wp6030-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6030 OF 2010 Trambak Karbhari Khalate .. Petitioner Versus Bhaskar Balkrushna Borgude and Ors. .. Respondents Mr.P.S.Dani for petitioner Mr.Rameshwar N. Gite for respondent No.1 Mr.R.M.Patne, AGP for respondent Nos. 2 and 3 CORAM : S.C.DHARMADHIKARI, J. DATE : 21st July 2011. P.C.: 1] By this petition under Article 227 of the Constitution of India, the petitioner is challenging an order passed by the Revisional Authority dated 26th April 2010, dismissing the revision application preferred by him viz., RTS No.34 of 2010 to challenge the order dated 12th November 2008. 2] The proceedings are under the Mamlatdar Courts Act, 1906. Mr.Dani learned Counsel appearing for petitioner contended that what the impugned orders purport to do is to give a declaration that there is an easement of necessity as wp6030-10.doc 2 recognised by section 15 of the Easement Act. He submits that the case made out in the present proceedings by the respondent is a claim of easement of necessity soas to pass through the land belonging to the petitioner and reach respondent’s property. Such a claim is de hors of the Mamaltdar Courts Act and the authorities lack inherent jurisdiction in adjudicating on the same. The respondent ought to have approached civil court if he claims right of way is of necessity. 3] It is not possible to accept these contentions based as they are on the footing that the claim was not founded on a existing road and the right to pass over it. The application that was made by the respondent clearly stated that he is the ower of Gat No.143/1. The petitioner owns Gat No.143/2. Both these lands belonged to a single owner earlier. On the Northern side of the land belonging to the petitioner, viz., Gat No.143/2, is another land of respondent viz., Gat No.138/2. The respondent has constructed a house on this agricultural land and he resides in the same. The respondent for reaching his gat No.143/1 has a road which passes through the petitioner’s land Gat No.143/2. That road was pre-existing and was being used. The respondent acquired the property in the year 1994. However, when the present petitioner obstructed to his right of way and usage of the road that he invoked wp6030-10.doc 3 jurisdiction of the authority under section 5 of the Mamlatdar Courts Act. 4] When the case that is set out and referred to at page 14 of the petition paperbook is seen in the light of section 5 of the Act, then, it is not possible to accept the contention of Mr.Dani that what the respondent was asserting was a claim based on easement of necessity. This is a clear case where an existing road was being used and that is how the claim proceeds. When the existing road was used and the same was obstructed by the petitioner, the respondent moved the authorities. In these circumstances, the authorities were in no error in calling for spot inspection and report. After the spot inspection, panchanama was drawn which proved the case of existing road being obstructed by the petitioner. In the circumstances, the concurrent findings recorded by the authorities require no interference under Article 227 of the Constitution of India as they are not vitiated by any error apparent or perversity. The petition is, therefore, dismissed. No costs. 5] At this stage, Mr.Dani prays that the ad-interim order passed by this Court be continued for a period of eight weeks to enable the petitioner to initiate appropriate proceedings. This request is opposed by Mr.Gite appearing for respondents. wp6030-10.doc 4 6] Bearing in mind that SDO's order is passed on 12th November 2008 and is confirmed on 26th April 2010 so also the ad-interim order is made by this Court on 3rd August 2010, interest of justice would be served if the said order is continued for four weeks from today, but without prejudice to the rights and contentions of both sides. (S.C.DHARMADHIKARI, J)