1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3144 OF 2008 Shri Suryakant Shankar Powar & Anr. ..Petitioners. V/s. Shri Kedari Yashwant Mane. ..Respondent. Mr.P.S.Dani i/b. Mr.V.B.Jagdale for petitioners. Mr.S.S.Redekar for respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 4, 2008. DATE : AUGUST 4, 2008. DATE : AUGUST 4, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith. 3. Mr.Redekar waives notice for the Respondent. 4. As short question is involved, Petition is taken up for final disposal forthwith by consent. 5. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the District Judge No.1, Gadhinglaj dated 31st March, 2008 in Misc. Civil Appeal No.23 of 2007. By the said order, the Appellate Court allowed the Appeal preferred by the 2 Respondent/Plaintiff and ordered that during pendency of the Suit, the Petitioners/Defendants shall not dispossess the Respondent from the suit property bearing CTS No.449 and House property No. 374 admeasuring 304.7 sq.mtrs. situated at Mouje Channekuppi, Taluka-Gadhinglaj, District Kolhapur. That order was passed on the finding recorded in paragraph-10 of the impugned Judgment that the house property No.374 was originally numbered by Grampanchayat as Grampanchayat No.363 in the year 1986-87 and was later on changed to Gram Panchayat No.408 in the year 1991-92, thereafter to Gram Panchayat No.370 and eventually as Gram Panchayat No.374. 6. The Appellate Court however, has completely glossed over the argument of the Petitioners that the claim of the Respondent/Plaintiff was in relation to property described in the plaint as CTS No.499 equivalent to Gram Panchayat City Survey No.374. Further, the possession thereof was made over to the Respondent on account of Agreement dated Nil Nil Nil of November, 1985. Significantly, however, the said agreement refers to property as house No.267 and not any other numbers assigned to the suit property referred to above. In other words, if the agreement refers to House No.267, in that case, the Plaintiff 3 will have to first establish that the said agreement is in relation to the Gram Panchayat House No.374. That aspect will have to be examined by the Appellate Court in the first instance upon analysing the documents on record. It is only if the Court were to find that the Agreement pertains to House No.374 which is same as House No.267 referred to in the agreement, it would necessarily follow that the Plaintiffs are claiming right in respect of the suit property in terms of the said agreement and not otherwise. 7. The next question that ought to be addressed by the Appellate Court is about the efficacy of clause-2 of the stated agreement, which clearly provides that the possession of the stated property(house No.267) would be made over to the Respondent/Plaintiff on payment of full consideration amount. The Plaintiff will have to establish that full consideration amount has been paid or that the requirement of clause-2 of the agreement has been relaxed and waived by the Petitioners. 8. The Appellate Court will also have to examine the grievance of the Petitioners that the claim of the Petitioners was supported by four independent persons, whose affidavits were already placed on 4 record. If it is so, finding of fact recorded by the Appellate Court in paragraph-12 of the impugned Judgment would become doubtful, wherein it is observed that no villager has come forward to assert about the possession of the Petitioners over the suit property. All these and related aspects will have to be considered by the Appellate Court in the first instance on its own merits in accordance with the law. 9. Suffice it to observe that the impugned Judgement will have to be set aside and the parties relegated before the Appellate Court for reconsideration of Misc. Civil Appeal No.23 of 2007 on its own merits in accordance with the law. 10. The parties shall appear before the Appellate Court on 29th August, 2008, on which date, the Appellate Court may proceed with the hearing of the Appeal on the basis of material already placed on record by the parties or fix some other suitable date while ensuring that the Appeal is finally disposed of not later than 15th November, 2008. 11. Petition disposed of on the above terms. No order as to cost. 5 (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)