1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4634 OF 2010 (Digambar Ganpat Ingle & Ors. vs. Sahebrao Dayaram Ingle & Ors.) with WRIT PETITION NO. 4635 OF 2010 (Dnyandeo Ganpat Ingle & Ors. vs. Ambadas Kisan Bhuyar & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 22, 2010. Heard Shri Khapre, learned counsel for the petitioners and Shri Joshi, learned counsel for the respondents. The trial Court, after hearing the petitioners – plaintiffs, granted them temporary injunction. The respondents approached the appellate Court in Misc. Civil Appeal No. 52 of 2010 and only because orders of Mamalatdar and Sub-Divisional Officer are in favour of the respondents, the appellate Court has reversed the order of trial Court. Shri Khapre, learned counsel has raised two contentions. One is that the admissions of the respondents before the Mamalatdar about nature of way to be one Aana (paulsagar) has not been looked into by the appellate Court. He further states that it was never the case of the respondents that the position appearing in survey map was incorrect. Shri Joshi, learned counsel, on the other 2 hand, has contended that suit as filed was itself not maintainable. According to him, finding on right of way given by both the authorities has to operate as res judicata. Prima facie, at this stage, I find that in orders under Mamalatdar Courts Act, the alleged admissions given by the respondents are not looked into. Shri Joshi, learned counsel is not in a position to point out to this Court the plea that the position appearing in revenue map about nature of way is incorrect. I, therefore, find consideration by appellate Court materially affected because of its failure to look into these aspects. The attention of appellate Court ought to have been invited to these facets of the matter. Hence, without going into more details of the controversy, impugned judgment dated 07.09.2010 in MCA Nos. 52 of 2010 and 53 of 2010 by District Judge – 2, Akola, is quashed and set aside. The proceedings are restored back to the file of appellate Court. The parties are directed to appear before that Court on 29th September 2010. The appellate Court shall decide the appeal afresh in view of observations made above as early as possible and in any case by 30th October 2010. Writ Petition is disposed of. Rule is made absolute accordingly. No order as to costs. JUDGE *GS.