Bombay High Court
Sadashiv @ Shahaji Kisanrao ... vs Arun Dattatraya Futane on 2 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
32 CIVIL APPLICATION NO.9902 OF 2015
IN SAST/10793/2015
SADASHIV @ SHAHAJI KISANRAO TANTAK(KASAR)
VERSUS
ARUN DATTATRAYA FUTANE
...
Mr. S.S. Bora, Advocate for the applicant
Mr. N.V. Gaware, Advocate for the sole respondent
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 02nd AUGUST, 2021.
PER COURT :
1 Present application has been filed for getting delay of 170 days
in filing Second Appeal condoned.
2 Heard learned Advocate Mr. S.S. Bora for the applicant and
learned Advocate Mr. N.V. Gaware for the sole respondent. In order to cut
short it can be said that they have argued in support of their respective
contentions.
3 It is to be noted that as per the applicant, he was confused about
the operative part of the Judgment and Decree passed in the appeal. Though
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his appeal was allowed and the Judgment and Decree was set aside, it was in
fact, modified. Plaintiff as well as defendant were restrained by separate
order of injunction, and therefore, he was confused as to whether he should
file the appeal or not. The said reason appears to be reasonable, taking into
consideration the fact that the present applicant was the original plaintiff,
who had filed suit for perpetual injunction. The suit was decreed and the
defendant, his agent and servant were restrained from obstructing the
peaceful possession of the plaintiff over the suit land, till he was dispossessed
by adopting proper procedure of law. The said decree was challenged by the
original defendant before learned Principal District Judge, Ahmednagar, who
as it appears in a cryptic Judgment allowed the appeal in part. The
Judgment and Decree passed by the learned Trial Judge was set aside. Yet,
the defendant was perpetually restrained from interfering with the possession
of the plaintiff over the suit land, inclusive of demarcated portion shown in
the map of measurement carried out by Taluka Inspector of Land Records, at
the instance of defendant. Then it is also stated that the plaintiff is directed
not to obstruct the possession of the defendant over land Gat No.1198 or to
take into possession any further portion of the said land. It is then stated that
the measurement map dated 29.08.2001 shall be part of the decree.
Surprising part to be noted is that perusal of both the Judgments and Decrees
would show that the said map was not treated by learned Trial Judge as
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proved. Therefore, when the confusion of the applicant appears to have
reasonable ground, the delay deserves to be condoned. Accordingly, the
application stands allowed and disposed of. The delay stands condoned in
filing the Second Appeal. Registry to verify and register the Second Appeal
and place it for further consideration on 01.09.2021.
( Smt. Vibha Kankanwadi, J. )
agd
