Bombay High Court
Jahagirkhan Nouserkhan vs Abdul Hafiz Shekh Ibrahim And ... on 19 January, 2018
Bench: Z.A. Haq
Judgment 1 wp5748.2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5748/2017
PETITIONER : Jahagirkhan Nouserkhan,
Aged about 61 years,
Occ. Agriculturist, R/o Waghal,
Post Adegaon, Tq. Warud,
Dist. Amravati
...V E R S U S...
RESPONDENTS : 1] Abdul Hafiz Shekh Ibrahim,
Aged 75 years,
Occ. Agriculturist,
R/o. Ashti, Tq. Ashti,
Dist. Wardha
2] Syed. Akbar Sai. Afzal,
Aged 70 years,
Occ. Agriculturist,
R/o. Ashti, Tq. Ashti,
Dist. Wardha
3] Syed. Saheb Ali Sai. Afzal
(deceased) through Legal heirs:
a) Saberabi Saheb Ali (wife)
Aged about 65 years,
Occ. Household
b) Nisar Ali Saheb Ali (son),
Aged about 38 years,
Occ. Business
Both R/o Plot No. 206, Yadav
Nagar, Binakhi Opposite to the
Clinic of Dr. Hasan, Nagpur
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c) Firoza Begum Mohd. Farooq
(daughter), Aged about 35 years,
Occ. Household, R/o Nava
Nakasha, Near Bada Mosque,
Lakshari Bagh, Nagpur
d) Shakir Ali Saheb Ali (son),
Aged about 33 years,
Occ. Business,
R/o Near Bandenawaz Mosque,
Indane Gas Godown, Yadav
Nagar, Binakhi, Nagpur
4] Mumtaz Ahemad Abdul Hafiz,
Aged-Adult, Occ. Agriculturist,
R/o Ward No. 3, Ashti, Tq. Ashti,
Distt. Wardha
5] Matin Ahemad Abdul Hafiz,
Aged-Adult, Occ. Agriculturist,
R/o Ward No. 3, Ashti, Tq. Ashti,
Distt. Wardha
===================================
Shri N.R. Saboo, Advocate for the petitioner
None for the respondents
===================================
CORAM:- Z.A. HAQ,J.
th
DATED :- 19 JANUARY, 2018
ORAL JUDGMENT :-
None appears for the respondents, though served.
Heard Shri N.R. Saboo, Advocate for the petitioner.
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Judgment 3 wp5748.2017.odt
Rule. Rule made returnable forthwith.
2] The petitioner-plaintiff has filed the civil suit praying
for decree for injunction restraining the defendant no. 1 from
interfering with his possession over the suit property. According to
the petitioner-plaintiff, he is illegally dispossessed during the
pendency of the civil suit. The plaint is amended and the plaintiff
has prayed for decree for possession of the suit property. The
defendant nos. 2 and 3 are supporting the claim of the plaintiff.
The defendant no. 1 is opposing the claim of the plaintiff. The trial
progressed and the evidence of the plaintiff is being recorded. At
this stage, the plaintiff filed an application (Exh. 68) seeking
permission to lead secondary evidence on a partition deed alleged
to have been executed between the defendant no. 2 and the
defendant no. 3 (now deceased). This application is rejected by
the impugned order. The learned trial Judge has observed that the
partition deed should be in custody of the defendant no. 2 or
defendant no. 3 and there is no explanation as to how it has come
in custody of the plaintiff. Because of this, the learned trial Judge
has doubted the claim of the plaintiff that the original document is
lost/misplaced and therefore the application (Exh. 68) is rejected.
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Judgment 4 wp5748.2017.odt
3] The learned advocate for the petitioner-plaintiff has
submitted that the impugned order is unsustainable in view of the
proposition laid down in the judgment given by this Court in Writ
Petition No. 11151/2017 (Karthik Gangadhar Bhat vs. Nirmala
Namdeo Wagh & another) on 03/11/2017.
Considering the proposition laid down in the judgment
given in the case of Karthik Gangadhar Bhat vs. Nirmala Namdeo
Wagh and anr., it has to be held that the impugned order cannot
sustain the scrutiny of law and it has to be set aside.
4] Hence, the following order is passed:-
O R D E R
1] The impugned order is set aside.
2] The plaintiff is permitted to lead secondary
evidence on the partition deed alleged to have been
executed between the defendant no. 2 and the
defendant no. 3 (now deceased).
3] The trial Court shall consider the secondary
Judgment 5 wp5748.2017.odt
evidence as per the proposition laid down in the
judgment given in the case of Karthik Gangadhar Bhat
vs. Nirmala Namdeo Wagh and another.
Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
Ansari
