1 wp941.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 941 OF 2011 Janabai W/o Kachru Khandale ..PETITIONER -VERSUS- Eknath S/o Shankar Wahul and others ..RESPONDENTS ..... Mr. A.N. Nagargoje, Advocate for petitioner. Mr. S.R. Deshpande, Advocate for respondent nos.1 and 2. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 13TH APRIL, 2011. PER COURT : 1. Heard Advocates Mr. Nagargoje for petitioner-defendant and Mr. Deshpande for respondent nos.1 and 2-original plaintiffs. Trial Court has granted temporary injunction to the respondent nos. 1 and 2 and appellate Court has maintained it. Thus, possession of the respondents-plaintiffs is protected by both the Courts. 2. However, according to Advocate Mr. Nagargoje consideration by appellate Court is perverse. To demonstrate the same, he has invited attention to discussion in paragraph no. 17, 18 and 19 by the appellate Court. He points out that the document of panchanama dated 23.11.2009 does not refer to possession of respondents-plaintiffs but it mentions possession of petitioner- 2 wp941.11 defendant. He further states that appreciation of documents is under mistaken impression that vendor of present petitioner (appellant before District Court) was none else but her husband. 3. Advocate Mr. Deshpande in reply has invited attention to consideration by appellate court upto paragraph no. 16. He points out that adjudication in R.C.S No. 112/2008 has been looked into and appellate Court has found that possession of present respondents is established. Thereafter, consideration in paragraph no.17 onwards is independent consideration and according to learned Counsel was not really necessary for adjudication of the controversy. He therefore states that filing of R.C.S. No. 331/2008 or its dismissal in default on 01.04.2009 is not very relevant. He points out that substantive suit was already decreed in favour of the present respondents on 30.03.2009 and hence on next date, R.C.S. No. 331/2008 was allowed to be dismissed in default. 4. The judgment of appellate Court, no doubt records in paragraph no. 16 a finding based upon previous litigation i.e. R.C.S. no. 112/2008, it then also notices contention that those findings have still not attained finality as appeal against the same is pending. Obviously, therefore an attempt has been made to independently examine the claim of present respondents. Having 3 wp941.11 undertaken such independent consideration, errors therein can not be ignored. The finding of vendor of petitioner was none else but her husband is incorrect. Perusal of document dated 23.11.2009 shows that it does not support possession of the respondents. 5. It is therefore obvious that while undertaking exercise of independent examination, the appellate Court has recorded certain incorrect findings. 6. In view of these findings, it is apparent that the said independent examination by it can not be sustained. In absence of independent examination, it is also clear that part of its earlier judgment can not be sustained. 7. The judgment dated 10.01.2011, therefore is quashed and set aside. The proceedings in Misc. Appeal No. 259 of 2009 are restored to the file of District Judge-3, Aurangabad for fresh hearing in accordance with law at the earliest. The parties are directed to appear before the District Judge-3, Aurangabad on 29th April, 2011 and abide by further instructions in the matter. The appellate Court shall attempt to decide the said appeal afresh by 15th July, 2011. Petition is allowed accordingly. No costs. 4 wp941.11 8. Needless to mention that the observations made by this Court are prima facie in nature and only for the purposes of deciding the controversy presented before it and shall not influence appellate Court while arriving at its own conclusion. (B.P. DHARMADHIKARI) JUDGE gas/wp941.11