1 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.38/2010. with CIVIL APPLICATION NO.4196/2010. (Madhav Amrata Shedole and Ors. Vs. Sojarbai w/o Chandar Kakade) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr.Milind Patil, Adv. For appellants; *** CORAM : K.U.CHANDIWAL ,J. DATE : 16 th November, 2010. ... 1) Heard. 2) Order in Regular Civil Appeal No. 92/2006 by the learned District Judge-1, Nilanga dated 1st January, 2010 is questioned in this Appeal from Order. 3) Learned Counsel for the respondent was called yesterday, accommodation was sought on his behalf by the counsel holding and hence the matter is kept today. In spite of repeated messages, counsel for respondent absent. 4) Since the plaintiff – Sojarbai lost Regular civil suit No.177/2002, she preferred Regular Civil Appeal no. 92/2006 before the learned District Judge. It is a matter of record, in the said appeal proceedings, an application (Exhibit-22) was moved for causing 2 appointment of T.I.L.R. And getting the lands measured. By a well-reasoned order, the then District Judge-1, Nilanga rejected the said application. It was pointed, already there was measurement dated 12.6.2002 and the said measurement illustrated encroachment by the defendant, which gave cause of action to the plaintiff and consequently the above referred suit. The learned District Judge also found that the said plaintiff (respondent) has also sold 1 hectare and 21 R. of the land from the suit property to Smt. Sushilabai w/o Shivmurtiappa Ashture. It was not clear as to which particular portion of land, she has sold to new purchaser. However, submission was made before the learned District Judge that it was a loan transaction between the purchaser and Smt. Sojarbai. 5) In spite of such rejection of application below Exhibit-22, referred above, subsequently,the learned Judge by his own order directed to get the lands measured and remanded the matter. This exercise by the learned District Judge was certainly beyond the parameters of the rights vested in him. Once there was rejection of application (Exhibit-22), identical application could not have been entertained by him 3 and then proceeded to remand the matter for fresh inquiry. The order certainly smacks of illegality and calls for interference. 6) In the result, the order of the learned District Judge is set aside and consequently, dismissal of Regular civil Suit No. 177 of 2002 dated 31st October, 2006 stands confirmed. The Appeal from order stands allowed to the extent as above. CA disposed of. No costs. (K.U.CHANDIWAL) JUDGE bdv/