1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7013 OF 2009 1. Rangnath Jayaji Jarare, Age 41 yrs., Occu. Agriculture, 2. Tulsabai Jayaji Jarare, Age 80 yrs., Occu. Agriculture, Nos. 1 & 2 resident of Hatti, Tq. Sillod, Dist. Aurangabad. 3. Shevantabai Bhika Shinde, Age 60 yrs., Occu. Agriculture, R/o. Andharwadi,Post Kalegaon, Tq. Sillod, Dist. Aurangabad. 4. Janabai Devrao Kannar, Age 57 yrs., Occu. Household, R/o. Ghatnandra, Post Dudha, Tq. & Dist. Buldhana. 5. Janakabai w/o. Fakirrao Narote, Age 50 yrs., Occu. Agriculture, R/o. Devpur, Post Dudha, Tq. & Dist. Buldhana. 6. Ambadas s/o Jayaji Jarare, Age 46 yrs., Occu. Agriculture, R/o. Plot No. 41, Jawahar Colony, Aurangabad. 7. Kashinath s/o. Jayaji Jarare, Age 39 yrs., Occu. Agriculture, 8. Anitabai w/o Rangnath Jarare, Age 35 yrs., Occu. Agriculture, 9. Sitaram s/o. Jayaji Jarare, Age 50 yrs., Occu. Agriculture, 10. Bhagwan s/o. Sitaram Jarare, Age 25 yrs., Occu. Agriculture, 2 Petitioner Nos. 7 to 10 All R/o. Hatti, Tq. Sillod, Dist. Aurangabad. ....Petitioners. Versus 1. Namdev s/o. Bala Jarare, Age 65 yrs., Occu. Agriculture, 2. Tukaram s/o. Bala Jarare, Age 43 yrs., Occu. Agriculture, 3. Sakharam s/o. Bala Jarare, Age 63 yrs., Occu. Agriculture, All resident of Hatti, Tq. Sillod, Dist. Aurangabad. ....Respondents. Shri. D.P. Palodkar, Advocate for petitioners. Shri. U.N. Shete, Advocate for respondent Nos. 1 to 3. CORAM : R.K. DESHPANDE, J. DATE : 17th June 2010. ORAL JUDGMENT : 1. This writ petition challenges the order dated 30.6.2009 passed by the learned District Judge-1, Aurangabad, allowing the Misc. Civil Appeal No. 170/2008 filed by the defendants, respondents herein, challenging the common order passed below Exh. 5 by the learned 2nd Joint Civil Judge, Junior Division, Sillod on 26.9.2008 in Regular Civil Suit No. 177/2006 and Regular Civil Suit No. 178/2006. The injunction granted by 3 the Trial Court in favour of respondents herein who are plaintiffs in Regular Civil Suit No. 178/2006 has been allowed and the application for injunction filed by the petitioners in Regular Civil Suit No. 177/2006 has been rejected and the petitioners/plaintiffs in Regular Civil Suit No. 177/2006 are restrained from disturbing the possession of the respondents herein pending the disposal of the suit. 2. Notice was issued in this matter on 12.11.2009. Shri. Shete, the learned counsel appears for respondent Nos. 1 to 3. The learned counsel for the parties agree that this matter can be finally disposed of at the stage of admission. Hence, Rule, made returnable forthwith. The learned counsel for respondent Nos. 1 to 3 waives service of notice. The matter is heard finally by consent of parties. 3. The dispute relates to Gat No. 124 admeasuring 31 guntas, having old Survey No. 115/3 situated at Hatti, Tal. Sillod, Dist. Aurangabad. Regular Civil Suit No. 177/2006 has been filed by the petitioners herein whereas Regular Civil Suit No. 178/2006 has been filed by the respondents herein. Both the suits claim a decree for permanent injunction restraining the defendants therein from interfering with the possession of the plaintiffs. In both the suits application Exh. 5 was filed by the concerned plaintiffs. The learned 2nd Joint Civil Judge, Junior Division, Sillod by its common order dated 26.9.2008 passed below Exh. 5 in both the civil suits allowed the application for temporary injunction 4 Exh. 5 filed in Regular Civil Suit No. 177/2006 by the present petitioners and rejected the application filed for temporary injunction in Regular Civil Suit No. 178/2006 by the respondents. 4. The respondents herein preferred Misc. Civil Appeal No. 170/2008 challenging the aforesaid common order passed by the Trial Court on 26.9.2008. The said Misc. Civil Appeal No. 170/2008 has been allowed by the learned District Judge -1, Aurangabad. The common order passed below Exh. 5 by the Trial Court in both the Civil suits is quashed and set aside. The application, Exh. 5, filed in Regular Civil Suit No. 177/2006 is rejected and the application, Exh. 5, filed in Regular Civil Suit No. 178/2008 has been allowed. The petitioners are restrained from causing interference and obstruction in the peaceful possession of the respondents over the suit land till the disposal of the suit. Hence, this writ petition is preferred by the plaintiffs in Regular Civil Suit No. 177/2006. 5. After hearing the learned counsel for the parties, it is found that the Appellate Court has failed to record its findings on crucial aspects. The Trial Court in para 15 of its judgment has recorded that as per the compromise decree passed in Regular Civil Suit No. 43/1959, land Survey No. 115/2 is given to Balu Chinkuba, the father of the defendant. The learned District Judge in his order impugned has also held that pursuant to the compromise deecree Bala Chinkuba was put in possession of 5 Survey No. 115/2. The learned counsel for the respondents submits that it was actually survey No. 115/3 which was converted to Gat No. 124 after consolidation and dispute is with regard to Survey No. 115/3 and it was this survey number which was allotted to Balu Chinkuba, the father of the defendant in terms of compromise decree passed in Regular Civil Suit No. 43/1959. In the background of this contention, the Appellate Court has observed that once it is found that Balu Chinkuba was put in possession of land Survey No. 115/3 by virtue of compromise decree then there must be some evidence on record, which would show that Balu Chinkuba or his successors were dispossessed by the respondents at any point of time. Hence, the finding on the aspect, whether Balu Chinkuba was allotted survey No. 115/2 or 115/3 in terms of compromise decree is material. In the absence of this important finding, the judgment of the Appellate Court stands vitiated for non application of mind. Hence, the matter is required to be remitted to the Appellate Court for decision afresh. 6. The learned counsel for the petitioners has urged that the Appellate Court ought to have upheld the preliminary objection taken about maintainability of the appeal. Misc. Civil Appeal No. 170/2008 challenges the common order passed below Exh. 5 in both the civil suits and hence, the findings recorded by the Appellate Court that the technicalities would not prevail and the same can be cured subsequently, cannot be faulted with. 6 7. In the result, the instant writ petition succeeds. The order dated 30.6.2009 passed by the learned District Judge -1, Aurangabad in Misc. Civil Appeal No. 170/2008 is hereby quashed and set aside. The matter is remitted back to the Appellate Court for decision afresh after hearing the parties concerned. The appeal be decided within a period of two months from today. No order as to costs. Needless to say, all other points which are raised are kept open. [ R.K. DESHPANDE, J. ] ssc/wp7013.09