1

Review (ST) No. 13155.11.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

REVIEW PETITION (ST) NO. 13155 OF 2011

in

SECOND APPEAL NO. 1524 OF 2004

Guruwarya Dadasaheb Dhonde

Co-operative Low Income Housing

Society Ltd., Deopur, Dhule

Through Chairman

..PETITIONER

VERSUS

Jabedabai Ismail Khimani

deceased through L.Rs.

..RESPONDENTS

...

Shri V.B. Patil , Advocate for petitoiner

Shri B.R. Warma, Advocate for respondent

CORAM :- S.V. GANGAPURWALA JJ.

DATE:- 2^nd August, 2011.

PER COURT :

The petitioner seeks review of the order dated

2

Review (ST) No. 13155.11.

20-12-2010 passed by this Court, dismissing the Second

Appeal.

2.

The suit filed by the present respondent / Original

plaintiff for possession of the encroached portion against

the present petitioner was decreed by the Trial Court.

Aggrieved thereby, the present petitioner preferred an

appeal before the District Judge. The District Judge also

confirmed the Judgment and Decree of the Trial Court.

The petitioner assailed the said Judgment in the Second

Appeal. This Court vide order dated 20-12-2010,

dismissed the Second Appeal, and confirmed the

concurrent finding of facts arrived at by the Trial Court.

The petitioner assails the said order by way of present

review petition.

3.

Shri Patil, learned counsel for the review petitioner

submits that the suit itself was not maintainable in view of

absence of notice, as contemplated Under Section 164 of

the Maharashtra Cooperative Societies Act, 1960. This

3

Review (ST) No. 13155.11.

aspect has not been considered. The learned counsel

further submits that even the measurement was not

properly done. The Review petitioner sought re-

measurement, same was not considered.

The

boundaries were fixed by D.I.L.R. and measurement was

carried out by the T.I.L.R., this anomaly was not

considered. The learned counsel further contends that

plots have been drawn and allotted to the different

members. The encroachment in respect of each and

every plot was not shown. On this count also the decree

could not have been passed.

4.

The objection regarding non-issuance of notice

U/Sec. 164 of the Maharashtra Cooperative Societies

Act, 1960 was not raised by the present review petitioner

in his written statement, and not before any Court, nor

when the arguments at the time of Second Appeal were

heard. Even the fact that the society has laid down the

plots and allotted to different members was not averred,

nor proved by the petitioner. While deciding the Second

4

Review (ST) No. 13155.11.

Appeal this Court had considered the measurement map

on record and the appreciation of the evidence in that

regard by both the fact finding Courts, and thereafter this

Court has dismissed the Second Appeal. The Jurisdiction

of this Court U/Sec. 114 read with Order 47 of Civil

Procedure Code to entertain review petition is in narrow

compass. It is not akin to Appellate Jurisdiction.

5.

In view of the above, review petition is dismissed.

However, there shall be no order as to costs.

[S.V. GANGAPURWALA, J ]

SDM* August-11