Bombay High Court

BILAL PAPA @ PAPAMIYA PAKHALE, (INAMDAR) AND ORSversusBABURAO SAMPATI KAMBLE AND ORS

Disposal: Disposed Off

Holding

The impugned order staying the execution of the trial‑court decree was lawful and must be upheld to prevent complications pending the appeal.

Summary

The petitioners challenged an order of the lower appellate court that stayed the execution of a trial‑court decree concerning a land dispute arising from a 1974 sale deed. The core controversy was whether the deed transferred only 1 ha 60 r of Survey No. 39/3 or the entire 2 ha 10 r, a question complicated by subsequent fragmentation of the survey into different Gats. The petitioners argued that the trial court had correctly limited the transfer and that the stay should be lifted, while the respondents contended that the entire area was transferred and that the stay was necessary to avoid execution complications pending appeal. The High Court examined the revenue records, the parties’ affidavits, and the applicability of Order XXXXI Rule 5 of the CPC and Section 155 of the revenue law. Finding no illegality in the lower court’s order and emphasizing the need to preserve the status quo until the appeal is decided, the Court dismissed the writ petition and upheld the stay. Consequently, the appellate court was directed to decide the appeal on its merits without further interference.

Issues considered

Whether the stay of execution granted by the lower appellate court should be upheld pending the appeal.
What is the correct extent of land transferred under the 1974 sale deed – 1 ha 60 r or 2 ha 10 r.
Whether the petitioners are entitled to possession of 50 r of land in Gat No. 1250.
Whether the lower appellate court exceeded its jurisdiction in recording findings on the disintegration of Survey No. 39/3.

Legislation cited

Code of Civil Procedure, 1908 — s. Order XXXXI Rule 5
Maharashtra Land Revenue Code (or applicable revenue law) — s. Section 155

Subjects

land dispute
sale deed interpretation
revenue record
stay of decree
appellate jurisdiction
Section 155
Order XXXXI Rule 5
injunction
possession

Judgment

69-WP-16701-2024=.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 16701 OF 2024
Digitally
signed by Bilal Papa @ Papamiya Pakhale, (Inamdar) and Ors. … Petitioners
UDAY
UDAY SHIVAJI
SHIVAJI JAGTAP Vs.
JAGTAP Date:
2026.09.08
13:14:51
+0530
Baburao Sampati Kamble and Ors. … Respondents

WITH
INTERIM APPLICATION (ST) NO. 5963 OF 2026
IN
WRIT PETITION NO. 16701 OF 2024

Baburao Sampati Kamble and Ors. … Applicants
Vs.
Bilal Papa @ Papamiya Pakhale, (Inamdar) and Ors. … Respondents
………….
Mr. Machhindra Patil for the Petitioners
Ms. Babita Pandey for the Respondents
………….
CORAM : SHAILESH P. BRAHME, J.

DATE : 7th SEPTEMBER, 2026.
FINAL ORDER :

. Heard both sides.

2. The Writ Petition is directed against the order dated 22.10.2024

passed below Exh.5 in R.C.A. No. 60 of 2024 by lower appellate Court

granting stay to the implementation of judgment and decree passed by

the trial Court.

3. Learned counsel for the petitioners submits that going by the Sale

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Deed dated 02.10.1974, only land measuring 1 H and 60 R of Survey No.

39/3 was transferred and it was not entire 2 H and 10 R. The claim of

the respondents over and above 1 H and 60 R is untenable. It is

submitted that trial Court has properly appreciated evidence on record

and passed decree which need not have been stayed. It is further

submitted that the petitioners are entitled to 50 R of land of Gat

No.1250. Reliance is placed on interim order passed by this Court on

14.02.2025 to buttress the submission that the same situation be

continued and appeal be decided expeditiously. It is further submitted

that lower Appellate Court committed error of jurisdiction in recording

findings in respect of disintegration of the Survey No.39/3 into Survey

No.40 and thereafter into Gat No.1250. It is vehemently submitted that

the Revenue record would indicate that only 1 H 60 R was transferred.

Learned counsel has taken me through the Revenue record to corroborate

the submissions.

4. Per contra, learned counsel for the respondents would refer to the

affidavit-in-reply. It is submitted that earlier order passed by this Court

on 14.02.2025 was before filing of the reply and relevant documents. It

is vehemently contended that the sale deed in question refers to entire

Pot Hissa, which would cover 2 H and 10 R as subject matter. It is

further submitted that the petitioners were unsuccessful before the

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Revenue Authorities and the attempts to correct the area failed before

Tahasildar as well as Sub-Divisional Officer. My attention is adverted to

the statement of the petitioners which would indicate that since 1974 till

2024 the disputed 50 R was not cultivated by them.

5. The petitioners had filed R.C.S. No.160 of 2018 for declaration and

injunction as such. It was contested by the petitioners. After full fledge

trial the suit was decreed partly by judgment dated 22.04.2024. The

decree is subjected to challenge in R.C.A. No.603 of 2024. The

petitioners preferred Application Exh.5. The decree was stayed initially

on 21.06.2024. It was confirmed by the impugned order.

6. Both counsel have made rival submissions regarding area alienated

by forefather of the petitioners to the respondents vide Sale Deed dated

02.10.1974. It needs to observe that the Sale Deed does not stipulate

four boundaries. It refers to area of 1 H and 60 R of Survey No. 39/3 and

simultaneously refers to entire sub division of the land, which has created

confusion. The whole controversy revolves around as to whether area of

1 H 60 R was transferred or 2 H and 10 R. I need not delve upon this

point at this stage of the proceedings. It would be decided during the

course of appeal.

7. Both counsel have taken me through the Revenue record in support

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of their claims. The land was originally registered as Survey No.39, which

was subjected to proceedings of consolidation and fragmentation and

disintegrated into 39/3, 40 and Gat No.1250. Survey No.39/3 is shown

to be to the extent of 1 H 60 R in the revenue record after 1975 but the

dispute still remains as to whether Survey No.39/3 was transferred or

40/3 was transferred. The present Gat No.1250 is emanating from

Survey No.40/3. The Gat No.1246 is emanating from Survey No.39/3.

There needs objective scrutiny by the Appellate Court in this regard.

8. Learned counsel for the respondents has relied upon attempts

made by the petitioners for correction of the revenue record. The

petitioners had approached Tahasildar in this regard soliciting the

correction under Section 155. By order dated 31.12.2011, Tahsdildar

rejected the Application. It was confirmed by the Sub-Divisional Officer

in Appeal No.155 of 2015. I find prima facie substance in the contention

of the respondents that entire area of 2 H 60 R has been transferred vide

Sale Deed dated 02.10.1974 albeit it would be subject to the adjudication

by the lower Appellate Court.

9. While examining the matter for consideration of the Application

under Order XXXXI Rule 5 of the CPC, the core issue needs to be

addressed as to the consequences which would follow if the decree

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appealed against is not stayed. The relief claimed by the petitioners

before the trial Court and the decree passed by the trial Court on

22.04.2024 are vulnerable. The suit is filed for declaration and correction

of the record, possession of 50 R and injunction. It would be the matter

of adjudication by the lower Appellate Court but till then, the execution

of decree needs to be stayed in its entirety, otherwise that may lead to

complications and that would frustrate the remedy of appeal availed by

the respondents.

10. The affidavit-in-reply and the documents filed by the respondents

were not before the co-ordinate bench when the order was passed on

14.02.2025. In that view of the matter, interim orders passed by this

Court would not detain me from considering the matter afresh and

differently also.

11. I do not find any illegality in the impugned order, rather it protects

the right and the interest of both sides and prevents further complication

in the matter.

12. The Writ Petition stands dismissed. The appellate Court is

requested to decide the appeal on its own merits expeditiously.

13. In view of dismissal of the Writ Petition, pending applications, if

also, also stands disposed of.

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14. After pronouncement of the order, learned counsel for the

petitioners seeks suspension of the order which is opposed by the learned

counsel for the respondents.

15. I do not find any reason to suspend the order. I have already

observed that in order to avoid the complications it is desirable to uphold

the impugned order. The request is rejected.

( SHAILESH P. BRAHME, J. )

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