Bombay High Court
Ashok Manik Mirkale vs Ashok Tulshiram Ingle And Another on 21 March, 2022
Bench: Mangesh S. Patil
25.RA.273.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION (CIVIL) NO.273 OF 2017
IN AO/13/2017
ASHOK MANIK MIRKALE
VERSUS
ASHOK TULSHIRAM INGLE AND ANOTHER
...
Advocate for Applicant : Mr. Shoyab Shaikh
Advocate for Respondent No.1 : Mr. Parag V. Barde
...
CORAM : MANGESH S. PATIL, J.
DATE : 21.03.2022
PER COURT :
By way of this application, the respondent in the Appeal from
Order who are the defendants are seeking review of the judgment and order
passed by this Court allowing the Appeal from Order, quashing and setting
aside the judgment and order passed by the lower appellant court and
confirming the judgment and decree passed by the trial court granting
perpetual injunction in his favour to protect his possession over the suit
property described as admeasuring 3 Hectare 25 Are.
2. I have heard the learned advocates of both the sides.
3. It is trite that a review cannot be an appeal in disguise. The
entire argument of the learned advocate for the review petitioner would
befit an argument in an appeal rather than in a review. For that matter the
Review Application though appended with a certificate that it contains good
grounds, I do not find any ground showing any formal defect or any other
25.RA.273.17.odt
circumstance which would entitle the review petitioners and even me to
undertake the exercise of review.
4. The respondent who is original plaintiff filed a suit for
injunction simplicitor. He averred that the land Gat No.408/2 totally
admeasured 4 Hectare 27 Are out of which he was the owner in possession
of 3 Hectare 25 Are which he described as suit property. By showing that a
cart way intervened the suit property and the property of the review
petitioners (the defendants) bearing Gat No.408/1 he complained about
obstruction to his possession at their hands and prayed for injunction.
5. The trial court decreed the suit and granted injunction. The
lower appellate court quashed and set aside the decree and remanded the
matter with a direction to the trial court to direct a fresh measurement.
6. Admittedly, a measurement was carried out at the behest of the
review petitioners by the TILR. Though there is dispute about the extent of
the land Gat No.408, admittedly, a cart way intervenes the suit property and
the property owned and possessed by the review petitioners. Though they
did not dispute actual possession of the respondent/plaintiff, they
complained about he having encroached over their property, the written
statement is conspicuously silent as to when a cart way intervenes both
these lands when and how the respondent/plaintiff could encroach over
their land.
7. After appreciating the nature of the dispute, by the order under
review, the Appeal from Order of the respondent/plaintiff was allowed and
25.RA.273.17.odt
the decree passed by the trial court broadly on the basis of the
aforementioned reasoning has been restored.
8. To repeat, this Court cannot sit in appeal against its own order.
The reasoning giving in the order under review is a plausible reasoning and
the review petitioner has failed to demonstrate sufficient ground as is
contemplated under Section 114 to under take a review.
9. There is no substance in the Review Petition. It is dismissed.
(MANGESH S. PATIL, J.)
habeeb
