Advocates:
['KAKDE YUVRAJ V', 'R/ TO SERVED', '', 'R/ TO SERVED', 'PALOD L B', 'R/ AND DIED']

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21-WP-6334-2015

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.6334 OF 2015

Laxman Rakhmaji Veer And Others

..Petitioners

Versus

Sonaji Kondiba Rupnar And Others

..Respondents

Mr. Yuvraj V. Kakde, Advocate for the petitioners.

Mr. L.B. Palod, Advocate for respondents no.2A to 2-D, 4 to 6.

.......

[CORAM : NITIN B. SURYAWANSHI, J.]

DATE : 5

^th SEPTEMBER, 2022

ORDER :

1.

The petitioners are aggrieved by the order passed by

the learned 2^nd Joint Civil Judge, Junior Division, Shevgaon,

below Exhibit-64 in Regular Darkhast No. 12/2002, thereby

rejecting the application filed by the petitioners.

2.

In Regular Civil Suit No. 78/1991, decree for

perpetual injunction is passed in favour of the petitioners on

19.08.1993. The petitioners have filed darkhast for execution of

the said decree. The respondents have appeared in the darkhast

and opposed it.

Bhagyawant Punde

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21-WP-6334-2015

3.

By filing application Exhibit-64, the petitioners/

decree holders contended that in execution Court Commissioner

was appointed and he has measured land of burial ground. The

Judgment Debtors have objected to the measurement map and

claimed that the decree is not executable. It is further contended

that since measurement map of the suit property is drawn and

the boundaries of the suit property and burial ground are fixed, if

the judgment debtors have encroached in the said area they

should remove the encroachment at their own cost. There is no

appeal or revision filed challenging the decree and the decree

has become final. The Decree Holders, therefore, claimed that

they be put in actual possession of 10 Are area as per the

measurement map. The respondents resisted this application.

4.

The Executing Court rejected the application holding

that the Court Commissioner’s map is required to be proved for

which the Court Commissioner needs to be examined and the

Decree Holders have never made any effort to prove the

measurement map. The Executing Court, therefore, rejected the

application. The petitioners are aggrieved by this order.

Bhagyawant Punde

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21-WP-6334-2015

5.

I have given due consideration to the rival

submissions made by learned advocate for the petitioners and

learned advocate for the respondents. Perused the grounds

raised in the writ petition and the citation relied upon by the

learned advocate for the respondent.

6.

In the judgment and decree passed by the Trial Court

in favour of the petitioners, injunction is granted in respect of 10

Are land out of gut no. 131/1/1 of mauje Bodhegaon, Taluka-

Shevgaon. It is further mentioned that defendants are directed

to remove encroachment, if any, made on the said 10 Are area

at their own costs.

7.

It is matter of record that the petitioners have failed

to give description/boundaries of their property (suit property),

admeasuring 10 Are land out of Gut No. 131/1/1 in the

execution petition. The Taluka Inspector of Land Record/Court

Commissioner informed the Executing Court that the

measurement was conducted on 20.10.2004 and accordingly,

report is submitted. In 7/12 extract filed in the matter gut no.

131/1/1 is mentioned, however, such sub divisions are not

recorded in the record maintained by his office, therefore in the

Bhagyawant Punde

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measurement map area is mentioned out of gut no. 131.

8.

Perusal of the measurement of map reveals that the

Court Commissioner has not shown sub divisions of gut no. 131.

From the measurement map it is not clear as to which exact

portion of land is in possession of petitioners being gut no.

131/1/1. In this view of the matter, the Executing Court is

justified in holding that the application filed by the petitioners is

pre-mature, as the Court Commissioner is yet not examined in

the matter. I am, t