1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5007 OF 2009 Nagabai w/o Manikrao Patil, age 82 yrs, Occ. Agril and household, R/o Bellur, (BK), Tq. Dharmabad, Dist. Nanded and also at Narangal, Tq. Degloor, Dist. Nanded. Through her General Power of Attorney, Hanmantrao s/o Sambhajirao Patil, age 72 years, Occ. Agril, R/o Narangal, (BK), Tq. Degloor, Dist. Nanded. PETITIONER. (Orig. Plaintiff.) V E R S U S 1. Gangabai w/o Manikrao Patil, age 71 years, Occ. Household, R/o Bellur, Tq. Dharmabad, Dist. Nanded. 2- Hanmantrao s/o Manikrao Patil, age 47 years, Occ. Agril, R/o Bellur (BK), Tq. Dharmanabad, Dist. Nanded. 3- Sagarbai w/o Hanmantrao Patil, age 42 years, Occ. Household, R/o Bellur (BK), Tq. Dharmanabad, Dist. Nanded. 4- Hanmabai w/o Ramchandra Patil, age 45 years, Occ. Household, R/o Bellur (BK), Tq. Dharmanabad, Dist. Nanded. 5- Ramchandra s/o Iranna Patil, age 57 years, Occ. Agril, R/o Bellur (BK), Tq. Dharmanabad, Dist. Nanded. 6- The State of Maharashtra, through The Collector, Nanded. 2 7- The Tahsildar, Dharmabad, Dist. Nanded. RESPONDENTS. (Orig. defendants) Shri A.G.Godhamgaonkar, Advocate for the petitioner. Shri U.S.Bilolikar, Advocate for the respondent 2 to 5. R-1, 6 to 7 served. CORAM : S. B. DESHMUKH, J. DATE : 1ST FEBRUARY, 2010. PER COURT :- 1. Heard counsel for the parties. 2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3. Present petitioner is plaintiff who has filed R.C.S.No.68/2002 in the Court of Civil Judge (S.D.) Biloli, Dist. Nanded for perpetual injunction. This suit has been followed by application for temporary injunction filed by the petitioner/plaintiff. Trial court after hearing the parties, allowed application for temporary injunction partly. This order is passed on 18.08.2005. Defendant Nos. 1 to 5 are temporarily restrained from causing any sort of obstruction or interference in the peaceful possession of the plaintiff. This order passed by the trial court below Exh.7 in the suit dated 18.08.2005, was further challenged by defendants No.1 to 4 by Misc. Civil Appeal. It was Misc. Civil appeal No.17/2005, filed in the court of learned District Judge -1 at Biloli. First appellate court allowed the appeal and the order passed by the trial court in RCS No.68/2002 was set aside. This order is impugned in this writ petition. 4. This petition was taken before this court on 07.08.2009. Notices were before admission were issued. In the meanwhile, operation and implement ion of the order passed by the District Judge-1, Biloli, in Misc. Civil Appeal No.17/2005 was stayed. 3 5. Counsel for the respondent/defendants admits that ad-interim relief was granted and is in existence. On behalf of respondents No.2 to 5 affidavit is filed on record. 6. Counsel for the petitioner/plaintiff points out few of the errors made by the first appellate court in paragraph No.18 of the judgment. It appears that there was a conflict in the mind of the first appellate court while deciding appeal. 7. Both counsel agree that this order can be quashed and set aside with direction to decide the said appeal on merits after hearing both parties. Ad-interim relief granted by this court needs to be continued. 8. In this view of the matter, order impugned in this writ petition passed by the First Appellate Court in Misc. Civil Appeal No.17/2005 dated 21.03.2009 is quashed and set aside. Matter is remitted back to the First Appellate Court. Misc. Civil Appeal is restored on the file of First Appellate Court. First Appellate Court shall hear the appeal and decide it afresh. 9. Parties are permitted to appear before the First Appellate Court on 8 th of March, 2010. First appellate Court shall decide the appeal afresh on or before 30th of April, 2010, after hearing both the parties. It is made clear that this Court did not enter into merits of the matter. Ad-interim relief granted earlier by this Court stands continued till 30.04.2010. Needless to mention that temporary injunction granted by the trial court by order dated 18.08.2005 stands restored and continued till then alone. Rule is made absolute in above terms. No order as to costs. ( S. B. DESHMUKH ) JUDGE. ..... aaa/5007.09