Ramesh Chandarsing Padwale vs Krishnabai Laxman Kandalwad And ...
2017 Latest Caselaw 848 Bom

                                                                              WP260715.doc


         
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD

                               WRIT PETITION NO. 2607 OF 2015

Ramesh Chandarsing Padwale
Age: 39 years, Occu.: Agri.,
R/o Sawargaon Tanda, Tq. Kindwat,
Dist. Nanded.                                                ..PETITIONER

                  VERSUS

1.  Krishnabai Laxman Kandalwad
     Age: 65 years, Occu.: Agri.,
     R/o Sawargaon, Tq. Kinwat,
     Dist. Nanded.

2.  Venkati Laxman Kandalwad
     Age: 54 years, Occu.: Agri., 
     R/o Sawargaon, Tq. Kinwat,
     Dist. Nanded.

3.  Deorao Laxman Kandalwad
     Age: 46 years, Occu.: Agri.,
     R/o Sawargaon, Tq. Kinwat,
     Dist. Nanded.

4.  Gangabai Tukaram Borewad
     Age: 52 years, Occu.: Agri.,
     R/o Sawargaon, Tq. Kinwat,
     Dist. Nanded.

5.  Kausalyabai Gangadhar Pasamwad
     Age: 44 years, Occu.: Agri.,
     R/o Sawargaon, Tq. Kinwat,
     Dist. Nanded.

6.  Shantabai Vijaykumar Kalyanwad
     Age: 47 years, Occu.: Agri.,
     R/o Sawargaon, Tq. Kinwat,
     Dist. Nanded.


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7.  Nilabai Nagorao Pasamwad
     Age: 44 years, Occu.: Agri.,
     R/o Sawargaon, Tq. Kinwat,
     Dist. Nanded.                                             ..RESPONDENTS

                                    ....
Mr. D.J. Choudhary, Advocate for petitioner.
Mr. A.A. Mukhedkar, Advocate for Respondent No.2.
                                    ....

                                                  CORAM :  S.B. SHUKRE, J.

DATED : 20th MARCH, 2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard finally by consent

of both sides.

2. This writ petition challenges the legality and correctness of the

order passed below Exhibit 5 in Regular Civil Appeal No. 167 of 2014 by the

learned Principal District Judge, Nanded thereby quashing and setting aside

the execution and operation of the decree passed in Regular Civil Suit No.

16 of 2002 by the learned Joint Civil Judge, Junior Division, Kinwat. By the

impugned order, the learned Principal District Judge directed both the

parties to maintain status-quo in respect of possession over the suit land till

final disposal of the appeal.

3. Such direction, by the learned Principal District Judge, according

to the learned Counsel for petitioner is perverse and arbitrary and it is to

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obstruct the possession of the petitioner. This is, however, disputed by the

learned Counsel for respondents. He submits that the decree could not have

been passed against the deceased Respondent No.1 and therefore the decree

itself is illegal.

4. So far as passing of decree against the dead person is concerned,

it is the submission of learned Counsel for the petitioner that deceased

Respondent No.1 has been duly represented by the legal heirs who are

Respondent Nos. 2 to 7. In any case, the challenge involved in this petition

is in respect of finding of fact, resulting in a direction to maintain status-quo

and therefore, that objection at this stage, in the absence of any finding

recorded by the First Appellate Court, cannot be considered.

5. It is seen from the impugned order that the only ground on which

it has been passed is that the respondents do not press their application for

grant of temporary injunction and no other reason is recorded by the

learned Principal District Judge while passing the impugned order. It is an

admitted fact that the application for grant of temporary injunction was not

pressed by the original plaintiff without assigning any reason and if this is

so, the learned Principal District Judge could not have made the ground of

non-pressing of application for temporary injunction as the basis for passing

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the impugned order.

6. It appears that the learned Principal District Judge has made an

assumption that because the application for grant of temporary injunction

was not pressed, the original plaintiff had no case in her favour. There

could have been other reasons as well for not pressing of such an

application. One of those reasons could have been that at the relevant time,

the original plaintiff may not have felt any threat to her possession from the

defendants. Thus, in the instant case, non pressing of application for

temporary injunction could have been hardly any ground for passing of the

impugned order.

7. Apart from the aforesaid ground, there is no other reason given

by the Principal District Judge in the impugned order. The learned Principal

District Judge has not considered the admissions given by the original

Defendant No.1 as well as the other defendants, particularly Respondent

Nos. 4 to 7, regarding handing over possession of the suit land to the

petitioner. These documents are at Exhibits 30 and 31. Learned Counsel for

respondents submits that there is 7/12 extract (Exhibit 32) which shows

respondents to be in possession of the suit land. However, on going through

the judgment and order of the Trial Court, I find that these documents only

show ownership of the original Defendant No.1. Thus, the impugned order

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does not consider relevant material available on record and has been passed

on wholly irrelevant consideration and therefore it is perverse.

8. The writ petition is, therefore, partly allowed with costs. The

impugned order is hereby quashed and set aside only to the extent of

directing the parties to maintain status-quo till final disposal of the appeal

and the impugned order to the extent of directing the parties to maintain

status-quo is hereby quashed and set aside. It is further made clear that the

order staying the execution of decree of specific performance has not been

examined for its correctness in the present order. Rule made absolute in

these terms. It is made clear that all questions are kept open and learned

Principal District Judge shall not be influenced by the observations made in

this order.

( S.B. SHUKRE, J. ) SSD

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