1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.920 OF 2003 WITH CIVIL APPLICATION NO.1068 OF 2003 WITH CONTEMPT PETITION NO.50 OF 2010 Laxmibai J. Patange & Ors. ...Appellants. v. Shri Vasantrao B. Garad & Ors. ...Respondents. Mr. Ashok B. Tajane, adv. For the Appellants. Mr.M.R.Deshpande, adv. For the Respondent Nos.1 and 4 to 9. Shri S.V.Dhakephalkar i/by P.K.Dhakephalkar, advs. for the Respondent No.17. CORAM : J.H. BHATIA, J. DATED : MARCH 17, 2010 P.C. 1 Heard the learned counsel for the Parties. Plaintiffs, who are some of the respondents before this Court had filed Regular Civil Suit No.112 of 1980 for declaration of their title and restraining the defendants from causing interference in their possession. Trial Court partly decreed the suit in respect of city survey no.1923 and restrained the respondent nos.1 to 13 from dispossessing plaintiff no.2 from suit property without following the due procedure of law. Remaining claim was dismissed. Plaintiffs preferred Civil Appeal No.445/97. The 2 Appellate Court passed the judgment and order dated 13.3.2003 and set aside the judgment and decree passed by the trial Court and remanded the matter to the trial Court with the direction to appoint Court Commissioner and to get the land of the plaintiffs as well as the defendants admeasured and demarcated. That order is challenged by some of the defendants in the present appeal. 2 After perusal of the impugned order, it appears that plaintiff claimed that title on the basis of a sale deed dated 4.2.1948 under which four gunthas land was purchased. The defendants also did not challenge title of the plaintiffs of four gunthas land on the basis of that sale deed. Plaintiffs admitted that they were in possession of the four gunthas land but claimed injunction in respect of 8 gunthas land. That had created the complications and mess. Before the first Appellate Court, an application was made on behalf of the plaintiffs to make amendment in the plaint. First Appellate Court found that main dispute was about the location of four gunthas land purchased by the plaintiffs under sale deed of 1948 and that could be resolved if the land of the plaintiffs and defendants was measured and demarcated by appointing Commissioner. The First Appellate Court also observed that application for amendment of the plaint limiting the claim to the four gunthas land only could be moved 3 before the trial Court. Taking into consideration the circumstances, I do not find any fault with the approach of the First Appellate Court. It may be noted that the learned counsel for the appellants, who are some of the defendants made a statement before this Court today that the defendants will have no objection to demarcate four gunthas of land belonging to the plaintiffs on the basis of sale deed of 1948. For the purpose of demarcation and fixing the boundaries of the land belonging to the plaintiffs, it will be necessary to appoint commissioner and, therefore, I do not see any reason to interfere in the order passed by the First Appellate Court. It is pointed out by the learned counsel for the appellants that in spite of the status-quo order passed by this Court, the plaintiffs have erected some fencing and thus, committed contempt. For that purpose contempt petition has been separately filed. He makes a request that said fencing should not be taken into consideration for the purpose of fixing of boundaries and demarcation of land. It is hereby made clear that existence of the fencing allegedly erected pending the appeal before this Court will not be taken into consideration by the Commissioner and he shall, independently of the said fencing, fix the boundaries and demarcation the land. 4 For the aforesaid reasons, appeal stands dismissed. 4 5 As the appeal itself is disposed off, civil application does not survive and stands disposed off accordingly. 6 As the appeal itself is disposed off today, the learned counsel for the contempt petitioner does not press the petition. Therefore, it stands disposed off as not pressed. (J.H. BHATIA,J.)