33sa313.09.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No.313 of 2009 (Rambhau s/o. Natthuji Adkine .vs. Vitthal s/o. Gokuldas Turankar) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: R. K. Deshpande, J. Date : March 03, 2010. Heard Mr. V. G. Wankhede, Adv. for the appellant, Mr.A.S.Chandurkar, Adv. for respondent nos. 1 to 4 and Mr.Yengal, Assistant Government Pleader for respondent nos. 5 to 7. This is an appeal filed by the Original plaintiff who had filed a suit for declaration and permanent injunction. The declaration claimed was that no way exists through his land bearing Survey No.75/2 of village Sukali (Barpha) for defendant nos. 2 to 8 and further injunction restraining the defendants from using the way. The learned Civil Judge (Sr.Dn.), Wardha by judgment and order dt. 16th March, 2007 decreed the suit in favour of plaintiffs declaring that the defendant nos. 4 to 8 have no right of cart-way or foothpath through the middle part of the suit field bearing Survey No.75/1. The defendants were permanently 33sa313.09.odt 2 . restrained from using the suit field for their bullock-carts or as a footpath. The orders passed by the Revenue Authorities in respect of right of way through Survey No.75/1 are held not to be binding on the plaintiffs. The defendants being aggrieved by the aforesaid decree passed by the trial Court preferred Regular Civil Appeal No.142 of 2008. The Appellate Court has allowed the appeal and set aside the judgment and decree passed by the trial Court and the suit filed by the plaintiffs was dismissed. Hence, this Second Appeal by the plaintiffs. Mr. Wankhede, Adv. for the appellant has urged that the trial Court has recorded a finding that the plaintiffs have proved that the villagers were using the other way and there was no suit way in existence. The defendants have failed to lead any oral evidence and the trial Court has held that there is a way by village Bodkha running north south which is adjoining the suit field on eastern side and there exists a east-west Government road through abadi of the village which is adjoining to Survey No.75 and it can be used by the villagers to approach to their respective fields. According to him, without considering this point, the Appellate Court has held that the plaintiffs have failed to establish as to how the order passed by the Revenue Authorities, which was 33sa313.09.odt 3 . the subject matter challenging the suit, was illegal. With the assistance of the learned Counsel Mr.V.G.Wankhede for the appellant and Mr.A.S.Chandurkar, Adv. for respondent no.1 and Mr.Yengal, Assistant Government Pleader for respondent nos. 2, 3 and 4, I have gone through the orders passed by both the Courts below. Nodoubt, the defendants have not entered the witness box. The plaintiffs have filed Civil Suit claiming negative declaration that no way exists through his land Survey No.75/1 of village Sukli (Barpha) for defendant nos. 4 to 8. The order passed by the Revenue Authorities on 28.2.2002 directing the appellants/plaintiffs to remove the obstruction from field Survey No.75/1 and 75/2 and further directing the plaintiffs to clear off the way from the above fields was subject matter of challenge. The relevant findings contained in the order dated 28.2.2002 are re-produced below : “ Perused the record. During pendency of the appeal in order to avoid conflict the revenue maps were called from the concerned T.I.L.R. of respective villages. Before passing the order the Tahsildar Samudrapur also visited the actual spot. On his enquiry to the time of spot inspection, he found that there is no any other way except from the field of appellant. The spot of Shiv and dhura shows that it is not proper for way due to large pits and slantness that may be dangerous. Even though the same is very much muddy during the rainy season due to 33sa313.09.odt 4 . accumulation of water. On the other hand, the present way used from the field of appellant is being used since ancient time and that too continuously from 1908 as shown by the map placed before me by the concerned T.I.L.R. Thus, I find force in the submission of respondents. From all such facts, I also found that respondents are entitled to use way from the field of 75/1, 75/2 at Mouza Sukli. From the report submitted by Tahsildar it revealed that the appellant has narrowed the cart way by making fencing on both the sides, such act of way by making fencing on both the sides, such act of appellant cannot be ignored. Thus, I hold that appellant has not right to obstruct the way from his field and hence, appeal of the appellant is further directed to remove all the encroachment made by him in narrowing the way of respondent on both the sides within fifteen days of this order. Is appellant fails to remove his encroachment Tahsildar Samudrapur is directed to take necessary action against appellant for widening of the said way. No order as to costs. Inform parties and file. “ The Appellate Court has reversed the finding of the trial Court on the ground that the plaintiffs have failed to make out a case for challenging the order passed by the Revenue Authorities. It has further recorded a finding that the plaintiffs have failed to call for record of the concerned Revenue Authorities and to plead that the order passed by the Revenue Authorities is illegal and binding. In absence of such illegality in respect of said order being proved, the Appellate Court has held that the trial Court has committed an error in holding that the order is not binding upon the plaintiffs. In view of this, no fault can be found with the 33sa313.09.odt 5 . judgment and order. Mr. Wankhede, Adv. for the appellant has relied upon decision of this Court dt. 8.10.2009 in Writ Petition No. 788 of 2004 (Ramchandra Deorao Gaikwad and anr. vs. Addl. Commissioner, Amravati Division, Amravati and Ors. It was a Writ Petition challenging the order dt. 11.11.2003 passed by the Additional Commissioner, Amravati Division, Amravati. It was held that the respondent Revenue Authorities have clearly erred in carving another way upon boundary of the petitioners when, admittedly, the Government road is in cause and was constructed by the Government and was available for approaching the field of farmers. The judgment is not applicable to the facts of the present case in view of findings recorded by the Appellate Court that the plaintiff has failed to make out challenge to the order passed by the Revenue Authorities and without considering the legality of the order passed by the Revenue Authorities, the trial Court has granted declaration that the order is not binding upon them. The question whether there existed alternate way in the present case was required to be established in the light of order passed by the Revenue Authorities holding that the defendants have been using the way in question since 1908. Mr. Wankhede, Adv. for the appellant has submitted that 33sa313.09.odt 6 . he has filed Civil Application No. 129 of 2010 under O.26 Rule 9 r/w. Section 151 of the Code of Civil Procedure for appointment of Commissioner. It is averred in this application that, if inspection of this spot is taken by appointing Commissioner, entire controversy can be resolved regarding availability of Government road on the western and northern side of Survey No.75. In support of his contention, he has relied upon decision of this Court reported in 2002 (1) Mh.L.J. 138 (Kisanlal Maniklal Rathi .vs. Dinkar Yashwant Patil), in which it has been held that the Court has discretion to order investigation in cases of boundary disputes and the disputes about identity of land. Said judgment is not applicable to the facts of the present case for the reason that it pertains to the boundary disputes and the disputes regarding identity of land. In the present case, the dispute is regarding existence of alternate way and also regarding legality of orders passed by the Revenue Authorities. It is well settled that the Commissioner cannot be appointed to collect evidence to help the plaintiffs or defendants. Hence, the said judgment is of no help to the appellants. Similarly, Mr. Wankhede, Adv. has also relied upon another decision of the Orissa High Court reported in AIR 1973 Orissa 240, Debendranath Nandi .vs. Natha Bhuiyan, in which it has been held that the Appellate Court must appoint fresh Commissioner before deciding the appeal 33sa313.09.odt 7 . if it finds it necessary to reject the report of the trial Court Commissioner. In the said judgment, the Court Commissioner was already there and in that background, the Court has held that fresh Commissioner should have been appointed to reject the report of the trial Court Commissioner. Hence, the said judgment is of no help to the appellant. In the result, there is no substance in the instant appeal. Hence, the same is dismissed. JUDGE jais