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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

SECOND APPEAL NO. 291 OF 2013

Mohanlal Reshmaji Harne

.. APPELLANT

VERSUS

Ujwalabai Ashok Chaudhari

& others

.. RESPONDENTS

Mr. A.D. Kasliwal, advocate for appellant.

Mr. R.F. Totla, advocate for respondent no. 1.

=====

CORAM : R. G. KETKAR, J.

DATE : 3^rd DECEMBER, 2014.

PER COURT :

1.

Heard Mr. Kasliwal, learned counsel for the

appellant and Mr. Totla, learned counsel for

respondent no. 1, at length.

2.

By this appeal under section 100 of the Code of

Civil Procedure, 1908 (for short 'C.P.C.'), original

defendant no. 14 has challenged judgment and decree

dated 12.10.2010 passed by the learned Jt. Civil

Judge, Junior Division, Aurangabad in Regular Civil

Suit No. 1506/2000 as also judgment and decree dated

08.03.2013 passed by the learned Principal District

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Judge, Aurangabad in Regular Civil Appeal No.

287/2010. By these orders, the Courts below decreed

the suit instituted by respondent no. 1 (hereinafter

referred to as the plaintiff) for rectification of

the sale-deed dated 18.04.1981; for declaration of

his ownership and possession of property bearing

survey no. 194/6 admeasuring 10724 sq. ft. (for

short 'suit property').

3.

In support of this appeal, Mr. Kasliwal

submitted that initially, plaintiff had instituted

Regular Civil Suit No. 1077/2000 on 06.04.2000 for

injunction

simplicitor.

Plaintiff

sought

unconditional leave to withdraw the suit. The suit

was therefore dismissed as withdrawn on 18.09.2000.

Mr. Kasliwal submitted that the present suit is hit

by Order 2 Rule 2 of C.P.C. as the earlier suit was

withdrawn without seeking leave to institute fresh

suit.

4.

Mr. Kasliwal further submitted that the

decisions of the Courts below are contrary to the

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evidence on record. In that regard he invited my

attention to the cross examination of PW 1 Ujwala

Ashok Chaudhari. In paragraph no. 11 P.W. 1

admitted that the contents of the sale-deed dated

18.07.1981 are correct. The contents of the map

enclosed to the sale-deed are also correct. In

other words, he submitted that P.W.1 clearly

admitted that there was no mistake in the sale-deed.

The suit for rectification of the sale-deed was

therefore liable to be dismissed. He further

invited my attention to paragraphs no. 1 and 2 of

the plaint giving description and submitted that

plaintiff has not disclosed as to what rectification

is actually sought for in the suit. He invited my

attention to section 26 of the Specific Relief Act,

1963 (for short 'Act') and in particular sub-section

(4) thereof. He also invited my attention to

operative order of the trial Court, in particular,

clause no. 3 thereof, and submitted that the

requisite ingredients of section 26(4) of the Act

were not set out in the plaint. The decree passed,

therefore, is not executable. He, therefore,

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submitted that the appeal requires consideration as

it raises substantial question of law.

5.

On the other hand, Mr. Totla supported the

impugned orders. He invited my attention to

evidence of D.W. 1 Mohanlal Reshmaji Harne, and in

particular, paragraphs no. 1 and 3 of the cross

examination. He submitted that D.W. 1 Mohanlal

admitted that survey no. 194/6 is of triangular

shape. CIDCO-Jalgaon road is on its western side.

There is no other triangular shape property in the

family of Harne. There is no other triangular shape

property of his mother, father or belonging to him

in Harsul area. At eastern side of survey no. 194/6

is survey no. 193. At northern side there is survey

no. 194/5. He also invited my attention to the

relevant discussion made by the Courts below while

decreeing