1 wp10197.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 10197 OF 2010 Onkar Somnath Modi, Age : 74 years, Occ : Agriculture, R/o Jaifal, Tq. Kallamb, Dist. Osmanabad. PETITIONER -VERSUS- 1. Uttareshwar S/o Onkar Modi, Age : 39 years, Occ : Agriculture, R/o Jaifal, Tq. Kallamb, Dist. Osmanabad. 2 Malikarjun S/o Shiva Modi, Age : 72 years, Occ : Agriculture, R/o Jaifal, Tq. Kallamb, Dist. Osmanabad. RESPONDENTS ..... Mr.V.D. Salunke, advocate for petitioner. Mr. D.J. Choudhari, Advocate for respondent no.1. Mr. S.S. Deogude, Advocate for respondent no.2. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 18th January, 2011. ORAL JUDGMENT : 1. Heard finally with consent of the parties. In a suit filed by the petitioner for perpetual injunction to protect his possession on survey no. 289 admeasuring area 1.13 Hectors, trial Court granted him injunction. That injunction has been set aside in Misc. Civil Appeal no. 40 of 2006 under Order 43 Rule 1(R) of Civil Procedure Code by the learned District Judge-4, Osmanabad on 02.09.2010. 2 wp10197.10 2. Advocate Shri Salunke for petitioner has invited my attention to limited scope available to the Appellate Court under Civil Procedure Code and has urged that the document of compromise to which the petitioner and respondent no.1 both are parties entered into in 2000 in earlier litigation expressly admitting the possession of the petitioner-plaintiff over the suit land has been relied upon by the trial Court to return a finding of possession in his favour. That finding has been upset by Appellate Court on irrelevant grounds. He has invited attention to the relevant discussion in this respect as contained in appellate judgment and also to the compromise recorded between the parties on 01.01.2000 in Regular Civil Suit No. 108 of 1999. 3. Advocate Mr. Chaudhary for respondent no.1 and Advocate Mr. Deogude for respondent no.2, both have supported the impugned order. According to them, the appellate Court has looked into the relevant material and for valid reasons upset findings of possession of the petitioner. They contend that compromise recorded considers the position prevailing in 2000 and that position has under gone change in view of the subsequent purchase of that property by respondent no.2 from respondent no. 1. It is their contention that the respondent no.2 was not party to 3 wp10197.10 alleged compromise and hence any statement made therein about the said possession is not binding on him and can not be treated as conclusive in so far as dispute between the parties inter-se concerned. 4. It is not in dispute that the respondent no.2 has obtained the sale deed of very same land from respondent no.2 on 28.05.2003. However, the said respondent no.1 is also party to the compromise recorded in Regular Civil Suit No. 108/1999. That compromise has been recorded on 01.01.2000 by the Joint Civil Judge, Junior Division, Kalam. In that compromise it has been expressly accepted that the southern portion of land survey no. 344 admeasuring 5 H 84 R and Gut No. 289 admeasuring 1 H 12 R has come to the share of the present petitioner and he was in its cultivating possession. It was also mentioned that after the death of one Kisan Bidve, the ownership also vested in petitioner-plaintiff. Correctness of these statements recorded in that compromise can not be gone into at this stage. It is only to be noted that the respondent no.1 is party to that compromise and he has not explained his act of putting signature thereto by taking any express plea either before trial Court or before appellate Court. Even before this Court, the said signature has not been explained any where. 4 wp10197.10 5. Only contention of the respondent no.1 is, the situation has undergone change and respondent no.2 was not party to that compromise. The dispute of possession is between the petitioner and the respondent no.2. The respondent no.1 has earlier accepted the fact of possession of the petitioner. When he obtained sale deed from the respondent no.1, he has to explain how in 2002, the respondent no.1 could put that land in his possession. That has not been done. 6. The application of mind by lower Court appears to be totally erroneous. It has not looked into the prima facie case and has attempted to find out the correctness of alleged entitlement of petitioner to such possession. The said status is still not finally adjudicated and dispute in relation thereto is still pending. 7. In this view of the matter, I am not in position to accept the judgment dated 2nd September, 2010 delivered in Misc. Civil Appeal No. 40/2006 by District Judge-4, Osmanabad. The said Judgment is accordingly quashed and set aside. The order passed below Exhibit 7 and 26 in Regular Civil Suit No. 97/2004 by trial Court is restored. 8. Considering the nature of dispute and the fact that the 5 wp10197.10 suit is of the year 2000, proceedings therein are expedited and the trial Court is directed to decide the said suit as early as possible and in any case, within a period of six months from the date of communication of this order on it. Rule made absolute accordingly. No costs. 9. In view of the disposal of the Writ Petition, nothing survives in Civil Application No. 16643 of 2010 and hence same is disposed of accordingly. (B.P. DHARMADHIKARI) JUDGE gas/wp10197.10