1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLN.NO.262 OF 2003 with CA NO.8121 OF 2003. 1) Dadabhau s/o Maroti Abuj Age:66 Yrs. occu. Agril. r/o Sarola (Kh.) Tq. Pathri, District Parbhani. 2) Shrikishan s/o Maroti Abuj Age:61 Yrs., occu. agril. r/o as above. 3) Damodhar s/o Dadabhau Abuj Age: 54 Yrs., occu. Agril. r/o as above. - PETITIONERS VERSUS Murlidhar s/o Ramnivas Kabra Age: 46 yrs., occu. Agril. r/o Manwat, Dist.Parbhani. - RESPONDENT ***** Mr.PV Mandlik, Sr. Counsel for Appellants; Mr.RR Chandak, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 13th January, 2010. ORAL JUDGMENT: 1) Heard learned Counsel extensively. 2 2) The plaintiff - Murlidhar filed Regular Civil Suit No.65 of 1995 before Joint Civil Judge, Junior Division, Pathri, Disrict Parbhnai against the defendant – Dadabhau and others, seeking declaration and perpetual injunction. The plaintiff asserted to be owner of land Gut No. 184 situate at Vadi, towards eastern side of his land there is a shiv (boundary) of 33 feet in width and thereafter land of defendant Gut no. 44 of village Sarola (Kh.) The learned Trial Judge considered all the aspects and by order dated 7th February, 2001, partly decreed the suit of the plaintiff. The suit for declaration was dismissed. The defendants were restrained from obstructing the plaintiff for using the boundary/shiv as a road. Against the said order, no appeal was filed. 3) The plaintiff subsequently moved Execution Petition being Regular Darkhast No.30 of 2001 in the said proceeding before the Joint Civil Judge, Junior Division, Pathri for recovery of costs of Rs.410.15, seeking thereby attachment and sale of property of the defendants. At the same time, the plaintiff asserts before the learned Executing Court that the defendants have erected fencing and obstructed the access. This was tried to be negatived by the defendants/judgment debtors before the learned 3 Judge. However, the learned Judge did not agree as during the course of cross-examination, the defendants accepted that the soil was thrown to the side of the road/access, though such admission, fatal to the defendants/judgment debtors, was recorded. However, that by itself will not tantamount to indicate that there was a willful or deliberate attempt on the part of the Judgment debtors/defendants to obstruct the access. It is pertinent, that some of the Judgment debtors were not at all residing at the village or in the field, they are residing at different places. At the material time, Dadabhau and Dhananjay were minor. The costs of Rs.411 is indeed deposited on 8.9.2003 before the learned CJJD in Regular Darkhast No.30 of 2001. Taking these aspects into consideration, the observation of the learned Judge in finding contemptuous behaviour of the Judgment debtors/defendants and sending them to civil prison, in terms of Order XXI Rule 32 of CPC for a period of thirty days, is apparently excessive and without appreciation of evidence on record. 4) During the course of submissions Mr. Mandlik, learned Sr.Counsel, has tendered one photograph snapped on 27.8.2008 to display that there now existed a cart-track, dividing two fields and even the cart-track with bullocks is 4 surfacing in the photograph. This aspect, being now in picture, it will again change the scenario. There does not seem to be any obstruction in the user of the plaintiff. 5) The statement made by learned Sr.Counsel, that there is no obstruction in the access or user of the plaintiff, also needs consideration. The order under challenge of the learned Judge is demonstrated with illegality, non-application of mind, therefore, it calls for interference. The impugned order is set aside. The CRA allowed. CA disposed of. sd/- (K.U.CHANDIWAL) JUDGE bdv/cra262.03 Authentic copy (BD VADNERE,PS)