Bombay High CourtRA/2/2015rejected at admission stage

Sharad Gangaram Kotambe v. Vijay Digambar Kotambe Died Lrs Kusumbai And Others

2015-09-08Hon'Ble Shri Justice T.V. Nalawade2 pages

1 RA 2 of 2015

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD Review Application No. 2 of 2015 In Second Appeal No.125 of 2011 Sharad s/o Gangaram Kotambe.

.. Applicant.

Versus

Vijay s/o Digambar Kotambe since deceased through legal representatives.

.. Respondents.

-------- Shri. S.R. Andhale, Advocate, for applicant. Shri. Sanjay D. Ghayal, Advocate, for respondents. -------- CORAM: T.V. NALAWADE, J.

DATE : 8th SEPTEMBER 2015 ORDER:

1) The application is filed for review of the order made in Second Appeal Nos.124 and 125/2011. Both sides are heard.

2) Second Appeal No.125/2011 was filed by the present applicant. This court considered both the appeals. There was dispute regarding open space which was lying between constructions of the parties. This Court considered oral evidence and also documentary evidence. The appellant/applicant was relying on the record of

2 RA 2 of 2015 assessment and said record was considered. Burden was on the applicant to show that he was in actual possession. It was dispute over open space and this Court has observed that when open space is involved, only tethering of cattle in open space cannot make out a case of possession. On the basis of record and the oral evidence this Court has given the decision.

3) Learned counsel for the applicant placed reliance on a case reported as 2007 (1) Bom.C.R. 931 (Ramrao Chudaman Patil v. State of Maharashtra). In this case the reason behind the record of assessment is considered and the relevant rules made under the Bombay Village Panchayats Act are considered. There cannot be dispute over the propositions made in this case. Facts of the present case are altogether different. This Court held that the finding given by the appellate Court against the applicant cannot be disturbed as it was finding of fact an it was on the basis of material available. There is no possibility of interference in review application in view of scope of review. The application stands rejected. Sd/- rsl (T.V. NALAWADE, J. )