1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3529 OF 2009 1) Maruti s/o Ashruba Jadhav, R/o-Snehanagar, Beed, Tq. & Dist-Beed, 2) Mandabai w/o Maroti Jadhav, R/o-As above, 3) Sanjay s/o Maroti Jadhav, R/o-As above. ...PETITIONERS. VERSUS Shamrao s/o Dasurao Naikwade, R/O- S.T. Workshop, Barshi Road, Beed, Tq. & Dist-Beed. ...RESPONDENT. ... Shri. N.P.Bangar Advocate for Petitioners. Shri. G.K. Thigle Advocate for Respondent. ... CORAM: NARESH H. PATIL, J. DATE : 2ND JULY, 2010. PER COURT : 1. Heard learned counsel for the parties. 2 2. The Petitioners are original defendants. A suit was filed by the Respondent/plaintiff in the year 1983 for possession. The suit came to be decreed. Appeal filed by the present Petitioners came to be dismissed in the year 1999. In the meanwhile, execution proceedings being Regular Darkhast No.200 of 1988 was filed. The trial Court passed orders on execution proceedings. the decree was executed. The Petitioner raised objection that more portion than what was the subject matter of the suit, was taken over in possession by the Respondent/plaintiff during the course of execution. 3. The counsel for the Petitioners submits that no prior notice was given to the Petitioners before taking over the possession. J.C.B. machine was used while taking over the possession, which has caused monetary loss to the Petitioners. The counsel submits that the impugned order is erroneous. 3 4. The Respondent submits that after deciding the suit, after so many years ultimately the Respondent got fruits of the execution. There is ample evidence on record to show that the decree was executed in a legal and rightful manner. The allegations made by the Petitioner are denied. The counsel placed reliance on Panchanama, Commissioner's report, in support of his contentions. 5. I have considered the submissions advanced by the learned counsel for the parties. Perused the record placed before the Court. In Para 11 of the impugned order, the trial Court records that: "11) Upon hearing both the parties and perusing the evidence came on record, first of all it is necessary to see how much area is dismantled by the D.H. during the course of 4 execution of the decree. Though J.D. Maruti deposed that during the execution, the D.H. demolished the construction admeasuring 11 feet South-North X 23 feet East-West, but there is no corroboration to his evidence from the documentary evidence as well as from the Expert's evidence available on the record. On perusing Commissioner's report filed at Exh. No.74, it appears that during the execution an area admeasuring 8 feet 9 Inch towards South-North and 22 feet 3 Inch East-West is demolished. The map at Exh. No.97 also shows that the area of dismantle shown as A,B,C,D is 8.9 South-North and 22 feet is West. Therefore, in view of these documentary evidence the contention of J.D. can not be accepted. Because as per decree, the D.H. is entitle to receive possession of 10 feet South-North by 47 feet East- West area by demolishing the 5 encroached portion. But from the Expert's evidence it appears that D.H. and Bailiff is only demolished the area to the extent of 8.9' X 22 feet. Therefore, the dismantled area is less than the area shown in the decree." 6. In the facts of the case, in the light of the observations of the trial Court, no interference at this stage, in exercise of extra ordinary writ jurisdiction of this Court under Article 227 of the Constitution of India, is warranted. The Writ Petition is rejected. [NARESH H. PATIL, J.] asb/JULY10/wp3529.09