1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5968 OF 2009 1. Dnyaneshwar Kashinath Mahajan } Age : 42 Years, Occ. Agriculture, } R/o : Ahirwadi, Tq. Raver, } Dist. Jalgaon. } 2. Dwarkabai W/o Digambar Dhangar } Age : 75 Years, Occ. Agriculture, } R/o : Ahirwadi, Tq. Raver, } Dist. Jalgaon. } .... PETITIONERS V E R S U S 1. Ashok S/o Waman Patil } Age : 53 Years,Occ. Argriculture, } R/o : Ahirwadi, Tq. Raver, } Dist. Jalgaon. } 2. Smt.Vijayabai W/o Yuvraj Patil } Age : 40 Years, Occ. Argriculture, } R/o : Kerale-Budur, Tq. Raver, } Dist. Jalgaon. } 3. Shankar S/o Puna Mahajan } Age : 65 Years, Occ. Argriculture, } R/o : Karjot, Tq. Raver, } Dist. Jalgaon. } .... RESPONDENTS 2 Mr. P.R.Katneshwarkar, Advocate for Petitioners. Mr. S.V.Gangapurwala, Advocate holding for Mr. Ujjwal S.Patil, Advocate for Resp. nos. 1 to 3. CORAM : B.R.GAVAI, J. DATE OF JUDGMENT : 27/11/2009 ORAL JUDGMENT : 1. Heard finally by consent. 2. Heard Mr. Katneshwarkar, the learned counsel appearing on behalf of petitioners and Mr. S.V. Gangapurwala, the learned counsel appearing on behalf of respondent nos. 1 to 3. 3. The petitioners impugns the concurrent orders passed by the learned Civil Judge (S.D.), Raver below Exh. 6 in R.C.S. No. 64 of 2008 dated 4/2/2009, thereby rejecting the application for temporary injunction filed by the petitioners and the Judgment and order passed by the learned District Judge – 1, Jalgaon in Misc. Civil Appeal No. 12 of 2009 dated 11/8/2009, thereby dismissing the said Appeal filed by the petitioners. 4. The petitioners/plaintiffs have filed a Suit for perpetual injunction restraining the respondents/defendants from using the way 3 from his fields. Along with the Suit, an application for temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure has been filed, praying for an order of temporary injunction. 5. The Suit of the plaintiffs is resisted by the defendants contending therein that the defendants have been using the way from the boundary of the field of the plaintiffs right from 1972-73. 6. During the pendency of the hearing on an application under Order XXXIX Rules 1 and 2 below Exh. 6, a Commissioner was also appointed. A report of Commissioner on spot verification is also on record. After hearing the parties, an application for temporary injunction came to be rejected. An Appeal preferred there against is also rejected. Hence the present Writ Petition. 7. Mr. Katneshwarkar, the learned counsel appearing on behalf of the petitioners submits that the courts below have failed to take into consideration report of the Commissioner, which would show that the defendants had no way from the fields of the petitioners. He further submits that report of the Commissioner has not been taken into consideration by the Courts below in its correct perspective. He submits that there are standing crops of the petitioners in the suit fields and as such if an order of injunction is not granted in favour of the petitioners, an irreparable injury would be caused to the petitioners. 4 8. Mr. Gangapurwala, the learned counsel appearing on behalf of the respondent nos. 1 to 3 on the contrary submits that both the Courts below by giving sound reasons have found that the petitioners have not been in a position to make out a prima facie case and, therefore, refused prayer clause for injunction. He further submits that no interference by this Court is warranted. 9. Scope of interference in the concurrent findings is very limited. Unless it is found that the view taken by the Courts below is either perverse or impossible, it is not permissible for this Court to sit in an Appeal and reverse the same. Not only that, but even in an Appeal, the scope would be limited. The Appellate Court would not be permitted to interfere with an order passed by the trial Judge, merely because it finds that some other view is possible and other view appears to be more appropriate. 10. In the present case, both the Courts have held that from the material placed on record, the defendants had prima facie established that the way, which was used by them from the boundary of the field of the plaintiffs, was being used right from 1972-73. The learned trial court in this respect has relied on the sale deeds placed on record, the affidavits filed by the adjoining owners and also the order passed by the Tahsildar under the Mamlatdar Courts’ Act. Not only this, but the learned trial court has found that if the contention of the 5 plaintiffs regarding the alternate way is to be accepted, then it would cause serious injury to the defendants as they would be required to take long deroute. 11. In that view of the matter, no perversity is noticed in the concurrent findings so as to grant interim stay to those orders. Hence, no case is made out for interference under the extra ordinary jurisdiction under Article 227 of the Constitution of India. The present Writ Petition is, therefore, rejected. Rule is discharged. 12. However, taking into consideration the nature of dispute, the learned trial Court is directed to expedite the hearing of the Suit and conclude the same within the period of six months from today. [ B.R.GAVAI ] JUDGE knp/WP5968.09