Motiram Raghunath Jadhav vs Smt. Shantabai Baliram Jadhav And ...
2023 Latest Caselaw 1844 Bom

                                                         1                                 3.WP.521-2023.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                             WRIT PETITION NO. 521 OF 2023
                            ( Shri Motiram Raghunath Jadhav
                                           Vs.
                          Smt. Shantabai Baliram Jadhav & Ors. )

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders




                                  Mr. A.P. Deshpande, Advocate for the Petitioner.




                                  CORAM:          AVINASH G. GHAROTE, J.

DATED : 23rd FEBRUARY, 2023

Heard Mr. Deshpande, learned counsel for the petitioner.

2. The petition challenges the concurrent findings by the Courts' below, whereby Exh. 5 an application for injunction filed by the petitioner/plaintiff, has been rejected by the Trial Court by the order dated 23.07.2020 (page 104) and the Appellate Court also dismissed the appeal by judgment dated 13.09.2022 (page 118).

3. Mr. Deshpande, learned counsel for the petitioner contends, that the possession of the property which is Gat No. 223, was received by the petitioner/plaintiff in execution proceedings for the execution of decree passed in R.C.S. No. 222/1980 2 3.WP.521-2023.odt

between Motiram and Baliram, and therefore, the petitioner is in possession of the said property since 12.06.2000 on the basis of the precept. The record however indicates, that thereafter the property has been mutated jointly in the name of the petitioner and respondents (page 44, 45, 46) as is indicated from the 7/12 extracts from the year 2007 to 2012, which indicates that the petitioner Motiram and Baliram his brother wherein were in joint cultivation of the same. The respondents are the legal heirs of Baliram. The Courts record a finding that on account of an oral partition, the land was divided equally between the parties, and therefore, the legal heirs of Baliram i.e. respondent Nos. 1 to 3 are in possession of 0.77 HR from and out of land of Gat No. 223 (Survey No. 61/2) situated at Village Kolwad, District Buldhana. Both the Courts' below have recorded a finding that the respondent Nos. 1 to 3, are in actual possession of land admeasuring 0.77 HR, which is being cultivated by the respondents and this position is reflected from the 7/12 extracts in that regard. The 7/12 extracts are the documents which can be considered to find out the cultivating possession of a party and since both the Courts concurrently recorded that the 7/12 extracts in this regard indicate the cultivating possession of the respondent Nos. 1 to 3, in absence of any material being placed on record to take a different view, I am not inclined to interfere in the order of the learned Trial Court as well as the judgment of the learned Appellate Court.

3 3.WP.521-2023.odt

4. The Petition is therefore dismissed. No costs.

JUDGE SD. Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:23.02.2023 18:44