Hanuman Shripati Shinde And ... vs Kacharu Ashok Deshmukh And Others
2017 Latest Caselaw 2980 Bom

                                                                2106.2017WP.odt
                                             1


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD

                               WRIT PETITION NO. 2106 OF 2017



          1.       Hanuman s/o Shripati Shinde,
                   Age : 62 years, Occu: Agril,
                   R/o : Malegaon, Tq. Shevagaon,
                   Dist. Ahmednagar.

          2.       Bharat s/o Hanuman Shinde,
                   Age : 28 years, Occu: Agril,
                   R/o Malegaon, Tq. Shevagaon,
                   Dist. Ahmednagar.

          3.       Baby w/o Hanuman Shinde,
                   Age : 51 years, Occu: Agril and Household
                   R/o : Malegaon, Tq. Shevagaon,
                   Dist. Ahmednagar                     ...Petitioners

                      Versus

          1.       Kacharu s/o Ashok Deshmukh
                   Age : 38 years, Occu: Agril,

          2.       Shobha w/o Kacharu Deshmukh,
                   Age : 34 years, Occu: Agril and Household,
                   Respondent nos. 1 and 2 R/o. Appegaon,
                   Tq. Shevgaon Dist. Ahmednagar

          3.       Sonaba s/o Damu Kedar,
                   Age : 53 years, Occu: Agril

          4.       Laxman s/o Mahadu Nikam,
                   Age : 55 years, Occu: Agril,
                   Respondent Nos. 3 and 4 R/o.
                   Malegaon Tq. Shevgaon,
                   Dist. Ahmednagar.

          5.       Prashant s/o Jaggannath Pathak,
                   Age : 38 years, Occu: Agril,
                   R/o Tisgaon Tq. Pathardi,
                   Dist. Ahmednagar.                          ...Respondents
                                          ...

2106.2017WP.odt

Mr. Yuvraj V. Kakade, Advocate for petitioners Mr. P. A. Bharat, Advocate for respondents no. 1 and 2

...

[CORAM: SUNIL P. DESHMUKH, J.] Date: 08th June, 2017

ORAL JUDGMENT:

1. Rule. Rule made returnable forthwith and heard

finally with consent of learned advocates for the parties.

2. Petitioners are defendants no. 1 to 3 in Regular Civil

Suit no. 355 of 2014, instituted by respondents-plaintiffs no.

1 and 2 seeking injunction in respect of land described in

the plaint and as well as for measurement of said land and,

if upon measurement, any encroachment is found, for

removal of the same. In response, the petitioners-

defendants in their written statement in paragraph no. 23

have referred that there has been a way of 30' from

Malegaon to Appegaon, and as such, no encroachment has

taken place and requested for appointment of Court

Commissioner for inspection of position. During pendency

of the suit, plaintiffs-respondents no. 1 and 2 have filed

application exh. 42, seeking appointment of Deputy

2106.2017WP.odt

Superintendent of Land Record as Court Commissioner for

measurement of suit property, admeasuring 76 Aar from

gut no. 77 situated at village Appegaon Tq. Shevgaon Dist.

Ahmednagar.

3. The application came to be opposed by the

defendants referring to that the same may tantamount to

collection of evidence.

4. Appellate court, however, has allowed the application

directing measurement authority to measure the land gut

no. 77 as prayed for in application exh. 42.

5. Learned counsel for the petitioners submits that

petitioners-defendants are owners of part gut no. 146,

adjoining land, as such, it would be incumbent to measure

the land claimed by the plaintiff as well as gut no. 146.

6. Learned counsel for respondents-plaintiff, on

instructions, does not have any particular resistance to

measurement of land gut no. 146 being made.

7. In the circumstances, it appears to be expedient,

having regard to the interest of parties that, both the lands

be measured alongwith development thereon, and be

2106.2017WP.odt

reported as directed under impugned order dated 13th

December, 2016. Measurement be carried out as per

direction of the trial court with modification that the lands

i.e. gut no. 77 and 146 be measured. Writ petition is

allowed to aforesaid extent and stands disposed of.

8. Rule made absolute accordingly.

[SUNIL P. DESHMUKH, J.]

vdk