* 1 * W.P. 2441.2004 13.10.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2441 OF 2004 Hirabai Laxman Thube ... Petitioner/Orig.Resp v/s. Nivruti Hari Kadlag ... Respondent/Orig.Applicant * * * * Mr. R.M. Haridas i.by. Mr. P.N. Joshi, Advocate for the petitioner. Mr. Suresh M. Sabrad, Advocate for the respondent. * * * * CORAM : SMT. R.P. SONDURBALDOTA, J. DATED : 13 OCTOBER, 2010. P.C. 1. This petition filed under Article 227 of the Constitution of India is directed against the order dated 30th January, 2003 passed by the Sub-Divisional Officer, Niphad Division, Niphad in R.T.S Revision No.219 of 2002. 2. The facts of the case stated in brief are as follows :- . The respondent had filed an application under Section 5 of the Mamlatdar’s Court Act, 1906 for removal of impediment in the alleged road in existence from the south-east corner of the * 2 * W.P. 2441.2004 13.10.2010 petitioner’s property at Gat No.159 going from south to north with the width of 8 feet. It was alleged in the application that on 11th June, 2000 when the respondent was taking his bullock cart over the access to his agricultural land, the petitioner obstructed the same and prevented the respondent from using the access. Therefore, on 29th June, 2000 he filed an application for removal of the obstruction. The petitioner opposed the application contending that there has never been any access for the respondent for going to his field over the land belonging to her. She also contended that the boundaries of the land given by the respondent in the application are not correct. She denied that any incident dated 11th June, 2000 as alleged by the respondent had taken place. The Tahsildar after receiving the application and the say of the petitioner herein, allowed the parties to lead their evidence and by his detailed order dated 19th August, 2002 dismissed the same holding that there is sufficient evidence produced by the parties establishing that there was no access enjoyed by the respondent over the land of the petitioner. Being aggrieved by the order, the respondent preferred revision * 3 * W.P. 2441.2004 13.10.2010 application to the Sub-Divisional Officer being R.T.S. Revision No. 2194 of 2004. In the Revision Application, the Sub-Divisional Officer solely relying upon the panchanama dated 29th March, 2001 held that there has been an access as claimed by the respondent, enjoyed by him over the land of the petitioner since a long period of time. He also held that as the properties owned by the parties had common gat number i.e. Gat no.159, there could not have been an independent access for the respondent. He held that the other two holders of the land of portions belonging to the same gat number, have deposed in favour of the respondent and the rejection of their evidence by the Mamlatdar on the ground that they are relatives of the respondent was not correct. With these observations, the Sub-Divisional Officer without looking into the contents of the depositions of the witnesses examined by the parties allowed the Revision Application and set aside the order of the Tahsildar. He allowed the application of the respondent and directed the petitioner to restore the access enjoyed by the respondent to its original position and restrain the petitioner from obstructing the access. The directions for * 4 * W.P. 2441.2004 13.10.2010 restoration of the access were given pursuant to the contents of the panchanama dated 29th March, 2001 in which it has been stated by way of an inference that the access had been obliterated by ploughing the land under the access and sowing crop over it. 3. Mr. Sabrad, the learned counsel for the respondent files affidavit dated 12th October, 2000 of the respondent stating after the orders passed by the learned Sub-Divisional Officer, “ Niphad on 30/01/2003, we have been using the suit way”. The affidavit neither specifies the date from which the respondent claims to have started using the suit way, nor, does it give particulars as to the compliance with the directions of the Sub- Divisional Officer to the petitioner for restoration of the access. The affidavit does not even state that the access has been restored by the petitioner on any particular date and the manner of it’s restoration. The said affidavit is taken on record. 4. It is to be noted that in the application of the respondent filed under Section 5 of the Mamlatdar’s Court Act, there is no allegation made of obliteration of the existing access. The only allegation made is of the respondent being stopped while using * 5 * W.P. 2441.2004 13.10.2010 the access. On this background, the panchanama dated 29th March, 2001 drawn by Tahsildar, Niphad relied upon by the Sub- Divisional Officer is required to be seen. It is a short three line panchanama. It states that an access is seen over the bandh of Gat no.159 and 162 at Moujhe, Hanuman Nagar upto the residence of Sou. Hirabai Laxman Thube. The extension of the road beyond that, of the width of 8 feet is seen to have been ploughed upto to about 250 feet and the plough had been left at the site. The panchanama unfortunately does not refer to any facts which would give rise to the inference as regards the existence of the road beyond the residence of the petitioner. The petitioner has never disputed that there is a road upto to her house on her property. In the absence of the noting of the factual position at site indicating signs of existence of the access, the cryptic inference drawn by the Tahsildar cannot be accepted just by itself. Besides, if the contents of the panchanama are to be accepted at their face value, it would mean that the house of the petitioner is in the middle of the access because the panchanama does not say that the road is adjoining to the house of the * 6 * W.P. 2441.2004 13.10.2010 petitioner. Therefore, panchanama of 29th March, 2001 cannot be relied upon. As against this, there is another panchanama dated 20th October, 2001 which was also drawn in the presence of the respondents by the Tahsildar which shows that no road can be seen beyond the house of the petitioner. This panchanama also refers to the standing crops of soyabean, onion and chillies at the site. There is a third detailed panchanama dated 10th August, 2002 also drawn by the Tahsildar, Niphad which completely describes the site. This states that Gat no.159 is seen in the village map running south-north with its boundary upto Vinchur- Yewala road. On the east of Gat no.159 is Gat no.162 belonging to one, Laxman Mhadoo Thube, then there is Gat no.160 also belonging to Laxman Mhadoo Thube and Gat no.143 belonging to Eknath Ramchandra Gadkari. Towards the north of Gat no.159 is Gat no.154 belonging to Raghunath Lahunath kadlag and toward the west is Gat no.158 belonging to Sudhakar Madhukar Kadlag. On the south of the land at Gat no.159 is a water tank for irrigation of the land which runs east-west to the extent of about 2 to 3 feet. On the bandh of Gat no.159 and 162 are the * 7 * W.P. 2441.2004 13.10.2010 wooden poles. On the eastern corner of the land near the bandh of Gat no.162 is a well which is 10-12 years old. Beyond the well, there is no common bandh between Gat no.159 and162. On the land of Gat no.159, the petitioner has been sowing crops for groundnut, moong, soyabean and corn. Towards the north of the property, the respondent on his land has sown crop of Bajri. On the western side, there is a bandh in existence with the width of 2 feet between the property of the petitioner and the properties of Sudhakar Madhukar Kadlag and the respondent. The panchanama also refers to existence of a well on the property of the respondent. Raghunath Lahanu Kadlag on his property at Gat no.154 has standing crops of grapes. With these observations as regards the existing position at site, the panchanama says that with the standing crop in existence, there is no access seen at site. It is unfortunate that the Sub-Divisional Officer in his cryptic order without making any reference whatsoever to these panchanamas which are on record, relies only upon the panchanama dated 29th March, 2001 to hold that there was road as claimed by the respondent in existence. Such an order cannot * 8 * W.P. 2441.2004 13.10.2010 be sustained under any circumstances. It is not supported by reasons or by any material on record. Hence, the Writ Petition is allowed. The rule is made absolute. The order dated 30th January, 2003 passed by the Sub-Divisional Officer in RTS Revision No.219 of 2002 is set aside. 5. The learned counsel for the respondent made a request for maintenance of status-quo for a period of 4 weeks. Since there is no consensus as regards the status-quo at site, the request cannot be granted. [SMT. R.P. SONDURBALDOTA, J]