Bombay High Court
Abdul Wahed Shaikh vs M/S Bhikamchand Jain And Company ... on 11 August, 2021
Bench: M. G. Sewlikar
{1} WP 8615 OF 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
913 WRIT PETITION NO.8615 OF 2018
. Abdul Manna Wahed Shaikh
Age: 46 years, Occu.: Business,
R/o.Latur, Tq. & Dist.Latur. ..Petitioner
(Orig. Appellant/Deft.No.1)
VERSUS
1. M/s.Bhikamchand Jain and Company
A registered Partnership Firm,
Head Office at Jalgaon,
Branch Office at Latur,
Through its Managing Director,
Shri Sureshkumar S/o Bhikamchand Jain
Age: 74 years, Occu.: Business,
R/o.Jalgaon, Tq. & Dist.Jalgaon.
2. The Municipal Corporation Latur.
Through its Commissioner,
Municipal Corporation, Latur,
Tq. & Dist.Latur. ..Respondents
(Resp. No.1 Orig.Respnt./Plaintif
Resp.No.2/Respt.No.2/Deft.No.2)
...
Advocate for Petitioner : Shri Mahesh P. Kale
Advocate for Respondent No.1 : Shri V.D. Gunale
Advocate for Respondent No.2 : Shri R.P. Adgaonkar (absent)
...
CORAM : M.G.SEWLIKAR, J.
DATE: 11th August, 2021
ORAL JUDGMENT:-
1. Rule. Rule made returnable forthwith.
{2} WP 8615 OF 2018
2. Heard fnally at the stage of admission with the consent of
the parties.
3. Facts leading to this petition are that respondent No.1
herein fled R.C.S.No.385 of 2008 in the Court of Civil Judge
(Junior Division), Latur for declaration of ownership over land
Survey Nos.205-D and 205-F bearing Municipal No.96/1. This suit
came to be decreed by the Judgment and decree of learned 5 th
Joint Civil Judge (Junior Division), Latur dated 1st July, 2014.
Petitioner preferred R.C.A.No.129 of 2014 in the District Court,
Latur.
4. Petitioner fled application at Exhibit-23 in the record of the
trial Court for the appointment of Court Commissioner i.e. D.I.L.R.
or T.I.L.R. Latur for joint measurement of Survey Nos.205-F and
205-E and to show the location of the suit property.
5. Respondent No.1 resisted this application by fling Say at
Exhibit-27.
6. After hearing both the parties, learned Ad-hoc District
Judge-1, Latur dismissed this application holding that plaintif -
respondent No.1 has fled suit for declaration of ownership and
{3} WP 8615 OF 2018
recovery of possession. He has further held that plaintif has not
alleged that petitioner - defendant No.1 made any encroachment
over land bearing Survey No.205-F, but the possession of the
petitioner - defendant No.1 is unlawful. Learned Ad-hoc District
Judge-1, Latur also held that this application is fled just to
protract the fnal hearing of the appeal. With these observations,
the learned Ad-hoc District Judge-1, Latur dismissed this
application.
7. Heard Shri M.P.Kale, learned counsel for the petitioner and
Shri V.D.Gunale, learned counsel for respondent No.1. None
present for respondent No.2.
8. Shri Kale, learned counsel for the petitioner submitted that
in the trial Court itself, he has disputed the identifcation of the
property. He submits that his stall is located in survey No.205-E,
which is the subject matter of the suit.
9. When Shri Kale, learned counsel for the petitioner was
asked to point out whether such averment was made in the
written statement, he could not point out any such averment
denying the identifcation of the suit property. He has denied
vaguely that suit property is not correctly described. In this view
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of the matter, there is no propriety in the appointment of the
Court Commissioner. Learned Ad-hoc District Judge-1, Latur has
rightly dismissed the Application Exhibit-23 and has rightly
observed that this application has been fled to delay the hearing
of the appeal. In view of this, writ petition is dismissed. No costs.
Rule is discharged.
10. Observations made in this Judgment are made for the
disposal of this petition only. The learned First Appellate Court
shall not get infuenced by these observations and can come to
its independent conclusion.
( M.G.SEWLIKAR )
JUDGE
SPT
