Bombay High Court
Namdev Daulatrao Suryawanshi And ... vs Sanjay Raghunathrao Matlakute on 3 March, 2023
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.16172 OF 2022
IN SA/593/2019
NAMDEV DAULATRAO SURYAWANSHI AND ANOTHER
VERSUS
SANJAY RAGHUNATHRAO MATLAKUTE
...
Mr. V.D. Salunke, Advocate h/f Mr. S.K. Chavan, Advocate for applicants
Mr. K.P. Rodge, Advocate h/f Mr. P.G. Rodge, Advocate for respondent
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 03rd JANUARY, 2023
PRONOUNCED ON : 03rd MARCH, 2023
ORDER :
1 Present application has been filed for getting delay of 413 days
in preferring modification/review of the order passed by this Court on
11.02.2021. For the reasons stated in the application, the delay stands
condoned, however, in the same application the prayer clause 'C' submits that
the order passed by this Court on 11.02.2021 in Civil Application No.13201
of 2019 preferred in Second Appeal No.593 of 2019 be modified/reviewed.
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2 Heard learned Advocate Mr. V.D. Salunke holding for learned
Advocate Mr. S.K. Chavan for applicants and learned Advocate Mr. K.P. Rodge
holding for learned Advocate Mr. P.G. Rodge for respondent.
3 The Second Appeal came to be admitted by a common order in
Second Appeal No.430 of 2019 and Second Appeal No.593 of 2019 on
11.02.2021 and substantial questions of law have been framed. Learned
Advocate Mr. V.D. Salunke is now pointing out order passed below Exh.5 in
Regular Civil Appeal No.101/2011 and Regular Civil Appeal No.102/2011 by
the learned Principal District Judge, Parbhani, wherein respondents in
Regular Civil Appeal No.102/2011 were restrained from causing obstruction
in the peaceful possession and cultivation of the appellants/plaintiffs till final
disposal of the appeal, when it was before the learned Principal District
Judge. Regular Civil Appeal No.102/2011 was preferred challenging the
Judgment and Decree in Regular Civil Suit No.364/2006 and upon the
dismissal of both the proceedings the Second Appeal No.430/2019 has been
preferred. However, as regards the other proceeding i.e. Regular Civil Suit
No.155/2007 is concerned, Regular Civil Appeal No.101/2011 was preferred
and now the Second Appeal challenging both the decrees is Second Appeal
No.593 of 2019. It has been tried to be contended that this Court vide order
dated 02.08.2019 had granted the interim relief and that ought to have been
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confirmed by this Court when the appeal was admitted. Learned Advocate
for the respondent herein objects for modification of the said order in Civil
Appeal No.13201 of 2019.
4 Perusal of the impugned Judgments of the Lower Court would
show that the property in dispute in Regular Civil Suit No.155/2007 was
admeasuring 13 R land from Gat No.491 which was stated to have been
purchased by the present respondent from one Vitthal Pandurang Khupse on
30.07.2003. It will not be out of place to mention here that the other appeal
i.e. Second Appeal No.430 of 2019 challenges the Judgment and Decree in
Regular Civil Suit No.364/2006, wherein the suit property was admeasuring
01 H 82 R land from the same Gat number. Therefore, the properties in both
the cases was posed to be different and it was held by both the Courts that
the present appellants in their suit have proved their possession over land
admeasuring 01 H 82 R only. This Court also while passing the order on
02.08.2019 protected the possession of the appellants only to the extent of
01 H 82 R and that order came to be passed in Civil Application No.8960 of
2019 in Second Appeal No.430 of 2019 only. There was no such order
passed by this Court in respect of protection of the possession to the extent of
13 R separately from Gat No.491. Under such circumstance, the order passed
by this Court on 11.02.2019 in Civil Application No.13201 of 2019 in Second
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Appeal No.593 of 2019 cannot be modified. There is no error on the face of
record in respect of that order. Hence, this application stands rejected.
( Smt. Vibha Kankanwadi, J. )
agd
