Mazania of Temple of Shri Morzai Devi and Others vs Shri Baburao Vithal Gurov and Others

A.P. Lavande, J.—By consent of the learned Counsel for the parties, the appeal is taken up for final disposal.

Heard Mr. Mulgaonkar, learned Counsel for the Appellants, Mr. Kansar, learned Counsel for Respondent Nos. 1 to 9 and Mr. Shirodkar, learned Government Advocate for Respondent Nos. 10 and 11. None for Respondent Nos. 12 to 15, though served.

During the course of hearing of Civil Application No. 80/2010 filed by the Appellants, it has been pointed out to me that in the judgment and order passed by the trial Court disposing of the Civil Suit No. 42/2005, there is absolutely no marshalling of the evidence led by the parties. By the impugned judgment and decree, the trial Court has partly decreed the suit and injuncted Defendant Nos. 1 and 3 to 7 from disturbing the possession of the Plaintiffs of the suit property, house and other structures. Perusal of the impugned judgment and order discloses that the learned trial Judge has not even mentioned the number of witnesses examined by either side nor made any reference to oral and documentary evidence led by the parties.

It is axiomatic that the trial Court while disposing of the suit must marshal and analyse the evidence led by both the parties before giving findings on the issues involved in the suit. Indisputably, this exercise has not been undertaken by the trial Court. On this count alone, the impugned judgment and decree is liable to be set aside and is hereby set aside.

In view of the above, the impugned judgment and decree is set aside. The trial Court to decide Civil Suit No. 42/2005 afresh after giving opportunity of being heard to the parties in accordance with law and in the light of the observations made above.

The parties shall appear before the trial Court on 17th March, 2011 at 10.00 a.m. The trial Court shall dispose of the suit expeditiously and in any case on or before 30th June, 2011.