1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9223 OF 2009 Eknath Shankar Shinde &Anr .. Petitioners versus Rayajirao Madhavrao Jadhav & Ors. .. Respondents Mr.M.N.Dhamal for the petitioners. Mr.R.A.Thorat for the respondents, CORAM : A.S.OKA, J. DATE : 3rd March 2010. P.C.: . By this writ petition under Article 227 of the Constitution of India, the petitioners who are the original defendants have challenged the order of temporary injunction granted by the District Court on 23rd January 2009 in an appeal preferred by the respondents (original plaintiffs). 2. The respondents filed a suit for injunction. The respondent Nos. 4 to 7 are claiming to be the owners of land bearing Gat No.994/2. The 1st to 3rd respondents are claiming to be owners of the land bearing Gat No.993. According to the case of the respondents, the petitioners were owners of the land bearing Gat No.994/1. According 2 to the respondents in between the aforesaid properties, there is a strip of land admeasuring 10 feet which is called as “bandh”. The aforesaid lands are situated in village Bhuinj, Taluka Wai, District Satara. The case of the respondents is that the said strip of land is connected to Bhuinj-Degaon road. It is contended that the suit property (the said strip of land/ Bandh having width of 10 feet) is allegedly of the joint ownership of the respondents and the petitioners and the same has been in existence for last several years. The case of the respondents is that the right of the respondents of using the suit property was obstructed by the petitioners and therefore, a suit for injunction was filed. In the said suit an application for temporary injunction was taken out by the respondents. On 29th April 2003, ad- interim injunction was granted in favour of the respondents. By judgment and order dated 4th August 2003 , the said application was rejected. Therefore, the respondents preferred an appeal before the District Court. By judgment and order dated 23rd January 2009, the appeal was allowed and temporary injunction was granted against the petitioners. An application for review was made by the petitioners which has been rejected by the learned District Judge. 3. The learned counsel appearing for the petitioners submitted that on the disputed strip of land there are big trees and there is a 3 chamber of irrigation sub-canal. He submitted that in any event other road was available for the respondents-plaintiffs to approach Bhuinj- Degaon road. He submitted that in fact the land held by 1st to 3rd respondents was abutting the said road. He submitted that the land of the petitioners was on the higher level as compared to the land of 1st to 3rd respondents. He submitted that the report of the Court Commissioner could not have been relied upon in as much as the Court Commissioner has acted beyond the scope of order appointing Court Commissioner. He submitted that report of the Court Commissioner which was filed on record after the application at Exhibit 5 was decided could not have been considered by the Appellate Court. He, therefore, submitted that the impugned orders are illegal. The learned counsel appearing for the respondent supported the impugned orders. 4. I have given careful consideration to the submissions. It must be stated here that on the application for temporary injunction, trial Court granted ad-interim injunction on 29th April 2003 in favour of the respondents. By order dated 4th August 2003 , the application for temporary injunction was rejected and the said order of injunction was vacated. In the appeal preferred by the respondents on 15th September 2003, ad-interim relief was granted directing the parties to 4 maintain status-quo. The said relief continued to operate till disposal of appeal by the District Court. Thus, right from the year 2003 prohibitory relief operating against the petitioners. 5. The Appellate Court while deciding the appeal has perused the photographs which according to the Appellate Court clearly show existence of the “bandh”. It is true that report of the Court Commissioner was placed on record on 6th September 2003 i.e after the application for temporary injunction was rejected. In view of Rule 10 of Order XXVI of the Code of Civil Procedure,1908 the report can be read in evidence. The report clearly discloses that there is an agricultural “bandh” having width of 10 feet in between the lands bearing Gat Nos.993 and 994/2. On the basis of the said material , the Appellate Court found that the parties are cultivating their respective agricultural lands excluding the area of the “bandh”. The learned Judge referred to the common practice that the said “bandhs” are kept for the convenience of adjoining holders of the agricultural lands. A finding has been recorded that if the said “bandh” was destroyed, there will not be any approach road available to 4th to 7th respondents. That is why the Appellate Court restrained the petitioners from demolishing the “bandh” and from creating any obstruction in the use of the said “bandh”. 5 6. The report of the Court Commissioner prima facie shows the existence of the said “bandh” which is in between two properties as claimed by the respondents. There were photographs on record to show existence of the “bandh”. Considering prima facie material on record , the Appellate Court has passed an order protecting the said “bandh” and user thereof. It is not possible to interfere with discretionary order of grant of equitable relief by the Appellate Court. As stated earlier, right from the year 2003 there is an ad-interim or interim order operating against the petitioners. Hence, there is no merit in the petition and the same must fail. It is obvious that the suit will be decided without being influenced by the observations made by the Courts below as well as by this Court. 7. Hence, I pass the following order: : O R D E R : (a) Writ petition is rejected. (b) Hearing is expedited and the trial Court will make an endeavour to conclude the hearing before the end of this year. (A.S.OKA,J)