Gorakh Dharma Patil And Another vs Pitambar Namdeo Chaudhari Died ...
2021 Latest Caselaw 17009 Bom

                                                                          921.WP.9479.21.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                             WRIT PETITION NO.9479 OF 2021

1.       Gorakh s/o Dharma Patil
         Age : 56 years, Occ: Agri.,

2.       Ravindra Kedarsing Patil,
         Age : 50 years, Occu: Agri.,

         Both R/o. Umbarkhed, Tq.
         Chalisgaon Dist. Jalgaon.                    ... PETITIONERS
                                                      (Orig. Defendants)
                          VERSUS

1.       Kai. Pitambar Namdeo Chaudhari
         Deceased through L.Rs.

1-A) Smt. Indubai Pitambar Chaudhari,
     Age: 66 years, Occ: Household,
1-B) Sau. Tarabai Vinayak Chaudhari
     Age: 56 years, Occu: Household
1-C) Sau. Vandanabai Vilas Chaudhari,
     Age : 51 years, Occu: Household
1-D) Digambar Pitambar Chaudhari
     Age: 49 years, Occu: Agri.,
1-E) Sanjay Pitambar Chaudhari,
     Age : 45 years, Occu: Agri.,
1-F) Manoj Pitambar Chaudhari
     Age : 41 years, Occ: Agri.,

         All R/o- Near Government Milk
         Dairy Shukla Building, Chalisgaon
         Dist. Jalgaon.

2.       Ashok Namdeo Chaudhari
         Age: 66 years, Occ: Agri.,
         R/o. At Post Umberkhed, Tq.
         Chalisgaon, Dist. Jalgaon.                   ...       RESPONDENTS
                                                              (Orig. Plaintiffs)
                               ...
Advocate for Petitioners : Mr. Nilesh N. Desale
Advocate for respondent No.1 : Mr. N.L. Choudhari
                               ...


                                                                                        1/4




     ::: Uploaded on - 08/12/2021                  ::: Downloaded on - 09/12/2021 03:28:53 :::
                                                                            921.WP.9479.21.odt




                                    CORAM    :   MANGESH S. PATIL, J.


                                    DATE     :   07.12.2021
JUDGMENT :

Heard both the sides finally with consent. Rule. The learned

advocate for the respondents plaintiffs Mr. Chaudhary waives service.

2. The petitioners are judgment debtors and the respondents are

the decree holders of a decree for possession of the property in dispute. The

property is stated to be 26 Are portion from the land Gat No.33. A request

was made by the petitioners by moving an application (Exhibit-22) seeking

appointment of a Court Commissioner for carrying out measurement in view

of the fact that enormous time had lapsed between passing of the decree

and actual execution and the topography at the site had undergone a see

change in view of change of course by Girna river which passes along the

land in question. By the order under challenge the request have been

rejected by the executing court.

3. It is transpires during the course of argument that even a

similar request, in a different form, was made by the respondents decree

holders by moving application (Exhibit - 16). They had claimed that

possession of the encroached portion be delivered to them by the bailiff with

the aid of the T.I.L.R. Even that application (Exhibit-16) was rejected by the

executing court by the order dated 02.03.2020.

4. Admittedly, possession of the encroached portion is to be

921.WP.9479.21.odt

delivered in execution of the decree. As can be seen from the judgment of

the trial court, encroachment was duly established by proving a map

(Exhibit-29) which was a map prepared by the T.I.L.R. who was also

examined as a witness confirming encroachment over an area of 26 Are out

of land Gat No.33. Needless to state that the bailiff won't be able to

demarcate such encroached portion so that the decree can be effectively

executed through him. It would be in the fitness of things that bailiff can be

asked to take the aid of the T.I.L.R. while executing the possession warrant.

This would resolve the matter in controversy. The learned Judge does not

seem to have comprehended a situation that bailiff won't be able to

demarcate the encroached portion not being an expert.

5. In view of the above state of affairs, even the learned advocates

of both the sides unanimously submit that the possession warrant may be

directed to be executed by the bailiff by taking aid of the T.I.L.R. in terms of

the Map (Exhibit-29).

6. In view of this, the Writ Petition is partly allowed. The

challenge to the impugned order is rejected. However, the executing court

shall now issue a possession warrant and issue appropriate direction so as to

enable the bailiff to take aid of the T.I.L.R. so that possession can be

delivered in accordance with the Map (Exhibit-29), a copy of which shall be

annexed to the possession warrant.

7. It is clarified that since a statement is made at the bar that the

petitioners have simultaneously challenged the judgment and decree in

921.WP.9479.21.odt

appeal, this order shall be subject to the jurisdiction of the appellate court to

grant appropriate relief in respect of execution or otherwise of the decree

under challenge.

8. The Rule is made absolute in above terms.

(MANGESH S. PATIL, J.)

habeeb