The High Court held that the Trial Court's order did not warrant interference. It directed the Trial Court to dispose of the pending suit within twelve months and dismissed the writ petition along with the interim application.
Writ petition and Interim Application disposed of; Trial Court directed to complete suit trial within 12 months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
27.wp.5251.15 with ia.1149.20.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5251 OF 2015 WITH
INTERIM APPLICATION NO. 1149 OF 2020
Vasant Nagnath Ransinghe Petitioner
..(Orig. Defendant No.1)
Versus
Vithal Bhimrao Mali and Ors. ..Respondents
Mr. Rahul Kasbekar i/by Mr. Surel Shah, Advocate for Petitioner.Mr. Ajay A. Joshi, Advocate for Respondent No.1.CORAM :MILIND N. JADHAV, J. DATE :FEBRUARY 20, 2023.
P.C.:
1. Heard Mr. Kasbekar, learned Advocate for Petitioner and Mr.
Joshi, learned Advocate for Respondent No.1 for some time.
2. Perused the order dated 03.01.2015 passed below Exhibit-
122 and Exhibit-128 in Regular Civil Suit No.204 of 1994 by the Trial
Court.
3. Plaintiff (Respondent herein) filed Application seeking amendment below Exhibit-122 whereas Defendant (Petitioner herein) filed Application below Exhibit-128 for issuing fresh directions to the Court Commissioner i.e. Nimatanadar to measure the suit property as
per the directions given by the learned Trial Court in its order passed
below Exhibit-87.
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27.wp.5251.15 with ia.1149.20.doc
4. The common order passed is below Exhibit-87 and Exhibit93 and the commissioner’s report pursuant to the order passed therein was considered by the learned Trial Court. It is seen that pursuant to the order passed below Exhibit-87, M.R. No.41 of 2012 came to be effected and Nimtanadar i.e. Court Commissioner measured the suit land and submitted his report. In the report which was submitted it was observed that there was an encroachment of an portion admeasuring 195 square meters. Various contentions were raised by the Petitioner before the learned Trial Court that the measurement was not carried out as per the sale deed executed between the parties, that the Plaintiff had rectified the sale deed and changed its boundaries and therefore the dispute area of encroachment was shown wrongly etc.
5. The learned Trial Court while considered the Plaintiff’s Application below Exhibit-122 returned the findings that merely allowing the amendment in respect of measurement carried out by the Nimtanadar under the orders of the Court would not mean that the Plaintiff had succeeded in the suit proceedings unless the Plaintiff would establish his entitlement over the suit property as also more specifically over the encroached portion of 195 square meters which was shown in the report of the Court Commissioner. The learned Trial Court held that only if he succeeds in doing so, he will be entitled for recovery of possession of the same.
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27.wp.5251.15 with ia.1149.20.doc
6. In that view of the matter, the learned Trial Court accepted the contention of the Petitioner and allowed Application below Exhibit-122 to take on record the report of the Nimtanadar i.e. Court Commissioner in respect of measurement of the suit property and accordingly rejected the Application below Exhibit-128 for fresh appointment of the Court Commissioner filed by the Defendant (Petitioner herein). The reasons given by the learned Trial Court in the order dated 03.01.2015 are not only cogent and relevant but also reasoned in view of the earlier order passed by the learned Trial Court below Exhibit-87 and Exhibit-93 therein.
7. In that view of the matter, the impugned order dated 03.01.2015 does not call for any interference and is sustained.
8. At the request of Mr. Kasbekar, learned Advocate for the Petitioner and Mr. Joshi, learned Advocate for Respondent No.1, the learned Trial Court is requested by this Court to complete the trial of the pending suit which is now transferred to the Court of Civil Judge Junior Division, Malshiras to dispose of the pending suit within a period of 12 months from today.
9. With the above directions, Writ Petition is disposed.
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27.wp.5251.15 with ia.1149.20.doc
10. In view of disposal of the Writ Petition, pending Interim Application No.1149 of 2020 does not survive and is accordingly disposed.
[ MILIND N. JADHAV, J. ]
Digitally signed AJAYTRAMBAK by AJAYTRAMBAKUGALMUGALE UGALMUGALE Date: 2023.02.21 09:46:03 +0530
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1 issue framed by the court
Whether the impugned order of the Trial Court regarding measurement of suit property and rejection of fresh appointment of commissioner calls for interference.
Vasant Nagnath Ransinghe
Vithal Bhimrao Mali and Ors.
MILIND N. JADHAV
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court