Dismissed

Indumati Vidyashankar Choudhari Limbekar and Ors. v. Shivaji Pandurang Raut and Ors.

Bombay HC17 Jan 2012WP/465/2012

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed the Writ Petition filed by an original plaintiff aggrieved by the rejection of an application for framing an additional issue concerning the factum of a power of attorney, holding that the existing framed issues were sufficient to adjudicate the dispute.

What did the court decide?

The Writ Petitions are dismissed. No costs awarded.

Indumati Vidyashankar Choudhari Limbekar and Ors. Vs… — Property and Title | Bombay HC (2012)

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1 W.P. 465........2012

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FARAD CONTINUATION SHEET No.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 465 OF 2012 WITH WRIT PETITION NO. 469 OF 2012 WITH WRIT PETITION NO. 471 OF 2012

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Office Notes,Office Court's or Judge's orders Memoranda of Coram,appearances, ................................ Court's orders or CORAM : S.V.GANGAPURWALA, J. directions and Registrar's orders DATE : 17/01/2012.

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Ms. Rashmi P. Gaur, Advocate for the Petitioners.

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PER COURT :

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Heard Ms. Rashmi P. Gaur, the learned counsel for the petitioners.

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The petitioners are the original plaintiffs, who have filed Suit for declaration of ownership and further declaration that the sale deeds shown to have been executed by the so called power of attorney holder in favour of the defendant is illegal, null and void.

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The Court framed various Issues. The plaintiff and

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2 W.P. 465........2012

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defendant both led their evidence pursuant to the said issues and the matter was fixed for final arguments. At that stage, the present petitioner/original plaintiff filed an application for framing of additional issues i.e. the issue with regard to the factum of power of attorney allegedly executed by Indumati Wd/o Venkatrao Choudhari Limbekar in favour of Bhagwanrao Raghunath Kulkarni and further do the defendants prove that they received possession of the suit lands on the basis of the sale deed. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed.

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Ms. Rashmi Gaur, the learned counsel for the petitioners strenuously contended that the issues are to be framed pursuant to the pleadings between the parties. The defendant has come with a specific case that the power of attorney was executed by said Indumati in favour of Bhagwan and pursuant thereto the sale deed was executed. The defendant is asserting the fact of existence of power of attorney and a party who asserts a particular fact has to prove the same. According to the learned counsel, the said issue is relevant and material for effective adjudication of the dispute. The plaintiff can not prove in a negative manner about the power of attorney. The learned counsel contends that the issues can be framed at any stage even at the stage of delivery of Judgment. As such only because the matter is fixed for arguments, that can not be a

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3 W.P. 465........2012

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ground to reject the application.

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With the assistance of the learned counsel, I have gone through the order.

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The Suit of the plaintiff is specific i.e. seeking declaration of ownership. Once the plaintiff proves the issue of being the owner of the property, then the other issues would stand answered. More over, if the defendant claims about the power of attorney having been executed, it is for the defendant to plead and prove the same. However, now the matter is fixed for final arguments after both the parties have adduced their evidence based on the issues framed by the Court below Exh. 134. Issue no. 9 is already framed, which reads as under :

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“ Are the plaintiffs entitled for relief of declaration that sale deed No. 222 dated 07/02/1996 is ineffective, not binding upon them and its cancellation ? ”

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The said issue would cover the dispute sought to be agitated by the petitioners in the form of additional issue.

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In light of the above, I do not think that any error has been committed by the Court while passing the impugned

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4 W.P. 465........2012

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order.

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The Writ Petitions as such are dismissed. No costs.

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[ S.V. GANGAPURWALA,J. ]

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KNP/W.P. 465........2012

Indumati Vidyashankar Choudhari Limbekar and Ors. v. Shivaji Pandurang Raut and Ors.

Case brief

What is this about?

What did the court decide?

Indumati Vidyashankar Choudhari Limbekar and Ors. v. Shivaji Pandurang Raut and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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