reopened. Mr. Barde has further submitted

that the learned District Judge has not taken into

consideration this legal position and has wrongly

remanded the matter.

5. On perusal of the relevant reasons recorded

by the learned District Judge, it appears that the

learned District Judge has observed in para 9 that-

AO13-2017.odt "No doubt the plaintiff has got his land measured about six years before he filed the suit in Court. But the description of the situation of the suit land and the land of the defendant shown by the plaintiff in the rough sketch in the plaint compared with the survey map indicate that indirectly the plaintiff is claiming his possession in the portion admeasuring 4 Hectares 02 Ares though admittedly he is an owner of the portion admeasuring 3 Hectares 25 Ares."

6. Above observations recorded by the learned

District Judge appears to be incorrect, because,

nowhere it is seen from the record, particularly,

from the pleadings of the plaintiff in the plaint

that he filed the suit for possession of the area

admeasuring 4 Hectare 2 Ares. On the contrary, from

the contents of of the plaint, it is crystal clear

that the appellant/ plaintiff is claiming permanent

injunction in respect of the area admeasuring 3

Hectares 25 Are. Even when the writ petition was

decided, at that time also, the learned counsel for

the appellant/respondent No.1 in the writ petition,

had made a statement that the injunction is sought

only in respect of an area to the extent of 3

Hectare and 25 Ares. There is reference in the

AO13-2017.odt impugned order about the order passed by this Court

in the writ petition. Therefore, the learned first

Appellate Court must have gone through the reasons

recored by this Court in the above writ petition.

Still, the first appellate Court was apprehending

that the plaintiff/present appellant is claiming

possession over an area of 4 Hectare and 2 Ares,

which is without any basis. The aforesaid

observations of the learned District Judge are based

upon assumption.

7. During the course of hearing of the present

appeal, Mr. Barde, the learned counsel for the

appellant also made a same statement that the

plaintiff is claiming injunction in respect of area

of 3 Hectares and 25 ares only and the decree of

injunction was passed in favour of the

plaintiff/appellant only to the extent of area of 3

hectare and 25 ares.

8. Further, it reveals from the record that

respondents have not challenged the earlier

measurement done by the appropriate authority i.e.

T.I.L.R. It was for the respondents to challenge

the measurement done by the T.I.L. R. However, the

AO13-2017.odt respondents failed to do so.

9. From the reasons recorded in the impugned

order, it appears that most of the observations are

based upon assumption, particularly, when the

plaintiff is seeking permanent injunction in respect

of an area of 3 Hectare and 25 Ares from Gat No.

408/2. Therefore, the qeustion of the ownership and

possession beyond that area does not arise. In the

circumstance, the findings recorded by the first

appellate court appears to be incorrect. Hence

following order:

O R D E R

i. The Appeal from order is allowed.

ii. Judgment and order dated 20.12.2016 passed by

the District Judge-1, Omerga in Regular

Civil Appeal No. 22/2012, is hereby set aside.

iii. The order dated 19.04.2012, passed by the

learned Civil Judge, Junior Division, Omerga

in Regular Civil Suit No. 441 of 2005 is

confirmed.

10. In view of disposal of the appeal, pending

AO13-2017.odt Civil Application No.1674 of 2017 stands disposed

of.

(K. L. WADANE, J.) JPC