FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGBAD. ________________________________________________________________________________________________________________________________________________ Office notes, office Memoranda of coram, appearance, court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ____________________________________________________________________________________________________________ WRIT PETITION NO.8096/2009 GAJARABAI SHRIPATI PANHALE AND ORS. V/S KISAN PARSU TEKALE AND ORS. KULKARNI MUKUL ADV. FOR PETITIONERS. CHAUKIDAR S.R.ADV. FOR R-1 to 3 R/ 4 DELETED ... 1. Heard learned counsel for the respective parties. 2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3. The petitioners are original defendant Nos. 1A to 1C in RCS No. 289/2001 filed by the respondent Nos. 1 to 3. Present respondents are plaintiffs in RCS No.289/2001. Plaintiffs had filed suit for possession of alleged encroached area against two defendants. Defendant No.1, indisputably, died during the pendency of the suit and has been substituted by legal heirs 1A, 1B and 1C. This writ petition is filed by the original defendant Nos. 1/A, 1/B and 1/C. Trial court, after hearing the parties passed a decree in favour of the original plaintiffs. Copy is on record. Judgment and decree is dated 10.08.2009. Suit is decreed in favour of the plaintiffs and against original defendants No.1 A to 1C and defendant No.2. 4. Mr. Choukidar, learned counsel for the respondents points out that original defendant No.2 did not file appeal challenging the FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGBAD. ________________________________________________________________________________________________________________________________________________ Office notes, office Memoranda of coram, appearance, court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ____________________________________________________________________________________________________________ judgment and decree passed by trial court before the First Appellate Court. 5. Mr. Kulkarni, counsel for the petitioners submits that present petitioners/original defendants No.1 A to 1C had filed RCA No. 194/2009 challenging the judgment and decree passed by trial court, which is pending before first appellate court. Annexure ‘D’ is the copy of application Exh.5, filed in RCA No.194/2009 seeking stay to the decree for possession against the present petitioners. 6. Mr. Kulkarni, counsel for the petitioners submits that this Court has initially issued notices and status quo has been directed. According to him, order passed by the trial court is illegal. Mr. Choukidar, learned counsel for respondents supports the order passed by the trial court. According to him, trial court has considered the evidence on record and passed a decree. 7. Indisputably, before First Appellate Court RCA No.194/2009 is pending. Decree for possession of alleged encroached area is against the present petitioners. In my view, this petition can be partly allowed, directing First Appellate Court to decide and dispose of RCA No.194/2009, within a period of three months from the date of receipt of writ of this Court. Status quo which has been granted by this court can be continued till then. 8- Writ petition is partly allowed. Order impugned is quashed and set aside. Judgment and decree passed by the trial court in RCS No.289/2001, pertaining to present petitioners alone shall remain stayed till disposal of the appeal. Appeal to be decided and dispose of by the First Appellate Court within a period of three months from the date of receipt of the writ. Petitioners are directed to serve the writ of this Court to the trial court within two weeks from today. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGBAD. ________________________________________________________________________________________________________________________________________________ Office notes, office Memoranda of coram, appearance, court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ____________________________________________________________________________________________________________ 9. Rule is made absolute in above terms with no order as to costs. ( S. B. DESHMUKH, J. ) * * * Dt :- 09.02.2010 aaa/8096.09