Dismissed

Kashinath Barku Bhagat Since Decd. Thr Legal Heirs v. Sadashiv Tukaram Patange Since Decd. Thr Legal Heirs

Bombay HC28 Feb 2024WP/13518/2023

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the rejection of an application for a Court Commissioner. The Court held there was no perversity in the District Court's order and affirmed the dismissal of the eviction suit on non-user grounds by the Trial Court.

What did the court decide?

Writ petition was dismissed upholding the orders of the Trial Court and the District Court.

Kashinath Barku Bhagat Since Decd. Thr Legal Heirs Vs… — Property and Title | Bombay HC (2024)

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KVM

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18 - WP 13518 OF 2023.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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KANCHAN Digitally signed byKANCHAN VINOD VINOD MAYEKAR MAYEKAR Date: 2024.03.0511:05:56 +0530

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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13518 OF 2023

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Kashinath Barku Bhagat
Since Decd. Thr Legal Heirs
VERSUS
Sadashiv Tukaram Patange
Since Decd. Thr Legal Heirs

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….. Petitioners

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….. Respondents

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Mr. Rohit D. Joshi for the Petitioners.

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CORAM: RAJESH S. PATIL, J.
 DATE : 28 FEBRUARY, 2024

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P.C. :-

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This writ petition challenges the order passed by the

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District Court on the application (Ex.10) in Regular Civil Appeal
No. 266 of 2019.

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2.The petitioners had filed eviction suit on the ground of

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‘non-user’ and ‘default’. The said suit of the petitioners was
dismissed by the impugned judgment and decree dated 30
September, 2014.

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3. Being dissatisfied by the judgment and decree passed by

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the Trial Court, the petitioners (original plaintiffs) preferred an

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18 - WP 13518 OF 2023.doc

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appeal before the District Court, Panvel. In the said appeal, an
application was preferred by the petitioners for appointment of
the Court Commissioner in order to bring the actual status of the
suit property on record.

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4. The District Court has noted that before the Trial Court, the

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plaintiff had examined the witnesses and also himself to prove
the ground of non-user. So also, certain documents were
produced. The defendants have examined witnesses. After
considering the evidence on record, the Trial Court dismissed the
suit.

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5. The District Court further observed that the plaintiffs could

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have moved an application under Order 41 Rule 27 of the Code
of Civil Procedure. The District Court also recorded that the
plaintiff could have applied before the Trial Court when the suit
was pending for appointment of the Court Commissioner for
bringing the actual status on record but the same was not done.

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18 - WP 13518 OF 2023.doc

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In such a situation, the application preferred by the petitioner
was rejected by the District Court.

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6.The petitioner (original plaintiff) in order to prove his
ground of eviction of non-user was free to bring on record the
relevant evidence. It is the case of the petitioner/original
plaintiff that the said record was brought on record. However,
the Trial Court without considering the evidence on record, has
dismissed the suit.

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7.As the Trial Court, decree is under challenge, before the
District Court the plaintiff had an opportunity to take such steps
in law to prove his ground of ‘non-user’, the Appellate Court
being the last fact finding court.

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8. I find there is no perversity in the order passed by the

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District Court. Writ petition is dismissed.

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[RAJESH S. PATIL, J.]

Kashinath Barku Bhagat Since Decd. Thr Legal Heirs v. Sadashiv Tukaram Patange Since Decd. Thr Legal Heirs

Case brief

What is this about?

What did the court decide?

Kashinath Barku Bhagat Since Decd. Thr Legal Heirs v. Sadashiv Tukaram Patange Since Decd. Thr Legal Heirs

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

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