1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 5093/2008 (Pravin Vitthalrao Ugale VERSUS Umesh Shrirang Ugale & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.C. Dharmadhikari, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : DECEMBER 4, 2008. Heard the learned counsel for the petitioner. The petitioner is the original plaintiff. Both, the trial as well as the first appellate Court, refused to grant injunction in favour of the plaintiff. The plaintiff had pleaded that he had a right of way through the field survey no.72/1 and 72/2 belonging to the defendant nos.1 and 2. It was the case of the petitioner that field survey no.48/2-A as well as field survey nos.72/1 and 72/2 were originally owned by one Junjaram. Junjaram had sold field survey 2 no.72/1 and 72/2 to one Mohan Gade in the year 2003. This sale-deed, according to the plaintiff, showed that the plaintiff had a right of way through the suit way. The plaintiff mainly based his claim for grant of injunction on the basis of the stipulation in the sale-deed of the year 2003 to that effect. It appears that the plaintiff himself had purchased the suit property in the year 2005. The defendants denied the claim of the plaintiff and also denied that the plaintiff was using the suit way. The defendants pleaded that Mohan Gade had sold field survey no.72/1 and 72/2 to the defendants and there was no such stipulation in those sale-deeds. It was also pleaded by the defendants that the matter was referred to Tanta Mukti Samiti and it was held by the said Samiti that the plaintiff did not have the right of taking his carts through the suit way. The trial Court, on an appreciation of the 3 record and the submissions made on behalf of the parties, came to a conclusion that the plaintiff did not have a prima-facie case and the balance of convenience was not in favour of the plaintiff. The trial Court mainly relied on the Gaothan Map to hold that the plaintiff had another approach way to his field. The trial as well as the first appellate Court concurrently held that the plaintiff had suppressed certain facts while claiming the grant of injunction as the plaintiff had not disclosed to the Court that the field survey no.73/3-A and B and 48/1-B also belonged to the plaintiff. The Courts became aware of this fact from the perusal of the 7/12 extract. Since the father of the plaintiff owned and possessed field survey no.72/2 and since field survey nos.73 and 48 were adjacent to Dahegaon-Hiwra Tar Road, the Courts held that the plaintiff had a clear and good approach to his field. The Courts also 4 considered the village map and the report of the Samiti to hold that the petitioner did not have a right to take his carts through the suit way. Moreover, it is necessary to note that the petitioner had purchased the suit field in the year 2005 and there was no such right earmarked in the sale-deed, by which the petitioner purchased the suit land. Prima-facie, the sale-deed of the year 2003 also does not clearly disclose that the petitioner has a right of way through the suit fields bearing survey nos.72/1 and 72/2. No fault can be found with the findings recorded by both the Courts that the plaintiff did not have the prima-facie case and the balance of convenience was also not in favour of the plaintiff. There is no error whatsoever in the orders passed by both the Courts. The writ petition, therefore, fails and is dismissed with no order as to costs. 5 It is needless to mention that the observations made by the trial Court, the first appellate Court and this Court would not come in the way of the parties while the trial Court decides the suit on merits. JUDGE APTE