Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 2216 of 2009 Dattatraya Ramchandra Kharat ...Petitioner v/s. Shantaram Sitaram Bhange ...Respondent Mr. A.V.Anturkar i/b. S.B.Deshmukh for the petitioner. Mr. Surel Shah for the respondent. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : MARCH 05, 2009 : MARCH 05, 2009 : MARCH 05, 2009 P.C. . Heard Counsel for the parties. 2. According to Petitioner, the Court below has committed manifest error in relying on the Court Commissioner’s Report which was prepared in some other proceedings. Besides, Court below has over emphasised the description of the land mentioned in 7X12 extract, as also the fact that Tehsildar has passed order which recognises the disputed area as ‘Government Road’. 3. In so far as reliance placed by the Court Commissioner’s Report by the Lower court, I am in agreement with the submission made on behalf of Respondent that it is not the sole basis on which the matter has been decided. On the other hand, the Court below has primarily relied on other documents including documents of the year 1905 which are referred to in 2 Paragraph 10 & 13 of the Judgment of the Court below. Indeed, reference is made to the Court Commissioner’s Report prepared in some other suit but that is only an incidental observation, but not the sole basis on which the Court below has proceeded. If it is so, no fault can be found with the ultimate conclusion of the Lower Court merely because they have made reference to the stated Court Commissioner’s Report in the impugned orders. 4. In so far as opinion recorded by the Court below which is founded on the description given in the 7X12 extract as Rasta (Road) is concerned, no doubt the 7X12 extract would indicate that the land is a private land and name of the Petitioner is shown as owner thereof. However, the fact that it is used as Rasta is mentioned in 7X12 extract. According to Petitioner, the description is not about the user of the land but generally describing the name of the property. The argument though attractive clearly overlooks the opinion recorded by the Courts below keeping in mind various other documents including the document as mentioned earlier of the year 1905. For the same reason, even the argument of the Petitioner that there is no order passed by the Tehsildar declaring the disputed land is a public road or Government road does not take the matter any further, having upheld the view taken by the Trial Court 3 in Paragraph 10 & 13 as well as of the Appellate Court in the impugned Judgment which is founded on the analysis of other documents on record. At this interlocutory stage prima-facie opinion has been recorded by the two Courts below that the disputed portion of the land is being used as public road which obviously means that it is Government Road. It may not be Government land as such but the fact remains that the land is used as public road and plaintiff is seeking relief of free ingress and egress from the said road. Significantly, in Paragraph 3 of the written-statement the Petitioner has admitted the fact that the disputed land no. CS 73/2 P is locally known as ’Government Road’ and ’ Jamdad Pad’ (sturdy fallow land). In view of this admission, the argument now canvassed does not commend to me. 5. In the circumstances, no interference in exercise of writ jurisdiction is warranted. Dismissed. 6. At this stage Counsel for the Petitioner submits that the trial Court may be directed to expedite the hearing of the suit. It is not possible to issue such direction. However, it will be open to the parties to appear before the trial Court and request for expeditious hearing which request may be considered appropriately by the trial Court only if the parties 4 were to give assurance through Counsel that no adjournment on the date fixed for hearing will be made and witnesses will be kept present in the Court on every given date. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]