KBP wp1977-09.sxw : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1977 OF 2009 Prabhu Ananta Jagtap & anr. .. Petitioners V/s. Jivraj Haridas Chavan (Bhil) .. Respondents ..... Mr.S.S.Shah, for petitioners. Mr.A.S.Kulkarni, for respondent. ..... CORAM : A.S.OKA, J. DATE : 22 nd JULY, 2009. P.C. : 1] Heard learned Counsel for petitioners and respondent. Petitioners are original plaintiffs. The Petitioners filed a Civil Suit against the respondent praying for injunction restraining respondent from using a road through the suit property on the basis of order dated 27 th March, 2003 passed by the Tahsildar in purported exercise of power under Section 143 of the Maharashtra Land Revenue Code, 1966. An application for temporary injunction was made by the petitioners – plaintiffs which was rejected by the trial Court. An appeal was preferred before the district Court and by the impugned order, the appeal has been dismissed. 2] The submission of the learned Counsel for petitioners is that the order passed by the Tahsildar in purported exercise of powers under Section 143 of KBP wp1977-09.sxw : 2 : the said Code of 1966 was illegal as the said order purports to create a non existing road. His second submission was that an affidavit of Annasaheb Gosavi was placed on record of the trial court in which the said Gosavi, who claims to be the vendor of respondent has stated that another road is available to the respondent. He contends that said affidavit has been completely ignored by appellate court. His submission is that as the impugned order passed by the Tahsildar is illegal, the respondent cannot use the road which is created under the said order especially when another road is available to the respondent. 3] The submission of the learned Counsel for respondent is that the order passed by the Tahsildar has not been challenged in accordance with law and in any event, there are concurrent findings recorded by the courts below. He pointed out that the affidavit of Annasaheb Gosavi has been duly considered by the appellate court. 4] I have carefully considered the submissions. Under Section 143 of the said Code of 1966, a person aggrieved by the order of Tahsildar has a remedy of filing a civil suit praying for setting aside or modification of the order. If such civil suit is filed within a period of one year from the date of the order, remedies of preferring appeal and revision which are otherwise provided under said code of 1966 are not available to a party filing the suit. The learned Counsel for petitioners tried to submit that the suit filed by the petitioners is for challenging order of the Tahsildar. Prima facie, it appears that in the said suit there is no prayer made for setting aside the order of Tahsildar or for modification of the said order. The prayer in substance is that the respondent cannot claim right on the basis of order passed by the Tahsildar. It is true that there is an averment in the plaint that the order of KBP wp1977-09.sxw : 3 : Tahsildar is illegal but there is also an averment that the respondent is not properly interpreting the order of the Tahsildar and is trying to claim existence of a road. There is a remedy provided under sub-section 4 of Section 143 of the said Code of filing a suit for setting aside or modification of order of Tahsildar. Prima facie, the suit filed by petitioners is not such a suit. If aggrieved party fails to file the suit as contemplated by the said Code, the said omission has consequences. The reason is that the remedy provided in the said code of 1966 of appeal and/or revision continues to remain available. The logical consequence is that if the suit is not filed as contemplated by the statute and if recourse is not taken to the other remedies under the said code of 1966, the order of Tahsildar operates. Considering this aspect, it is difficult to find fault with the view taken by the courts below. It is not possible to interfere with the discretionary orders passed by the courts below in this writ petition under Article 227 of the Constitution of India. 5] Accordingly, the writ petition is rejected. Rejection of the writ petition will not prevent the petitioners from filing appropriate proceedings in accordance with law. 6] At this stage, the learned Counsel for petitioners prays that the earlier ad-interim relief granted by this court may be continued for a reasonable time. The said prayer is opposed by the counsel for respondent. Considering the fact that the ad-interim relief was operating for some time, the same shall continue to operate for six weeks from today. ( A.S.OKA, J. )