Advocates:
['MHASE MADHAVESHWARI S', 'SHRI A V HON', '', 'CVTR']

931-SA NO.241 OF 2017.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.241 OF 2017

WITH CA/14406/2015 IN SA/241/2017

Pankaj S/o Sambhaji Kate,

]

Age : 37 Years, Occu. : Business,

]

R/o Murud, Taluka and Dist. Latur.

]

… Appellant.

Versus

Sow. Jayshree Bhaskarrao Ritpure,

]

Died through Legal Representative

]

1. Bhaskar S/o Babasaheb Ritpure,

]

Age : 59 Years, Occu. : Service,

]

2. Kunal S/o Bhaskar Ritpure,

]

Age : 30 Years, Occu. : Service,

]

3. Kapil S/o Bhaskar Ritpure,

]

Age : 28 Years, Occu. : Agriculture,

]

4. Gaurav S/o Bhaskar Ritpure,

]

Age : 27 Years, Occu. : Service,

]

Respondent Nos.1 to 4

]

All R/o Aditya Garden City,

]

Near Sinhagadh College,

]

Warje, Pune, Taluka and District Pune.

]

5. Mallikarjun Chanappa Shete,

]

Age : 53 Years, Occu. : Agri. and Business,

]

R/o. Ambaleshwar Galli, Latur,

]

Taluka and District Latur.

]

… Respondents.

[Respondent Nos.1 to 4 are

Orig.Plaintiffs and Respondent

No.5 Orig.Defendant No.2.]

. . .

Ms. Madhaveshwari S. Mhase, Advocate for Appellant.

Mr. A. D. Sonkawade h/f. Mr. A. V. Hon, Advocate for Respondent Nos.1 to 4.

. . .

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931-SA NO.241 OF 2017.odt

CORAM : BHARAT P. DESHPANDE, J.

DATED : 11^th AUGUST 2022

ORDER :

Heard.

2.

The present Appeal is challenging Judgment of both the Courts

below. Suit was filed by respondents/original plaintiff Nos.1 to 4 for perpetual

injunction against the present appellant bearing R.C.S. No.176 of 2011.

3.

Vide Judgment dated 27^th February 2013 learned Civil Court

dismissed the suit. Respondent Nos.1 to 4 preferred an appeal bearing

Regular Civil Appeal no.77 of 2013. Vide Judgment dated 16^th January 2015

the learned District Judge – 2 at Latur allowed the said Appeal, quashed and

set aside the Judgment and Decree of the trial court and decreed the suit. The

appellant is challenging the said judgment of the Appellate Court.

4.

Learned counsel for the appellant strenuously urged that in spite

of specific pleadings raised in the written statement disputing about the

identity of the suit property, no specific issue was framed by the learned trial

court. Learned first Appellate Court has also failed to consider and decide the

vital aspect of identification of the suit plot. She invited attention of this Court

to sale deeds of the plaintiffs as well as that of defendant.

5.

On perusal of both the sale deeds it clearly goes to show that

boundaries of plot no.1 mentioned therein are different. Admittedly, there is

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931-SA NO.241 OF 2017.odt

no plan attached to the sale deed of the plaintiff. The sale deed mentioned

that the plaintiff after purchasing the suit plot will have to move the

authorities for getting land converted into non agricultural use. The sale deed

of the defendant specifically refers to plot no.1 which is converted into non

agricultural use.

6.

Learned counsel for respondents forcefully submitted that first

Appellate Court as well as learned trial court has clearly observed that the suit

plot has been properly identified. However, on perusal of both the decisions

and more specifically the issues/points framed for decision, there is no specific

issue with regard to identification of the suit plot. Both the parties pleaded

that they constructed structure on the suit plot and are claiming possession

over it.

7.

The written statement filed by defendant fairly disputed about the

identification of the suit plot as claimed in the plaint. It is their contention

that no such land exist in the said property. Therefore, it was necessary for the

learned trial court to frame specific issue with regard to identification of the

suit property as provided under Order 14, Rule 1 of the Code of Civil

Procedure. However, no such issue was framed. Learned first Appellate Court

also failed to consider this vital aspects.

8.

Second important aspect is the powers of the learned Civil Court

for appo