Nilkanth S/O Rakhaduji Dhurve vs Prakash S/O Dayaramji Dhurve
2017 Latest Caselaw 6568 Bom

26-SA-346-16,237-17                                                                          1/4


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                          SECOND APPEAL NO.346 OF 2016
                                     WITH
                          SECOND APPEAL NO.237 OF 2017


Nilkanth s/o Rakhaduji Dhurve
Aged about 77 years, Occ. Pensioner, 
R/o Mukharji Ward, 
Bhandara, Tq. & Dist. Bhandara.                                 ... Appellant. 

-vs-

Prakash s/o Dayaramji Dhurve, 
Aged about 57 years,  Occ. Service, 
R/o Dawadipar Bajar, 
Tq. & Dist. Bhandara                                            ... Respondent.  


Shri V. A. Dhabe, Advocate for appellant. 
Shri S. G. Chopkar, Advocate for respondent. 


                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : AUGUST 28th, 2017

Common Judgment :

Since both these appeals relate to the identical suit property and

are between the same parties, they are being decided together by this

common judgment.

Admit.

Shri S. G. Chopkar, learned counsel waives notice on behalf of the

respondent in both these appeals.

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2. In Second Appeal No.346 of 2016 the following substantial

question of law arises for consideration :

" Whether the lower appellate court should have proceeded to decide Regular Civil Appeal No.110 of 2009 without deciding Regular Civil Appeal No.82 of 2012, as the decision in the present suit will depend upon the out come of the decision in the suit for specific performance of contract ?

In Second Appeal No.237 of 2017 the following substantial

question of law arises for consideration :

" Whether the lower appellate Court should have proceeded to decide Regular Civil Appeal No.85 of 2012 without deciding Regular Civil Appeal No.110 of 2009, as the decision in the present suit will depend upon the outcome of the decision in the suit for specific performance of contract ? "

3. The present appellant had filed R.C.S.No.107/2003 seeking

possession of 0.24 R land from Gat No.258 on the ground that said land was

encroached by the defendant-respondent herein. In this suit, the trial Court

passed an order below Exhibit-49 after noticing that the defendant therein

had filed R.C.S.No.08/2003 for specific performance of agreement in relation

to 0.92 R land from the same gat number and directed consolidation of both

the suits.

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4. The trial Court by its judgment dated 15/09/2009 dismissed the

suit filed by the present appellant being R.C.S.No.107/2003 and on

09/04/2009 decreed Spl. C.S. No.08/2003 in favour of the respondent

herein. Two appeals being R.C.A.Nos.110/2009 and R.C.A. No.85/2012

came to be filed by the appellant herein. R.C.A.No.110/2009 was dismissed

on 30/03/2016 while R.C.A. No.85/2012 came to be dismissed on

30/11/2016.

5. After hearing the respective counsel for the parties, it is found that

the appellant seeks removal of encroachment to the extent of 0.24 R land

from Gat No.258. The respondent on the other hand seeks specific

performance of agreement with regard to 0.92 R land from the same gat

number which includes the aforesaid 0.24 R land. The trial Court had rightly

directed consolidation of both the proceedings. In R.C.A. No.85/2012 the

appellate Court in paragraph 29 of its judgment has referred to this aspect.

Thereafter in paragraph 32 it has noted the adjudication in R.C.A.

No.110/2009 which was against the appellant and then proceeded to dismiss

R.C.A. No.85/2012. I find that when there is identity of the suit property to

the extent of 0.24 R land, it would have been in the interest of both the

parties if the appeals would have been decided together. By deciding the

appeals together the effect of adjudication of one appeal on the other could

have been taken into consideration. Hence without entering into the merits

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of adjudication by the appellate Court, both the appeals can be remanded to

the first appellate Court for fresh adjudication and in accordance with law.

The substantial questions of law as framed stand answered accordingly. As a

result, the following order is passed :

(i) Judgment dated 30/03/2016 in R.C.A.No.110 of 2009 and

judgment dated 30/11/2016 in R.C.A. No.85/2012 is quashed

and set aside.

(ii) The appeals are restored to the file of the appellate Court for fresh

adjudication in accordance with law. Both the appeals shall be

assigned to the same Court for being decided together. The

parties shall appear before the appellate Court on 11/09/2017.

(iii) It is clarified that this Court has not examined the correctness of

the findings recorded by the first appellate Court. The appeals

shall be decided in accordance with law without being influenced

by any observations in this order. The appeals be decided by the

end of December 2017.

(iv) Second appeals are partly allowed in aforesaid terms with no

order as to costs.

JUDGE

Asmita