1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.192 OF 2010 1 Vikas Natha Patil 2 Sanjay Natha Patil ...Petitioners vs. 1 Vikas Vasant Patil 2 Shankar Dinkar Patil 3 Sampat Ananda Patil 4 Pratap Dinkar Patil ...Respondents Mr.D.A.Nalawade with Mr.Ravindra Lokhande for the petitioners Mr.Bhushan Walimbe i/b Mr.P.B.Walimbe for respondent nos. 1 to 4 CORAM :A.S.OKA,J. DATE : FEBRUARY 5, 2010 JUDGMENT : 1 The submissions of the learned counsel for the parties were heard on the earlier date. The petitioners are the defendants in a suit filed by the respondents- plaintiffs. The challenge in this Petition under Article 227 of the Constitution of India is to the order of temporary injunction passed in favour of the respondents. The respondents applied for temporary injunction in their own suit and the petitioners had also applied for temporary injunction against the respondents. The trial Court by a common order allowed the application for temporary injunction filed by the respondents and dismissed the application made by the petitioners. An Appeal preferred by the petitioners has been dismissed by the District Court. 2 With a view to appreciate the submissions made by the learned counsel for the parties, it will be necessary to briefly refer to the facts of the case. The suit 2 property is more particularly described in paragraph 1 of the plaint. Paragraph 1 consists of two parts; part `A refers to property bearing Gat no.447 together with house constructed thereon. Part `B of paragraph 1 refers to an open land having width of 10 and length 175 which is a part of the property described in Part A of paragraph 1 of the plaint. The respondents claimed that the property described in paragraph 1 of the plaint is their ancestral property. Earlier, the suit property was jirayat land which has been converted into Bagayat land. It is asserted in the plaint that the land described in paragraph 1 of the plaint has been divided into two parts for taking two crops and two parts are referred to in paragraph 1B of the plaint. It is alleged that the petitioners-defendants are the owners of land bearing Gat No.393. It is contended that the defendants started claiming a right of way over the suit property. Therefore, a suit for perpetual injunction was filed. In the suit, a Court Commissioner was appointed for local investigation. An application for temporary injunction made by the respondents-plaintiffs was contested by the petitioners. The petitioners claimed right of way by easement of necessity. A contention was raised by the petitioners that in the consolidation scheme initially the road passing through the said land bearing Gat no.447 had not been shown. However, the proceedings for correction of record was pending before the concerned authority. The trial Court has referred to the record of the consolidation scheme. The trial Court found that the other road was in existence and therefore, the petitioners-defendants are not entitled to claim any right of easement over the suit property. 3 As far as Appellate Court is concerned, a prima facie finding was recorded of the existence of the other 3 road which is available to the petitioners. 4 The learned counsel for the petitioners submitted that as in the Consolidation Scheme the road was not shown passing through the suit property, an application under section 31-A of the Bombay Prevention and Fragmentation and Consolidation of Holdings Act,1947 (hereinafter referred to as the said Act) was filed and the concerned authority corrected the scheme and has shown the road passing through the suit property. Reliance is placed on the corrected map as per the order passed under section 31-A of the said Act. In the petition it is disclosed that a writ petition has been filed for challenging the order under section 31-A of the said Act. It was submitted that in view of exercise of statutory power under section 31-A of the said Act, now the prima facie case is made out of existence of the road passing through the suit property. The learned counsel for the petitioners, therefore, submitted that now, the order of injunction cannot be allowed to operate. When attention of the learned counsel was invited to the fact that there is a stay granted by this Court to the operation of the order under section 31-A of the said Act, he submitted that it is only an interim relief of stay and the order under section 31-A has not been set aside. 5 On the last date of hearing, it was pointed out that the petitioners had applied for vacating the order of stay passed by the Division Bench of this Court in the Writ Petition filed by the respondents and the said application has been rejected. 6 Grant of temporary injunction is always a discretionary and equitable relief. The courts below 4 have held that the consolidation scheme was made final in the year 1962 and the scheme does not show any road through land bearing Gat no.447. Therefore, both the courts below have passed an order of prohibitory injunction against the petitioners. 7 By virtue of action under section 31-A of the said Act of 1947, the record of the consolidation scheme was corrected and a road was shown passing through the suit land of the respondents. As stated earlier, now the order under section 31-A has been stayed by the Division Bench of this Court. Thus, as of today, the consolidation scheme does not show the existence of road passing through Gat no.447. Attempt made by the petitioners to get the order of interim stay passed by the Division Bench vacated has failed. Therefore, as of today, no case is made out for interference with discretionary orders passed by the Courts below of declining to grant injunction in favour of the petitioner and of granting temporary injunction in favour of the respondents for protecting their possession over the land bearing Gat no.447. 8 No case is made out for interference. Writ Petition is rejected. All contentions of the parties in the pending suit are kept open. The suit shall be decided on its own merits without being influenced by the tentative observations made by the Courts below. JUDGE