1 A.O. NO.22 OF 2000 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.22 OF 2000 WITH CIVIL APPLICATION NO.1458 OF 2000 WITH CIVIL APPLICATION NO.6465 OF 2008 1. Sk. Amir @ Sk. Mannu s/o Sk. Jamal, Age 34 years, Occ. Agril., R/o Naigaon, Taluka and District Aurangabad. 2. Mohd. Tamijuddin s/o Mohd. Nizamuddin, died through L.Rs. 2A) Mohd. Raziuddin s/o Mohd. Tamijuddin, Age 45 years, Occ. Agri., R/o Mominpura, Aurangabad. 2B) Md. Wahiuddin s/o Md. Tamijuddin, Age 43 years, Occ. & R/o as above. 2C) Mohd. Azimuddin s/o Mohd. Tamijuddin, Age 40 years, Occ. & R/o as above. 2D) Mohd. Mohinoddin s/o Md. Tamijuddin, Age 39 years, Occ. and R/o as above. 2E) Md. Nazimoddin s/o Md. Tamijuddin, Age 35 years, Occ. and R/o as above. 2F) Md. Mazruddin s/o Md. Tamijuddin, Age 33 years, Occ. and R/o as above. ... APPELLANTS VERSUS 1. Sarangdhar s/o Dada Tare, Age 60 years, Occ. Agri., R/o Ohar, Taluka and District Aurangabad 2 A.O. NO.22 OF 2000 2. Sk. Mohd. Isak s/o Sk. Doud Patel, Age 60 years, Occ. Agri., R/o Naigaon, Taluka and District Aurangabad. 3. The Assistant District Land Record Officer (Office of D.I.L.R.), Aurangabad. ... RESPONDENTS ..... Shri P.F. Patni, Advocate for the appellants Shri M.K.Deshpande, Advocate for respondent No.1. Shri V.B. Ghatge, A.G.P. for respondent Nos.2 and 3 ..... CORAM : K.U. CHANDIWAL, J. DATE : 6th December, 2010 ORAL JUDGMENT : 1. Heard. The substantial question of law formulated after hearing the learned counsel on dated 23.11.2010 reads as under : “(a) Whether the learned 4th Additional District Judge, Aurangabad, did not fail in error in remanding the matter, though record illustrates R.C.S. No.674/1992, was decreed in favour of the petitioners in the appeal which has reached finality, and in spite of the same to remand the mater for fresh hearing. (b) Whether the learned District Judge did not fail in appreciation as by his directions of remand parties are permitted to fill in the lacunae to correct the record.” 2. The chequered history of litigation is projected. 3 A.O. NO.22 OF 2000 However, it can be put in condensed form. The appellant filed a suit being Regular Civil Suit No.674/1992 based on his title being a purchaser of the property by sale deed dated 5.6.1980, and there operates a decree in favour of the appellant, dated 20.7.1994. 3. The respondent filed Regular Civil Suit No.131/1993. It was not prosecuted diligently by the appellant. Consequently, decree followed and said decree was tested in an appeal being Regular Civil Appeal No.179/1997. There was another appeal also being Regular Civil Appeal No.276/1995 moved by one Mohd. Tamizuddin Mohd. Nizamuddin, died L.Rs. Mohammed Raziuddin s/o Mohammad Tamizuddin and others. Both the appeals were heard and decided by common judgment dated 4.12.1999. The learned District Judge, by the impugned order, allowed both the appeals and matter was remanded to the learned trial Judge for fresh hearing and disposal according to the law with a direction to the parties to attend said Court on 19.1.2000. The purchase of the property, subject of Regular Civil Suit No.674/1992 need not be questioned as the decree has reached finality. The decree that has been sent in Regular Civil Suit No.131/1993 against appellants is indeed quashed by the impugned order. 4 A.O. NO.22 OF 2000 4. The grievance of the appellants, instead of doing exercise of remand, it could have been carved out by the learned first appellate Court, based on the decree in Regular Civil Suit No. 674/1992, though is correct, however, there are other difficulties that the parties have not far seen, as learned District Judge explicitly recorded that in Regular Civil Suit No.131/1993 there were no proper issues, which fact was also weighing high in the mind of the learned District Judge. 5. In the survey of entire affairs, I find that the learned District Judge was left with no option than remanding the matter to the Court of first instance for a proper and coherent adjudication in tune with the settled position including settling proper issues. The learned District Judge has rightly observed, the clamping of injunction in Regular Civil Suit No.674/1992 would also be required to be considered by the trial Court. 6. In the result, the substantial question of law formulated and referred hereinabove would be answered against the appellant as there was no error apparent on the part of the learned Additional District Judge in spite of there being already a concluded finding in Regular Civil Suit No.674/1992 in remanding for fresh hearing of 5 A.O. NO.22 OF 2000 Regular Civil Suit No.131/1993. Appeal dismissed. However, the learned Judge seized with the Regular Civil Suit No.131/1993, considering its age and age of the parties litigating, and acute rivalry between the group, shall endeavour to dispose of the case expeditiously, by end of 31st August 2011. The injunction in earlier suit being Regular Civil Suit No.674/1992 will have its bearing in Regular Civil Suit No.131/1993. The learned Judge shall not accede unreasonable accommodation to the parties. The observations are prima facie in nature. No costs. 7. In view of disposal of the Appeal from Order, Civil Application Nos.1458/2000 and 6465/2008 do not survive and same stand disposed of. K.U. CHANDIWAL JUDGE