High Court
Legal Reasoning
( 1 ) 931-WP-7690-24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD931 WRIT PETITION NO. 7690 OF 2020KISAN BHASU RATHOD AND ANOTHERVERSUSCHAPALA TEJA PAWAR DIEAD THR LRS SUKHDEV CHAPLA PAWAR ANDOTHERS...Advocate for the Petitioners : Mr. B. S. Kudale,Advocate for Respondent Nos.1(1), 1(3) and 2 : Mr. S. V. Jadhwar …CORAM:PRAFULLA S. KHUBALKAR, J.DATE:02.04.2025PER COURT :-1.Rule. Rule made returnable forthwith. Heard finally by consent ofparties.2.Heard Mr. B. S. Kudale, learned Advocate for the petitioners andMr. S. V. Jadhavar, learned Advocate for respondent Nos.1(1), 1(3) and 2.3.The petitioners have challenged order dated 28.09.2020, passedby the District Judge-1 Majalgaon on an application for stay (Exh-5) inRegular Civil Appeal No. 2 of 2020.4.By the impugned order, the First Appellate Court has rejected the ( 2 ) 931-WP-7690-24application for stay filed by the petitioners (original defendants) seeking stayto the judgment and decree dated 01.01.2020 in Regular Civil Suit No.185 of1977. By the impugned order, the Court of District Judge had observed thatthe issue of possession over the suit property was decided by judgment andorder dated 25.03.1972 in Regular Civil Suit No.49 of 1970 pursuant to whichan execution case bearing R.D. No.45 of 1974 was filed and the possessionwas handed over to respondent Nos.1 to 3 through Court bailiff by issuingpossession receipt dated 13.06.1974. The First Appellate Court has observedthat the issue about the tenancy of the defendants was decided by theTahsildar, Majalgaon. By referring to the issue of tenancy and the findings ofthe Trial Court, the First Appellate Court has rejected the application for stay.5.Raising challenge to the impugned order, Mr. Kudale, learnedcounsel for the petitioners vehemently submits that the Court has failed toconsider the vital issue about long standing possession of the petitioners overthe suit property. He submits that the petitioners are tenants of the propertyand the issue of their tenancy has not attained finality. He submits that theTahsildar and the SDO have wrongly decided issue of tenancy and an appealchallenging their orders is filed on 10.01.2020 before the Collector, Beed. Hesubmits that since the appeal is pending, the issue of tenancy has not attained
Legal Reasoning
( 3 ) 931-WP-7690-24finality. He further submits that during the pendency of the application forstay (Exh-5), the Appellate Court has passed an order dated 23.07.2020 onan application for grant of status quo during the pendency of the applicationfor stay (Exh-5) and the said application was allowed and parties weredirected to maintain status quo till decision on Exh-5. He submits that afterdecision on Exh-5 (impugned order), this Court has passed an order dated23.11.2020 and the status quo was ordered to be maintained which iscontinued till today. He therefore requests that the status quo may becontinued and Regular Civil Appeal No.2 of 2020 may be directed to beexpeditiously decided on merits.6.As against this, Mr. Jadhwar, learned counsel for the respondentsstrongly opposes the petition. He submits that the impugned order is passedby considering the findings recorded by the Trial Court in Regular Civil SuitNo.185 of 1977. He invites attention to the issues framed by the Trial Court inRegular Civil Suit No.185 of 1977 and submits that the issues of title andpossession have been answered in favour of the plaintiffs(respondents). Hesubmits that the respondents are having possession over the suit propertywhich they have received in the execution proceedings bearing R. D. No.45 of1974 which was an execution case of judgment in Regular Civil Suit No.49 of ( 4 ) 931-WP-7690-241970. He submits that there are clear findings by the Trial Court that thedefendants (petitioners) are not in a possession of the suit property. He furthersubmits that the issue of tenancy was decided by the Competent Authorityagainst the defendants which is upheld by the Sub-Divisional Officer. He alsosubmits that, although an appeal is pending before the Collector, however,there is no interim relief of any nature. He submits that the impugned order isan order on an application for stay wherein only relief prayed is for stay to theexecution of the judgment and decree passed by the Trial Court and nospecific injunction against any particular party is sought for.7.The rival contentions now fall for my consideration.8.The petitioners have challenged the order passed on anapplication for stay (Exh-5) in Regular Civil appeal No.2 of 2020. By way ofthis application, the petitioners/appellants have prayed for the followingrelief :“In the interest of justice the operation and execution of the judgment anddecree challenged in appeal may kindly be set-aside till disposal of the appeal andrecord and proceeding be called from lower court.”It is pertinent to note that, although, the only relief prayed by this application ( 5 ) 931-WP-7690-24is to set aside the impugned judgment and decree till disposal of the appeal.The learned Advocate for the petitioners submits that this includes the prayerfor injunction. Be that as it may, the application for stay was considered by theAppellate Court as an application for injunction. The basic contention of therespondents (original plaintiffs) before the Trial Court was that on the basis ofsale deed of the year 1968, Regular Civil Suit No.49 of 1970 was decreed andin the execution case, the respondents were put in possession of the suitproperty through the Court bailiff. However, it has to be noted that the nameof the respondents were not recorded in the 7/12 extract of the suit property.The contention of the learned Advocate for the petitioners is that thepetitioner was not a party in the said civil suit (R.C.S. No.49/1970) andtherefore no rights can be claimed against him based on the decree in thatsuit. It has to be noted that the judgment and decree in Regular Civil SuitNo.49 of 1970 was confirmed by the District Court as well as by the HighCourt in which the petitioners were not parties. 9.True it is, after considering the evidence on record, the Trial Courthas recorded findings with respect to the title and possession over the suitproperty. The appeal challenging the judgment and decree is pending and theonly issue raised vide application for stay was for grant of stay to the ( 6 ) 931-WP-7690-24impugned judgment and decree, during the pendency of the appeal.10.It has to be noted that the issue about tenancy of the defendantsin R.C.S. No.185/1977 is pending before the Collector, Beed. Thepetitioners/appellants are claiming that they are having the possession of thesuit property since 1958 and they have purchased the property on 11.06.1966.Although, the Trial Court has decided the issue of title, however, 7/12 extractshows the name of the petitioners/appellants. The petitioners/appellants haveraised several grounds in the appeal memo and by order dated 23.07.2020,parties were directed to maintain status quo. Thereafter, by order dated23.11.2020, in this petition, parties were directed to maintain status quowhich is continued from time to time and it is operating till today.11.In view of the fact that the Regular Civil Appeal is of the year2020 and the same is pending only because of the pendency of the instantpetition, it will be in the interest of justice that the Regular Civil Appeal isdirected to be decided finally at the earliest. The petitioners submit that theirappeal with respect to tenancy rights is also pending before the Collector since2020 and the decision of the appeal will decide their status. The petitionersare asserting that they are tenants and desirous of pursuing their appeal ( 7 ) 931-WP-7690-24before the Collector at the earliest. The petitioners are therefore directed toget their appeal decided expeditiously and the decision may be placed beforethe Appellate Court.12.It has to be noted that the petitioners (original defendants) areclaiming rights based on their Sale Deed of the year 1966 and the 7/12 extractshows the name of the petitioners. The Regular Civil Appeal needs to bedecided by considering rival claims and decision on merits is desirable, as theparties are involved in the litigations since decades. Since order of status quowas operating during the pendency of application for stay and further thisCourt had also granted status quo, which is continued from time to time sincelast several years, interest of justice will be subserved if the Regular CivilAppeal is directed to be decided expeditiously.13.Considering the above mentioned facts and circumstances, I passfollowing order to meet ends of justice :ORDERi.The writ petition is allowed.ii.The impugned order dated 28.09.2020 passed by the District
Decision
( 8 ) 931-WP-7690-24Judge-1, Majalgaon, is quashed and set aside and the application for stay inR.C.A. No.02/2020 is allowed.[iii.The Appellate Court is directed to decide the Regular Civil AppealNo.2 of 2020 as early as possible and preferably within a period of four (04)months from the date of receipt of this order.[iv.The petitioners are directed to meticulously appear before theAppellate Court on 21st April 2025 and take steps for early decision of theappeal without seeking adjournments.v.The writ petition is disposed of.( PRAFULLA S. KHUBALKAR, J. )PRW