SARDAR HASANBHAI ATTAR Vs. USMAN PAPAMIYA ATTAR SHAIKH

JUDGEMENT

(1.) The present Second Appeal is against the order dated 4th May, 2005 passed by the Additional District Judge, Niphad (Nashik) in Regular Civil Appeal No. 258 of 2005, whereby the appeal arising out of the order below Exh. 29 in Regular Darkhast No. 41 of 2001 filed in the Court of Civil Judge, Junior Division, Yeola dated 10/03/2005 has been maintained. Respondent No.1 is the decree holder in Regular Civil Suit No. 10 of 1982 by judgment and decree dated 04/09/1995. In appeal No. 139 of 1999, the same decree was confirmed on 25/09/2000. Therefore, execution of the same decree came to be filed on 03/07/2001 by the decree holder against respondent Nos. 2A and 3 (Exh. 29).

(2.) The warrant under Order 21 Rule 35 of the Civil Procedure Code (for short, "CPC") for possession was issued. One Sardar Attar as third party obstructed and therefore, the warrant was returned unserved.

(3.) Meanwhile, the appellant who is one of the co-sharer of the suit property pending the appeal No. 139 of 1999 as referred above, has filed special suit No. 104 of 2000 in the Court of Civil Judge, Senior Division, Niphad for separate possession. The same is still pending. Another suit No. 51 of 1999 also filed by one Mr. Bashir Haji Abdul Attar for partition of the property mentioned in scheduled "A" of the Regular Darkhast No. 41 of 2000 in question. Both these suits are pending in the respective courts. There was no written partition between the co-owners and basically by the appellant. The property in question has been in possession of the plaintiff as the owner. However, based on the alleged family arrangement, the Courts held that there was partition and the suit property has been in possession of the plaintiff as owner. Present respondent No.1, decree holder, therefore, had filed suit for possession against respondent Nos. 2A and 2B (Original defendants).