1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO.6293 OF 2010 IN SECOND APPEAL NO.289 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders CORAM: P.R.BORKAR, J. Date : JUNE 10, 2010 Shri M.M. Bhokarikar, Advocate for the applicants-appellants-defendants. Shri S.D. Dhongde, Advocate for the Respondent- plaintiff. ------ 1. This is an application by original appellants-defendants for interim relief of stay to the judgment of the first appellate court pending final decision of the second appeal and also for injunction against the respondent-plaintiff not to disturb the right of defendants to pass through the land or over boundary bund of plaintiff's land to their land. 2. It is no more disputed that lands bearing Gat Nos. 2480 and 1311 situated at 2 Nashirabad are owned by defendant No.1 Rajaram, defendant No.2-Suresh is the owner of Gat No.1309 and land Gat No.1302 is owned by the plaintiff-Vishnu. 3. Right of way was granted in favour of the appellants0defendants by the Tahsildar vide orders passed on 8.3.2004 and 7.3.2004 in Vahivat Case Nos.3 of 2003 and 2 of 2003 respectively filed by appellants- Defendant Nos.1 and 2 against present respondent-plaintiff under Section 5 of Mamlatdar Court's Act. By the said order, defendants were given access to their lands over the western side boundary bund of Gat No.1302 belonging to the respondent- plaintiff. 4. Thereafter, on 13.9.2007, present respondent filed R.C.S. No.272 of 2004 against present appellants for perpetual injunction restraining them from exercising right of way over western side boundary bund of plaintiff's land, as granted by the Tahsildar. It is also stated that there is no other way. The trial court has not accepted this case of the plaintiff and did not grant injunction and dismissed the suit. 3 5. However, the first appellate court in an appeal filed by present respondent- plaintiff reversed the finding of the trial court and decreed the suit thereby restraining present appellants-defendants from using right of way over western side boundary bund of Gat No.1302 of the plaintiff. It is this order which is challenged by the defendants in the present appeal. 6. Heard. Both the learned counsel have taken me through the judgment of the trial court, so also of the first appellate court. The trial court while dismissing the suit has referred to the orders passed by the Tahsildar and also held that there is no other way. It is also considered that for about six months from the date of passing of the orders by the Tahsildar, plaintiff-respondent herein had not challenged the said orders. 7. The first appelate court, however, mainly referred to the village map, the copy of which is made available by the learned Advocate for the respondent for perusal of this court. The first appellate court on perusal of the map came to the 4 conclusion that the right of way as claimed by present appellants-defendants would not have been there and there was another way for them to have access to their lands. 8. It appears that both sides have examined several witnesses in support of their respective claims. Plaintiff examined predecessor-in-title of the lands of the defendants who supported plaintiff's case. Defendants, in addition to themselves, have also examined owner of land Gat No.1310. However, during cross examination of this witness of the defendants, it has been brought on record that he approaches his land from boundary bund of Gat Nos.1312 and 1311 which is a convenient way to approach the land of defendant No.2. Boundary bund between Gat Nos.1302 and 1311 is of only two feet. 9. After having given due consideration to the judgment of the first appellate court and that of the trial court and also to the order passed by the Tahsildar, in my opinion, until further orders, some relief can be granted to the appellants. 10. In the result, this application is partly allowed. The appellants-defendants 5 are allowed to use western side boundary bund of Gat No.1302 of the plaintiff for approaching their land. It is, however, made clear that they can use it only as foot-way, since the said boundary bund is stated to be of two feet width. For such use by appellants-defendants, respondent- plaintiff shall not cause any obstruction. 11. Application disposed of as above. pnd/ca6293.10 (P.R.BORKAR, J.)