Abdul Wahed Shaikh v. M/S Bhikamchand Jain And Company Through Managing Partner And Another

{1} WP 8615 OF 2018

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 913 WRIT PETITION NO.8615 OF 2018 .

Abdul Manna Wahed Shaikh Age: 46 years, Occu.: Business, R/o.Latur, Tq. & Dist.Latur.

..Petitioner (Orig. Appellant/Deft.No.1)

VERSUS

1.

M/s.Bhikamchand Jain and Company A registered Partnership Firm, Head Office at Jalgaon, Branch Office at Latur, Through its Managing Director, Shri Sureshkumar S/o Bhikamchand Jain Age: 74 years, Occu.: Business, R/o.Jalgaon, Tq. & Dist.Jalgaon.

2.

The Municipal Corporation Latur.

Through its Commissioner, Municipal Corporation, Latur, Tq. & Dist.Latur.

..Respondents (Resp. No.1 Orig.Respnt./Plaintif Resp.No.2/Respt.No.2/Deft.No.2) ...

Advocate for Petitioner : Shri Mahesh P. Kale Advocate for Respondent No.1 : Shri V.D. Gunale Advocate for Respondent No.2 : Shri R.P. Adgaonkar (absent) ...

CORAM : M.G.SEWLIKAR, J.

DATE: 11th August, 2021 ORAL JUDGMENT:- 1.

Rule. Rule made returnable forthwith.

{2} WP 8615 OF 2018 2.

Heard fnally at the stage of admission with the consent of the parties.

3.

Facts leading to this petition are that respondent No.1 herein fled R.C.S.No.385 of 2008 in the Court of Civil Judge (Junior Division), Latur for declaration of ownership over land Survey Nos.205-D and 205-F bearing Municipal No.96/1. This suit came to be decreed by the Judgment and decree of learned 5th Joint Civil Judge (Junior Division), Latur dated 1st July, 2014. Petitioner preferred R.C.A.No.129 of 2014 in the District Court, Latur.

4.

Petitioner fled application at Exhibit-23 in the record of the trial Court for the appointment of Court Commissioner i.e. D.I.L.R. or T.I.L.R. Latur for joint measurement of Survey Nos.205-F and 205-E and to show the location of the suit property. 5.

Respondent No.1 resisted this application by fling Say at Exhibit-27.

6.

After hearing both the parties, learned Ad-hoc District Judge-1, Latur dismissed this application holding that plaintif - respondent No.1 has fled suit for declaration of ownership and

{3} WP 8615 OF 2018 recovery of possession. He has further held that plaintif has not alleged that petitioner - defendant No.1 made any encroachment over land bearing Survey No.205-F, but the possession of the petitioner - defendant No.1 is unlawful. Learned Ad-hoc District Judge-1, Latur also held that this application is fled just to protract the fnal hearing of the appeal. With these observations, the learned Ad-hoc District Judge-1, Latur dismissed this application.

7.

Heard Shri M.P.Kale, learned counsel for the petitioner and Shri V.D.Gunale, learned counsel for respondent No.1. None present for respondent No.2.

8.

Shri Kale, learned counsel for the petitioner submitted that in the trial Court itself, he has disputed the identifcation of the property. He submits that his stall is located in survey No.205-E, which is the subject matter of the suit.

9.

When Shri Kale, learned counsel for the petitioner was asked to point out whether such averment was made in the written statement, he could not point out any such averment denying the identifcation of the suit property. He has denied vaguely that suit property is not correctly described. In this view

{4} WP 8615 OF 2018 of the matter, there is no propriety in the appointment of the Court Commissioner. Learned Ad-hoc District Judge-1, Latur has rightly dismissed the Application Exhibit-23 and has rightly observed that this application has been fled to delay the hearing of the appeal. In view of this, writ petition is dismissed. No costs. Rule is discharged.

10.

Observations made in this Judgment are made for the disposal of this petition only. The learned First Appellate Court shall not get infuenced by these observations and can come to its independent conclusion.

( M.G.SEWLIKAR ) JUDGE SPT