Bombay High Court
Premchand Godhadu Yeole Died Lrs ... vs Bhika Sakharam Yeole, Chamelebai ... on 14 June, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3394 OF 2017
Premchand Godhadu Yeole PETITIONER
Deceased Through LRs
1. Sharad Premchand Yeole
Age - 49 years, Occ - Driver & Agriculture
R/o Station Road, Satyanarayan Chal
Old Jalna, District - Jalna
2. Nitin Premchand Yeole
Age - 45 years, Occ - Agriculture
R/o Kanalada, Taluka & District - Jalgaon
3. Smt. Aruna Vinayak Javale,
Age - 35 years, Occ - Household
R/o Bhadali Bdk. Taluka & District - Jalgaon
4. Smt. Vandana Vilas Narkhede
Age - 32 years, Occ - Household
R/o Ayodhya Nagar, Jalgaon
Taluka and District - Jalgaon
5. Shaligram Godhadu Yeole
Age - 65 years, Occ - Agriculturist
R/o Kanalada, Taluka & District - Jalgaon
6. Ashok Godhadu Yeole
Age - 64 years, Occ - Pensioner,
R/o Plot No. 52, Ganesh Colony,
Jalgaon, District - Jalgaon
7. Vastalabai Onkar Chaudhari,
Age - 70 years, Occ - Household
R/o At Post Asoda,
Taluka and District - Jalgaon
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8. Smt. Sumanbai Ananda Kolhe
Age - 60 years, Occ - Household
R/o Post Asoda, Taluka & District - Jalgaon
VERSUS
Bhika Sakharam Yeole RESPONDENTS
Chamelebai Bhika Yeole
Both deceased through LRS
1. Dapadu s/o Bhika Yeole
Age - 56 years, Occ - Agriculture
2. Pralhad s/o Bhika Yeole
Age - 45 years, Occ - Agriculture
Both R/o Kanalada, Taluka & District - Jalgaon
.......
Mr. Kishor C. Sant, Advocate for the petitioners
Mr. Pramod P. Dhorde, Advocate for respondents
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 14th JUNE, 2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocates for the parties finally by consent.
2. Petitioners are defendants in Regular Civil Suit No. 121 of
2015 instituted by present respondents seeking declaration of
ownership and perpetual injunction in respect of land bearing
Gut No. 347 admeasuring about 1 Hectare 17 Are as described in
the plaint. Along with the plaint, an application for temporary
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injunction had been moved by present respondents. While
deciding application Exhibit-6 for temporary injunction, trial
court has referred to various documents, about seven as
produced on behalf of present respondents and about thirteen on
behalf of present petitioners and relying on a decision in Regular
Civil Suit No. 302 of 1974, purportedly rejected the application
Exhibit-6 without taking into account other documents which
were on record or even commenting upon their effect and
efficacy.
3. The matter was taken in appeal by present respondents
and during pendency of appeal, an application came to be moved
for production of certain documents, which appears to have been
allowed. While production of documents has been allowed by the
appellate court, copy of a document "pursis" in Regular Civil
Appeal No. 116 of 1984 Exhibit-19 had been produced and with
reference to that the appeal has been allowed by granting
application for temporary injunction.
4. Even the appellate court's order does not appear to take
into account any of the documents enumerated under order
passed by the trial court and the appellate court largely appears
to take into consideration the pursis and an application filed
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before Tahsildar referred to in the order, in the list of documents
at Exhibit-3 dated 18th April, 2015 and complaint dated 13th
April, 2015.
5. In the circumstances, although case is pleaded very
vehemently on either side, it appears to be expedient and in the
fitness of things to relegate parties to trial court for
reconsideration of application for temporary injunction of the
plaintiffs for application of mind to the case pleaded on either
side and the effect and efficacy of documents at the preliminary
stage while considering application for temporary injunction,
since both the orders appear to be deficient in respect of the
same.
6. As such, orders passed by trial court on Exhibit-6 in
Regular Civil Suit No.121 of 2015 dated 2 nd July, 2015 and the
one passed by appellate court dated 17 th February, 2017 in
Miscellaneous Civil Appeal No. 42 of 2015 stand set aside.
Application Exhibit-6 stands restored for rehearing and
consideration afresh. Writ petition, as such, stands allowed. Rule
is made absolute in aforesaid terms. Application Exhibit-6 be
proceeded with expeditiously without getting influenced by
observations under this order, taking into account material
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placed on record.
7. In addition to record already produced, parties are at
liberty to give further material, if any, however exercise of
decision making on Exhibit-6 be completed within a period of two
months from the date of receipt of writ of this order.
[SUNIL P. DESHMUKH, J.]
drp/wp3394-17
