1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2423 OF 2009 1. Pramod Premchand Bajaj R/o Paras Sanitation, Near Taj Talkies, ITI Road, Nanded 2. Deepali Balbhim Renapurkar, R/o Paras Sanitation, Near Taj Talkies, ITI Road, Nanded 3. Bharat Vishwanath Renapurkar R/o Paras Sanitation, Near Taj Talkies, ITI Road, Nanded PETITIONERS VERSUS Smt Manjulabai Pandurangrao Gite R/o Pawan Nagar, Malegaon Road, Taroda (Kd), Nanded RESPONDENTS ....... Mr.G.V.Patil h/f Mr.V.D.Salunke, Advocate for the petitioners Mr.V.M.Kagne, Advocate for respondent. ....... [CORAM : A.V.POTDAR, J.] DATE : 11th June 2009 2 ORAL JUDGMENT : 1. By the present petition, filed under Article 227 of the Constitution of India, the petitioners, who are respondents in RCS No.845/2006 on the file of Civil Judge, Junior Division, Nanded, have challenged the order dated 11/12/2008 passed by the Principal, District Judge, Nanded in Miscellaneous Civil Appeal No. 56/2007. 2. Rule. Rule made returnable forthwith. Considering the fact that a very short point in involved in the writ petition with the consent of the parties heard finally at the stage of admission. 3. It appears from the record that the respondent, who was the original plaintiff before the trial court, had filed Regular Civil Suit No.845/2006 for perpetual injunction in respect of the suit property i.e. 4 R land out of 1 Hectare 96 R land from Gat No. 211, more particularly described in para 1 of the application for temporary injunction as well as in the plaint. As the present petitioners caused obstruction to her possession she filed suit for perpetual injunction in which an application for temporary injunction was also moved. The defendants / present petitioners appeared in the suit and filed their objection / say to the application for interim injunction. The present petitioners have also filed an application below Exhibit-40 for temporary injunction in respect of the same property against the present respondent. 3 4. The record further shows that by common judgment, passed below Exhibit-6 (Temporary Injunction Application filed by the respondent) and Exhibit-40 (Temporary Injunction Application filed by the present petitioners), the learned lower court pleased to allow the application for temporary injunction filed by the present respondent and rejected the application filed by the present petitioners. Being aggrieved by the said order, it appears that, Miscellaneous Civil Appeal No.56/2007, was preferred by the present petitioners before the District Court, Nanded. It appears that, initially, this appeal came to be disposed of by order dated 19.06.2007, which order was challenged in writ petition No. 4422/2007. The writ petition No.4422/2007 came to be disposed of vide order dated 28.08.2007 and the order passed by the learned Principal District Judge, Nanded was quashed and set aside and the appeal was remanded to the first appellate Court to hear the matter afresh. After remand, the Miscellaneous Appeal was heard by the learned Principal District Judge, Nanded and vide his order dated 11.12.2008 dismissed the appeal filed by the present petitioner and confirmed the order passed by the trial court. 5. Considering the submissions, advanced across the bar, and on perusal of the record produced, it is clear that there is concurrent finding of both the courts below that the respondent, who is the original plaintiff and the respondent before the appellate Court, has established her legal possession over the suit property 4 as she has purchased the suit property under registered sale deed dated 29.11.2006, which is on record of the trial Court. Once the fact is established in respect of legal possession of the respondent over the suit property, then she has to further establish that whether there is any apprehension or obstruction to her legal right to hold the property. It is obvious that not only the interim injunction application preferred by her was opposed by the petitioners but also filed counter application for temporary injunction against her. It appears from the record of the lower courts that the petitioners are claiming right of way over the property of the present respondent, however, whether this right is by way of easement or by way of necessity or acquired by way of acquisition is not clear. On the contrary, it is observed by both the courts below that it is not a case of the petitioners of acquisition of their right by easement. If it is the case of the petitioners that there is a public road in the property, which is claimed by the respondent, as the property of her ownership, then the public road must be recorded in public record. It is also observed by both the courts below that there is no record to show that this road is recorded as public record in the revenue or any other record showing existence of this road, which clearly indicates that the road on the suit property claimed by the petitioners, is not excess road, is not a public road. Lastly, it is vehemently urged before the Court that there is lay out sanctioned by the development authorities in respect of the property in question. It is 5 observed by the first appellate court in para 13 of its judgment that the copies of lay out are on record, however they are in respect of Gat Nos. 208, 215, 216 and 217 as against this, the property of the respondent is Gat No.211. There is no lay out in respect of this property, produced before the courts below. If this is a factual position, I do not find any fault in the findings recorded by both the courts below. In the premise, there are no merits in the writ petition and the same is accordingly dismissed. Rule is discharged and the writ petition stands disposed of with no order as to costs. [A.V.POTDAR, J.] drp/wp2423-09