1006wp869.11.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.869 OF 2011 Sahebrao Dayaram Ingole and others. ..vs.. Digambar Ganpat Ingle and ors. ............................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ............................................................................................................................................................... Mr. A.S.Chandurkar Adv. for the petitioners. Mr.R.L.Khapre, Advocate for the respondents. CORAM : R.M.SAVANT, J. DATED : 10th June, 2011. 1. The above petition filed under Articles 226 and 227 of Constitution of India takes exception to the order dated 29th October, 2010, passed by the District Judge-2, by which order the Appeal being MCA No.53 of 2010 filed by the petitioners herein came to be dismissed and the temporary injunction granted in favour of the respondents nos.1 to 4 herein in Reg.Civil Suit Nos.211 of 2010 and 13 of 2010 granted by the learned Civil Judge (Jr.Dn.), Akola came to be confirmed. 2. The bone of contention in the above petition is the petitioners claim for right of way through Gat Nos.9,10 and 11 of village Changephal which are owned by the respondents. The petitioners claim that the said right of way is used by them to take their bullock-carts to their 1006wp869.11.odt 2 field which is beyond Survey No.11 in Chandur Shivar. 3. Initially, the petitioners had invoked Section 5 of the Mamlatdars’ Courts Act, 1906 for removing the alleged obstruction caused by the respondents herein in using the said right of way. The Mamlatdar by his order dated 24th May, 2010 directed the respondents that they should not obstruct the petitioners from approaching fields being Gat Nos.70, 71, 65 and 66 by bullock-cart, by passing through their fields Gat Nos.9,10 and 11. It appears that prior to passing of the said order, the concerned Tahsildar had carried out a site survey, on the basis of which the Tahsildar had recorded certain findings in the said order. Being aggrieved by the said order dated 24th May, 2010 of the Tahsildar, the respondents herein had filed a Revision before the Additional Collector under Section 23 of the Mamlatdars’ Courts Act which Revision came to be dismissed and the direction of the Tahsildar came to be confirmed. 4. It appears that after the proceedings under the Mamlatdars’ Courts Act had culminated in the order passed by the Additional Collector, the respondents herein had filed two Regular Civil Suits being Nos.211 of 2010 and 13 of 2010 seeking permanent injunction against the petitioners herein from passing through their agricultural fields being Gat Nos.9,10 and 11. In the said suits, the respondents had filed temporary injunction applications. 1006wp869.11.odt 3 The said applications for grant of temporary injunctions were allowed by the learned Civil Judge (Jr.Dn.) by order dated 22/07/2010. The learned Civil Judge (JD) on considering the material placed on record on behalf of the respondents herein, who were the plaintiffs, also considering the material produced by the petitioners, as also the orders passed by the Revenue Authorities under the Mamlatdars’ Courts Act granted the temporary injunction. 5. Aggrieved by the said order dated 24th May, 2010, the petitioners herein filed Appeal being M.C.A.No. 52 of 2010 which initially came to be allowed by order dated 7/9/2010. The matter was carried by the respondents herein to this court by way of Writ Petition Nos.4634 of 2010 and 4635 of 2010. The order passed by the First Appellate Court was challenged principally on the ground that the First Appellate Court by merely relying upon the orders passed by the Revenue Authorities under the Mamlatdars’ Court Act had set aside the injunction granted in favour or the respondents without considering the alleged admission given by the petitioners herein before the Tahsildar in the cross-examination that had taken place before him. This court, therefore, set aside the order passed by the First Appellate Court and remanded the matter back for a de novo consideration of M.A.C.No. 52 of 2010 and 53 of 2010. On remand, the First Appellate Court by the impugned order dated 29/10/2010 1006wp869.11.odt 4 has dismissed the said Appeals. In so dismissing the appeals, the First Appellate Court has observed that not a single document has been placed on record by the defendants to show the existence of bullock cart way through field Gat Nos.10 and 11 belonging to the plaintiffs. The First Appellate Court also considered the jungle map of village Ghangephal from which village Map, according to the First Appellate Court, an admitted position arises that there is only one anna way (paulsagar) which passes through the field of plaintiff bearing gat Nos. 10 and 11. The said fact coupled with the fact that the plaintiffs’ fields are running in an East-West direction, the First Appellate Court was of the view that it was obvious that paulsagar was passing through the middle portion of the field of the plaintiffs and not by the Dhura of the field. The first Appellate Court, therefore, recorded a finding that it is only a paulsagar and not a cart way as claimed by the appellants/defendants. The First Appellate Court has also taken into consideration the admission in the cross- examination of the witnesses of the defendants being one Ramesh Ingle and Mahadeo which admissions are to the effect that there was no documentary evidence to show the existence of bullock cart way through the field Gat No.10 and 11 belonging to the plaintiffs. The First Appellate Court has also observed that the defendants had not placed on record any material before the Revenue Authorities to show any customary bullock-cart way through Gat Nos.10 and 11 belonging to the plaintiffs. 1006wp869.11.odt 5 The First Appellate Court was, therefore, of the view that the discretionary relief granted by the Trial Court could not be interfered with. 6. Having heard the learned counsel for the parties and having perused the impugned orders passed by the Trial Court as well as the First Appellate Court, in my view, the discretion exercised by the courts below do not warrant any interference in the discretionary jurisdiction of this court under Articles 226 and 227 of the Constitution of India. The petition is, accordingly dismissed. 7. However, in my view, considering the facts and circumstances of the case, it would be appropriate to expedite the hearing of the Regular Civil Suit Nos.211 of 2010 and 13 of 2010. The Trial Court is, therefore, directed to decide the said suits as expeditiously as possible and preferably by 31st of May, 2012. JUDGE Chute