Bombay High Court
Kisan Chinkaji Kharat Thr. P. O. A. Amol ... vs The State Of Maharashtra Thr. Collector ... on 28 November, 2018
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 wp2042.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2042 OF 2016
Kisan Chinkaji Kharat, Aged
about 69 years, Occupation:
Agriculturist, Besides Municipal
Council Office, Malipura, Chikhli,
Tq. Chikhli, Distt. Buldana,
Through its Power of Attorney
holder : Amol Ramesh Kharat,
Aged about 28 years, Occupation:
Agriculturist, R/o. House No.7763,
Malipura, Chikhli, Tq. Chikhli,
Distt. Buldana.
.... PETITIONER.
// VERSUS //
1. State of Maharashtra,
through Collector, Buldana,
Tq. District : Buldana.
2. Tahsildar, Chikhli,
Tq. Chikhli, District : Buldana.
3. Circle Officer (Revenue),
Chikhli, Part-I, Tq. Cikhli,
Distt.Buldana.
4. Smt. Lakshmibai Dattatraya Girhe,
Aged about 66 years, Occu.:Household,
and Agriculturist, R/o. Loni-lavahala,
Tq. Mehkar, District : Buldana.
5. Smt. Shantabai Narayan Jadhao,
Aged about 62 years, Occu.:Household,
6. Baburao Januji Deshmane,
Aged about 60 years, Occu.: Labour,
R/o. Chikhali, Dindayal Nagar,
Disrict : Buldana.
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 10:19:27 :::
Judgment 2 wp2042.16.odt
7. Haribhau Gopala Wanere,
Aged about 56 years, Occu.:Service,
R/o. Sambhaji Nagar, Chikhli,
Tq. Chikhli, Distt. Buldana.
8. Ramesh Gopala Wanere,
Aged about 54 years, Occu.:Labour,
Respondent Nos. 4 to 8, through
Power of Attorney Holder
Nandkishor Jadhav, the present
respondent No.13, R/o. Chikhli,
Sambhaji Nagar, Chikhli, Tq.Chikhli,
District : Buldana.
9. Baliram Gopala Wanere,
Aged about 52 years, Occu.: Labour,
R/o. Chikhli, Tq. Chikhli, Distt. Buldana.
10. Sau. Chandrakala Ashok Kharat,
Aged about 40 years, Occu.:Household,
R/o. Sindkhed Raja, District:Buldana.
11. Sau. Manda Rambhau Tayde,
Aged about 32 years, Occu.:Household,
At present R/o. Nanded, Tq.& Dist. Nanded.
12. Smt. Sandhya Shekhar Gadade,
Aged about 28 years, Occu.:Household,
At present R/o. Aurangabad, R. No.9 to 12
are through Power of Attorney Holder,
Nandkishor Narayan Jadhav, Resident of
Chinch Parisar, Chikhli at present
Respondent No.13.
13. Nandkishor Narayan Jadhao,
Aged about 46 years, Occu.: Labour,
R/o. Chinch Parishar, Chikhli,
Tq. Buldana, District : Buldana.
.... RESPONDENTS.
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 10:19:27 :::
Judgment 3 wp2042.16.odt
___________________________________________________________________
Shri H.D.Futane, Advocate for Petitioner.
Shri B.M.Lonare, A.G.P. for Respondent Nos. 1 and 2.
Shri R.S.Kalangiwale, Advocate for Respondent Nos. 4 to 13.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : NOVEMBER 28, 2018.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
3. The original defendant No.1 has filed this petition to challenge the order passed by the learned trial Judge on application (Exh.37). By this order, the learned trial judge has rejected the objection taken on behalf of the defendant No.1 to the maintainability of the civil suit and has held that the Civil Court has jurisdiction to entertain and try the civil suit.
The plaintiffs have filed civil suit praying for the reliefs in the following terms:
"PRAYER :- it is therefore, prayed that this Hon'ble Court be pleased to:
A. pass a decree of Declaration in faovur of plaintiffs and against defendant No.1 particularly and it be declared that the acts of omission and commission complained of to be very specific in getting pseudo document, entries relating to suit property at the behest of defendant No.1 and his predecessor are nonest and not binding on plaintiffs.::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 10:19:27 :::
Judgment 4 wp2042.16.odt
B) pass a decree of Possession in favour of plaintiffs
and against defendant No.1 and defendant No.1 accordingly be asked to put suit property in possession of plaintiffs holding thereby the possession of plaintiffs prior and on termination of licence was and is without any legally accrued right, as well, status.
C) pass a decree of Perpetual Injunction in favour of plaintiffs and against defendant No.1/wrongdoer, from indulging in any unlawful, illegal act detrimental to the legally accrued right of plaintiffs qua suit property. D) pass suitable order for making enquiry relating to mesne-profits as provided under O.20 R 12 C.P.C. E) award costs of this suit alongwith other reliefs in the context of prayer in favour of plaintiffs an against defendant No.1, particularly, in the ends of justice."
The defendant No.1 filed application (Exh.37) under Section 9A of the C.P.C., praying that issues regarding tenability of civil suit, jurisdiction of the Civil Court to entertain and try the civil suit and limitation be framed and decided first. While deciding this application (Exh.37), the learned trial Judge framed preliminary issue "Whether this Court has jurisdiction to entertain and try the present suit?" and has held that the Civil Court has jurisdiction to entertain and try the civil suit.
4. After considering the rival submissions, I am of the view that the learned trial Judge has committed an error by passing the impugned order and disposing the application (Exh.37) at this stage. The learned trial Judge should have considered the application (Exh.37) at the stage of framing of the issues.
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 10:19:27 :::
Judgment 5 wp2042.16.odt
5. Hence, the following order:
i) The impugned order is set aside.
ii) The application (Exh.37) filed by the defendant No.1 is
restored.
iii) The learned trial Judge shall consider and decide the
application (Exh.37) at the time of framing of issues or after the issues are framed.
Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
::: Uploaded on - 05/12/2018 ::: Downloaded on - 30/12/2018 10:19:27 :::