1 sa481-482 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION SECOND APPEAL NO.481 OF 2011 and SECOND APPEAL NO.482 OF 2011 Rahimtulla Lal Mohammad Bagwan and others ...Appellants (IN BOTH THE APPEALS) vs. Sikandar Allabaksha Bagwan ...Respondent (IN BOTH THE APPEALS) Mr.P.D.Dalvi for the appellants in both Appeals. Mr.Surel Shah for the respondent no.1 in both Appeals. -- CORAM : A.S.OKA,J. DATE : NOVEMBER 23, 2011 P.C.: 1 Heard the learned counsel for the appellants and the learned counsel for the respondent. Second Appeal no.481 of 2011 arises out of the R.C.S. No. 887 of 1985 filed by the respondent for possession of the suit property which is a part of C.T.S.No. 1904, D Ward, Kolhapur. The suit was decreed by the Trial Court. An Appeal preferred by the appellants has been dismissed. 2 Following substantial question of law arises for my consideration in Second Appeal No.481 of 2011. i) Whether the Appellate Court has committed an error by not considering the basic issue regarding exclusive title claimed by the respondent in respect of property bearing 2 sa481-482 C.T.S.No.1904 which was disputed by the appellants? 3 Second Appeal no.482 of 2011 arises out of the R.C.S.No.1656 of 2000 preferred by the respondent. In this suit, declaration of ownership was claimed by the respondent in respect of the property bearing C.T.S.Nos.1904 and 1906. The Trial Court partly decreed the suit and granted declaration that the respondent was the exclusive owner of the property bearing C.T.S.no.1904. However, as regards C.T.S.No.1906, the respondent was declared as owner only to the extent of share of Lalabhai Bagwan. Injunction was granted in respect of the property bearing C.T.S.No.1904. 4 The respondent preferred Civil Appeal no.35 of 2006 for challenging the decree in respect of in R.C.S. No.1656 of 2000 and the present appellants preferred Civil Appeal no.9 of 2006 for challenging the decree passed by the Trial Court in R.C.S. No. 887 of 1985. Thus, as far as the appeal preferred by the appellants is concerned, the challenge was to the decree passed by the Trial Court holding that the respondent was the exclusive owner of the C.T.S.No.1904. 5 The substantial question of law which arises for my consideration in Second Appeal No.482 of 2011 reads thus : i) Whether the Judgment of the Appellate Court shows non application of mind in as much as 3 sa481-482 there is no point for determination framed as regards the title in respect of C.T.S.No.1904 ? 6 The learned counsel for the respondent on instruction of the respondent states that instead of keeping the Second Appeals pending in this Court, considering the substantial questions of law framed, the Appeals be remanded to the District Court for fresh decision. The suggestion made by the learned counsel for the respondent deserves to be accepted. 7 Hence, I pass the following order : SECOND APPEAL NO.481 OF 2011 i) The impugned Judgment and decree passed by the District Court in Regular Civil Appeal no.5 of 2006 is quashed and set aside and the Appeal is restored to the file of the District Court. ii)Parties are directed to appear before the learned Principal District Judge on 19th December 2011 for fixing the schedule of hearing. iii)The learned District Judge shall endeavour to dispose of the Appeal on or before the 31st March 2012. iv)All contentions of the parties on merits are expressly kept open. 4 sa481-482 v) Civil application no.1168 of 2011 does not survive and the same is disposed of. SECOND APPEAL NO.482 OF 2011 i)The impugned Judgment and Decree passed the District Court in Regular Civil Appeal no.9 of 2006 is quashed and set aside and the Regular Civil Appeal no.5 of 2006 is restored to the file of the District Court. ii) It is made clear that the decree passed in Regular Civil Appeal no.35 of 2006 is not disturbed and the impugned Judgment and decree is set aside only in so far as Regular Civil Appeal no.9 of 2006 is concerned. iii) Parties are directed to appear before the learned District Judge on 19th December 2011 for fixing the schedule of hearing. The learned District Judge shall endeavour to dispose of the Appeal preferably prior to 31st March 2012. iv) Regular Civil Appeal nos.9 of 2006 and 5 of 2006 shall be heard together and disposed of by a common Judgment. v) All contentions of the parties on merits of the appeal are kept open. 5 sa481-482 vi)Civil application no.1169 of 2011 stands disposed of. JUDGE