1 A.O.NO.103/2010 WITH A.O. NO.104/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.103 OF 2010 1. Ravikumar s/o Bansilal Gilda, Age 53 years, Occ. Business, R/o Station Road, Parbhani. District Parbhani. 2. Jitendrakumar s/o Bansilal Gilda, Age 48 years, Occ. Business, R/o as above. 3. Krishna s/o Mutha Deodiga, died, through his L.Rs. 3-1) Smt. Archana w/o Krishna Deodiga, Age 56 years, Occ. Household, R/o Station Road, Parbhani. 3-2) Ragini d/o Krishna Deodiga, Age 36 years, Occ. Household, R/o as above. 3-3) Nagraj s/o Krishna Deodiga, Age 29 years, Occ. Nil, R/o as above. ... APPELLANTS VERSUS Tukarampant s/o Rajeshwarrao Ganjapurkar, Age 75 years, Occ. Agri., R/o Station Road, Parbhani ... RESPONDENT ..... Shri S.S. Rathi, Advocate for the appellants Shri Arvind Deshmukh, Advocate for respondent ..... W I T H APPEAL FROM ORDER NO.104 OF 2010 2 A.O.NO.103/2010 WITH A.O. NO.104/2010 1. Ravikumar s/o Bansilal Gilda, Age 53 years, Occ. Business, R/o Station Road, Parbhani. District Parbhani. 2. Jitendrakumar s/o Bansilal Gilda, Age 48 years, Occ. Business, R/o as above. 3. Krishna s/o Mutha Deodiga, died, through his L.Rs. 3-1) Smt. Archana w/o Krishna Deodiga, Age 56 years, Occ. Household, R/o Station Road, Parbhani. 3-2) Ragini d/o Krishna Deodiga, Age 36 years, Occ. Household, R/o as above. 3-3) Nagraj s/o Krishna Deodiga, Age 29 years, Occ. Nil, R/o as above. ... APPELLANTS VERSUS Tukarampant s/o Rajeshwarrao Ganjapurkar, Age 75 years, Occ. Agri., R/o Station Road, Parbhani ... RESPONDENT ..... Shri S.S. Rathi, Advocate for the appellants Shri Arvind Deshmukh, Advocate for respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 13th December, 2010 ORAL JUDGMENT : 1. Heard. Admit. With the consent of learned counsel for the parties, taken up for final hearing at admission stage. 3 A.O.NO.103/2010 WITH A.O. NO.104/2010 2. Following substantial question of law is formulated: “Whether the learned District Judge-1, Parbhani was justified in remanding the four appeals to the trial Court for deciding Regular Civil Suit Nos.368/1990 and 107/1992 afresh, notwithstanding there was evidence relating to T.I.L.R. and also relating to two receipts purported to be in favour of Ravikumar, plaintiff in Regular Civil Suit No.107/1992. 3. After extensively hearing both the learned counsel, and analysing findings recorded by both the courts, it explicitly illustrates that T.I.L.R. map to which reference is given by the first appellate Court, is sufficiently established, however, the learned District Judge did not consider the same in proper perspective. The receipts to which reference is given in the judgment of the first appellate Court, finds its place in the original record as application for leading secondary evidence was permitted. Based on the same, the photostat copies of the receipts were placed and proved by the plaintiff in Regular Civil Suit No.107/1992. The observations in paragraph 15 are contrary to record. 4. The scheme of Order 41 Rule 23 and 25 of the Civil Procedure Code is not adhered by the learned District Judge. It is 4 A.O.NO.103/2010 WITH A.O. NO.104/2010 expected of the learned District Judge to consider all the aspects between the parties, on the available material and to proceed on merits. The substantial question of law is answered partly in favour of the appellants and the matter is remitted to the learned District Judge to decide all the four appeals referred above on its own merits. The order of remand is set aside. 5. The appeals are to be disposed of by the end of April 2011. The parties shall not seek unnecessary accommodation. All the questions between the parties are kept open. No costs. K.U. CHANDIWAL JUDGE