Bombay High Court
Nathu Pandurang Thakre And Others vs Sunil Gulabrao Chalakh And Others on 30 September, 2021
Bench: S. M. Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No.338 OF 2005
(Nathu Pandurang Thakre and others Vs. Sunil Gulabrao Chalakh and others)
__________________________________________________________________________
Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Shri Madhur Deo h/f. Shri Rohit Joshi, Advocate for Appellants.
CORAM : S.M. MODAK, J.
DATE : 30th SEPTEMBER, 2021.
1. Heard learned Advocate Shri Madhur Deo
for the appellant. The defendant No.1 at relevant time
was Sarpanch of Grampanchayat, whereas defendant
Nos.2 to 5 were the members of the said
Grampanchayat. The Grampanchayat Zadashi, Taluka
Seloo, District Wardha is joined as defendant No.7,
whereas defendant No.6 is the owner of adjoining plot
No.4.
2. The Grampanchayat with the assistance of
defendant Nos.1 to 5 have demolished the cattle-shed
by following the procedure of law. The plaintiff claims
to be the owner of cattle-shed. According to him, the
cattle-shed was erected on the land belonging to him
comprising plot Nos.2 and 3, whereas, according to
the defendant Nos.1 to 5 and 7 the cattle-shed stands
on public road/layout.
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3. The action of the Grampanchayat in
demolishing the cattle-shed has resulted into causing
of damages to plaintiff and that is why suit for
damages was filed before the trial Court. After
contest, the trial Court dismissed the suit. The original
plaintiff filed the first appeal and the first Appellate
Court held that the plaintiff could not prove the
ownership over plot Nos.2 and 3 admeasuring 4000
sq.ft. In the sale-deed of the plaintiff the area of plot
Nos.2 and 3 is mentioned as 3200 sq.ft., whereas he
has pleaded that subsequently there was Durustipatrak
executed with one of the vendor by which area
corrected as 4000 sq.ft. The issue of ownership of
4000 sq.ft. of land from plot Nos.2 and 3 has been
answered in the negative by the first Appellate Court.
Whereas, the first Appellate Court observed that the
plaintiff was successful in proving that it was not a
road. According to this appellant, this is inconsistent
finding and accordingly the decision of decreeing the
suit is challenged. That is why the present appeal.
4. Apart from substantial question of law
proposed, there is one more development. Second
Appeal No.251/2004 preferred independently by
defendant No.7 Grampanchayat was dismissed. My
attention is brought to two substantial questions of law
framed therein. I have perused them. In fact, even
though this Court directed the present appeal to be
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tagged with Second Appeal No.251/2004, for the
reason best known to the parties, this appeal could not
be disposed of.
5. So, additionally, this Court is supposed to
ascertain what is the effect of judgment given in that
Second Appeal on the present appeal. In view of that,
following substantial questions of law are framed :
a) Whether the first Appellate Court
Committed wrong in not considering
the provisions of Section 20 of the
Maharashtra Land Revenue Code (all
the lands, sites vest in the Government)
while giving a finding in favour of the
plaintiff that he has proved that there
was no road (on which cattle-shed
was standing) ?
b) What is the effect of dismissal of
Second Appeal No.251/2004 on the
present appeal ?
6. The above substantial questions of law were
framed because while admitting the appeal on 14th
August, 2007, no substantial questions of law were
framed.
7. Issue notice only to respondent
No.1/original plaintiff and respondent No.2/
Grampanchayat, returnable after four weeks.
JUDGE
Wadode
