1 wp3264.11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3264 OF 2011 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. V.B. Patil, Advocate for the petitioner. CORAM : B.P. DHARMADHIKARI, J. DATE : 28th APRIL, 2011 Heard Advocate Mr. Patil for petitioner. Appellate Court has found certain errors on part of trial Court while considering application at Exhibit-5 and hence has allowed the appeal under Order 43 Rule 1 R of Civil Procedure Code filed by the respondent-plaintiff. In the process, it relied upon the report of Commissioner which is not looked into by trial Court and affidavits of other adjacent owners. It also noted that entire land of plaintiff and defendants fromed one block i.e. Gut No. 68. Appreciation by trial Court was found incorrect and it has noted that it is open for a person to claim easement by way of necessity even if he is unable to show easement by way of prescription. The orders passed under Mamlatdar Courts Act are therefore found not binding. 2. Learned counsel has contended that brother of the 2 wp3264.11 plaintiff has filed suit for same way and in it, there is no interim relief. He is seeking adjournment to produce copy of that plaint on record. It is further argued that in present matter, suit has been filed in the year 2008 and from 2008 onwards till appellate Court granted temporary injunction, there was no interim order. The contention is hence the respondent-plaintiff is using other alternate way. 3. The contention about plaint in other suit filed by brother of plaintiff or about absence of interim relief are not decisive at this stage. Scope of consideration of controversy in appeal against order is itself very narrow and when challenge thereto is required to be considered in Petition before this Court, it is further narrowed down. I do not see any jurisdictional error or perversity, Petition is rejected. However, proceedings in R.C.S. no. 253 of 2008 are expedited and trial Court shall attempt to decide the same at the earliest and in any case by 31.12.2011. 4. With these directions and observations, the present Writ Petition is disposed of. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp3264.11