1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2193 OF 2009 Sahebrao Dhondu Patil (since deceased) Through L.Rs. 1) Devidas Sahebrao Patil, R/o-Shevage, Bk. Tq-Parola, Dist-Jalgaon, 2) Yogesh Sahebrao Patil, R/o- At & Post-Bahirampura, Aurangabad, Dist-Aurangabad, 3) Smt. Meenabai Suresh Patil, R/o-Sangavi, Tq-Shirpur, Dist-Dhule, 4) Sau. Bhyarti Ranghuanth Patil, R/o-Visarne, Tq. & Dist-Dhule, 5) Sau. Chhayabai Rajendra Patil, R/o- At & P)ost Sangavi, Tq-Shirpur, Dist-Dhule, 6) Smt. Jeejabai Sahebrao Patil, R/o-Shevge Bk. Tq-Parola, Dist-jalgaon. ...PETITIONERS. VERSUS Shakuntalabai w/o Narayan Patil, R/o-Shevage Bk., Tq-Parola, Dist-Jalgaon. ...RESPONDENT. 2 ... Mr.A.G. Magre Advocate for Petitioners. Mr.S.V. Gangapurwala Advocate i/b. Mr. S.I. Nandode Advocate for Respondent sole. ... CORAM: K.K. TATED, J. DATE : 22ND JULY, 2009. PER COURT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, this Petition is heard finally at the stage of admission. 2. Heard learned counsel for the Petitioners and learned counsel for the Respondent. By this Petition under Article 227 of the Constitution of India, the Petitioner challenges the order dated 20th December, 2008 passed by District Judge-1, Amalner in Misc. Civil Appeal No.18 of 2007. 3. A few facts of the matter are as under: . The Respondent - original plaintiff filed Regular Civil Suit No.14 of 2007 before the Civil Judge, Junior Division, Parola challenging the order dated 15th May, 3 2007 passed by Tahasildar under Section 143 of the Maharashtra Land Revenue Code, 1966. The Respondent preferred an application below Exhibit 7 for injunction restraining the Petitioner from disturbing her right of way for Gut No.179. The trial Court rejected the said application on 28th November, 2007. Being aggrieved by the said order, the Respondent preferred Misc. Civil Appeal No.18 of 2007. The lower appellate Court by order dated 20th December, 2008, granted injunction restraining the Petitioner from obstructing the Respondent from proceeding to her field from the boundary line, in the manner described in the plaint. 4. Learned counsel for the Petitioner submitted that the lower appellate Court relied on the statement of his son and came to the conclusion that Respondent is using the way as described in the plaint. It is the contention of the learned counsel for the Petitioner that the lower appellate Court failed to consider the order dated 15th May, 2007 passed by the Tahasildar, Parola in which he specifically stated that, he along with other officers visited the suit property. At that time they found that there is no cart way from Gut No.151/1 to reach the suit 4 property i.e. Gut No.179. 5. It is clear from order dated 20th December, 2008 passed by the lower appellate Court that lower appellate Court relied on the statement made by the Petitioner's son on 27th September, 2006 only. On the other hand, learned counsel appearing on behalf of the Respondent submits that for last 10 years he is using the way to reach his Gut No.179. He submitted that the lower appellate Court on the basis of prima facie case, passed order dated 20th December, 2008 and therefore, it is not necessary to interfere the same. He submitted that even the Apex Court in the matter of Martin Burn Ltd. vs. R.N. Banerjee, reported in A.I.R. 1958 S.C. Page 79 held that a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. The relevant para of the Judgment reads as under: "A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of 5 the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence let it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. it has only got to consider whether the view taken is a possible view on the evidence on record." 6. In any case the lower appellate Court failed to consider the order passed by the Tahasildar dated 15th May, 2007 in which the Tahasildar has specifically stated that he visited the suit property and found that there is no way from the Petitioner's field. Considering these facts, the order passed by the lower appellate Court dated 20th December, 2008 is set aside. Hearing of the suit is expedited. 7. Rule is made absolute in the above terms. 6 8. It is needless to say that the observations made in this order will not come in the way of the parties, at the time of final hearing of the Suit. [K.K. TATED, J.] asb/JULY09/wp2193.09