MANGALA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants herein claimed themselves to be the successors intitle as well as in possession of the properties survey Nos. 53/1B, 52/1, 52/2, 133 and 46/2 situated at Chahurna (Bk), Taluka and District Ahmadnagar, from the original defendant Nos. 7 & 8 in Special Civil Suit No. 13/1956 decreed on 13.04.1956 by the learned Civil Judge Senior Division Ahmednagar. The appellants are the objectors in Special Darkhast No. 57/1977, to the executability of the decree passed in Special Civil Suit No. 13/1956. The objections raised by the appellants to the executability of the decree are rejected by the Collector, Ahmednagar vide his order dated 24.12.2007 and also by the learned Civil Judge Senior Division, Ahmednagar by his order dated 07.01.2008. The appellants preferred writ petition No. 276/2008 under Article 226 and 227 of the Constitution of India before learned Single Judge challenging the aforesaid orders. The said writ petition is dismissed by the learned Single Judge, in motion hearing by his order dated 12.06.2008, against which, the instant Letters Patent Appeal has been filed. Basically two questions are required to be decided in this appeal:

(2.) The facts in detail giving rise to the instant appeal are as under:

(3.) On 13.04.1957 Chotibee filed Special Civil Suit No. 13/1956 for partition and separate possession in respect of the properties owned by her father Maheboob Zarekari. In the said civil suit Mamulabee was joined as defendant No. 1 and the other persons to whom Mamulabee transfered survey Nos. 46/2, 131, 47/6, 48/6, 52/1, 53/1B and 133/3 were also joined as defendant Nos. 2 to 9. Babu Sagulal Itare @ Zarekari was joined as defendant No. 2 as survey No. 47/6, 48/6 and 50/4 were transfered to him by way of gift by Mamulabee. The defendant No. 3 Khandu Ramu Phulsaunder and defendant No. 4 Laxman Ramu Phulsaunder purchased survey No. 131 and some portion of survey No. 46/2 and hence were joined as defendant Nos. 3 and 4 respectively. One Raghunath Pandit purchased survey No. 46/6 from defendant No. 2 and was joined as defendant No. 5 in the suit. Rev. Dr. Bhaskar Diwale purchased survey No. 48/6 from defendant No. 2 and hence was joined as defendant No. 6. Sakharam Misal purchased survey No. 52/1 and 52/2 from defendant No. 1 and, was therefore, joined as defendant No. 7. Ramchandra Misal purchased survey No. 53/1B and Laxman Bhosale purchased survey No. 133/3 and, hence, were joined as defendant Nos. 8 and 9 respectively.