Partly allowed

Lilabai Shivajirao Gaikwad and Ors. v. the State of Mah and Ors.

Bombay HC28 Aug 2012WP/4170/2012

Case brief

AI extract

What is this about?

Petitioners challenged the rejection of an application to frame additional issues in a suit for injunction regarding disputed land area. The High Court quashed the impugned order and directed the trial court to frame a specific issue on the plaintiffs' claim of land area under Order XIV CPC.

What did the court decide?

The application for framing additional issues was partly allowed; the impugned order was quashed and set aside; the trial court directed to frame the issue as prayed by petitioners regarding plaintiff

Lilabai Shivajirao Gaikwad and Ors. Vs the State of Mah… — Property and Title | Bombay HC (2012)

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1 W.P. 4170.2012 - [ J ]

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 4170 OF 2012

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Lilabai Shivajirao Gaikwad Age : Major, Occ. Household, R/o : RH 4/7, Ashtavinayak Nagar, Near Garware Stadium, Opp. MSEB Stores, CIDCO, Aurangabad. 2. Sanjay Bapusaheb Deshmukh Age : Major, Occ. : Service, R/o : Padampura, Aurangabad.

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Chandrakant Kisanrao Dahale Age : 58 Yrs.,, Occ. Business, R/o : Khadkeshwar, Uday Colony, Dist. : Aurangabad. .... PETITIONERS

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V E R S U S

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State of Maharashtra Through Collector, Collector Office, Aurangabad. 2. The Tahsildar, Tahsil Office, Aurangabad.

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The Talathi, Village Karodi, Talathi Sajja,

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2 W.P. 4170.2012 - [ J ]

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Sharnapur.

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Prakash S/o Baburao Wahul Age : 55 Yrs., Occ. Business, R/o : Sidharth Nagar, N-12, HUDCO, Aurangabad. .... RESPONDENTS

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Mr. F.R.Tandale, Advocate for the Petitioners. Mr. B.V.Wagh, A.G.P. for the State.

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Mr. Avinash S.Deshpande, Advocate for Resp. No.4.

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CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 28/08/2012.

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ORAL JUDGMENT :

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Rule. Rule made returnable forthwith. With the consent of

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the learned counsel for the respective parties, taken up for final hearing.

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The present petitioners are the original plaintiffs. The plaintiffs have filed Suit for injunction. The defendants resisted the Suit by filing Written Statement. The Issues were framed by the Court. The evidence is yet to commence. After the issues were framed, the present petitioners filed an application for framing additional issues. Vide the said application [ Exh. 33 ], the petitioners sought two ( 2 ) issues to be framed, which are as under,:

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3 W.P. 4170.2012 - [ J ]

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“ [ 1 ] Whether the defendant proves that the area of land G.No. 68 of village Karodi is 4 H. 92 R. i.e. 12 Acres and 12 gunthas ?

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[ 2 ] Whether the plaintiff proves that the area of land G.No. 68 of village Karodi is 3 H. 97 R. i.e. 9 Acres and 37 gunthas ? ”

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The said application is rejected. Aggrieved thereby the present Writ Petition is filed.

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Mr. Tandale, learned counsel for the petitioners submits that

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the said issues are relevant and necessary for the effective adjudication of the dispute. According to the plaintiffs, the land G.No. 68 admeasures 9 Acres 37 Gunthas, whereas according to the defendant no. 4, the said G.No. 68 admeasures 12 Acres 12 Gunthas. As there is dispute regarding the area, it would be expedient for the Court to frame the issues. The Court has rejected the application solely on the ground that conflicting issues are sought to be framed.

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Mr. Deshpande, learned counsel for respondent no. 4 supports the order and submits that the Suit is for simplicitor injunction and the plaintiffs have to prove their case. The issues already framed are sufficient to determine the controversy between the parties.

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4 W.P. 4170.2012 - [ J ]

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Order XIV of the Code of Civil Procedure [ For short, ‘ the Code ’ ] requires issues to be framed on the basis of the facts affirmed by one party and denied by the other. It appears that there is dispute regarding area of G.No. 68 amongst the parties. So as to enable the parties to adduce evidence effectively and completely, it would be expedient to have the specific issue. The burden certainly would lie upon the plaintiffs to prove their case. I am not inclined to consider the application in respect of the issue, which casts burden on the defendants.

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In view of the above, the application [ Exh. 33 ] is partly allowed. The impugned order is quashed and set aside. The trial Court shall frame the following additional issue, :

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“ Whether the plaintiffs prove that the area of land G.No. 68 of village Karodi is 3 H. 97 R. i.e. 9 Acres and 37 gunthas ? ”

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Rule is accordingly made partly absolute in above terms, however with no order as to costs.

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KNP/W.P. 4170.2012 - [ J ]

Lilabai Shivajirao Gaikwad and Ors. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Lilabai Shivajirao Gaikwad and Ors. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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