1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL 54 OF 2006 1. Kisan Namdeo Gangawane, Aged about 67 yrs., Occ.. Agrilst. 2. Natthu Nimbaji Gangawane, Aged about 45 yrs., Occ. Agrilst. Both r/o. Depul, Tq. and Distt. Washim. ............ APPELLANT ...VERSUS... 1. Madhao Sakharam Gangawane, Aged 60 yrs., 2. Gulab @ Ramchandra Sakharam Gangawane, aged about 58 yrs., Resp. No. 1 and 2 r/o. Depul, Tq. and Dist. Washim. 3. Janabai through its L.Rs. : i. Manik Ananda Gangawane, Aged 40 yrs., Occ. Agrilst, r/o. Depul, Tq. and Distt. Washim. ii. Vasanta Ananda Gangawane, Aged about 35 yrs., Occ. Agrilst, r/o. Depul, Tq. and Distt. Washim. 2 iii. Sayabai wd/o. Ananda Ghuge, Aged 45 yrs., Occ. Household/ Agrilst, r/o. Yaranda, Tq.Mahegaon Distt. Washim. iv. Sau. Yamuna w/o. Kundlik Musale, Aged about 38 yrs, Occ. Household/ Agrilst, r/o. Ghota, Tq. and Distt. Washim. v. Sau. Kamal w/o. Fakira Bangar, aged about 36 yrs., Occ. Household/ Agrilst, r/o. Vasant Vihar Restaurant, Near Shivaji Chowk, Tq. and Distt. Washim. vi. Panchfula w/o. Akosh Bangar, aged about 32 yrs.,, Occ. Household/ Agrilst, r/o. Lahi, Tq. Magrulpir, Dist. Washim. vii.Sau. Nanda w/o. Shivaji Guthe, Aged about 30 yrs., Occ. Household/ Agrilst, r/o. Salegaon, Tq.Kalamnuri, Dist. Hingoli. viii.Sau. Manda @ Vandana Vishwambhar Ghuge, aged about 28 yrs., Occ. Household, Agrilst, r/o. Rajankhed, Tq. Barshitakli, Distt. Akola. 4. Sarangdhar Umrao Gangawane, Aged 37 yrs., Occ. Agrilst, r/o. Depul, Tq. and Dist. Washim. ........... RESPONDENTS 3 -------------------------------------------------------------------------------------------------- Mr. S. S. Deshpande, Adv. for the appellants. Mr. A.S.Mardikar, Adv. for the Respondent Nos. 1, 2, 3 (ii) and 3 (viii). -------------------------------------------------------------------------------------------------- CORAM: R. K. DESHPANDE, J. DATE : February 22, 2010. ORAL JUDGMENT 1. Heard Mr. S. S. Deshpande, Adv. for the appelants and Mr.A.S.Mardikar, Adv. for respondent nos. 1, 2, 3 (ii) and 3 (viii). None for other respondents. 2. On 9.12.1997, this Court passed an order as under : “1. At the hearing, this Court finds that the first Appellate Court has formulated a point for determination in para 7 of the Judgment which reads as follows and answered in the negative. “Whether the disputed site is owned by the respondents- plaintiffs and being used by them as passage ? 2. In the body of the judgment in para 11, this Court finds that there is no discussion about this aspect of ownership. This Court is, therefore, of the view that appeal could be admitted on the following substantial question of law. 4 “Is the judgment of the Appellate Court is liable to be interfered on account of its failure to discuss the question/point for determination formulated by it ?” 3. This Court proposes to finally dispose of the appeal at the stage of admission hearing itself. 4. Notice be issued calling upon the respondents to show cause as to why appeal should not be heard on the above referred question of law and disposed of finally, and should not be remanded for fresh hearing and disposal according to law. 5. Notice made returnable after six weeks if Bhatta is paid within one week. 6. Office to see that notice is dispatched allowing sufficient time for transit and leaving adequate time to process server. 7. Process server shall see that process is served at least two weeks before due date. 8. Stand over for six weeks. “ 3. In response to the notice issued by this Court, Mr.A.S.Mardikar, Adv. appears for respondent nos. 1 to 3. This Court, after hearing the parties, passed an order on 4th December, 2009 as under : “Heard. It appears that by an order dated 9.2.2007, the substantial question of law is formulated as follows :- “Is the judgment of the Appellate Court is liable to be interfered on account of its failure to discuss the question/point for determination formulated by it ?” 5 Since the Appeal itself can be disposed of finally at the stage of admission by hearing the respective parties, call R. and P. Parties to note that the appeal itself would be disposed of finally at the stage of admission after receipt of R. & P. List accordingly. “ 4. Although all the parties are served with the notice of substantial question of law, none appears for respondent nos.3(i), (iii), (iv) to (vii) and 4. By consent of the parties, the matter is heard and is being finally decided. 5. The Appellate Court has framed the points for determination. One of the points for determination was as under : “Whether the disputed site is owned by the respondents/plaintiffs and used by them as a passage ?” 6. I have gone through the judgment of Appellate Court and I do not find any finding recorded in respect of ownership of property. The respondents were called upon to point out the finding, if any, recorded by the Appellate Court in respect of ownership of the property. However, the learned Counsel could 6 not point out any finding as to ownership of the property recorded by the Appellate Court. In view of this, the judgment of Appellate Court is vitiated for failure to record finding on material issue. 7. In the result, this appeal succeeds. The Judgment and order dt. 14.9.2005 passed by the learned 4th Ad-hoc Additional District Judge, Washim in Regular Civil Appeal No.17 of 1998 is quashed and set aside. The matter is remanded back to the Appellate Court for deciding the matter afresh in accordance with law within a period of three months from the date of receipt of Writ from this Court. The record and proceedings be sent to the Appellate Court immediately. No order as to costs. JUDGE jais