BABURAO SHRAWAN BHENDARKAR Vs. SITARAM BAPUJI BANAPURKAR

JUDGEMENT

(1.) This Appeal is being heard since 18th March, 2008. On that date, after hearing Advocate Shri V.G. Wankhede, for Appellants/Original defendants and Advocate Shri N.N. Thengre, for respondent/original plaintiff, I have formulated two substantial question of law. The same are as under :

(2.) Today, Advocate Shri Thengre for respondent as also Advocate Shri Wankhede for appellants jointly state that the compromise efforts have failed, but they requested the Court to remand the matter for fresh decision in accordance with law, without expressing anything on merit. Advocate Shri Thengre, states that any observation by this court would adversely affect the consideration of issue by the Trial Court. Advocate Shri Thengre, states that as the report of measurement has been challenged and as there is a finding that notice was not served upon the present appellant, a fresh measurement through T.I.L.R. at Nagbhid / Chandrapur should be ordered. He further states that as the dispute is pending since 1975, the adjudication should be expedited with liberty to the plaintiff to lead fresh evidence. Advocate Shri Wankhede for appellant / defendant also seeks liberty to lead fresh evidence.

(3.) The questions of law which fall for determination are already formulated above. As already expressed both the counsel appreciated need for remand in the matter. In the circumstances, without expressing anything on merits, I find it appropriate to quash and set aside the judgment and decree dated 13.08.1992 delivered in Regular Civil Appeal No. 71.1983 by the 2nd Additional District Judge, at Chandrapur and also the judgment and decree dated 30.04.1983 delivered by the Civil Judge, Junior Division, Bramhapuri in Regular Civil Suit No. 90/1975. The said suit is restored back to the file of Civil Judge, Junior Division, Bramhapuri. Advocate Shri Thengre, points out that the property is located at Mouza Nagbhid and at Nagbhid itself now the court of Civil Judge, Junior Division has been established. It is apparent that the suit will be required to be transferred from Bramhapuri Court to Nagbhid Court. Accordingly after the records are received by the office of the Civil Judge, Junior Division, Bramhapuri the same shall be transferred to the Court of Civil Judge, Junior Division, Nagbhid.