Bombay High Court
Darga Baba Mastan Shah Vali ... vs Dr. Panjabrao Deshmukh Krishi ... on 25 January, 2018
Bench: A.S. Chandurkar
9-sa-220-342-16 judg.- 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 220 OF 2016
APPELLANT :- Darga Baba Mastan Shan Vali
Kachimet, Amravati Road, Nagpur
duly represented through
Mutawali Kalam Beg S/o.Rustam Beg.
...VERSUS...
RESPONDENTS :- 1. Dr.Panjabrao Deshmukh Krishi
Vidyapeeth, Akola,
Through represented through
Its Associate Dean, College of
Agriculture, Maharajbag, Nagpur.
2. Nagpur Municipal Corporation,
Civil Lines, Nagpur
duly represented through its
Municipal Commissioner.
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Mr.D. V. Siras, Advocate for the appellant.
Shri N. D. Khamborkar, Advocate for Respondent No.1
Shri. A. M.Quazi, Advocate for the Respondent No.2.
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WITH
SECOND APPEAL NO. 342 OF 2017
APPELLANT :- Dr.Panjabrao Deshmukh Krishi
Vidyapeeth, Akola,
Through its Associate Dean, College of
Agriculture, Maharajbag, Nagpur.
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9-sa-220-342-16 judg.- 2/7
...VERSUS...
RESPONDENT :- Mutawali Darga Baba Mastan Shan Vali
Kachimet, Block, Wadi, Amravati Road,
Nagpur duly represented through
Mutawali Kalam Beg S/o.Rustam Beg.
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Shri N. D. Khamborkar, Advocate for the appellant.
Shri. D.V. Siras, Advocate for the respondent.
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CORAM : A. S. CHANDURKAR
, J.
DATED : 25.01.2018
O R A L J U D G M E N T :-
1. Since identical issues arise in both these second appeals,
they are being decided by this common judgment.
2. The appellant in Second Appeal No.342 of 2017 had filed
RCS No.1392 of 1986 against the appellant. In that suit, relief of
possession after removing encroachment by the appellants herein
was prayed for. One of the issues that arose in that suit was with
regard to the title of the plaintiff. This issue was answered against
the plaintiff and the suit was ultimately dismissed. Regular Civil
9-sa-220-342-16 judg.- 3/7
Appeal No. 520 of 2011 filed by the plaintiff also came to be
dismissed. This judgment of first appellate court has been
challenged in Second Appeal No.342 of 2017.
3. The respondent in Second Appeal No.220 of 2016
subsequently, filed Regular Civil Suit No. 1130 of 2003 seeking
similar relief of removal of encroachment against the same
defendants. In this suit, the trial Court held the title of the
plaintiff to be duly proved. After recording a finding that the
appellant had made an encroachment the suit came to be decreed.
Regular Civil Appeal No.132 of 2011 filed by the appellant was
dismissed. Being aggrieved the appellant has filed Second Appeal
No.220 of 2016.
4. The following substantial questions of law arise for
consideration:-
(i) Whether the Trial Court erred while observing
that the respondent no.l had proved its ownership
in respect to the suit property situated at Gat
No. /Survey No.2/1 and Gat No./Survey No.11, 13
9-sa-220-342-16 judg.- 4/7
and 14 situated at Mouza -Futala and Kachimet,
PH No.7, in Nagpur City?
ii) Whether the Trial Court erred while holding
that the ownership in respect to the aforesaid suit
property by way of mutation entries in 7/12
belonged to the Respondent no.l by further entitling
it to prefer suit for relies against the appellant?
iii) The trial Court having decreed Regular Civil
Suit no.1130 of 2003 by recording findings in
favour of the appellant, whether Regular Civil
Appeal no.520 of 2011 was liable to be allowed?
5. Shri. D.V. Siras, learned Counsel for the appellant in
Second Appeal No.220 of 2016 submitted that the earlier suit filed
by the respondent no.1 having been dismissed and the relief of
possession having been refused, the subsequent suit being Regular
Civil Suit No. 1130 of 2003 was also required to be dismissed.
However, without considering the findings recorded in the earlier
9-sa-220-342-16 judg.- 5/7
suit the decree came to be passed. It was submitted that merely
on the basis of revenue records, the title of the original plaintiff
could have been held to be proved. It was therefore, submitted
that the original plaintiff was not entitled for any relief
whatsoever.
6. Shri. N.D. Khamborkar, learned counsel for the appellant in
Second Appeal No.342 of 2017 submitted that considering the
adjudication in Regular Civil Suit No. 1130 of 2003, the earlier
adjudication in Regular Civil Suit No.1392 of 1986 on similar
issues is required to be set aside. The trial Court having held the
plaintiffs title to be duly proved, relief ought to be granted to the
plaintiff.
7. I have heard the learned Counsel for the parties at length
and I have perused the impugned judgments. It is not in dispute
that initially Regular Civil Suit No.1392 of 1986 was filed seeking
the relief of declaration of title with further relief of possession
after removing encroachment. That suit came to be dismissed and
the appellate Court confirmed that decree. However, during
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pendency of those proceedings, a fresh suit came to be filed
seeking similar relief against the same defendants. Those
proceedings, have culminated into a decree in favour of the
plaintiff. It however, appears that the earlier adjudication was not
taken into consideration while deciding the subsequent
proceedings. Considering the fact that the suit property is common
and both the suits are filed against the same defendants, both the
proceedings ought to have been decided together. By not
deciding both the proceedings together, contrary findings have
been recorded in those proceedings. It is therefore found that
both the proceedings deserve to be remanded to the Trial Court
for fresh adjudication in accordance with law. It would be open for
the plaintiff before the trial Court to prosecute one suit, if so
advised. The trial Court shall decide the proceedings on its own
merits and in accordance with law. As the proceedings have been
pending since long, the trial Court shall decide the same by the
end of the December 2018. The parties are at liberty to lead
further evidence in accordance with law. The parties shall appear
before the trial court on 12th February 2018.
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8. Both the Second Appeals are allowed in the aforesaid terms
with no order as to costs.
JUDGE
KAVITA
