1 wp 3687.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3687 OF 2011 Bhanudas Punjaba Tupe & ors. .. Petitioners Versus 1. Shravan Kachru Tupe & ors. .. Respondents Shri N. K. Kakade, Advocate for Petitioners. CORAM : S. V. GANGAPURWALA, J. DATE : 15TH JUNE, 2011. PER COURT : . The present petitioners are the plaintiffs who had filed a suit for injunction restraining the defendants from using the land as a cart track. The plaintiffs filed an application below Exhibit 19 for temporary injunction which came to be rejected. The plaintiffs preferred an appeal. The said appeal also came to be dismissed. Aggrieved thereby the present petition has been filed. 2. Shri N. K. Kakade, the learned counsel for petitioners vehemently submits that the Court below has not properly construed the points raised by the plaintiffs. Perusal of the order 2 wp 3687.11 of Tahsildar it is manifest that it does not disclose the provision under which the said application was entertained. In absence of the same the plaintiffs were justified in challenging the said order in the present suit. But the Court below has not considered this aspect in correct perspective and then has arrived at erroneous conclusion. According to the learned counsel there is no cart way in between the land of plaintiffs and the defendants. The Court below has not adverted on the merits of this matter and only on the ground that the Tahsildar has passed an order has rejected the application of the petitioners. Such an approach is improper. If the defendants use the same as cart way that would damage the crops of the plaintiffs. According to the learned counsel the balance of convenience is in favour of the petitioners. 3. The Tahsildar has powers U/Sec. 143 of the Maharashtra Land Revenue Code, so also U/Sec. 5 (1) of the Mamalatdar's Courts Act in respect of way. The perusal of the order shows that it does not reflect under what provision the said order has been passed. Be that as it may, the plaintiffs had challenged the said order in appeal before the Collector. The said appeal is also dismissed. Mere non mention of a particular provision would not 3 wp 3687.11 affect the merits of the order. Even assuming the order is an erroneous order, still the same was challenged before the Collector and the appeal is dismissed. As such, while deciding temporary injunction application prima facie, as the said order has been passed, the cognizance of the same is required to be taken. It cannot be disputed that the Tahsildar has the powers to pass the orders in respect of way. When the said order is in force, there cannot be any contrary order by Civil Court. If injunction is clamped against the respondents that would run counter to the orders passed by the Tahsildar. In such circumstances, at this prima facie stage, I do not find any error committed by the Court below while dealing with the matter. 4. In the light of the above the writ petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/June 11