Bombay High Court
Mr. Sharad Vitthal Jadhav And Anr vs Mr. Abajirao Appoji Jadhav on 2 March, 2021
Bench: Nitin W. Sambre
(2) wp-9523-2017.doc
BDP-SPS
Bharat
D.
Pandit IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally signed
by Bharat D.
Pandit
Date:
2021.03.04
10:37:13 +0530
WRIT PETITION NO. 9523 OF 2017
Mr. Sharad Vitthal Jadhav & Anr .... Petitioners.
V/s
Mr. Abajirao Appaji Jadhav ..... Respondent.
----
Mr. Vaibhav Gaikwad for the Petitioner.
Mr. Kirankumar Phakade for the Respondent.
---
CORAM: NITIN W. SAMBRE, J.
DATE: MARCH 2, 2021
P.C.:-
1] Application-Exhibit-109 came to be moved by the
Petitioners/Plaintiffs, thereby seeking permission to lead additional
evidence which is rejected by the impugned order dated 1/8/2017. As
such this Petition.
2] Heard respective Counsels.
3] After setting aside the judgment delivered in RCS No.191 of
1996, the lower appellate court gave following directions:-
(2) wp-9523-2017.doc
"1) Appeal allowed.
2) The impugned judgment and order dated 3.9.10
passed in Regular Civil Suit No.191/1996 is set aside.
3) The proceeding is remanded back to trial Court
with direction that the trial Court shall appoint Taluka
Inspector of Land Records or District Inspector of Land
Records as Commissioner under Order XXVI Rule 9 of
the Code of Civil Procedure, 1976, at the costs of the
plaintiff.
4] The Court Commissioner, so appointed shall take
measurement of the land claimed by the parties in
presence of the parties. The Court Commissioner shall
prepare map showing therein boundaries of the
disputed suit lands along with measurements in the
map.
5) The Court Commissioner shall prepare report
and file it in the record of the case and thereafter trial
judge would give an opportunity to the parties to lead
evidence, upon considering the evidence as well as the
report of the Court Commissioner, shall decide the suit
afresh in accordance with law as expeditiously as
possible, preferably within six months of the receipt of
this order.
6) Parties to bear their own costs."
4] In the backdrop of aforesaid directions given by the lower
(2) wp-9523-2017.doc
appellate court, Trial Court was of the opinion that the Petitioners
cannot be granted liberty to lead evidence.
5] It appears that the Petitioners have already examined Cadastral
Surveyor by way of additional examination-in-chief. He intends to
endorse the report given by the Cadastral Surveyor which is in his
favour. The lower appellate court, while giving directions referred
supra, was never of the opinion that the parties to the suit cannot be
permitted to lead additional evidence. Once the matter was remanded
by the lower appellate court that too with intention to bring on record
additional evidence, Trial Court ought not to have restricted parties
from leading additional evidence in addition to evidence of Cadastral
Surveyor i.e. Court Commissioner.
6] In that view of the matter, impugned order passed below
Exhibit-109 is hereby quashed and set aside. The said application-
Exhibit-109 stands allowed.
7] Petition is allowed in the aforesaid terms.
( NITIN W. SAMBRE, J. )
