1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.79 OF 2008 Harishchandra S/o.Bhimaji Santre and another APPLICANTS VERSUS Kisanlal S/o.Brijlal Jaiswal and others RESPONDENTS Mr.S.S.Kazi, learned counsel for applicants. Mr.J.R.Shaikh, learned counsel for respondent no.6 Mr.P.R.Katneshwarkar, learned counsel for respondent no.4 (CORAM : A.V.POTDAR, J.) DATE : 15/04/2010 PER COURT : 1. By the present civil revision application, the applicants have assailed the order passed at Exh.5 in Wakf Suit No.139/2007 dated 27/03/2008. 2. It appears that on 23/06/2008, after hearing learned counsel for applicants and for respondents, order of status-quo was passed by this Court that respondent no.1 to 5 not to interfere with the possession of the shop of applicants. After extensively arguing this application, learned counsel for applicants states across the bar that if this order is maintained, and as during the pendancy of this civil 2 revision application, respondent no.1 to 5 have constructed the wall on the alleged road, now they have to apply for amendment in the plaint and to pray for mandatory injunction. It is their choice in which manner, the plaint to be amended or not, but the fact remains that so far as the way for which the dispute is filed, is no more in existence because of the construction of wall at the hands of respondent no.1 to 5 who are also defendant no.1 to 5 before the Trial Court. 3. Considering the submissions across the bar, it appears that the right of way is claimed by the applicants/plaintiffs before the Trial Court in a manner that they have acquired this right by way of easement. Whenever the right of way is claimed as a easementary right, pleading to that effect must be specific, firstly admitting the title of respondent no.1 to 5 of the property over which they are claiming right of way, secondly they have to plead and establish that the alleged right of way is perfected by way of prescription as they are using this easementary right for the stipulated period of 20 years or more than 20 years, without any interruption at the hands of owner of the property and hence the right of easement is perfected. On reading the entire plaint, I did not find any pleading to that effect that the right of way is perfected by way of prescription. Considering this aspect and the alleged right of way is nowhere recorded in the record of rights, as the property of defendant no.1 to 5 is C.S.No. 4639/B and in the map prepared by the City Survey Officer, this way is not shown. Whatever, it may be, it is for the applicants/plaintiffs 3 to establish their rights which at this juncture do not disclose or projected from the pleading as well as the documents on record. In the premise, civil revision application sans any merit. However, bearing in mind, the shop over which the possession is claimed by the applicants, the respondent no.1 to 5 have not shown any interest in that shop, hence the earlier order of status-quo passed on 23/06/2008 remain to continue. But considering the dispute between the parties, it is desirable to give certain directions to the lower Court. It is hereby directed to Wakf Tribunal to dispose of Suit. No.139/2008 within the period of 8 months from today. The Wakf Tribunal to allow to amend the plaint if the applicants so desire. With these directions, this civil revision application stands disposed of with no order as to costs. (A.V.POTDAR, J.) khs/APRIL 2010/cra79-08