1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1033 OF 2010 BHIMRAO ANNA JADHAVE ..Petitioner Versus PRABHAKAR BALAJI SHRINGARE ..Respondents ... Shri Dhananjay P. Deshpande, Advocate for the petitioner. ... CORAM : S.B.DESHMUKH,J. Dated : 10.2.2010 PER COURT :- 1. Heard Shri Deshpande, learned Advocate for the petitioner. 2. I am recording very few admitted facts, which are listed herein below:- (A) RCS No.165 of 1976 was filed by one Prabhakar - respondent in this Writ Petition, in the court of learned Civil Judge S.D. Beed. In that suit there were several defendants. (B) RCS No.165 of 1976 was decreed with costs by the civil court on 6.2.1979. In the Regular Darkhast possession 2 warrant against the judgment debtor was sought. This darkhast appears to have been filed by the decree holder / respondent on 30.7.2007. (C) Petitioner was not party to RCS No.165 of 1976 and also is not party to R.D.No.59 of 1979. (D) Copy of the panchanama (Exhibit A) is on record, recorded in RD No. 59/1979 pending in the trial Court. This panchanama is dated 7.12.1982. From this panchanama it reveals that petitioner who was residing in a house in the suit property, removed house hold articles, vacated the house and along with house hold articles shifted to some other place. With the assistance of the labours engaged, construction over the suit property was demolished, possession of the suit property was delivered to decree holder Sahebrao and separate possession receipt accordingly got executed by decree holder. Thus, execution of the decree for possession was completed in view of the said panchanama. 3. Respondent filed an application purportedly under Order XXI Rule 97 of CPC (Exhibit "D"). In this application, paragraph No.4, points out the contention of the respondent that he is in possession of the plot 3 described in paragraph No.3 of the application. Thus, according to the respondent, possession of the property had been delivered by him to the decree holder through process of the Court. He shifted elsewhere with his household articles and house wherein he was residing and which was in his possession was demolished. After that panchanama, which is referred in foregoing paragraphs, pleading is raised in paragraph No.3 and 4 in an application under Order XXI Rule 97 of CPC that the petitioner committed an encroachment on the property admeasuring 48'x12'. Boundaries have been given in paragraph No.12 of the application. In paragraph No.4 contention is raised that this alleged encroachment by the petitioner is from 1983 onwards. From paragraph No.5 Shri Deshpande points out that from this property, 48'x12' alleged encroached by the petitioner is numbered as Municipal House No.3-1-472. Further contention is raised that the petitioner is making payment of taxes to the local body. In paragraph No.9 fact has been reiterated that the decree holder took the possession of the property on 7.12.1982. In paragraph No.10 a statement is made that the petitioner was not party to RCS No.165 of 1976. With these pleadings, prayer is made that the proceeding of the Darkhast may be dropped against the objection petitioner declaring him to be in possession of the plot, which is in vicinity of Gafoor (Name of the person, according to learned counsel for the petitioner, on instructions). This objection petition is filed by the petitioner on 27.8.2007. This objection is on record of R.D.No.59 of 1979. 4 4. This objection was heard by the executing Court. The objection came to be rejected on 18.6.2009. Copy of the said order is on record at page No.24. 5. Five issues were framed. Issue No.1 pertains to contention raised by the petitioner as to whether plot in question claimed in possession of the petitioner is in fact in the suit property. The finding is against the petitioner. I have also seen other issues and findings recorded by the executing Court. Thus, the objection raised by the petitioner under Order XXI Rule 97 of CPC has been turned down by the trial court on 18.6.2009. 6. Said order was challenged by filing RCA No.108 of 2009. This appeal is pending before the first appellate Court. During pendency of this appeal, learned counsel for the petitioner pointed out the order passed below Exhibit 1 on 7.9.2009 (Page 36). Warrant against the petitioner was stayed for some time. The matter was adjourned. After this, learned counsel for the petitioner points out an application for stay Exhibit 5 in RCA No.108 of 2009. Notice initially was issued. This application, after hearing the parties, came to be rejected by the first appellate Court on 8.1.2010. Learned counsel for the petitioner read paragraph No.7. He commented on this finding as illegal. He seeks quashment of the said order. 5 7. Undisputed facts have been recorded in the foregoing paragraphs. The decree holder plaintiff approached the civil court seeking possession of the property somewhere in 1976. As of today, there is no disposal of Regular Darkhast in accordance with the provisions of law. First Appeal is pending before the first appellate Court. I am not recording any observation on merits of the matter. Stay to the judgment and decree appealed against is considered by the first appellate Court in view of Order XLI of CPC. It is the discretion vested with the first appellate court to be exercised on sound judicial principles. Learned counsel for the petitioner points out map annexed with the writ petition (Exhibit "C"). I have seen the order passed by the first appellate Court which is an inter locutory order. I do not find any substance to invoke extra ordinary jurisdiction. Even otherwise, in my view, order impugned cannot be said to be perverse, to be quashed and set aside. 8. In the result, Writ Petition stands dismissed in limine. No order as to costs. It is made clear that the first appellate Court shall decide the appeal in accordance with the provisions of law after hearing the parties. ( S.B.DESHMUKH, J.) ... akl