1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1971 OF 2007 AND CIVIL APPLICATION NO. 11443 OF 2008 IN W.P. 1971 OF 2007 Madhav Sheshadri Kulkarni Age : Major, Occ : Govt. Service, R/o House No.3-3-65, Kutbiguda, Hyderabad. ..Petitioner V/s 1. Market Committee Kallam, Tq.Kallam, through its Administrator-Shri.Madhukar Ramchandra Kulkarni, Age: Major, Occ : Service, R/o Kallam, Tq.Kallam, Dist.Osmanabad. 2. The State of Maharashtra, Through the Collector, Osmanabad. 3. The Chairman, Zilla Marketing Society, Osmanabad, office at Latur. 4. Ramchandra Sheshadri Kulkarni, since died, through his L.Rs. : 4-i) Seetabai Ramchandra Kulkarni Aged : Major, Occ : Household, R/o Kutbiguda, House No.3-3-1966, Hyderabad (Andhra Pradesh). (Dismissed as per Court's order dated 23.12.1994) 4-ii) Mukund Ramchandra Kulkarni Aged : major, Occ : Govt. Service Clerk in P.N.T. Deptt. R/o as above. 2 5. Keshav Sheshadri Kulkarni (Deceased) as per L.Rs. 5-i) Smt.Sudha Keshavrao Kulkarni Age : 60 years, Occ : Household, 5-ii) Sanjay Keshavrao Kulkarni Age : 37 years, Occ : Service, 5-iii) Anjali D/o Keshavrao Kulkarni Age : 31 years, Occ : Household, Resp.Nos.5-i to 5-iii are R/o H.No.3-3-965, Qutubiguda, Hyderabad-27. 6. Hanmant Bhujangrao Kulkarni Age : Major, Occ : Agril., R/o Kallam, Tq.Kallam, District Osmanabad. 7. Nandkumar Bhujangrao Kulkarni, Age : Major, Occ : and R/o as above. 8. Anil Kishanrao Kulkarni Age : Major, Occ : Student, R/o House No.3-3-965, Kutbigud, Hyderabad (Andhra Pradhesh State). ..Respondents ......... Mr. M.M. Patil (Beedkar), advocate for the petitioner. Mr.D.R. Korade, A.G.P. for respondent no.2. Mr.S.P. Katneshwarkar, advocate for respondent nos.4(I) to 8. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 30th June, 2010. ORAL JUDGMENT : 1. Heard. 2. Challenge in this petition is to the order dated 29th November, 1993 passed by the learned Joint Civil Judge (S.D.), 3 Osmanabad in Regular Darkhast No.67/1980. By that order, the learned Civil Judge directed appointment of D.I.L.R. as a Court Commissioner for measurement of land survey no.107 in order to ascertain the portions of the land in question, which have been acquired and which are under Barshi-Parali road as well as Dhoki- Kallam road etc. 3. The petitioner is the original owner of land survey no. 107, admeasuring 11 acres 17 gunthas, situated at Kallam. Admittedly, out of the said land, 1 acres 6 gunthas land was acquired for the purpose of construction of Kallam-Dhoki road by the Government. There is also no dispute about the fact that 8 acres 18 gunthas land was acquired for establishment of Agricultural Produce Market Committee (A.P.M.C.) which was then Zilla Marketing Society, Osmanabad. Thus total area of 9 Acres 25 Guntha was carved out and acquired for the above said purposes. The petitioner filed a suit (R.C.S. No.77/1967) for recovery of possession in respect of excess 1 Acres 32 Gunthas land of eastern side, which was not subject matter of acquisition yet was taken over from his possession. The suit was decreed. The appeal preferred by the State Government was partly allowed. The Appellate Court, while deciding the Civil Appeal No.149/1971, held that, the excess land was in possession of the Market Committee alone. The Government was not concerned with the said excess 4 land. Therefore, the first appellate Court directed that the excess area of 1 Acres 32 Guntha shall be recovered from the market committee and not from the Government. 4. The petitioner filed Regular Darkhast No.67/1980 for execution of the said decree. The Executing Court directed appointment of a Court Commissioner in order to specify the excess area of 1 Acres 32 Gunthas from eastern side after carrying out the measurement. The Court Commissioner carried out the measurement and prepared a map. The Market Committee was dissatisfied with the directions of the Executing Court. The Market Committee therefore, preferred Civil Revision Application No. 265/1986, challenging the order dated 17.03.1986 passed by the learned Civil Judge (S.D.). The Civil Revision Application was dismissed. The Hon'ble Judge (Doud `J') held that the order passed by the Executing Court was correct and the map relied upon by the decree holder has been proved. The Hon'ble Judge further observed that appointment of another measurer was not called for. After passage of some period, again the learned Civil Judge passed the impugned order on the Darkhast application and directed appointment of D.I.L.R. for measurement of land in presence of the parties. He gave direction to find out whether, Barshi-Parali road passes through land survey no.107 and if so, what area has been covered by the said road. He also directed the 5 D.I.L.R. to measure the area under Dhoki-Kallam road and then to specify the excess area, if any. 5. Heard learned counsel for the petitioner, proposed intervenor, respondent no.4 (ii) to 8 and the learned A.G.P. None appears for respondent no.1-Market Committee. 6. What transpires from the record is that the exercise of measurement was already carried out. The Market Committee had challenged the order pertaining to the appointment of the Court Commissioner. This Court while rejecting Civil Revision Application No.265/1986, categorically opined that the order of Executing Court was correct and map relied upon by the decree holder has been duly proved. It was further held that appointment of another Court Commissioner was not necessary. It is pertinent to notice that it was nobody's case that Barshi-Parali road passes through survey no.107. It was for the first time that such contention was raised before the Executing Court. There was no tangible reason for the Executive Court to appoint D.I.L.R. in order to locate the area covered by Barshi-Parali road and the position of the said road in relation to survey no.107. The Executing Court can not go behind the decree. The Executing Court has no business to restart any inquiry giving rise to new issues, which were never agitated before the trial Court in the earlier proceedings. It is well settled 6 that the Executing Court must execute the decree without addition or subtraction. It is unfortunate that much time has been consumed in the present litigation, including time spent in this Court after filing of the present Writ Petition. Needless to say, the impugned order is quite arbitrary and uncalled for. 7. For the reasons afore-stated, it will have to be said that the impugned order is liable to be set aside. Hence, the Petition is allowed. The impugned order is set aside. Rule made absolute accordingly. No Costs. 8. The Executing Court is directed to expedite final disposal of the Regular Darkhast. The Executing Court shall immediately issue warrant for possession in favour of the petitioner. The darkhast shall be disposed of within period of four (4) months. 9. In view of the disposal of the Writ Petition, nothing survives in civil application no.11443/2008 and hence same stands disposed of accordingly. (V.R.KINGAONKAR) JUDGE gas/wp1971.07