Writ petition 4590/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4590/2010 1 Kondiram s/o Kisan Nat, Age : 40 years, Occu. Agril. 2 Kiram s/o Kondiram Nat, Age : 22 years, Occu. Agril. 3 Kisan s/o Keru Nat, Age : 60 years, Occu. Agri. All R/o Pimpalgaon Wagha, Tq. Nagar, Dist. Ahmednagar. ....Petitioners. (Defendants) Versus 1 Sukhdeo s/o Laxman Urmude, Age : 51 years, Occu. Agri. 2 Shivaji Bhausaheb Warule, Age : 28 years, Occu. Agril. 3 Prasad Bhausaheb Warule, Age : 30 years, Occu. Agril., All R/o Pimpalgaon Wagha, Tal. Nagar, Dist. Ahmednagar. ...Respondents. (Plaintiffs.) Mr. N.V. Gavare, Advocate for the petitioners. Mr. S.T. Kazi, Advocate for respondent Nos. 2 & 3. Mr. A.S. Zarekar, Advocate for respondent No.1. CORAM : A.V. NIRGUDE, J. DATED : 11th April, 2011. ORAL JUDGMENT: 1. This writ petition is filed to challenge the judgment and order dated 20/04/2010 passed by the learned District Judge-3, Writ petition 4590/2010 2 Ahmednagar in Misc. Civil Appeal No. 122/2009 in which the petitioners were the appellants. The respondent No.1 had filed Civil Suit No. 196/2009 in the Court of 4th Joint Civil Judge, (Junior Division), Ahmednagar. This is a dispute about boundaries and location of lands of rival parties. 2. Land Gat No. 85 of village Pimpalgaon Wagha Tq. Ahmednagar admeasured 6 H. 73 R is divided in four portions which are marked as Gat No. 85/1, 85/2, 85/3 and 85/4. They represent four shares of the parties to this suit. Gat No. 85/4 admittedly belonged to the respondent No.1/ plaintiff. In order to show the location of his land vis- a-vis the other portion of the lands which are of the petitioners, he annexed a location sketch to the plaint. He alleged that the petitioner No.1/defendant No.1 was trying to disturb his possession by attempting to remove a boundary wall between their lands. According to him the land of the petitioner No.1/defendant No.1 lies toward north side and is squarish in shape. 3. The petitioners/defendants No.1 to 3 opposed this case. The petitioner NO.1 asserted that the Gat No.85/4 lies to the extreme east side and his portion Gat No,85/3 does not lie on its north side. He said, the locations of the portions were brought on record long back in 2006. He said, in those days, he made an application to the Taluqa Inspector of Land Record and by consent of the parties, the land was measured by the T.I.L.R. He placed reliance on the location sketch and measurement plan prepared by the TILR. 4. Both the Courts however below prima facie believed the respondent No.1’s / plaintiff’s case. 5. While the matter was before the appellant Court, respondent No.1 / plaintiff placed two more documents for first time on record. The Writ petition 4590/2010 3 learned District Judge – 3, Ahmednagar placed reliance on these two documents and dismissed the appeal. 6. The question is whether the ld. District Judge could have placed reliance on the documents which were filed before him for the first time. The answer is in negative. 7. These documents were suddenly taken on record without giving any opportunity to the petitioners / defendants No.1 to 3. These documents were admittedly not before the trial Court. I think the judgment and order of the appeal court is therefore vitiated and deserves to be set aside. 8. Although I have my own view on the facts of the case but, I am not inclined to reveal it for it might prejudice the case of the parties. I am inclined to set aside the impugned order passed by the ld. District Judge, and remand the case back to his Court so that he would hear the appeal afresh. I would direct him not to take into account the additional documents with list Ex. no.25, which the respondent / plaintiff had filed. ORDER The rule is made absolute, in following terms. a) Impugned order dated 16/09/209 is set aside. Misc. Civil Appeal No. 122/2009 remanded back to the Court of District Judge – 3 Ahmednagar who shall decide the appeal once again after hearing the parties and after perusing record of lower Court. b) Ld. District Judge shall not place reliance on documents filed along with list Exh. no. 25 in the Misc Civil Appeal No. 122/2009. c) During the pendency of the appeal, the effect of Writ petition 4590/2010 4 impugned order dated 16/09/2009 passed by ld. Judge of the trial Court shall remain in abeyance. d) The learned District Judge, Ahmednagar shall decide the appeal as early as possible. [A.V. NIRGUDE, J.] ts k/2011/April11/wp4590.10/ok