-1- FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION No. 3563 OF 2008. ( Rambhau Natthuji Adkine .vrs. State of Maharashtra and others ) ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : OCTOBER 3, 2008. Heard Advocate Shri V.G. Wankhede, for petitioner, learned Assistant Government Pleader for respondent nos. 1 to 3 and Advocate Shri A.S. Chandurkar, for respondent nos. 4 to 7. The petitioner before this Court is original plaintiff and his suit for declaration that there was no right of way across field survey no.75/1, was decreed by the Civil Judge, Senior Division, Wardha on 16.03.2007. The respondent then filed Appeal under Section 96 of Code of Civil Procedure, which has been registered as Regular Civil Appeal No.142/2008 and after hearing all concern, the Adhoc District Judge, Wardha has granted stay to the operation and effect of the said -2- decree of the Trial Court. Advocate Shri Wankhede, wants to show that there was no way through his field and earlier way which was by the boundary of field survey no.75/1 is now occupied by gaothan. He contends that, in such circumstances, the respondents / defendants are trying to create new way by encroaching upon his field and by damaging crops. Advocate Shri Chandurkar, states that consideration by Lower Appellate Court is prima facie. There was no temporary injunction operating during the pendency of the suit and any observations on the controversy will prejudice fair adjudication of Regular Civil Appeal No.142/2008. He further states that the Lower Appellate Court has found that the said road is recognised in wajib- ul-arz. In the circumstances, I am not inclined to examine the controversy in writ jurisdiction, as Regular Civil Appeal is pending. Advocate Shri Chandurkar, states that the present respondent shall file private paper book by 01.12.2008. The paper book to be filed accordingly and the Lower Appellate Court shall decide the appeal on its own merit as early as possible and in any case by 31.01.2009. -3- In view of this order, nothing survives in the Writ Petition, the same is dismissed. No cost. JUDGE Rgd.