1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3375 OF 2010 (Ganesh J. Chaukse) -: VERSUS :- (Prabhakar W. Tikar & Others) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri R. D. Najbile Adv for petitioner. Shri S. G. Joshi Adv for respondents 1 to 4 Shri Jaiswal Adv for respondents 6 & 7. CORAM : B.P. DHARMADHIKARI, J. DATED : OCTOBER 12, 2010. Heard Shri Najbile, learned counsel for the petitioner and Shri Joshi learned counsel for the respondent 1 to 4 and Shri Jaiswal learned counsel for respondents 6 & 7. 2] Shri Najbile learned counsel argues that obstruction to right of way has been claimed in a civil court without demonstrating any easementary rights. Reliance is being placed upon judgment of the Apex Court in Saraswati and another Vs. S. Ganapathy and another [2001(2) Civil Law Judgment 856 to urge that the sale deed does not and cannot confer any such right. 2 Attention is invited to finding of trial Court that sale deed dated 5th January 1971 mentions such right and a finding to the contrary by the appellate Court. In this background learned counsel contends that findings though appear to be concurrent are mutually inconsistent and temporary injunction as granted is therefore unsustainable. 3] Shri Joshi and Shri Jaiswal learned counsel support the impugned order. Shri Joshi states that the petitioner himself has accepted before the trial Court that sale deed mentions the cart way. He has further stated that the report of Commissioner also supports the case of respondent no.1/plaintiff. He has invited attention to relevant observations as contained in the judgment of appellate Court particularly in paragraph 14. 4] In reply Shri Najbile has stated that petitioner/ defendant no.1 has not accepted any stipulation in sale deed and he reiterated that if obstruction to way is to be assailled, remedy lies before the Mamlatdar’s Court under Section 5 of Mamlatdar’s Court Act. 5] With the assistance of learned counsel I perused the orders passed below Ex. 5 by 3rd Joint Civil Judge Junior Division Khamgaon and the judgment dated 13th July 2010 delivered by District Judge I Khamgaon. Both the orders are against present petitioner (defendant no.1). Though there is the 3 observation by appellate Court that user of cart way by eastern boundary has not been specifically mentioned in sale deed dated 5th January 1971, appellate Court has explained the same by relying upon affidavit Ex. 35 filed by one Pralhad Waman who is son of original owner of gat No. 7. Trial Court also has relied upon the very same affidavit. Courts have found that Government way was not available to reach the land held by plaintiff and plaint map as also Commissioner map supported the case of respondent no.1 plaintiff. Findings therefore are concurrent. 6] Reliance on judgment of Apex Court in present matter is misconceived. Hon’ble Apex Court has found that no person can have a right to have water from his property flow on to to land of his neighbour and no such right was granted under sale deed. It is further clarified by Apex Court that no such easementary right can be claimed in law. 7] Courts below have determined the question only primafacie and the other aspects can be gone into while deciding the suit on merits. 8] In this situation proceedings in Regular Civil Suit No. 84 of 2009 on the file of Civil Judge Junior Division Khamgaon are expedited and said Court is directed to decide the said suit as early as possible and in any case within a period of one year from the date of receipt of the order of this Court. As there is no jurisdictional error Writ 4 Petition is dismissed. No costs. JUDGE SVK