1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 198 OF 2010 Abajirao S/o Balwant Patil and another. ... PETITIONERS VERSUS Chindha S/o Fakira Bhandare ... RESPONDENTS *** Mr. V. J. Dixit, Senior Counsel i/b Mr. A. N. Nagargoje, Advocate for the Petitioners. *** CORAM: S. B. DESHMUKH J. DATED:- 12th JANUARY, 2010. 1. Heard learned senior counsel Mr. Dixit, instructed by Mr. Nagargoje, who appears for the Petitioners. 2. This petition takes an exception to the judgment and order passed by the learned Civil Judge, Junior Division, Jamner dated 4th December, 2009 below Exhibit-66 in Regular Darkhast No.57 of 2007. 3. This petition has got chequered history. However, I am referring a few relevant facts and proceeding alone. (a). Respondent/ plaintiff had filed Regular Civil Suit No.110 of 1988 in the Court of 2 learned Civil Judge, Junior Division, Jamner for recovery of possession of 0 Hectare 61 Ares land from his own land Gat No.456 situated at village Shendurni, Taluka Jamner, district Jalgaon. This suit was filed on 2nd August, 1988. Regular Civil Suit No.110 of 1988. after hearing the parties, was decreed by the trial Court by the judgment and decree passed on 27th August, 1999. (b) The decree passed in Regular Civil Suit No.110 of 1988, in favour of Respondent/ plaintiff was challenged by the petitioners/ defendants by filing Regular Civil Appeal No. 178 of 1999 in the Court of learned District Judge, Jalgaon on 17th March, 2007. This Regular Civil Appeal No.178 of 1999, after hearing the parties, came to be dismissed by the first Appellate Court on 24th July, 2008. (c) The aggrieved defendants challenged the dismissal of the Regular Civil Appeal No.178 of 1999 by filing Second Appeal No.521 of 2007 before this Court. This Court dismissed the Second Appeal NO.521 of 2007. (d) The plaintiff decree holder filed Execution Petition No.57 of 2007 on 13th June, 3 2007, based on the decree passed in Regular Civil Suit no.110 of 1988 in the Court of learned Civil Judge, Junior Division, Jamner, for execution of the decree. (e) The defendants filed Application Exhibit-45 in the said Regular Darkhast No.57 of 2007. This application Exhibit-45 was filed on 19th August, 2008. . With the assistance of learned senior counsel Mr. Dixit I have gone through this application in its entirety. Prayer, in this application, was made that grievance raised in this application may be inquired into and execution petition be dismissed. Prime grievance was raised in para 4 of the application that the circumstances or position obtaining in the land of the plaintiff and defendant prior to the measurements is the same. However, so far as the alleged encroached area of 0 Hectare 61 Ares is not identifiable. In this application, re- measurement of the property of the alleged encroached area was asked for. This application Exhibit-45, after hearing both the parties, came to be rejected by the learned 4 Civil Judge, Junior Division, Jamner by the order passed on 5th February, 2009. (f) Order passed below Exhibit-45 in Regular Darkhast No.57 of 2007 dated 5th February, 2009 was challenged by filing writ petition No.1344 of 2009 before this Court. Learned Single Bench of this Court dismissed the writ petition No.1344 of 2009 by the order passed on 30th April, 2009. (g) Dismissal order passed by the learned Single Bench of this Court in Writ Petition No.1344 of 2009 dated 30th April, 2009 was assailed by filing L.P.A. No.82 of 2009 in Writ Petition No.1344 of 2009 along with Civil Application NO.5038 of 2009. This Court initially granted ad-interim relief with direction to appellant in L.P.A. to deposit Rs.15,000/’-. Notice was issued. The L.P.A. No.82 of 2009 with Civil Application No.5038 of 2009 was finally heard by learned Division Bench of this Court on 27th August, 2009. Order is on record, page 67. Learned Division Bench dismissed the L.P.A. on merits. Consequently, civil application was also dismissed and disposed of. This order, 5 learned counsel counsel Mr. Dixit, fairly concedes that, has attributed finality. In this order, passed by learned Division Bench of this Court, a finding is recorded “... The Court Commissioner has not expressed any difficulty or has not expressed his inability for executing the decree on account of the fact that the suit land can not be identified. 2. Advocate for the Petitioner took me through the application Exhibit-66 in Regular Darkhast No.57 of 2007 Annexure-G. I have considered the application in its entirety. Collated pleadings raised in this application to that of grievance raised in Application Exh.45 earlier filed by the present petitioners/ defendants and which was rejected by the Civil Court and maintained by learned Division Bench in L.P.A. I have also considered the order passed by the learned Judge below Exhibit-66 in Regular Darkhast No. 57 of 2007. 3. Mr. Dixit for the Petitioner took me through the decree / judgment delivered by the trial Court in Regular Civil Suit No.110 of 1988 dated 27th August, 1999. He emphasizes on 6 Item No.2 of the operative part of the judgment. He further points out copy of the decree Item No.8 (page 55). He also points out map forming part of the decree, page 65. In support of his submission, learned senior counsel submits that the order impugned is perverse. Property, alleged encroached area, is not identifiable and, therefore, according to him, needs to be quashed and set aside. 4. I have given anxious consideration to the submissions made by learned senior counsel for the Petitioner. I have considered all orders and I have referred to those orders in brief in the foregoing paragraphs. In my view, there is absolutely no case for exercise of extra ordinary jurisdiction of this Court under the constitution. It is unfortunate and regrettable that the plaintiff, who approached the civil Court in the month of February, 1988, with an allegation of encroachment of around 0 Hectare 61 Ares of land, is unable to enjoy the fruits of the decree after for around 22 years from the date of filing of the suit. All along it appears from the record that the plaintiff was trapped 7 in oceanic litigation. Apart from the expenses incurred by the plaintiff in terms of money, major portion of life of the plaintiff seems to have been exhausted. 5. I am in agreement with the view taken by the learned Division Bench that Court Commissioner did not express any difficulty for executing the decree passed by the civil Court in Regular Civil Suit No.110 of 1988. I wish to add a finding that the authority concerned is the Taluka Inspector of Land Records, custodial of entire record pertaining to lands in his jurisdiction. Apart from the record, he is an expert in the field. With this, I am inclined to dismiss the petition. 6. Writ petition stands dismissed with further direction to the learned Judge to decide the execution petition expeditiously and to the logical end within a period of 30 days from the date of receipt of writ of this Court. Petitioner is directed to take Hamdast of writ of this Court, make it available to the learned Judge on or before 27th of January, 2010. Apart from this, Registrar (Judicial) is directed to see that writ of this Court is 8 served to the learned executing Court on or before 31st of January, 2010. In the facts and circumstances, there shall be no order as to costs. [S.B.DESHMUKH, J.] Dated:12/01/2010. ans/198 9 WRIT PETITION NO.: OF 200 Date of decision: 12th JANUARY, 2010. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE