(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 10283 OF 2010 Panchabai w/o. Shyamrao Chate .. Petitioners & another. (Original plaintiffs) versus The State of Mahasrashtra, .. Respondents Through Collector, Beed, (Original defendants) and 13 others. ....................... Mr. V.D. Salunke, Advocate, for the petitioners. Mr. D.R. Korde, Assistant Government Pleader, for respondent nos.1, 2 and 3. Mr. Mukul Kulkarni, Advocate, for respondent nos.4 to 14. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 5TH JANUARY 2011 (2) COURT'S ORDER : 1. Mr. V.D. Salunke, learned Counsel appearing for the petitioners, has strenuously urged that the report of the court commissioner has not been properly interpreted by the trial court, as also, by the appellate court. He states that the road can be used as cart road till the fields of the petitioners / plaintiffs are over and if obstruction is there, it is beyond the said fields. According to him, therefore, the consideration of controversy, by the trial court and the appellate court, earlier while granting ad interim injunction, is correct and reasons given while rejecting application at Exhibit 5, and appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908, are not proper. He has invited my attention to the said consideration in order to substantiate his stand, that the report of the court commissioner is in his favour. 2. Mr. Mukul Kulkarni, learned Counsel appearing for respondent nos.4 to 14, on the other hand, has urged that the argument being raised is for the first time, trying to urge a new point. There was no such contention either before the trial court or the appellate court. He has also invited my attention to the map drawn by the court commissioner, to show that by the side of Gut No.410 itself, the width of the road is reduced to 2 feet. (3) According to the learned Counsel for respondent nos.4 to 14, therefore, no case is made out warranting interference in concurrent orders. 3. With the assistance of the learned Counsel for the parties, I have perused both the orders, as also, map at page 53, and report of Advocate, Shri J.V. Chousalkar, appointed as court commissioner. The portion of the report, on which Mr. Salunke, learned Counsel appearing for the petitioners, has placed reliance, does not specifically mention that width of the road gets reduced after the fields of present petitioners / plaintiffs. However, map accompanying it reveals that the width of the road gets reduced even before the western boundary of field Gut No. 410. The width of the road, in dispute, on northern side at Nagapur-Daunapur-Ambajogai road is 10 feet and it increases to 12 feet and thereafter it is reduced to 6 feet, then 9feet and then 2 feet. On the southern side of this road, at the places where the width is reduced, field Gut No. 410 can be seen. 4. I, therefore, do not find any substance in the contention of the learned Counsel for the petitioner. Moreover, as rightly urged by Mr. Mukul Kulkarni, learned Counsel appearing for respondent nos.4 to 14, such arguments were not advanced before the courts below. (4) 5. In the result, Writ Petition is dismissed. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp10283