Bombay High Court

SHAIKH BAPUJI SK.AHMED(DECD)LRS SK.SIKANDAR and ORSversusMALANBI SK.BUDHAN(DIED)LRS SHAIKH ABDUL RAHIM SHAIKH BUDHAN

Disposal: DISMISSED
Bench: S G CHAPALGAONKAR

Holding

The review application is dismissed as no ground for review is made out.

Summary

The applicants filed a review application against the High Court's order dismissing their second appeal in a possession suit concerning encroached agricultural land. They argued that the General Power of Attorney holder for Respondent No.2 died during the pendency of the appeal, and that the Court Commissioner who gave a report on the existence of trees was biased because he was attached to the respondent's counsel. The Court observed that the death of the attorney was not raised earlier, that the respondent had no objection to the judgment, and that no prejudice resulted. The allegation of bias was also dismissed as it was not raised in lower courts and lacked supporting material. Consequently, the Court found no merit in the review grounds and rejected the application.

Issues considered

The death of the General Power of Attorney holder for Respondent No.2 during the appeal warrants a review of the judgment.
The alleged bias of the Court Commissioner, who was attached to the respondent's advocate, affects the validity of the decision.
Whether any other grounds raised in the review application constitute sufficient cause to set aside the original order.

Subjects

review of judgment
General Power of Attorney
death of attorney
court commissioner bias
possession suit
TILR measurement
spot panchanama
civil procedure

Judgment

2026:BHC-AUG:7704
                                          (1)                     952-ra-153-2025.odt



                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                     REVIEW APPLICATION (CIVIL) NO. 153 OF 2025
                                  IN SA/409/1999

                SHAIKH BAPUJI SK.AHMED(DECD)LRS SK.SIKANDAR AND
                                             ORS
                                          VERSUS
                 MALANBI SK.BUDHAN(DIED)LRS SHAIKH ABDUL RAHIM
                                     SHAIKH BUDHAN
                                               ...
               Mr. Rajendra Deshmukh, Senior Advocate i/by Mr. Shriram Vinod
               Deshmukh and Ms. Ashwini S. Deshmukh, Advocate for
               Applicants.
               Mr. K. N. Shermale, Advocate for Respondent No.2 in SA.
                                               ...
                                       CORAM : S. G. CHAPALGAONKAR, J.
                                       DATED : 17th FEBRUARY, 2026.
               P.C.:-

               1.    The Review Application is filed seeking review of order dated

               25.04.2025 passed by this Court in Second Appeal No.409/1999,

               whereby Second Appeal of applicants has been dismissed.


               2.    Mr. Rajendra Deshmukh, learned Senior Advocate appearing

               for applicants would submit that General Power of Attorney holder

               i.e. Shaikh Karbhari Shaikh Noor of respondent no.2 died on

               18.12.2003 during pendency of Second Appeal.       The respondent

               no.2 had appeared through GPA. Therefore, order passed by this

               Court needs to be reviewed.


               3.    He would further submit that other aspect of matter that

               Court Commissioner i.e. Mr. R. D. Jain, who submitted his report

               about existence of trees on bandh between lands of plaintiffs and
                           (2)                       952-ra-153-2025.odt



defendants was person attached to Advocate appearing for

respondents and, therefore, his report was biased.


4.    It can be observed that appellants are original defendants in

suit instituted for decree of possession of encroached portion out of

agriculture land Gut No.549. The Trial Court as well as Appellate

Court decreed suit.     In Second Appeal filed before this Court,

contention was raised that measurement was carried by TILR

without notice to respondents. This Court has dealt with issue and

noted that spot panchanama, which is conducted at the time of

measurement by TILR clearly shows presence of plaintiffs,

defendants and other witnesses at the time of measurement.


5.    The another contention that Court Commissioner Mr. R. D.

Jain was biased, as he was attached to Advocate appearing for

respondents, Court finds that such contention was never raised

before Trial Court or First Appellate Court and sought to be

advanced in Second Appeal without supporting material, hence

cannot be considered.    Further there is report of TILR on this

aspect, which is basis for final conclusion. The other grounds of

review are practical grounds based on facts, which are already

considered and decided by this Court as well as lower Court. So far

as death power of attorney of respondent no.2, it was not brought

on record.   The respondent no.2 has no objection to judgment,

petitioners/appellants cannot raise such ground for review. He has
                            (3)                     952-ra-153-2025.odt



not suffered prejudice by death of power of attorney of respondent

no.2.


6.      In that view of matter, no ground is made out to entertain

present Review Application.       Hence, Review Application stands

rejected.



                                      (S. G. CHAPALGAONKAR)
                                               JUDGE
Devendra/February-2026

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