Bombay High Court
Dhanaji Shivaji Rohite Expired Thr Lrs ... vs Sujitsingh Mangsingh Thakur Thr Power ... on 5 December, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
2023:BHC-AUG:25457
1 24-AO.69-22+1, oral jud.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.69 OF 2022
WITH CA/16387/2022 IN AO/69/2022
Dhanaji Shivaji Rohite,
Expired through LRs.
1. Shivaji S/o Dariba Rohite,
Age 75 years, Occu. Nil.
2. Lakshmi W/o Shivaji Rohite - Dead.
3. Sunita W/o Dhanaji Rohite - Dead.
4. Ranjit S/o Dhanaji Rohite,
Age 24 years, Occu. Business.
5. Anjali D/o Dhanaji Rohite,
Age 21 years, Occu. Education.
6. Shruti D/o Dhanaji Rohite,
Age 19 years, Occu. Education.
7. Aniket S/o Dhanaji Rohite,
Age 17 years, Occu. Education.
Appellant No.7 is minor
U/G of his real mother
Sunita W/o Dhanaji Rohite,
Age 41 years, Occu. Household,
All Appellants R/o Mandai Peth,
Paranda, Tq. Paranda,
District Osmanabad. ... Appellants.
Versus
1. Sujitsingh Mangsingh Thakur,
Age 45 years, Occu. Argi.,
R/o Paranda, Tq. Paranda,
District Osmanabad,
Through Power of Attorney
Subhassingh Mansingh Thakur,
2 24-AO.69-22+1, oral jud.odt
Age 38 years, Occu. Agri,
R/o Paranda, Tq. Paranda,
District Osmanabad.
2. Anant Baburao Hubalikar - Died.
3. Mangal Gorakhnath Hubalikar,
Age Major, Occu. Agri.,
4. Girish Gorakhnath Hubalikar,
Age Major, Occu. Business,
5. Mahesh Gorakhnath Hubalikar,
Age Major, Occu. Business,
6. Madhukar Baburao Hubalikar,
Age Major, Occu. Business,
7. Anil Baburao Hubalikar,
Age Major, Occu. Business,
8. Rajendra Baburao Hubalikar,
Age Major, Occu. Business,
Respondent Nos.3 to 8
R/o Lokhand Galli, Barshi,
Tal. Barshi, District Solapur. ... Respondents.
...
Advocate for Appellants : Mr. Shoyab Shaikh.
Advocate for respective Respondents : Mr. Mahajan Sandeep Y.
...
CORAM : S. G. MEHARE, J.
DATE : 05.12.2023
ORAL JUDGMENT :-
1. Heard the learned counsel for the appellants and learned
counsel for the respondents.
3 24-AO.69-22+1, oral jud.odt
2. The appellants are the legal heirs of the original plaintiff.
After the judgment and decree of the First Appellate Court, the
original plaintiff died. Therefore, they have preferred the
appeal as his legal heirs. They being legal heirs are entitled to
impugn the judgment and decree of the First Appellate Court.
3. The plaintiff had filed a suit for declaration that he is
owner of the suit plot and the permanent injunction for
restraining the defendants from disturbing his possession of the
suit plot. The learned trial court decreed the suit and declared
that the plaintiff was the owner and the possessor of the suit
plot and accordingly issued the injunction against the
defendants.
4. The defendant had preferred the first appeal before the
District Court at Bhoom. The learned First Appellate Court in
Regular Civil Appeal No.334 of 2014 passed the judgment on
12.10.2022 observing that it is the boundary dispute and the
identity of the lands encroached upon should be identified by
the local investigation Under Order XXVI Rule 9 of the Civil
Procedure Code. The First Appellate Court allowed the appeal
and remitted the matter to the trial court with a direction to
the plaintiff to apply for the joint measurement of N.A. plots
Nos.2 and 3 out of the survey No.13-B of Paranda. The First
4 24-AO.69-22+1, oral jud.odt
Appellate Court also granted the liberty to both parties to
amend their pleadings and to adduce additional evidence, if
any and then the Court should decide the suit afresh on the
basis of evidence on record and additional evidence led by the
parties, if any. He also observed that failure on the part of the
plaintiff to apply for the appointment of the Court
Commissioner and to deposit the Commissioner fee within
stipulated period shall result in dismissal of the suit.
5. Being aggrieved by the impugned judgment and order of
the First Appellate Court, the appellants are before this Court.
The first question that has been raised was that the First
Appellate Court has traveled beyond the case, which was not
before the trial court. Hence, the impugned judgment and
decree is illegal and incorrect. It has also been objected that
the plaintiff never claimed that the defendants have
encroached upon his plot. Therefore, there was no question to
remit the matter. The Court cannot force the plaintiff to apply
for the measurement. The substantial questions of law of the
powers exercised by the First Appellate Court have also been
involved.
6. Per contra, the learned counsel for the respondents
would submit that the impugned judgment and decree of the
5 24-AO.69-22+1, oral jud.odt
First Appellate Court is legally correct. The plaintiff was never
in possession of the land measuring 60 X 60 feet. He did not
prove the case. However, under the garb of the suit for
injunction, he wanted to encroach upon the land of the
defendants and on the six feet lane between the houses of the
plaintiff and the defendants. Therefore, the only solution to
resolve the dispute forever was the joint measurement of both
plots. No illegality has been committed in remitting the case to
the trial court. Therefore, no substantial question of law has
been involved in this case.
7. Admit.
8. Hearing both respective learned counsels, the following
substantial questions of law formulated.
(a) Does the First Appellate Court correctly ordered
the measurement of the plots owned by the plaintiff
and defendants ?
(b) Does the First Appellate Court correctly remitted
the matter to the trial court by granting liberty to
amend the pleading and adduce the additional
evidence ?
6 24-AO.69-22+1, oral jud.odt
9. Issue notice to the respondents. Learned counsel Mr.
Mahajan waives the service of notice for respondents.
10. By consent heard the appeal finally.
11. The first appeal is continuation of the suit. The court in
any event cannot travel beyond the evidence and material on
record. The Court suo motu cannot grant the reliefs which
were not sought. The suit of the plaintiff was for declaration
that he is the owner of the suit land. The burden was on the
plaintiff to prove that he was in possession of the land which
he claimed to be in possession in pursuance of his sale deed
dated 23.11.1995. The plaintiff did not aver in the plaint that
the defendants encroached upon his land. The defendants have
right to protect their land and the six feet lane which was for
common use. The court has to decide the suit considering the
plaint, written statement and the evidence of the respective
parties. The Court cannot force any party to do a thing in such
a way. The Court has to adjudicate the dispute brought before
it. Admittedly, the plaintiff never claimed that the defendants
encroached upon his plot. Therefore, the Court is of the view
that the First Appellate Court erred in law in passing an order
of measurement of the plots on the application of the plaintiff.
Since the issue for which the matter is remitted was not the
7 24-AO.69-22+1, oral jud.odt
question before the Court, the remittance on that point is not
correct.
12. In view of the above, the substantial questions of law
framed have been answered in negative.
13. The Court is of the view that the impugned judgment
and decree of the First Appellate Court is illegal and incorrect
and warrants the interference. The appeal ought to have
decided on merits on the basis of the material on record.
Hence, the following order :
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree of the learned Adhoc
District Judge-2, Bhoom, passed in Regular Civil
Appeal No.334 of 2014, dated 12.10.2022 is set
aside.
(iii) The appeal is remitted to the Court of Adhoc
District Judge-2, Bhoom for disposal on merit and
purely on the basis of the evidence led by the
parties and questions involved in the suit.
8 24-AO.69-22+1, oral jud.odt
(iv) The parties to appear before the First Appellate
Court on 10.01.2024.
(v) Civil Application stands disposed of.
(S. G. MEHARE, J.)
...
vmk/-
Signed by: Vaishali Mahesh Kale
Designation: PA To Honourable Judge
Date: 06/12/2023 20:09:04
