Shri. Uttareshwar Balwant Sopal ... vs Abdul Rashid Mahamad Hasan Jlkre ...
2018 Latest Caselaw 251 Bom

Dixit
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                              WRIT PETITION NO.10128 OF 2016

        1. Shri Uttareshwar Balwant Sopal (Since Deceased),     ]
           Through LRs. :                                       ]
           1-A. Shri Shivaprasad Uttareshwar Sopal              ]
                  Age : 45 years, Occ. Service,                 ]
                  R/of 2511, Ganesh Road, Barshi,               ]
                  Dist. Solapur.                                ]
           1-B. Smt. Pravina Nandkumar Honrao,                  ]
                  Age : 55 years, Occ. Service,                 ]
                  R/of Navi Peth, Solapur.                      ]
           1-C. Smt. Shradha Umesh Gavare,                      ]
                  Age : 52 years, Occ. Service,                 ]
                  R/of Karad Road, Pandharpur,                  ]
                  Dist. Solapur.                                ]
           1-D. Smt. Bharati Vishwanath Dulange,                ]
                  Age : 50 years, Occ. Housewife,               ]
                  R/of Jodbhavi Peth, Solapur.                  ]
           1-E. Smt. Aarti Milind Sakhare,                      ]
                  Age : 50 years, Occ. Household,               ] .... Petitioners /
                  R/of Datta Peth, Karmala, Dist. Solapur.      ] (Org. Defendants)
                              Versus
        1. Abdul Rashid Mahamad Hasan Jikre,                    ]
           (Since Deceased), through LR.:                       ]
           1-A. Nasir Abdul Rashid Jikare,                      ]
                  Age : 60 years, Occ. Business,                ]
                  R/of 2549/2, Latur Road, Barshi,              ]
                  Dist. Solapur.                                ]


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           Respondent No.1 for himself and as                 ]
          a Power of Attorney Holder of                      ]
          Respondent Nos.2 to 5.                             ]
2. Maksud Abdul Rashid Jikare,                               ]
     Age : 58 years, Occ. Business                           ]
3. Manjur Abdul Rashid Jikare (Since Deceased),              ]
     Through LRs.:-                                          ]
     3a. Shafin Manjur Jikare,                               ]
        Age : 46 years, Occ. Housewife.                      ]
     3b. Aafrin Manjur Jikare,                               ]
        Age : 27 years, Occ. Education.                      ]
     3c. Aasma Manjur Jikare,                                ]
        Age : 26 years, Occ. Education.                      ]
     3d. Reshma Manjur Jikare,                               ]
        Age : 23 years, Occ. Education.                      ]
     3e. Mohammad Manjur Jikare,                             ]
        Age : 18 years, Occ. Education.                      ]
        All residents of 2549/2, Latur Road,                 ] .... Respondents /
        Barshi, Dist. Solapur.                               ] (Original Plaintiffs)


Mr. S.D. Thokade for the Petitioners.
Mr. Dadhichi S. Mhaispurkar for Respondent Nos.1 and 3a to 3e.


                         CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                         DATE          : 10 TH JANUARY 2018.


ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, at the stage

of admission itself, by consent of Mr. Thokade, learned counsel for the

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Petitioners, and Mr. Mhaispurkar, learned counsel appearing for

Respondent Nos.1 and 3a to 3e.

2. By this Petition, filed under Article 227 of the Constitution of India,

the Petitioners are challenging the order dated 22 nd February 2016

passed by the learned District Judge-1, Barshi, below "Exhibits-60" in

Civil Appeal No.173 of 2014. The said application was moved before the

First Appellate Court by the Petitioners herein, under Order 41 Rule 27

of C.P.C., for permission to produce certified copy of the Sale Deed dated

13th October 2000.

3. It is submitted by learned counsel for the Petitioners that, the

Petitioner-Original Plaintiff has filed the Suit for injunction, bearing

Regular Civil Suit No.143 of 1999, restraining the Respondents-Original

Defendants from causing obstruction to the construction of the building,

as per the building permission issued by the Competent Authority. In the

said Suit, Respondents have filed written statement and counter-claim

claiming that the 'Sale Deed' dated 31 st December 1997, executed by the

original owner Vallabhdas C. Dale in favour of the Petitioner-Plaintiff is

null and void and not binding on their rights. In the said Suit, both the

parties adduced oral and documentary evidence in the Trial Court and

thereafter, the Trial Court has decreed the Petitioner-Plaintiff's Suit

partly and restrained the Respondents-Defendants from causing

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obstruction and interference in the possession of the Petitioner in the

suit property. At the same time, the counter-claim of the Respondents

was also allowed and it was held that, the Sale Deed dated 31 st December

1997 is not binding on the Respondents.

4. As per the Petitioner-Plaintiff, in his Suit, the Respondents have

raised the issue of identification of the suit property. In fact, separate

portions of the same property were purchased by the Petitioners and

Respondents at different times. Sub-division of the suit property is also

made with the consent of the parties and separate City Survey numbers

were given to their respective properties. Therefore, there is no concern

of the Petitioners or Respondents with the properties of each other.

However, as the Respondents have claimed the property of the

Petitioners on the basis of this Sale Deed, it is necessary to ascertain the

intention of the Vendor. Recently, the Petitioners came to know about

execution of one Sale Deed by the original owner Vallabhdas C. Dale and

Anilkumar V. Dale in favour of Bhagwant Sahkari Puravatha Mandali

Limited, Barshi, on 13th October 2000. Petitioners have obtained the

certified copy of the said Sale Deed on 20 th October 2015. The said

document was not available with the Petitioners at the time of trial and

they were also not knowing about the same. Therefore, the Petitioners

requested that, they may be granted permission to produce the certified

copy of the said Sale Deed.

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5. This application came to be resisted strongly by the learned

counsel for the Respondents and as held by the Appellate Court, rightly

so. In the first place, the relevancy of the said Sale Deed is not at all

explained or proved and, secondly, it is sought to be produced at a very

belated stage. It is pertinent to note that, the alleged Sale Deed is

executed in the year 2000, more particularly on 13 th October 2000. The

examination-in-chief of the Petitioner was recorded six years thereafter

on 11th August 2006 vide Exhibit-97. Subsequent thereto, the evidence

of the original owner/vendor Vallabhadas C. Dale, as 'Witness No.2' for

the Petitioner, also came to be recorded on 20 th April 2009. Thereafter,

Suit is decided in 2014. The Appeal is pending since 2014 and at the

stage of its hearing, in the year 2016, the Petitioners have preferred this

application for leading additional evidence, that too, when the evidence

was led before the Trial Court of the Petitioner and his witness - the

Vendor Vallabhadas C. Dale, the said Sale Deed was very much available

to the Petitioners. However, the Petitioners have not produced the same

at that time and now, when the Appeal is fixed for final hearing in the

year 2016, the Petitioners want to produce the same and then in order

to prove that Sale Deed, the Petitioners intend to make an application for

remand of the matter, so that the oral evidence can be led. This is

indirectly putting the case at the initial stage itself. The Suit is,

admittedly, filed in the year 1999; that means, after about 20 years.

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Petitioners have filed this application for production of additional

evidence. No explanation is given for such delayed production of the

document; especially when, the document was in existence since last

about 19 years. The relevancy of the document, as stated above, is also

not explained. Apart from that, the Appellate Court can decide the

Appeal completely and effectually even without the production of such

Sale Deed. Therefore, as the intention of the Petitioners clearly appears

just to protract and prolong the hearing of the Appeal, the Appellate

Court was justified in dismissing the said application. Hence, there is no

merit in this Writ Petition. The Writ Petition, therefore, stands

dismissed.

6. Rule is discharged.

7. Parties to act on the authenticated copy of this order.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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