Chandrakant Wasudeorao ... vs Chatrapati Sadashiv Ambatkar And ...
2017 Latest Caselaw 690 Bom

 Judgment                                             1                                wp4495.16.odt




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


                           WRIT PETITION NO. 4495 OF 2016


 Chandrakant Wasudeorao Agarkathe,
 Aged about 52 years, Occ.: Cultivation and
 Business, R/o. Gadisurla, Tah. Mul,
 Distt. Chandrapur. 
                                                                          ....  PETITIONER.

                                       //  VERSUS //

 1. Chatrapati Sadashiv Ambatkar,
    Aged about 67 years, Occ.: Cultivation,
    R/o. Gadisurla, Tah. Mul,
    Distt. Chandrapur. 

 2. Sunayana W/o. Meghraj Dhurve,
    Aged about 32 years, Occu.: Cultivation
    and Business, R/o. Ganesh Tower, 
    Bangali Camp, Chandarpur, Tah. and 
    Distt. Chandrapur. 
                                                         .... RESPONDENTS
                                                                       . 
  ___________________________________________________________________
 Shri Deoul Pathak, Advocate for Petitioner. 
 Shri S.V.Bhutada, Advocate for Respondent Nos. 1 and 2.  
 ___________________________________________________________________



                              CORAM : Z.A.HAQ, J.

DATED : MARCH 10, 2017.

ORAL JUDGMENT :

1. Heard.

2. RULE. Rule made returnable forthwith.

Judgment 2 wp4495.16.odt

3. The original plaintiff has filed this petition challenging the

judgment passed by the District Court by which the appeal filed by the

petitioner under Order 43 Rule 1(r) of the Code of Civil Procedure is

dismissed and the order passed by the trial Court rejecting application filed

by the petitioner under Order 39 Rules 1 and 2 of the Code of Civil

Procedure is maintained.

4. The claim of the petitioner/ plaintiff is that he is in possession of

the agricultural land, having been put in possession at the time of execution

of agreement of sale on 23rd December, 1996. The subordinate Courts have

concurrently recorded that the plaintiff has failed to prove that he is in

possession of the suit land.

5. The learned advocate for the petitioner/ plaintiff has submitted

that the Survey No.275 admeasuring 3.38 hectare admittedly belonged to the

defendants out of which agreement to sell in respect of 1.78 hectares of land

was executed on 23rd December, 1996 in favour of the plaintiff and in respect

of the remaining 1.60 hectare of land, agreement was executed in favour of

the real brother of the plaintiff on 25 th October, 1996. It is pointed out that

the elder brother of the plaintiff was also put in possession of his share of the

land on 25th October, 1996 and as his possession was sought to be disturbed

he filed Regular Civil Suit No. 3 of 2015 and in that, application under Order

39 Rules 1 and 2 of the Code of Civil Procedure praying for temporary

Judgment 3 wp4495.16.odt

injunction was filed and the learned trial Judge allowed the application and

restrained the defendants in Regular Civil Suit No. 3 of 2015 (who are also

defendants in the suit filed by the petitioners/ plaintiffs) from obstructing the

peaceful possession of the plaintiff in Regular Civil Suit No. 3 of 2015 (i.e.

brother of the present petitioner/ plaintiff). It is argued that the findings

recorded by both the Courts in the case of the petitioner/ plaintiff are

unsustainable as the above fact is not properly considered.

6. It is undisputed that the order passed in Regular Civil Suit No. 3

of 2015 on 19th March, 2015 granting temporary injunction in favour of

brother of the petitioner (plaintiff in R.C.S. No. 3/2015) is not challenged by

the present respondents/ defendants. I find that the subordinate Courts have

not considered the effect of order passed in Regular Civil Suit No. 3 of 2015

on 19th March, 2015.

6. In the above facts, in my view, it would be appropriate to remit

the matter to the trial Court for deciding the application (Exh.5) afresh.

Hence, the following order :

i) The judgment passed by the learned District Judge in Misc. Civil

Appeal No. 18 of 2015 on 31st March, 2016 and the order passed by

the trial Court in Regular Civil Suit No. 3 of 2015 on application

(Exh.5) on 19th March, 2015 are set aside.

Judgment 4 wp4495.16.odt

ii) The application (Exh.5) is restored. The trial Court shall decide the

application (Exh.5) afresh.

iii) The parties are granted liberty to file additional pleadings and

documents, if so advised.

iv) Needless to say that the learned trial Judge shall dispose the

application (Exh.5) after hearing the parties.

Rule made absolute in the above terms. In the circumstances,

the parties to bear their own costs.

JUDGE

RRaut..