Dismissed

Sardar Chandsaheb Shaikh ( Tnhro. His Power of Attorney ) Anwar Allabakash Shaikh v. Anusaya Maruti Jadahv

Bombay HC15 Jan 2013SA/12/2012

Case brief

AI extract

What is this about?

In a second appeal from a City Civil Court and District Judge, the High Court of Bombay dismissed the appeal because the appellant failed to raise a specific ground regarding the unconsidered Nimtana Mojani report before the District Court or seek clarification.

What did the court decide?

The second appeal is dismissed with no order as to costs.

Sardar Chandsaheb Shaikh ( Tnhro. His Power of Attorney )… — Property and Title | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.12 OF 2012

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Sardar Chandsaheb Shaikh .. Appellant

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V/s.

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Anusaya Maruti Jadhav .. Respondent

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Mr. I.M. Khairdi for the appellant Mr. Suhas S. Inamdar for respondent

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CORAM : R.Y.GANOO, J. DATED : 15^th JANUARY, 2013

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P.C. :

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Heard learned advocates on both sides.

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The appellant filed Regular Civil Suit No.506 of 2001 in the

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Court of learned Civil Judge, Senior Division, Solapur for recovery of possession of the land alleged to have been trespassed by the respondent. The learned trial Judge dismissed the suit by judgment and decree dated 24^th October, 2002 primarily on the ground that the City Surveyor, who conducted the job failed in performing his job in the proper

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manner and as such the final report cannot be accepted. The appellant preferred an appeal before the learned District Judge being Civil Appeal No.497 of 2002. That appeal was dismissed by judgment and decree dated 27^th October, 2009.

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Learned advocate for the appellant submitted before this Court that on account of the failure on the part of the surveyor to perform the job the appellant had to suffer, the appellant applied before the District Court for conducting measurement by Nimtana mojani. He submitted that said Nimtana Mojani was conducted and that the report in that behalf is according to him is in favour of the appellant. He further submitted that the learned District Judge has failed to consider Nimtana Mojani report.

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I have with the assistance of learned advocates, perused the judgment of the District Court. In the District Court, there is no reference to the Nimtana Mojani report. If this is so, either the appellant did not pressed that report before the District

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Court or after having pressed the report, the learned District Judge has not considered the same. If the appellant had pressed that report before the District Court and if the judgment of the District Court is silent, then, in the memo of the appeal in this Court, a specific ground ought to have been raised that the Nimtana Mojani report was pressed before the learned District Judge and there is no reference to it in the judgment of the District Court. In the absence of the said specific ground being a ground on the basis of which the appeal could have been admitted, the stand of the appellant that the Nimtana report was pressed by him before the learned District Judge, cannot be accepted.

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Even otherwise, after the judgment of the learned District Court, if it was the stand of the appellant that the Nimtana report was pressed before the learned District Judge and that has not been taken into consideration at all, it was open for the appellant to make an application before the learned District Judge to clarify about that aspect of the matter. That

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procedure, which is now been accepted by the Supreme Court has also not been followed. In the result, the stand taken by the appellant that on the basis of the Nimtana report, a finding in his favour could have been recorded, cannot be accepted.

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This appeal does not involve any substantial question of law. No other point was argued. The second appeal is dismissed with no order as to costs.

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[R.Y.GANOO, J.]

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Sardar Chandsaheb Shaikh ( Tnhro. His Power of Attorney ) Anwar Allabakash Shaikh v. Anusaya Maruti Jadahv

Case brief

What is this about?

What did the court decide?

Sardar Chandsaheb Shaikh ( Tnhro. His Power of Attorney ) Anwar Allabakash Shaikh v. Anusaya Maruti Jadahv

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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