Surel S. Shah (caveat Filed For R. No 1)

Order - Status 7: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5664 OF 2010 Dhondiram Shankar Masal & Anr. .. Petitioners V/s Nana Narayan Masal & Ors. .. Respondents Mr. R.V. Bansode for the petitioners. Mr. Surel S. Shah for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 9TH AUGUST 2010 P.C. : Heard. By this petition, the petitioners challenge the common order dated 28 April 2010 passed by the learned District Judge1, Pandharpur, rejecting the petitioners' applications at Exhibits 94, 101, 102 and 118. By that order, the application made by the respondent no.1 at Exhibit 106 was also rejected. Respondent no. 1, however, has not challenged the order rejecting his application at Exhibit 106. Respondent no.1 in the writ petition is the original plaintiff. The petitioners and respondent nos.2 to 7 are the original defendants. In a suit for partition filed by respondent no.1 a decree for partition and separate possession was passed. The petitioners filed an appeal in which a partial stay to the execution was granted by the appellate court. The appellate court directed that the execution of the decree upto the delivery of possession can proceed but only directed stay for delivery of possession till the disposal of the appeal. Thereafter the petitioners filed an execution proceeding and the decree appears to have been sent to the Collector for partition. It appears that thereafter the Tahsildar issued a notice for possession but actual possession was not delivered when it was brought to the notice of the Tahsildar that there was a stay for delivery of possession. Thereafter the present petitioners made various applications mentioned above. By the application at Exhibit 57, the petitioners prayed that the proceedings for contempt of court be initiated against the Tahsildar. By the application at Exhibit 94, the petitioners prayed that tamperings were made by the respondent no.1 in the proceedings of Regular Darkhast No. 9 of 2002 and, therefore, prosecution be launched under sections 466, 468, 120B and 34 of the I.P.C. The appellate court has held that there was no iota of evidence about the alleged tampering by the respondent no.1 No material was pointed out before me to show any tampering by the respondent no.1. Hence, that order requires no interference. By the application Exhibit 101, the petitioners prayed that notice be issued to Mr. Ajay Pawar, the Tahsildar. By the application Exhibit 118, the petitioners prayed that Tahsildar Mr. Pawar be joined as party to the appeal. By the common order, both the applications have been rejected. Application at Exhibit 102 was for expeditious hearing of the appeal. In the final order, the appeal is directed to be fixed for final hearing. Hence, there can be no grievance about it. The gravamen of the applications of the petitioners at Exhibits 101 and 118 appears to be that though a stay for delivery of possession was granted by the first appellate court, The Tahsildar issued the notice for possession and thereby committed the contempt. Admittedly, the lower appellate court had not stayed the total execution of the decree. It had granted permission to the parties to proceed with the execution of the decree for partition and it only put a condition that the possession shall not be delivered. The proceedings were then sent to the Collector for effecting the partition. It appears that papers were sent by the Collector to the Tahsildar for partition. It appears that the Tahsildar did not notice that there was stay for delivery of possession and issued only the notice for possession. However, he did not deliver the possession on the fact of stay being brought to his notice. Thus, no breach of the order of the stay passed by the appellate court was committed. Hence, the decision of the trial court refusing to take action against the Tahsildar and joining him as a party appears to be proper requiring no interference in exercise of writ jurisdiction under Article 227 of the Constitution of India. It may be noted that the suit was iled in the year 1996 and the appeal was filed in the year 2002. Thus, for 14 long years the respondent no.1, who has obtained the decree for possession, has been kept out of possession of the property. The present writ petition appears to be nothing but an attempt to further delay the hearing of the appeal and thereby stall the delivery of possession. For these reasons, there is no merit in the writ petition which is hereby rejected summarily. The lower appellate court is directed to decide the appeal expeditiously and, in any event, within 6 months hereof. (D.G. KARNIK, J.)