1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR WRIT PETITION NO. 991/2009 [Baban Atkar ..vs.. Sukhdeo Pundkar ] ===================================== CORAM: S.R. DONGAONKAR, J. DATE:6.3.2009 . Heard Miss. Abha Akre. Advocate for the petitioner. 2] Petitioner is plaintiff in R.C.S.No.37/2007 before the Civil Judge, Junior Division, Patur. Suit contains the following prayers: “1] It may kindly be declared that, the plaintiff has right to approach his field by the suit way, which is mentioned in para no.2, of the plaint, by bullock cart by the principal of easement of necessity and also prescriptive easement. 2] Costs of the suit may kindly be awarded to the plaintiff. 3] Any other relief which the Hon'ble Court deems fit may kindly be granted to the plaintiff and against the defendants. 4] Defendant no.2 may kindly be restrained from obstructing enjoyment over the suit way. 3] The plaintiff was successful in getting temporary injunction in his favour which he applied under order 39 rule 1 and 2 read with section 151 of C.P.C. The matter was taken in the appeal. In the appeal, the appeal was allowed and the order of the trial court was set aside. Learned counsel fro the petitioner has submitted that the impugned order is incorrect inasmuch as there was no cart way for going to the field of the plaintiff and therefore, the trial court had 2 rightly granted temporary injunction in his favour as his right of way was obstructed. 4] According to her therefore, the impugned order passed by the appellate court is liable to be set aside. 5] I have perused the record. In the impugned order in paragraph 4 it has been stated by the learned appellate Judge, thus: “4 It is important to note that during hearing of this matter the Commissioner was appointed and the Commissioner inspected the situation of the suit way in presence of the parties and their advocates and in his report he has specifically stated that there is no such bullock cart way as claimed by the respondent/ plaintiff. He has also mentioned that one foot way is going through the plaintiff's field which supports the defendant's case made out in his say that there is only foot-way. The court commissioner also mentioned in his report that temporary bullock-cart way which was created on the request of the plaintiff from field of other field owners and on the basis of Commissioner's report learned trial court observed that the plaintiff failed to prove prima facie case about suit way as no bullock-cart way is there as claimed by the plaintiff, but only injunction was granted on the basis of balance of convenience that there is no bullock cart way going upto the field of the plaintiff. His reasoning granting injunction is only on the basis of balance of convenience based on the presumptions and assumptions and not on the basis of any material produced before him. No evidence admittedly produced by the respondent / plaintiff in 3 support of his case for bullock-cart way from the field of defendant no.2. Hence without any substance or proof, when the plaintiff is claiming easement of necessity, it was not the stage for the trial court to grant injunction on the basis of balance of convenience and to create a new way for the plaintiff from the field of defendant no.2. As record shows that except bare words of the plaintiff nothing is produced on record to show that he has any right of easement of necessity in the alleged suit way from the field of defendant no.2. He has not produced affidavit of original owner or his predecessor in title from whom he has purchased the field. Therefore, on the face of it order passed by the learned trial court is improper and liable to be set aside. When the plaintiff failed to prove prima facie case for grant of injunction, he is not entitled to get ad interim injunction as on that basis as new way can be created. Hence following order.” 6] I have gone through the report of the commissioner which is filed on record. Observations of the learned appellate judge cited above, are in accordance with the Commissioner Report. 7] Suit site was inspected by the Commissioner, in the presence of the parties as well as their counsel. There is no material on record to doubt the report of the Commissioner who was appointed by the Court. I do not see any sufficient reason to interfere in the impugned order, in extra ordinary writ jurisdiction of this court. Accordingly the petition is liable to be dismissed. Same is dismissed. No order as to 4 costs. The above observations shall not influence the learned trial judge while deciding the matter on merits. JUDGE smp.