1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6321 OF 2008 Vinayak S/o Indarsing Patil .... PETITIONER V E R S U S Shri Shreerang S/o Indarsingh Patil and another .... RESPONDENTS Mr. V.B.Patil, Counsel for Petitioner. Mr. G.V.Wani, Counsel for Respondent Nos. 1 & 2. [ CORAM : S.S.SHINDE, J. ] DATE : 18/08/2009 PER COURT : 1. This Writ Petition is filed challenging the Order dated 3/5/2008 below Exh. 6 and 13 by the District Judge – 1, Jalgaon in R.C.A. No. 2 of 2008. 2. It is the case of the petitioner that the suit property bearing land G.No. 120, 121/1 and 121/2 situated at village Pimpalgaon – Golati, Tq. Jamner, Dist. Jalgaon are the ancestral properties of the petitioners and the respondents. It is further case of the petitioners that the respondents have filed Wahiwat Case No. 16 of 2000 before the 2 Tahsildar, Jamner and thereby requested for fixation of way to pass in lands owned by them i.e. G.No. 121/1 and 121/2. The Tahsildar by Order dated 28/1/2000 pleased to fix way for approaching the respondents to their lands. The said Order is challenged by the petitioners by way of filing R.C.S. No. 119 of 2000 before the Civil Judge (J.D. ), Jamner on 2/5/2000. On 1/11/2007, the said Suit was decreed. Being aggrieved by the said Judgment and Decree in the Suit, the respondents have filed R.C.A. No. 2 of 2008 along with application for say before the Distict Judge, Jalgaon on 31/12/2007. 2. On 11/4/2008, the respondents herein filed another application in Civil Appeal No. 2 of 2008 for production of documents before the District Judge on 11/4/2008. 3. On 21/4/2008, the petitioners herein filed reply to the said application for production of documents. The learned Judge on 3/5/2008 pleased to grant permission to file documents on record prepared by the Tahsildar while deciding Wahiwat Case No. 16 of 2000. By Order dated 3/5/2008, the District Judge by its Order below Exh. 6 pleased to grant stay to the execution of the said Judgment and Decree dated 1/11/2007 passed by the learned Civil Judge (J.D.), Jamner, hence this Writ Petition. 3 4. The learned counsel appearing for the respondent at the out set raised objection for making duel prayer in the said Writ Petition i.e. quashing and setting aside Order dated 3/5/2008 below Exh. 6 and 13. According to the learned counsel for the respondent, separate PETITIONS should have been filed by the petitioners. The learned counsel appearing for the petitioners makes a statement that he is not pressing the relief against the order dated 3/5/2008 passed below Exh. 6 granting stay to the execution of the Judgment and Decree dated 1/11/2007. Statement is accepted and taken on record. 5. The learned Counsel appearing for the petitioner invited my attention to the provisions of Order XLI Rule 27 of the Code of Civil Procedure and submitted that impugned Order below Exh. 13 is not sustainable, the Court should not have allowed the production of documents prepared by the Tahsildar. According to the learned counsel , said exercise is not permissible under Order XLI Rule 27 of the Code of Civil Procedure. He further invited my attention to the reported Judgment of this Court in case of Sardar Dastur Schools Trust and others V/s Adil Jamshed, Frenchman since deceased through his legal heirs and representatives Smt. Roshan Adil Frenchman and others reported in 2003 (1) Mh. L.J. - 226 and submitted that the impugned order deserved to be set aside. 4 6. On the other hand, the learned counsel appearing for the respondents submitted that the documents are necessary for the proper adjudication of the matter and to resolve the real controversy in issue and, therefore, impugned order can not be faulted and Writ Petition being devoid of any merits, deserves to be dismissed summarily. 7. After hearing learned counsel appearing for the petitioners and the respondents and after perusal of the order dated 3/5/2008, I am of the considered view that the impugned order is perfectly justified allowing the production of relevant documents to resolve the main controversy in the matter. The learned Judge has observed that the documents whose production is sought on record, are public documents prepared by the public servant during discharge of his public duties. The Order passed by the Tahsildar, Jamner in Wahiwat Case No. 16 of 2000 is under challenge in the Appeal and which is passed on the basis of notes prepared by the Tahsildar, Jamner. The documents are material to decide legality and correctness of order. 8. The careful perusal of the application at Exh. ‘ C ’ to the compilation of this petition, would show that the said documents were not available with the respondents herein at the time of pendency of the Civil Suit. The said documents are now available and accordingly proper application was filed by the respondents on 11/4/2008 for the production of said documents. The trial Court after giving proper 5 opportunity to the petitioner has passed the impugned order. 9. Viewed from any angle, the documents which are produced on record were the part of the documents before the Tahsildar. No interference is called for. Writ Petition is devoid of any merits. The same is dismissed. [ S.S. SHINDE ] JUDGE knp/WP6321.08